Abridgment.

HOlden by the Prothona­tories of the Common Bench in Trespass of Battery; 3 H. 4. 4. by Rede. That of such matters which lie in Conusance of the Justi­ces; they may increase dammages after a Verdict upon Issue; otherwise of such matter which lies not in their Conu­sance; 34 H. 8. [...]38 3. H. 4. 4. by Thirn. 19. H. 6. 42. as Trees cut. But yet there they may increase costs. 3. Mar. 1. B. Abridgement, 36. the end.

Acceptance.

Note, 24. H. 8. 54 See Tit. Leases. By Fitzjames and Englefield, Justices: if Tenant in Dower Leases for years, rendring rent, and dies, the Lease is void; and acceptance by the Heir of [Page 2] the Rent will not make the lease good for twas void before: otherwise of void­able Leases. 22. H. 8. B. Acceptance, 14.

If Tenant in Taill Leases his land for twenty years, rendring rent, and dies, and the Lessee leases to another for ten yeares, and the issue accepts the rent of the second Lessee, this is no affirmance of the Lease: for there is no privity be­tween the second Lessee and him; con­trary, if he paies it as Bayliff of the first Lessee; and B. seems if the first Lessee had Leased over all his Term in parcel of the land let, and this Assignee paies the rent to the issue in tail, that this af­firms the entire Lease: for Rent upon a Lease for years, is not apportionable 32. H. 8. B. Acceptance. 13.

Tenant in Tail, the Remainder over Leases for years, rendering Rent, and dies without issue, he in the Remainder accepts the rent: this shal not binde him because that when the tail is determind, all that is comprised within it is determi­ned, and so the Lease void, and he in the Remainder claims not by the Lessor. 1. E▪ 6. B. Acceptance 19.

Bishop Leases Land of his Bishoprick for years, rendering Rent, and dies; the Successour accepts the Rent; this shall [Page 3] binde him; for the Bishop hath a Fee­simple, See Tit. Leases. and may have a Writ of Entry Sine assensu capituli: otherwise in case of a Parson or Prebend, who can have but a Juris utrum. 2. E. 6. B. Accep­tance. 20.

If a man be bound in an obligation to pay ten pound to the Obligee at Paris beyond Sea at a certain day, Jay ac­cords 11. H. 7. 17. 34▪ H. 6. 18. by Brisot, 19. E. 4. 1. by Catesby. if the Ob­ligor pay at another place, and the same day in England, and the other accepts it, tis good clearly. 38. H. 8. B. Condi­tions. 206.

Acceptance of Rent by the Lord from the disseisor of the Tenant, shall not bar him of his escheat: otherwise if he had avowed for it in Court of Record, &c. See Tit. Escheat.

Action popular.

Note, 7 H. 8. c. 3. By the Statute the party which sues an Action Popular, ought to sue it within the year after the offence done, and not after: and this as well of offen­ces done against the Statute then made, as against Statutes after to be made; so see that it goes to a Statute after made. B. Action Popular. 6.

Action upon the Case.

If I have a Mill in B. and another [Page 4] makes another Mill there by which I lose my Toll by going of divers to it, Agrees Newton 22 H. 6. 15. 11. H. 4 47. by Hank. yet no Action lies: otherwise, if the Mill disturb the water from coming to my Mill; there I shall have an Action upon my Case. 24. H. 8. B. Action upon the Case. 42. the end.

In an Action upon the Case where the Plaintiff delivers goods to the De­fendant, and the Defendant for ten shil­lings promises to keep them safe, and does not, to the dammage, &c. And by Fitzherbert and Shelly Justices, Non habuit ex deliberac', is a good Plea. 26. H. 8. B. Action upon the Case. 103.

Note, in an Action upon the Case betwixt Awsten Plaintiff, 30 H: 8. 127. 27 H. 8. 22. Petty Br. and Thomas Lewis Defendant, for calling him false and perjured; he justifies, because that the Plaintiff was perjured in the Star­chamber in such a matter, &c. and a good Plea by the Court. 28. H. 8. B. Action upon the Case. 3. more of this in the next.

Action upon the Case for calling the Plaintiff false perjured man; 28 H. 8. 85 the De­fendant justifies that such a day and year in the Starchamber the Plaintiff was perjured, and pleaded certain in what, &c. for which he called him false per­jured [Page 5] man, as afore, as twas lawful for him: and a good Plea by the Court in the Common Bench. Wherefore the Plaintiff said of his own wrong, without that he swore in manner and form, &c. 30. H. 8. B. Action upon the Case. 104.

If a man bring debt of 10. l. the De­fendant wages his Law: and after the Plaintiff brings an Action upon the Case against the same Defendant, that he pro­mised to pay the 10. l. &c. The Defen­dant may plead that for the same summ the Plaintiff brought before an Action of Debt, in which the Defendant waged his Law, Judgement, if Action. And a good Plea, for he was once bar­red of the same summ. And in Action upon the Case, that the Defendant pro­mised to pay 10. l. to the Plaintiff, which he ought to him for a Horse, and a Cow, the Defendant may say, That he promi­sed to pay 10. l. to the Plaintiff, which he did ow [...] to him for a horse, which he bought of him, which summ he hath paid to the Plaintiff without that that he promised to pay 10. l. which he did ow [...] to the Plaintiff for one Horse, and one Cow, as &c. Or without that that he did ow [...] to the Plaintiff 10. l. for a Horse and a Cow, as &c. 33. H. 8. B. Action [Page 6] upon the Case. 105.

Action upon the Case, 3 M. 1. a­grees. for that the Defendant found the Goods of the Plaintiff, and delivered them to persons unknown there; that he did not deli­ver them in manner and form, is no plea, without saying not guilty where the thing rests in doing. And if the Action were, That whereas the Plaintiff was possessed, &c. as of his proper goods, and the Defendant found them, and converted them to his proper use, tis no Plea that the Plaintiff was not possessed as of his proper Goods, but he shall say not guilty to the misdemeanour, and shall give in evidence that they were not the goods of the Plaintiff: and yet tis true, not guilty against him. 33. H. 8. B. Action upon the Case. 109.

In an Action upon the Case, 2 E▪ 6. and see 4▪ E. 6. after under this title. that the Goods of the Plaintiff came to the hands of the Defendant, and he wasted them, the Defendant saies that they came not to his hands, &c. and a good Plea, and gives in evidence that they were not the proper goods of the Plaintiff. 34. H. 8. B. Action upon the Case. 103. the end.

Action upon the Case was brought in London by A. B. See 33 H 8 before. that whereas he was [Page 7] possessed of certain wine and other stuff (and shews in certain) in such a ship, to the value, &c. and doth not shew the place certain where he was thereof pos­sessed, and yet good. And alledged that the Defendant such a day, year, and place in London, promised for 10. l. That if the said ship and Goods did not come safe to London, and put upon the Land, that then he would satisfie to the Plaintiff 100. l. and that after the ship was robbed upon the Trade on the Sea, for which he brought the action for not satisfying: and the truth was, that the bargain was made beyond sea, and not in London. But in an action upon the Case upon an Assumpsit and the like, w ^ch is not local, 2 Mar. 1. 451. Time, H: 8. 366. Petty Br. the place is not material (no more then in debt) for he alledged that the said goods in the parish of S. Dun­stons in the East London, before they were set to land, or &c. were carried away by persons unknown, &c. and the action lies well in London, though they were perished upon the high sea. 34. H. 8. B. Action upon the Case. 107.

'Twas agreed, 5 M. 1. Com. 182. 9 Rep. 87. &c. Pin­chons case cont. That an Action upon the Case doth not lie against the Execu­tors, upon the Assumpsit of the Testator, though they have assets. 37. H. 8. B. [Page 8] Action upon the Case. 4. the end.

In an Action upon the Case for a thing which lies in Feasans, See 33 H 8. before. as for burn­ing of Goods or Deeds, and the like, not guilty is a good plea: contrary, for non Feasons of a thing which he ought to do; as to make or repair a Bridge, House, Park, Pale, scouring a Ditch, and the like, and doth it not, there not guil­ty is no plea. 2. E. 6. B. Action upon the Case. III.

Action upon the Case for calling the Plaintiff false Justice of Peace, vel his similia, these words (his similia) were ordered to be struck out of the book by the Court, for the incertainty. 4. E. 6. B. Action upon the case. 112.

Action upon the Case whereas the Plaintiff was possessed of such Goods, as of his proper Goods, and lost them, and the Defendant found them, and conver-them to his own use: the Defendant said, That the Plaintiff pledged them to him for 10. l. by reason of which he de­trains them for the said 10. l. as tis lawfull for him, without that that he converted them to his own use, as &c. and a good plea by some. By others he must plead not guilty, See. 33 H 8. before. and give this matter in evi­dence for the Detainer. 4. E. 6. B. [Page 9] Action upon the Case. 113.

Twas agreed in the Common-Bench, [...]hat if a man for marriage of his daughter, assumes to pay 20. l. a year Easter, for four years, and fails two [...]ars, that the Plaintiff may have an A­ [...]ion upon the Case upon the promise [...]r the non payment of the two years, [...]ough the other two years are not [...]et come; for this is in nature of Cove­ [...]ant. 4. M. 1. B. Action upon the Case. [...]08. the end.

Action upon the Statute.

In an Action upon the Statute of 8. H. 6. of forcible entry. See 24 H. 8 after. Or in Trespas upon 5. R. 2, Vbi ingressus non datur [...]er legem, Non ingressus est contra for­ [...]am statuti, is a good plea: but his free-hold is no plea, as tis said by Sher­ [...]ood and others. 23. H. 8. B. Action upon [...]he statute. 40.

In Trespass upon 5. R. 2. to say that [...]he place, &c. is the Free-hold of I. N. [...]nd hee by his commandment entred, is no plea,: for the action is given by the Statute, and therefore ought to have a special answer, and not as in a ge­neral Writ of Trespass. 24. H. 8. [Page 10] B. Action upon the statute. 15.

See by Fitz. Justice, 21 H. 8: c: That a man may avow upon the Land by the new Statute and then the Tenant shall not disclaim [...] contrary, if he avow by the Common Law, and relinquish the statute. 28. H. 8. B. Action upon the Statute. 6.

'Twas said for Law, See 27 H: 8: 26: & 2 E: 4: 6: That tis no plea in Trespass upon the Statute of 5. R. 2. for the Defendant to say, That the place where is twenty acres which is parcel of the Mannour of B. is his Free-hold. For the Defendant ought to en­title him to a Lawfull entry: for a Dis­seisor hath a Free-hold, and yet ingressus est, ubi ingressus non datur per legem, in the time of H. 8. B. Action upon the sta­tute. 27.

Account.

Account lies not against Disseisors, for then the Disseisee shall avoid the di­scents at his pleasure: and also the De­fendant was never his Receiver for to render account, for this cannot be with­out privity in Law, or in Deed; as by Assignment, or as Guardian, or the like: or by pretence the Defendant to the use of the Plaintiff, and where the Defen­dant [Page 11] claims to his own use, there the plea is true; neither his Receiver, nor his Baily, to render account: 2 Mar. 1. B. Account 89.

Adjournment.

The Justices of Assise may adjourn the Assises upon every demurrer, and upon every dubious plea or Verdict; and upon every foraign plea, and to what place they will; and adjournment may be upon Certificate of the Assises, as well as upon the assise. B. Adjournment 28.

Administrators.

Debt is brought against the Ordinary, 31. E. 3. ca. 11. Rast: Administ. 1. 21 H: 8: ca [...]. 5. who pending the Writ, commits the administration to I. S. the first Writ shal abate: Rast: Pro­bat of Test: 3. for the Ordinary is compellable to commit the Administration, by Sta­tute, 34. H. 8. B. Administrators 39.

Nota, per omnes legis peritos, and by those of the Arches, that at the time of vacation of an Archbishoprick, or Bishoprick, the Dean and Chapter shall commit the administration, 36. H. 8. B. administrators 46.

Nota, 27 H: 8. 26 by Fitz. where the Ordinary commits the administration, he may revoke it, [Page 12] and commit it to another (but mean acts done by the first administrator shall stand) and so 'twas put in ure between Brown and Shelton, 4 H: 7. 14. by Trema: See 5 E: 6: after. for the goods of Rawlins; the administration was com­mitted to Brown, and revoked and com­mitted to Shelton: for 'tis not an inte­rest, but a power or authority; and powers and authorities may be revoked; contra of an interest certain. In the time of H. 8. B. administrators 33. the end.

Charles Brandon Duke of Suffolk, had issue sonn by one Venter, and daughter by another Venter, and devised goods to the son, and dyes, and after the son dyes intestate, without Wife and Issue; and the mother of the son who was of the second Venter (for the daughter was of the first Venter) took the administra­tion by the Statute; which is, That the administration shall be committed to the next of kinn of the intestate. And upon great argument in the Spirituall Court, 21 H: 8. c. 5 Rast: Ad­minist: 1. Tam per legis peritos regni, quam per peritos legis civilis, the admi­nistration was revoked. And so see that the administration may be revoked; and so 'twas likewise in the case of Brown and Shelton before, of the goods of W. Rawlin Clerk, which was commit­ted, [Page 13] to Sir H. Brown, who marryed the sister of the said Rawlins, and after came W. S. and J. S. son of the Wife of the said Sir H. (which Wife was the mother of the said Shelton by a former Husband) and reversed the first admini­stration, and obtained the administration to them. And the said Duke had issue Frances by the French Queen; and after this Wife dyed, he marryed the daughter of the Lord Willoughby, and had issue by her one Henry, and dyed; and after Henry dyed without issue, and without Wife, and the mother of the Heir took the Administration; and after the said Frances Wife of the Marquess of Dorset sued, and reversed the admi­nistration, and obtained the administra­tion to her self, though she were but sister of the half blood to the said Henry, because that she is next of kinn to the said Henry, for that Henry had not any Children; for the mother is not next of kinn to her own son in this respect of this matter; for it ought to goe by discent, and not by ascension, by the Law of England, nor by the Law civill. And the children are de sanguine patris & matris, sed frater & mater non sunt de sanguine puerorum. And [Page 14] by Isidore, Pater & mater & puer sun [...] una caro; and therefore no degree is be­twixt them; contrary between brother & sister; and the half blood is no impedi­ment as to goods (B. administrators 47.)

Note, that in the argument of this case, 'twas agreed by the Justices, that the King is not intitled to the land of his Ward, without office, though he hath but a Chattel in it, yet it comes ratione tenurae, 3 Eliz. Com: 229: which is the Seigniory and Freehold in the King, 5 E. 6. B. Office before, &c. 55.

Age.

A man recovers Rent and arrearages by assise, Or if he recovers an annuity and arrearages of it in a Writ of annui­ty, the Defendant dyes, the Plaintiff brings a Scire facias against the heir, he shall not have his age of the arrearages, for they are reall, and parcell of the rent or annuity. But if the Judgment be of arrearages and dammages, there he shall have his age (B. age 50.) And where he recovers in a Writ of annuity, or assise, as before: Or hath avowed for a Rent, Kirton agrees 43 E: 3, 2, 15. which is Freehold, and re­covers the arrearages without costs and damages, he shall not have an action of [Page 15] Debt of that, but a Scire facias, for tis real. But where he hath Judgement of it, with costs and dammages which go together, so that that tis mixt with the personality, then lies a Writ of Debt against the Heir, of the arrearages and dammages (and this B. thinks in de­fault of Execution) per curiam, 23. H. 8. B. Debt, 212. & age 50.

Note, 4 El. Com: 213. [...]21. Cont. That of the Land of the Duchy of Lancaster, and other Lands which the King hath as Duke, or the like, his age is material, and he may have his age as another common person may; for he hath them as Duke, not as King (B. Age 52. & 78.) As if the King alien Land, parcel of his Dutchy of Lancaster within age, there he may avoid it for Non-age for the reason aforesaid: o­therwise of Land which he hath as King, Com. ibid: See the Stat. Com: 218. for the King cannot be disabled by Non-age, as a common person shall (B. Pre­rogative. 132.) Yet by the Statute of 1. E. 4. (which is a private act not prin­ted, but inrolled in the Dutchy Cham­ber, by which King H. 6. was attainted of Treason, How sepe­rated, See Com: 219: & 220. See this Act, Com. 214, and that all the Lands of the said Dutchy should be forfeited, and should be a Dutchy separated and in­corporated, &c.) tis annexed to the [Page 16] Crown: but by another private act, 1. H. 7. tis disannexed, and made as in the time of H. 4. 1. E. 6. B. Age. 52.

Note, twas in a manner granted by all the Justices in the Common Bench, That if a Parson, Prebend, or the like be within age of 21 years, and makes a Lease of his Benefice within age, that yet this shall binde him: for where he is admitted by the Law of holy Church to take it within age, so the Common Law inables him to Demise his Benefice within age. 4. Mar. 1. B. Age. 80.

Alienations.

If the Tenant of the King alien in Fee without licence, See 29 H. 8. and die, his Heir within age, the King shall not have the Ward, because that nothing is discended to him, and that the Alienation is good, save the Trespass to the King, See 33 H. 8. 8 E. 4. 4. by Coke, Stp. 84: which is but a Fine by Seiser. B. Alienations 29. Gard 85. But otherwise if the Alie­nor were Tenant in Tail; and if the A­lienation without licence be found by office, the King shall have the Issues of the Land from the time of the Inquisi­tion taken, and not before. (B. Alie­nations 26. in medio.) But where the [Page 17] Tenant dies, and his Heir enters upon an office found for the King, of the dy­ing seised of the Ancestor, 8. E. 4. 4. by Choke. there the heir shall answer the profits taken by him before. 26. H. 8. B. Intrusion 18. the end.

Tis said for Law, See 29 H. 8. That a fine for ali­enation is one years value of the land a­liened. and the same Law of a Fine for intrusion upon the King. But the Fine to have licence to alien, is but the third part of the yearly value of the land which shall be aliened: and for licence to alien in Mortmain, the Fine is the va­lue of the Land for three years. 31. H. 8. B. Alienations. 29. the end

If a man obtain licence to alien the Mannor of D. and all his Lands & Tene­ments in D. he cannot alien by Fine: for the Fine shall be certain: 46. E. 3: 45 by Persay. so many acres of Land, so many of Meddow, so many of Pasture, and the like: and the alienation ought not to vary from the Licence. Yet by B. tis otherwise u­sed with an averment, that all is one. 32. H. 8. B. Alienations. 30.

Note, 40 E. 3. 41. By Thoro if there be two Joynt-tenants who hold of the King in Capite, and one releases to the other all his right, this is no alienetion; nor doth he need [Page 18] Licence, or pardon of it: for he to whom the Release is made, is in by the first feoffor, and not by him that Relea­sed: nor shall he Fine for such release: and so tis used in the Chequer, Stp. 30. cont. 33 H. 65. by Wangf: Lit. 68. that tis no alienation. But if three Joynt tenants are, and the one Releases to one of the others, there he is in of it by him that releases: Contra, if he had released to all his compagnions: and where a man Releases by Fine to the Tenant of the King, this is no alienation. Otherwise of a Fine Sur Conusans de droit Com ceo, &c. for this is an estate made by Con­clusion. 37. H. 8. B. Alienations 31.

Tenant of the King in Capite cannot alien for term of life without Licence: for it alters the Freehold. 45 E: 3. 6. Time H. 8. B. alienations 22. the end.

Note, That for Burgage Tenure of the King, a man may alien without li­cence well enough. 6. E. 6. B. Alienati­ons 36.

Note, That a Devise by Testament was taken to be an alienation. 3. Mar. 1. B. alienations 37.

Alien. See Tit. Denizen.

Note, See 1 E. 6. next after. by the whole Court in the [Page 19] Kings Bench an alien may bring an acti­on personal, and shall be answered with­out being disabled, because he is an alien born: otherwise in an action real (and the same B. seems in an action mixt.) and he may have a property, See Dyer the begin­ing. and buy and sell. 38. H. 8. B. Denizen 10. Nonability 40.

Twas said in the Kings Bench, See 38 H. 8. before. That to say that the Plaintiff is an alien born, Judgement; if he shall be answered, is no plea in an action personal, other­wise in an action real. Yet this hath been in question after this time in the same Court: and twas said that an alien born is no plea in Trespass, if he doth not say further, That the Plaintiff is of alle­giance of one such a one, enemy to the King: for tis no plea in an action per­sonal against an alien, that he is of the al­legiance of such a Prince, which is of a­mity with the King. 1. E. 6. B. Nonabi­lity 62.

If an alien born purchase, See 5. Mar. 1. after. See Coke up­on Lit. the King shall have it: but the purchase ought to be found by office: and so twas in the case of Alien King: and B. seems that an information in the Chequer, will not serve in this case. Time, E. 6. B. Deni­zen 17. the end.

[Page 20] Twas said in Parliament, See before. See Coke upon Litt. That if an alien born obtain a Lease for years, that the King shall have it; for he cannot have Land in this Realm, of no estate. 4. Mar. 1. B. Denizen 22.

Amendment.

By Fitzherbert, See 24. H. 8. after. and the Court; where a Writ of Error was sued to remove a Record out of the Common Bench, into the Kings Bench, betwixt an Abbot and I. N. the Warrant of Attorney varied in the Roll in the name of the Abbot; and twas amended after Judgement: and if they had not amended it, they said, that those of the Kings Bench would have amended it. 23. H. 8. B. A­mendment 85. the end.

Note, See before 23 H. 8. That where a Warrant of At­torney varied from the name of the Corporation of the party, and a Writ of Error was brought to those of the Common Bench, they amended it pre­sently: and they said that those of the Kings Bench would have done the like. 24. H. 8. B. Amendment 47.

Note, 1 E 5. 7. by V [...]vi [...]or & [...]tesby. See 6, & 7 twas agreed by the Kings lear­ned Councel, That the King may a­mend his Declaration in another Term, [Page 21] in omission, and the like: E. 6. Com. 8 [...]: See 33. H. 8. Tit. Parliament as where an information misrecites the Statute, this may be amended; for misrecital is the cause of Demurrer: for if it be misreci­ted, then there is no such Statute: but he cannot alter the matter, and change it utterly; yet the same Term he may. 4 Eliz Com. 243. by Weston. 30. H. 8. B. Amendment 80.

Appeal.

Note, by the Justices of both Ben­ches, a man shall not have the plea in an appeal; That the dead assaulted him, and that he killed him in his de­fence, but shall plead not guilty in man­ner and form, and shall give this matter in evidence: and the Jurie is bound to take notice of it; and if they finde it, he shall go acquitted in form aforesaid. 1 M. 1 Com 101. Nor he shall not have this for plea with a traverse of the murther: for the mat­ter of the plea is murther. Nor mur­ther cannot be justified; and when the matter of the plea is worth nothing, there a traverse the like: 4. E. 6. Com. 12. 14 [...]. 2. by [...] E 4. 3 [...]. 1 [...]1. [...]. (B. Appeal, 122. Corone. 1.) the end. And where the Jury acquits the Defendant upon an Indictment before the Coroners, they [Page 22] ought to finde that he killed the man: and there they may say, That the same Defendant killed him se defendendo: but upon an Indictment before other Justices, it suffices to say, not guilty on­ly, without more. 37. H. 8. B. Appeal, 122▪

The Heir of a man killed shall have an appeal, as well of Homicide of his ance­stor, as of Murther. 2. E. 6. B. Ap­peal 124.

Note, M. 2. M. [...] by the Ju­stices ac­cord. St. 59 B. See 21 E 4. 78. By Hussey. if a woman who hath Title of an appeal of the death of her husband, takes another husband; he and the wife shall not have an appeal; for the woman ought to have it sole: for the cause of an appeal is, that she wants her husband; and the reason is, because the wife wanting a husband, is not so well able to live: and therefore when shee hath another husband, the appeal is determined: for the cause ceasing, the effect ceases. (B. Appeal, 109.) as where a woman hath a Quarentine, and she marries within the 40. daies, shee loses her Quarentine. 1. Mar. 1. B. Ap­peal, 109. Dower, 101:

Appeal of death may be commenced before the Coroner, Time H. 7. and Proces award­ed to the Exigent: but the plea shall [Page 23] not be determined before him. See St: 64. A. Rea­ding 113. B. Appeal 62. the end. Co­rone 82.

Apportionment.

Tis said that if I sell my Horse, See 24. H. 8 Tit. Contr. and the Horse of W. N. to A. for ten pound, and W. N. retakes his Horse, that A. shall render to me the entire ten pound: because a Chattel cannot upon a con­tract be apportioned. 30. H. 8. B. appor­tionment. 7.

If the Kings Tenant of four acres, ali­en one to the King: Or if he hath two Daughters, and dies: and the one ali­ens to the King, the Rent shall be ap­portioned if it be severable: and this by the Common Law, See after. by some. Quaere, for the reading of Fitzjames is other­wise, 32. H. 8. B. apportionment 23.

Before the Statute of Quia emptores terrarum, Sir John Fitz. James if the Lord had purchased parcel of the land holden of him, his en­tire Rent was extinct, though twas se­verable: Yet now by the said Statute it shall be apportioned, be it purchased by the Lord, or by another: But this doth not help a Rent Charge: because the Statute is onely for the loss of the chief [Page 24] Lord. But of a Rent service upon reco­very of parcel, or of a discent of parcel, and the like, which are the acts of God, or of the Law, there was an apportion­ment at the Common Law, contrary of his proper act, as purchase: because before the Stat. aforesaid, it was of a rent service, as tis at this day of a Rent charge, which is extinct by purchase of parcel of the Land, Reading B. Appor­tionment. 28.

Arbitrement.

Debt upon an Obligation: the De­fendant pleads the Condition: if he shall stand to the award of I. and N. so that the award be made before such a day, and saies, that the award was not made by the day: the Plaintiff may say, That they made such an award before the day, 8 H. 6: 18. by Newton B. Arbitre­ment 18. which the Defendant in such a point (and shew in certain in what) hath broken: for he must shew the breach in some point certain: otherwise the action lies not: 31. H. 8. B. Arbitrement 42.

Assets inter maines. Assets in their hands. See Tit. Ex­tinguishment.

Note, 21 E 4. 21. by Choke & Nele. Perk. 94 E 190. E. D. S. 79. 37 H. 6. 30: by Prisot: 2 H. 6. 16. per curiam if Executors plead fully admi­nistred in an action of Debt, and give in evidence payment of Legacies, the Plaintiff may demur upon it; for such administration is not allowable in Law, before debts paid. 33. H. 8. B. Assets in­ter maines 10.

Where a perquisite of a Villain shall be Assets: See Tit. Villeinage.

Assets per discent. Assets by discent. 34 H. 6. 22. contra by Wangf: 40 E: 3: 15: by Belk:

In an action of Debt against an Heir upon an obligation of his ancestor, who pleaded nothing by discent; and twas found that Land discended to him, but not assets; twas adjudged that the Plaintiff should have Execution of all his Lands, as well of Land purchased, as of Land discended: and B. seems the reason to be for his false plea. 3. Mar. 1. B. Assets per discent 5. in the end.

Assignee.

A man Leases a house and Land for years; and the Lessee Covenants that he and his Assignes will repair the house; and after the Lessee grants over his Term, and the assignee doth not re­pair, an action of Covenant lies against the assignee; for this is a Covenant which runs with the land: (B. Cove­nant 32. Deputy 16.) and also it lies clearly against the Lessee after that he hath assigned over his Term: and B. seems that if he bring several Writs of Covenant against both, that there is no remedy till he takes execution against the one: [...] and then it seems to him, that if he sues against the other, he shall have an Audita Querela. 25. H. 8. B. Cove­nant 32.

Assise.

Assise: the Tenant pleads not atta­ched by fifteen daies; the Bayliff was examined, who said that he attached him by the horse of a Farmor which was a Termor to the Tenant of the land in plaint, which matter was recorded: [Page 27] and B. seems that tis no good attach­ment; for the Tenant cannot forfeit the beasts of his Farmor: [...] 6. 2. and an attachment ought to be made of such things which the Tenant may forfeit by Outlary. Note, between Dudly and Leveson, for the Mannor of Parton, in the County of Stafford. 31. H. 8. B. Assise 480.

Note, by the Justices in the Com­mon Bench, That in an assise against two, the one takes the Tenancy and pleads no wrong, and the other takes the Tenancy without that, that the o­ther hath any thing, and pleads in Bar: there the Plaintiff shall be compelled to chuse his Tenant at his peril, as well as if both had pleaded in Bar, and accepted the Tenancy severally: and if it be found that he mis-elects his Tenant, the Writ shall abate, but he shall not be bar­red. And there when the Demandant elects his Tenant, and he pleads, there they shall be at issue, before that the Tenancy shall be inquired, and then the Tenancy shall be Inquired first, and af­ter the other issue. 6. E. 6. B. Assise 384.

Assurances.

Note, that Tenant in Tail who levies [Page 28] a Fine with Proclamation, shall be bound, and his Heirs of his body also after the Proclamation made, and not before: so that if the Tenant in Tail die before all the Proclamations made, this shall not binde the issue in Tail; and the Proclamation cannot be made in shorter time then in four Terms (B. Fine Levies 109. assurances 6.) But Tenant in Tail who is not party to the Fine, shal not be so bound after the Pro­clamations, but that he shall have five years to make his claim: and if he fails of them, and dies, his issue shall have o­ther five years by the equity of the Sta­tute of W. 2. Quod non habeat potesta­tem alienandi. Westm 2: [...]: 1: Yet tis said, if the first Issue neglect the five years, by which he is barrable, and dies, his issue shall not have other five years; for if the issue be once ba [...]rable by the Fine, the Tail is by this bound for ever: (Quaere) And the Statute saies, That it shall binde parties and p [...]i [...]es: and therefore where Te­nant in Tail is party to the Fine, with Proclamation, and his issue claims Per­formam doni, the issue is privy: for he cannot convey to himself as heir in tail, but as of the body of his Father, which is privity. But a Fine with Proclamati­on, [Page 29] may be confessed and avoided; and then it shall not binde: for the Statute is intended De finibus ritè levatis. And therefore he may say, that the parties to the Fine had nothing tempore finis, &c. For if none of the Parties had nothing tempore finis, then tis a Fine by conclu­sion betwixt the parties: but all stran­gers may avoid it by the averment as a­fore. See Ti [...]. Fines Le­vied: Fitz: 142: A: (B. Fines, Levies, 109.) And by the Statute of 32. H. 8. Fine with Pro­clamation by Cestui que use in Tail, shall binde him and his heirs after Proclama­tion made: and a Fine with Proclama­tion, the Reversion or Remainder in the King, and the Conusor dies, the Pro­clamation made tis no Bar, nor discon­tinuance; because that the Reversion or Remainder in the King, cannot be discontinued: therefore there the issue in Tail may enter after the death of the Tenant in Tail. 3▪ H 8. [...] 9: 4: H: 7: cap. 24: (B. Bar 97. Assuran­ces 6.) And B. seems, that neither the Statute of 32. H. 8. nor 4. H. 7. shall not binde the issue in Tail, nor the Reversi­on to the King by Fine with Proclama­tion, though that the Proclamation be made: and yet the Statute of 4. H. 7. wils that after Proclamation made, it shall be a final end, and shall conclude [Page 30] as well privies, as strangers, except in­fants, Fem Coverts, and the like, &c: And the issue in Tail is privy. Yet B. thinks that the intent of the Statute was not that the issue in Tail, See Cokes 1. Book. the Reversion to the King should be bound: for by him after this Statute, this was taken to be no discontinuance: and therefore it seems to him that it shall not binde the Issue in Tail, the Reversion in the King. (B. Fines, 32 H. c. 36. Levies 121.) Yet Quaere, for the Statute of 32. H. 8. which wils that the heir in Tail shall be barred by Fine▪ with Proclamation, after the Proclama­tion made, hath an exception of those, of which the Reversion, or Remainder, is in the King, so that it shall not binde such issue in Tail. B. assurances 6. the end.

But otherwise tis of a recovery, and Execution had by writ of entry in the Post, with voucher by the Common Law,: See 32. H. 8 Tit. discon­tinuance after. for though that the Reversion, or Remainder be in the King, such re­covery shall binde, and was a bar against the Tenant in Tail, and his issue present­ly; but not against the King. But at this day by the Statute of 34. & 35. H. 8. Recovery against Tenant in Tail; the Remainder, or Reversion in the King shall not binde the issue in Tail, but that [Page 31] he may enter after the Death of Tenant in Tail. 30. H. 8. B. Bar 97. the end. Assu­rances 6.

Note, That for assurance of land, that the heir should not sell, twas devised, That a man should make a Feoffment in Fee to two, to the use of himself for Term of life without impeachment of wast, and after to the use of his son, and his heirs, until the son should assent and conclude to alien it, or any part of it; or to charge or incumber it, and after imediately upon such consent and con­clusion to the use of A. and his heirs, un­til as afore, and then &c. to the use of B. and his Heirs, until, &c and so of more, &c. and by such assent and conclusion by the Statute of uses. Anno, 27. H. 8. c. 10. the other shall be in pos­session, &c. 38. H. 8. B. Assurances 1.

Where men enter into an arbitre­ment, See 21. H. 7. 28. by Brudnel. and every one is bound to the other in an obligation, or other such Co­venants, and are bound to perform it: and tis awarded that every one should release to the other all actions, & the like: there it ought to be expres­sed all actions before such a day, which shall be before the date of the Obliga­tion for otherwise the Obligation of [Page 32] the award, or the last Obligations to perform the Covenants, shall be also released. Regulae B. Assurances 4.

Attaint.

Caveatur in every action triable by Jury, of the quantity of the land, as where a man demands 200. acres, where they are but a hundred sixty or the like: and the title is for the demand, there if the Jury finde that he deseised him of 200 acres, or the like, this is matter of Attaint. 1 E: 5: 6: by Suliard: 1: R: 3: 3: by Hussey: And so where they finde him gulty in trespass or the like, of more trespasses then he did, or of exces­sive dammage, and the like. 24. H. 8. B. Attaint 96.

Quaere by B. if an Attaint doth not lie upon a Verdict in an appeal of Mai­hem at this day, by the Statute of 23. H. 8. cap. 4. For this year twas doubt­ed. 38. H. 8. B. Attaint 10. the end.

Assise is brought against Tenant by Statute Merchant, 43 Ass: 41: and against the Co­nusor Tenant of the Free-hold, and the Assise acquits the Tenant by Statute Merchant, and attaints the other of dis­seisen: the Tenant by Statute Mer­chant shall not have an Attaint, nor the [Page 33] Lord where Land is recovered against him, and the heir, where he hath the heir in Ward; nor the Termor, where land is recovered against him, and the Lessor, because they lose not any Free-hold: and because that they are acquitted by W. Whorewood the Kings Attorney. Yet by B. tis not reasona­ble where they are named, and lose their interest: yet it seems to him, that he that is acquitted shall not have an at­taint; but if they are found disseisors, they shall have an attaint by him. Time, H. 8. B Attaint 82. the end.

Note; For Law, where Trespass of battery, goods carried away, or a writing broken (which are transitory) is done in one County, yet an action may be brought in an other. (B. Attaint 104. And so twas agreed in Trespass in London, of breaking of at D. in London, where indeed D. was in the County of E. for these are not lo­cal. B. Lieu. 65.) And therefore in Trespass transitory, the place is not issu­able, See 24 H. 8. Tit. A­ction up­on the case nor traversable. No more then in Trespass upon the case, upon a pro­mise; and these may be continued. (B. Traverse, &c. 283.)

And in those cases, the Jury of ano­ther [Page 34] County may take Conusance there­of, 39 H. 6. 8. by Ashton 9 E. 4. 45. by Choke. but is not bound to it: but if they take Conusance, attaint lies▪ not. O­therwise of Trespass of Trees cut, or Grass trod, which are local, and shall be brought in the proper County. 2. Mar. 1. B. Attaint 104. Jurors 50.

Note; See 20 H. 7 5. Tis said that upon an Infor­mation for the King, which passes upon the issue tried, the King nor the infor­mer shall not have an attaint: for the informer is not fully party. And when the Defendant hath answered, the Kings Attorney replies for the King; Com. 2. See 7 E. 6. and after, no further mention of the informer: and therefore neither the one, nor the other shall have an attaint. 4. Mar. 1. B. Attaint. 127.

Where an attaint lies, where not. See Tit. Dammages. And Tit. Fanxi­fier.

Attornment.

Note; That Attornment may be made by Tenants, See my Lord Cokes. Rep. to the Lord in his Court: to the Steward in absence of the Lord, or purchasor. But Attorn­ment to the servant of the purchasor out of Court, and in absence of the [Page 35] Purchasor, is not good: but by pay­ment of one penny for every Tenant to the servant of the Purchasor; and in his absence, in name of Seisen of their several Rents, is a good attornment: for a servant may receive Rent for his Ma­ster.

Quaere. If no Rent then is due, nor the rent day come. 28. H. 8. B. Attorn­ment 40.

Twas agreed, Conc. Lit. 39 H. 6. 24. c. 16. Rast. Inrolments. 2 c. 10. Rast. Uses 9. That where Land is fold by Deed, indented and inrolled ac­cording to the Statute of 27. H. 8. c. 10. there because the use is changed by the bargain and sale, by the said Statute, and the buyer in possession; and hath no means to compel the Tenant to at­torn; there he may distrain, and avow without attornment. Otherwise upon a grant by Fine; Lit. 230. for there he may have a Writ of Por quae servitia. 30. H. 8. B. attornment 29. the end.

Note, Abr. of Ass. 22. That if a man hath Common of Pasture to a certain number; or Com­mon of Estovers to a certain num­ber of Carts and with Grant them over; they pass without attorn­ment; because they are not to be taken by the hands of the Tenant, but by the mouth of beasts, and by cutting, and [Page 36] carrying. See 2 E. 6. after. So see that when no attend­ancy nor payment is to be made by the Tenant, there the thing passes without attornment. 31. H. 8. B. Attornment. 59.

See by Whorewood the Kings Attor­ney; where a man Leases for forty years, See 2 E. 6. Com. 379. and after Leases the same Land to another, to have from the end of the first Term for twenty years, this needs no attornment: otherwise where he grants the Reversion as afore, there ought to be attornment. (Quaere, and see after.) See Tit. Leases See after.

And if a man Leases for ten years, and after Leases to another for twenty years, this is good for ten years without At­tornment: otherwise if there were a word of Reversion. 37. H. 8. B. attorn­ment. 41.

A man Leases Land for twenty years, the Lessee Leases over for ten years, ren­dring Rent, and after grants the Re­version of the Term, and Rent to a stranger, this shall not pass without at­tornment, by reason of the attendan­cie of the Rent: otherwise, if no Rent were reserved upon the second Lease for ten years, See 31. H. 8. before: for then there is no attend­ancie to be made, nor action of Waste, [Page 37] nor the like to be brought. For as B. seems, attornment is not necessary; but to have avowry, or an action of Waste. 2. E. 6. B. attornment. 45.

See by Mountague, Lit. 125. & D. [...]. 35: & 9. E. 4. 33. contra. chief Justice, and Townsend, That by a Feoffment of a Mannor, the services pass without at­tornment of the Free-holders. But B. seems that the Tenants ought to attorn. 4. E. 6. B. attornment 30.

Note; If a man let a house, and 200 acres of Land for Term of life: Com. 145. & 152. and af­ter grant the Reversion to another, to have the said House, Land, and Tene­ments, a Festo Sancti Micha [...]lis prox­post mortem vel determinationem in­teresse of Tenant for life for twenty one years then next following: See 37 H. 8 before. the Te­nant for life dies before attornment, yet the grant of the Reversion is good, be­cause that the words in the Habendum of the house and land, is intended to be a Lease; and a Rent was also reserved upon it, and so a good Lease without attornment. By Brown, Sanders, and Stamphord, Justices. Yet by B. Chief Justice, tis but a Grant of a Reversion, and no Lease: but yet the grant is good without attornment; because that tis to Commence after the death of Te­nant [Page 38] for life, so that the Tenant for life shall not be attending to the Grantee, nor shall he avow upon him, nor have an action of Waste, or the like: by judg­ment of the Court. 3. Mar. 1. B. Attorn­ment 60. Leases 73.

Attorney.

In these Cases a man shall not make an Attorney, except in special case. viz. Attaint, Register 9. Premuniri, Appeal, Per quae servitia. Quid juris clam. Quem redd. reddit. Nor in assigning of Errors: nor at the Plures in case of contempt: nor the Tenant in a Cessavit upon ten­der of arrearages. Nor the pray' to be received in a Pr. quod redd. Nor in an assise; Register 9. nor in an attachment. Nec con­tra finem levat: nor in any case where the Defendant shall be imprisoned.

Audita querela.

A man seised of 20. acres, 45 E. 3. 17 13 H. 7. 22 by Rede. 16 H. 7. 6. by Keble. 5 E. 6. Com 72. 9. H. 4. 4. by Gas [...]. 36 H. 8. B. Audita querale 2. the end. 48 E. 3. 5. by Finch. 17 E. 2. B. Suit 13. econt. See Cokes Rep: is bound in a Statute Marchant; and makes a Fe­offment of 15. to several persons, and Execution is sued against one of them, he shall have an Audita querela upon his surmise, to have the other Feoffees [Page 39] to be contributory with him. But if ex­ecution be sued against the Conusor himself, he shall not have such contri­bution: for this is upon his own act (B. Audita querela 39.

Yet if the Conusor dies, and the Conusee sues Execution against the heir, he shall have Contribution of the Feoffee. So every of them shall have of the heir. 25. H. 8. B. Audita querela 44. the end.

Averments. See Tit. Plea­dings.

Note, Where a man pleads a recove­ry by a strange name of the thing de­manded (B. Averments 42.) as if a Precipe quod redd. be brought of the Mannor of B. or the like, the Tenant pleads a Fine, Recovery, or the like, of the Mannor of G. he ought to aver that the one and the other, 21 E: 4: 52 are one and the same Mannor, not divers: contrary, if he pleads a Fine, or recovery de predict. Manerio de B. for this word (predict.) is in effect an averment that all is one. 3 M: 1: Com: 150: (B. Pleadings▪ 143.)

And where a man pleads a Recovery by a strange name of the parties, he [Page 40] ought to aver that the first person, and this person, are all one, and not divers. Otherwise B. seems where he pleads it by this word predict. 33. H. 8. B. Aver­ments 24.

Twas said for Law, That an aver­ment is not necessary in an avowry. 3 M. 1. Com. 163. 10 Eliz. ibid. 342. viz. & hoc parat. est verificare; for tis in lieu of a Declaration; and the avowant is actor. 3 M. 1. B. averment 81.

Avowry.

Lord and Tenant by Fealty & 3 pence Rent, the Lord dies, his wife is endow­ed of the Seigniory; she may distrain for 1 peny, & the Heir for 2 pence, & so now the Land is charged with two di­stresses, where it was charged but with one before: but this is not inconveni­ent: for he shall pay no more Rent then before. The same Law where the Lord­ship is divided by partition, between Heirs Females, and the like. 24. H. 8. B. Distresse 59. Avowry 139.

If two Copartners make partition, and give notice to the Lord, he ought to make several avowries. 27 H. 8. c: 10. And if a man sell his land by Deed indented, inrolled within the half year according to the [Page 41] Statute, Perk 131: 39 H: 6. 25. by Prisot: 37 H. 6. 33. by Prisot. 7 E. 4: 28. by Choke. the avowry is not changed, &c. without notice, no more then up­on a Fine. Yet B. doubts of of a Conu­sans de Droit com. Ceo. &c. but if a man recover against the Tenant, or if the Tenant is deseised, the disseisor dies seised, and his heir is in by discent, so that the entry of the disseisee is taken away, the avowry shall be changed without notice. The same law, if the Tenant make a Feoffment, 2 E. 4. 6. 34 H. 6. 46. by Prisot. and dies, the Lord shall change his avowry without notice; for nothing is discended to the heir of the Feoffor. And where notice [...]s necessary, it shall be done upon the Land holden, with tender of the ar­rearages; for otherwise the Lord shall lose his arrearages, 7 H. 4. 14: by Tilles­ley. if he avows or ac­cepts service of the Feoffee, &c. be­fore the arrearages paid, Ideo cave­atur inde. 29. H. 8. B. avowry 111. 146.

In a Replevin, if the Defendant avows because that A. was Lord, and was seised by the hands of B. then Te­nant, &c. of such servises, he may con­vey the estate of the said B. in the Te­nancy to the Plaintiff in the Replevin, See Coke upon Lit. by a que estate, without shewing how, but he cannot convey to himself of the [Page 42] said A. in the Seigniory by a que estate, without shewing how; for the Seigni­ory is there in demand, and not the Tenancy: 34: H. 8. B. avowry 7. que e­state 2. the end.

Note, That he which avows upon the Land, as within his Fee or Seignio­ry, by the Statute shall aleadge a seisen, as in other avowry; and then shall con­clude his avowry upon the land, as within his Fee and Seigniory: and in such avowry, every Plaintiff in the Re­plevin (be he Termor or other) may have every answer to the avowry; as to traverse the Seisen, the Tenure, and the like, which are a good answer in an avowry: or plead a release, or the like, as Tenant of the Free hold shall, though he be a stranger to the avowry; for such avowry is not made upon any per­son certain; therefore every one is a stranger to this avowry: and so the Plaintiff may have every answer which is sufficient 34. H. 8. B. Avow­ry 113.

'Twas agreed that to say, Wimbishes Case, [...]ime H: 8: Com: 21 H. 7: 1 [...] 21 E: [...]15: Com: 269. That the place where, &c. is 4. acres, which is, and was the time of the caption his Freehold, for which he distrained, and took the beasts for dammage Feasent, [Page 43] was a good avowrie. 4. E. 6. B. avow­rie 122.

'Twas holden by the Justices of both Benches, That where a man holds by Rent and Knights service, and the Lord and his ancestors have been alwaies sei­sed of the Rent, See 6 E: 6: Tit: Ward but not of the homage, escuage, nor of ward, yet if a ward falls, he shall have the Wardship of the heir, for the seisen of the rent suffices to be seised of the Tenure, as to this purpose. yet otherwise B. seems to make avowry. 7. E. 6. B. avowrie. 96. the end. Ward, 69.

Note, 32 H: 8: c: 3: Limita­tion 3: That 'twas agreed that at this day by the limitation of 32. H. 8. the avowry shall be made generally, as was used before: and if there were not sei­sin after this limitation, then the Plain­tiff in bar of the avowry may alleage it, and traverse the seisin after the limitati­on (B. avowry 107.) Also where a man brings an action real, or mixt; or makes avowry, or Conusance, and issue is taken upon the seisin infra tempus Statuti, and tis found against the De­mandant, Plaintiff, or Avowant; this is peremptory by the same Statute. 1. M. 1. B. Peremptory 78.

[Page 44] Averment is not necessary in an Avowry. See Tit. Averment.

Barre.

WHere a Fine with Proclama­tion, or a Recovery shall bar an estate tail; where not, and where the Reversion is in the King, with other good matter concerning Fines. See Tit. assurances.

Bastardie.

Note, That twas taken by the Com­mons house of Parliament, if a man marry his Cosin within the degrees of Marriage, who have issue, and are di­vorced in their lives, by this the espou­sals are avoided, and the issue is a Ba­stard. Otherwise, if the one die before divorce, 39. E. 3. 31. by Thorp. there divorce had after shal not make the issue a bastard; for the espou­sals are determined by death before, [Page 45] and not by the divorce. And a dead person cannot bring in his proofs; for divorce after the death of the parties, is but ex officio, to inquire de peccatis, for a dead person cannot be cited nor summoned to it. 24 H. 8. B. bastardie. 44. D'arraignement 11.

Battel.

Tis said that if an appeal of Murther be brought in the Kings Bench, the Defendant joyns battel, it shall be be­fore the Justices of the Kings Bench, and not before the Constable, and Marshal. 5. M. 1. B. battail. the end 16.

Bill.

'Twas said, 27 H. 6. 5. econt [...]a. That a Premunire shall be maintainable by Bil in the Kings Bench, though that the party be not in custodia marescalli. (B. Bill. 1.) And 'twas common that many Clerks were compelled to answer to bills there, who were not in Custodia marescalli. 22. H. 8. B. Premunire 1.

Cerciorari.

TWas agreed in Chance­ry, That there is no Certiorari in the Regi­ster to remove a Record out of a Court into the Common Bench imme­diatly, but it shall be certified in the Chancery by Surmise, then to be sent into the Common Bench by Mittimus. And indictments may be removed out of the Countrey by Cerciorari to the Chancery, 44 E: 3. 28 accord: and may be sent to the Ju­stices of the Kings Bench by Mittimus, and then they shall proceed upon it. 36. H. 8. B. Certiorari 20. the end.

Certificate of the Bishop.

'Twas holden that if the Bishop cer­tifies that such a person paid not his Tenths, Time E: 6 accords 26 H: 8: c: according to the form of the [Page 47] Statute, which wills, That ipso facto, the Benefice shall be void; that in this case a man shall not have an averment contrary to the certificate. Time H. 8. B. Certificate devesque 31. the end.

Challenge.

Note by the Exchequer, Time E: 6: accord: and both Benches, where the parties are at issue in a plea of land, where the land lies in three or four hundreds, there if the Juror hath land in any of the hundreds, or dwells in any of the hundreds, it suffices. 4. M. 1. b. Challenge 216.

In Treason tis a good challenge to witnesses, to say that he was one of his accusers (b. Corone 219.) And note, that by the Statute of 33. H. 8. a pe­remptory challenge is ousted in case of high Treason: See Coke upon Lit: yet by the said Statute Queen Mary, tis enacted, That all tryals of Treason shall be according to the order of the Common Law, and not otherwise. And therefore it seems that he may have a challenge peremptory, as at Common Law. S. 35. Jurors. 4. M. 1. B. Challenge 217. Trials 151. the end.

[Page 48] Where a Grant of the Bishop, or charge by him, with the assent of the Dean and Chapter, shall binde the suc­cessor, and where not? See Tit. Confir­mation.

Charters of Pardon.

Note, Note that these words (ex­ecutione eorundem) are neces­sary, 6 E. 4. 4. by Choke, See my Lord Coke. if a man be attained of mur­ther, or Felony by Outlawry or other­wise, and the King pardons him all Fe­lonies, Murthers, and Executions eorun­dem, and Outlawries, and Waivings; and Sectam pacis. And a pardon and release of all Forfeitures of Lands and Tenements; and of Goods and Chat­tels, shall serve but for the life; and for the land, if no Office be thereof found. But it shall not serve for the goods without restitution or gift. For the King is intitled to them by the Out­lawry, without Office: but the King is not intituled to the Land, till Office found. See 30. H: 8: after: And if an Office be found after, yet the pardon shall serve; for it shall have relation to the judgement▪ & then the mean pardon serves well; contrary, where an Office is found before the par­don granted; for then the King is seised by the Office, and there a release or [Page 49] pardon cannot give it; but there ought to be a Gift or Grant. 29. H. 8. B. Char­ters of Pardon 52.

Note, if alienation without licence be pardoned by Act of Parliament, the party may enter without Ouster l'main; or amoveas manum. Otherwise by ano­ther pardon, by letters Pattents. 29. H. 8. B. Charters of Pardon 53.

If intrusion by the heir, Filpot 16. E. 4. 1: ac­cord: See 29▪ H: 8: before & 33 H: 8. Tit: Intru­sion. post mortem antecessoris be found by Office, and af­ter the King pardons it by act of Parlia­ment, or by letters Pattents, yet the heir shall sue Livery: for this is not re­stored to him by a pardon: but if the pardon were granted before Office found, and at the making of the pardon, the heir is of full age, he shall retain the land, and the Office found after the pardon shall not hurt him. 30. H. 8. B. Charters of Pardon 54.

Chattels.

If Lessee for years devise his Term, See Time H: 8: Tit: devise. & Cokes Rep or other his Chattel or Goods, by Te­stament, to one for term of his life, the Remainder over to another, and dies, and the Devisee enters, and aliens not the Term▪ nor gives, or sels the Chattel, [Page 50] and dies, there he in Remainder shall have it: but if the first Devisee had a­liened, given, or sold it, there he in the Remainder had been without remedie for it (B. Chattels 23. Done 57.) And so B. seems if they be forfeit in his life, he in remainder hath no remedy. 33. H. 8. B Done. 57. the end.

Choice in Action. Thing in Action.

Note, where the Statute of 31. H. 8. gives to the King the possessions of Abbies, See 32 H. 8 after, & Cokes Rep 4 M. 1. Com. 173: and all rights of Entries, Acti­ons, Conditions, and the like, which the Abbies might have had; and that he shall be in possession without office, and that he shall be adjudged in actual and real possession of them, in such plight and sort as they were at the time of making of the Statute. Yet if an Abbot were disseised of 4 acres of land, the King cannot grant it over before entry made by him in it, because tis a thing in action real, and not like to a thing in action personal or mixt, as debt ward, and the like, by some. And some è con­tra, by reason of these words, That the King shall be in possession. Yet by B. [Page 51] this seems, that he shall be in such pos­session as the Abbot was. S. of a thing of which the Abbot had possession, the King hath of this actual possession: & of such of which the Abbot had but a cause of entry, or right in action; of these the King shall be vested of a Title of entry, and Title of action. But the thing to which he hath such cause of entry, or of action, is not for this in him in posses­sion: and therefore cannot pass from the King by general words; but B. seems, if the King recites the diseisen, and how the right and action thereof is given to him by the Statute, and grants it specially that tis good. 33. H. 8. B. Choice in Action 14.

'Twas said for Law, See 33 H. 8 before, 2 H. 7. 8. by Hussey: See Cokes Rep That the King may grant a thing in action, which is personal; as debt, and dammages, and the like, or a thing mixt; as the ward of body: but not a thing real, as an acti­on of land, and the like, as Rights, Entries, Actions, and the like, which Abbots might have. (And that the King shall have these by the Statute of disso­lution of Abbies. 31. H. 8.) These things in action the King cannot grant. Yet by B. see if there be not words in this Statute, to put the King in possessi­on, [Page 52] though the Abbot were put to his action. 33. H. 8. B. Pattents 98.

Clergy.

No man shall have his Clergy but where his life is in jeopardie: and therefore not in petty larceny. And the Bishop is Ordinary: all Priests, Ab­bots, and others inferior to him, which demand Clergy, or have Clergy: and if the Bishop hath his Clergy, the Me­tropolitan shall keep him, as his Ordi­nary: and if the Metropolitan offend, and hath his Clergy, the King shall have him and keep him: the same is of Laps. Reading B. Clergy 19. Corone 183.

Note, That at this day Bigamus shall have his Clergy by the Statute: but a man attainted of Heresie shall not: 1 E: 6: c. 12 Clergy 21. otherwise of a man excommuni­cated: and a Jew, nor Turk shall not have their Clergy: and a Greek and Roman, who use not our letters shall have their Clergy, and shall stay till a book of letters of their countrey comes. (B. Clergie 20.)

And if a man who is captus oculis prayes his Clergy, he shall have it if he can speak latine congruously. Quaere, for he cannot be a Priest, nor he cannot Minister. Casus B. clergie 21.

[Page 43] A Bastard shall have his Clergy; for he may be a Priest by licence. Casus B. clergie 22.

Colour.

Note, See Cokes Book. That Colour ought to be mat­ter in law, or doubtful to the lay people; and shall be given to the Plaintiff, and not to one who is mean in the convey­ance: and shall not be given to a stran­ger who infeoffed the Plaintiff: nor shall be given to the Defendant: and shall not be given by a possession determin­ed. S. where it appears in the pleading, that the possession is determined: but shall be given by an estate defeated: and where the Defendant bindes the right of the Plaintiff by Feoffment with War­ranty, Release, Fine, Recovery, Disseisin, and Re-entry, and the like, there needs not any colour. And he which claims no property in the thing, but takes it as a distress, and the like, shall not give colour. Colour shall not be given but upon a plea in bar. B. colour 64. Co­lour shall not be given but by him, by whom you commence your Title, and not by a mean in the conveyance. He which pleads to the Writ, shall not give Colour. It behoves that colour be [Page 54] such, so that if it be true, that of such possession, the Plaintiff or Demandant may have their action. He which justi­fies as servant, and conveys Title to his Master, shall give colour: colour by possession in law, is good. Regulae.

Commission.

Note, 35 H. 8. ac­cord. See after. for Law, That where a Com­mission of the peace issues to I. N. and others; See Tit. Officer. and after I. N. is made Knight. yet the Commission remains for him. (Yet Anno primo, E. 6. cap. 7. is a Statute made, That making of the Plaintiff Knight, shall not abate the a­ction, nor the Commission in which such person is named.)

And where a man learned in the same Law is put in Commission, and af­ter is made Serjeant at Law, yet he re­mains in authority by the same Com­mission. And when a Justice of the Bench is made Knight, yet he remains Justice, and this Commission shall serve him. 36. H. 8. B. Commissions 22:

Note, See Tit. Officer. by coming of a Commissi­on of Oyer and Terminer, the Commis­sion of Gaole Delivery is not determin­ed; for the one stands with the other. [Page 55] Otherwise, where the one Commission is contrary to the other.

As of a Commission of the Peace where there is a former Commission thereof to others, this is contrary that every of them should be Commissioners of one and the same thing, and both in force. And the Commission of Gaole Delivery, is onely to deliver the Gaole. Commission of Oyer and Terminer, hath words ad inquirendam audiendam, & determinandam. But most com­monly the Justices of Gaol delivery are also in the Commission of the Peace, and by this they indict, and after deli­ver the Gaol as well of them, as of o­thers.

And note, That the Justices of Oyer and Terminer, cannot by this authority arraign no Prisoners, but those which are indicted before them: but contra­ry, if they have Commission of Gaol delivery also, for these both may be ex­ecuted simul & semel 3. M. 1. B. Com­mission 24.

If a Justice of the Common Bench be made Justice of the Kings Bench, though that it be intended but Pro illa vice: as twas of Sir James Dier this year; yet this shall determine his pat­tent [Page 56] of the Common Bench, though he surrenders the Pattent of the Kings Bench the next day: for the Kings Bench is the highest Court: and if the Common Bench erre, this shall be con­trolled by the Kings Bench. And therefore a man cannot be Judge of the one Bench, and the other together to reverse his own judgement. And as of­ten as a Justice of the Common Bench, is made Justice of the Kings Bench (as it hath been often seen) the Commissi­on of the Common Bench by this is de­termined: The same admitted 1 H. 7. 10: for the one Court is within the controlment of the other: but a man may be a Justice of the Common Bench, & chief Baron of the Exchequer together, & may be Justice of the Com­mon Bench, & Justice in Oyer, and Ter­miner, or of Gaol delivery together: for none of these Courts hath controlment of the other. And if an Incumbent of a Benefice be made a Bishop, the first Benefice is void: for he which hath the office of Soveraignty, cannot have the office of inferiour, by some of the Ju­stices. D. S. 127. 29 H: 8. 116. Petty Br: See before: Yet B. doubts; for a Justice de banco regis, may be a Justice in Oyer, or of Oyer and Terminer, or of Peace, or of Gaol delivery; and yet if they err in their pleas in the Oyer, or Oyer and [Page 57] Terminer, or in their Proces, or out­lawry before Justice of Peace, Writ of Error lies thereof before the King in his Bench. But the Pleas in the King Bench are holden coram rege ubicunque fuerit in Anglia, and so the Kings Bench, is a Court removable: and by the Statute the Common Pleas teneatur in loco cer­to, Magna-Charta. c. 11: Rast: Common-Pleas 1: then tis contrary of the Oath of the Justice of the one Court, and the other; for the one is certain, and the other in­certain. 5. M. 1. B. Commissions 25.

Where a Justice of Peace is made Knight, 36. H. 8. ac­cord: be­fore. or takes other dignity, yet his authority shall remain. Marrow Serjeant in the Inner-Temple upon the Stat. of Peace. And so of a Ju­stice of the Gommon Bench made Knight, his Commission remains in force. 1. E. 6. c. 7. B. Commission 4.

If the King grant to a Major and Commonalty, and their successors to be Justices of Peace in their Town, and af­ter makes a Commission of the Peace to another there, yet the first Commission shall remain in force; because that tis a grant to them, and their successors, and so not revocable as a Commission is. (B. Commission 5.)

If a new Commission of the Peace be proclaimed, or read in full County, the ancient Commission of the Peace is de­termined. [Page 58] And all the Justices ought to take notice, and if they sit by the an­cient Commission, all they do is void. And if a Commission be directed to A. and B. who are not in rerum natura, or are dead at the time of the Teste, &c. The ancient Commission remains in Force, for this new Commission is void.

If a Commission be directed to N. pro hac vice, this shall determine the ancient Commission of these matters. And yet the new Commissioners can­not sit but Vnica vice. (B. Commission 6.) If a commission be directed to hear and determine Felonies, this shall de­termine the ancient commission of the Peace, as to Felonies, but not as to the Peace: and so determined in part, in part not, (B. Commission 7.) com­mission in Eyer is made to the county of N. and Proclamation there, this de­termins the Commission of the Peace. (B. commission 8.) Commission of the Peace is in the county of N. and the Kings Bench comes there, this shall not determine the Commission of the Peace: contrary, if they make Proclamation of the coming of the Kings Bench (B. commission 9.) Commission of the peace [Page 59] is made to 4. in the County of N. and after the King makes I. S. Justice of Peace there for term of his life; the first Commission is determined. (B. Com­mission 10.)

If Justices sit by Commission, and do not adjourn it, the Commission is de­termined. 1. E. 6. c. 7. See after 1 E 6. Tit. Corone. And see a Statute where new Commissioners of Gaol delivery, may sit upon the Records of the ancient Commission of the Gaol, which is de­termined.

And when a Commission of Oyer and Terminer is determined, the Records of that shall be sent into the Kings Bench; but Records of the Justices of Gaol de­livery, shall remain with the Custos ro­tulorum of the County. And the next Justices of Gaol delivery shall proceed upon them, upon judgement of death by the said Statute. Quaere, if they should proceed by the words to allow­ance of Clergie, or Sanctuary, it seems so, by the equity. B. Commissions 11.

Conditions.

Debt upon an Obligation, with a con­dition to perform all covenants con­tained in certain Indentures; See after 33 H. 8. & 37. H. 8. the de­fendant [Page 60] cannot plead the condition, and reherse the covenants, and say general­ly that he hath performed all the cove­nants, without shewing how, by the Prothonotaries, 20. H. 8. B. condi­tions 2.

If a man devise 20. l. to W. S. to be paid in four years after his death, and dies, and after the Devisee dies within the four years, yet the Executor of the Devisee shall have the Money, or the rest of it by suit before the Ordinary in the court Spiritual; for tis a duty by the Testament, or devise. 24. H. 8. B. De­vise 27. 45. conditions 187.

By Fitz. Fineux a­grees, 11 H 7. 12. & 12 H. 7: 18 if a man before the Statute of Tenures had made a gift of Land to one in Fee, for to repair a Bridge, or for to keep such a castle, or for to marry yearly a poor virgine of S. this is a Te­nure, and not a condition; and the Donor may distrain, and make avow­rie.

But if a woman give land to a man for to marry her, 14 H: 8: 10 by Brud­nel Fitz: 205: this is a condition in effect, and no Tenure, which no bodie denied. 24. H. 8. B. condition 188. te­nures 53.

If a man Mortgage his land to W. N. upon condition that if the Mortgager, [Page 61] and I. S. repay 100 l. by such a day, that he shall re-enter, and he dies be­fore the day, but I. S. paies by the day, the condition is performed; and this by reason of the death of the Mortga­ger, Accord: 15 H: 7: 2: & 13: notwithstanding that the payment were in the copulative; otherwise, if it were not in the case of death, 30. H. 8. B. conditions 109.

By many, D: S: 123: See 27: H: 8: 15: by Knightly: if a man make a Feoffment in Fee, ad intentionem to perform his will, this is no condition, but a Declara­tion of the purpose and will of the Fe­offer, and the heir cannot enter for non performance. 31. H. 8. B. conditi­ons 191.

If a man be bound in a bond to pay 20 l. the Obligor in whose discharge the condition goes, 6 H: 7: by Bryan Cont. ought to be ready at the place, &c. all the day, and the Obligee may come any time of the day, 32. H. 8. B. conditions 192.

A man gives land in Tail, Perk: 163: C: See Cokes Rep Knights case: Lil­lingstons. c Damport [...] c: or Leases it for life, or for years, rendring rent, with a condition of re-entry for default of payment, there if he Leases part of the land to the Donor, or Lessor, or if the Donor or Lessor enter in part of the land, he cannot re-enter for the rent ar­rear after; for the condition is wholly [Page 62] suspended; for a condition cannot be apportioned nor divided. 33. H. 8. B. Extinguishment 49. conditions 193.

Debt upon an obligation, 20 H: 8: 9: 26 H: 8: 5: by Engelf: 6 E: 4: 5: by Rogers 27 H: 8: 1: 27: See be­fore 20 H: 8: Plead­ing of Co­venants performed to perform all covenants contained in certain In­dentures, tis no plea that he hath perfor­med all the covenants generally, S. Quod performavit omnes & singulas conventi­ones inindentura pred. specificat. ex parte sua perimplend. if they be in the affirma­tive; but must shew in certain in every point how he hath performed them, (B. condition 198. covenant 35.) And where in a Covenant the Defendant saies, that the covenants are that he shall pay 10 l. by such a day, and infeoff him by the same day quas quidem con­ventiones idem defensoris bene perim­plevit, this is no good plea; for he must shew in certain how he hath perform­ed it. 33. H. 8. B. covenants 35. the end.

Note for Law, That Proviso semper put on the part of the Lesse upon the words of Habendum, See Cokes Rep: makes a con­dition; otherwise of a Proviso of the part of the Lessor, as tis covenanted in the Indenture, That the Lessee shall make the reparations; Proviso semper, [Page 63] That the Lessor shall finde the great Timber, this is no condi­tion.

Nor by some tis no condition when it comes amongst other covenants on the part of the Lessee, as tis covenanted after the Habendum, and after the Red­dendum, That the Lessee shall scowre the ditches, or the like: Proviso sem­per, That the Lessee shall carry the Dung from it to such a field; this is no condition to forfeit the Lease for not doing of it: contrary, if such pro­viso be put imediately after the haben­dum, Quaere: which makes the estate; or after the redendum. Quaere, by B. conditions 195. 35. H. 8.

If a man Mortgage his land upon de­feisance of repayment to re enter, and the bargain to be void: and the vendee Leases the Land to the vendor for ten years by Indenture of defeisance; and further grants to him, That if he paies 100 l. infra terminum dict. 10 an­norum, that then the sale shall be void, &c. and the Lessee surrenders the Term, yet the tender of the 100 l. is good within the ten years; because that the ten years is certain, though the lease is surrendred or forfeited. Otherwise, [Page 64] if it were to repay infra terminum pre­dict. See my Lord Coke Chedding­tons c. without these words, ten years; for in the one case the Term, S. the Lease is the limitation of payment, and in the other case the ten years, by Whorewood in his Reading in the Lent. (B. conditi­ons 203. Defeasans 18.) The same law if B. holds certain land for term of ten years of A. and tis covenanted betwixt A. and B. That if B. pay 100 l. to A. within the said ten years, that then he shall be seised to the use of B. in Fee, and B. surrenders his term to A. and after payes him 100 l. within the ten years, there B. shall have Fee; for the years are certain: otherwise, where tis covenanted, That if he payes 100 l. in­fra terminum predict. and he surren­ders, and after payes the 100 l. this is nothing worth; for the Term is deter­mined: but in the other case the ten years remain, notwithstanding the sur­render. 35. H. 8. B. Exposition, 44.

Twas holden clear in the Kings Bench that where M. and other two are bound to stand to the award of I. N. so that it be made and delivered by the Arbi­trators in writing to the parties before Michaelmas, they make the award, and [Page 65] deliver it to one by Michaelmas, See Coke lib. 8 97. 98. Bas­poles case Dy­er fol. 216. b. See 38. H 8. af­ter. 4 H. 7. 12. by Keble. 22 E. 4. 43. by Catesby 35 H. 6. 11. per cur. 40 E 3. 20. M. 35 H. 8. B. cond. 18. the end 38 H 8 31. 6. H. 7. 6. by Hus­sey. Ad­mitted 18. E. 4. 27. See before Jay ac­cords 11 H. 7. 17 34 H. 6. 18. by Prisot. 19. E. 4. 1. by Catesby. See before 37. H. 8. and cannot finde the other by the day, this shall not binde the others to whom twas not delivered. And the reason B. seems; because that in this case they might have made 3 parties, and have delivered to every party one. 37. H. 8. B. conditions 46. the end.

Tis said by the Court in the Kings Bench: in Debt upon an obligation to keep without dammage, S. harmless, where the Defend. pleads that he hath saved him harmless, tis no plea without shewing how; for he which pleads a discharge, or saving harmless, ought to plead it certain when he pleads in the affirmative. Otherwise, where he pleads in the negative; for if the Plaintiff be not dempnified, he may plead quod non damnificatus est generally 37. H. 8. B. conditions 16. 198. in finibus.

If a man be bound in an Obligation to pay 10 l. to the obligee at Paris be­yond Sea, at a certain day, if the Obli­gor pay at another place, and the same day in England, and the other accepts it, tis good clearly. (B. conditions 206.) And tis said in debt upon an obligation [Page 66] to acquit & save without damage, quod non damnificatus est, is a good plea, for tis in the negative, and therefore good without shewing how, but where he pleads, that he hath kept him with­out dammage in the affirmative, he shall shew how. 38. H. 8. B. Conditions. 93. the end.

If a man let land for term of life up­on condition, 21. H. 7. 12. cont. by Fro­wick. 6. E 6. Com. 135. 1. M 1. Com. 142. See Coke Penants case. that if he doth not go to Rome by such a day, that his estate shall be void, and the lessor grants the reversion over, the Tenant attorns, and after he doth not go, yet tis not void till entire, by Bromley chief Justice: 2. M. 1. B. Conditions. 245. the end.

Confess, and avoid.

Replevin, the defendant said that B. was seised in fee and leased to E. for 40 years, which E. granted his interest to the defendant. 38. H. 8. by which he was possessed, and distrained for damage feasant, the plaintiff said that the same E. 28. H. 8. granted his interest to him, he shall not tra­verse the Grant. 38. for hee hath [Page 67] confessed and avoided it, by the eldest grant obtained. 2. E. 6. B. Confess and avoid: 65.

Confirmation.

Bishop charges, or grants an office with the assent of the Deane and Chapter, and dyes, this is worth nothing, by some, for it ought to be confirmed by the Dean and Chap­ter; And this fell out in the grant of the Stewardship of the Bishop of London, betwixt Aldred Fitzjames, and John Edmunds of the middle Tem­ple, where the Bishop granted the Stewardship of his lands to A. F. by the assent of the Dean and Chap­ter, and died, by which the grantee lost the office, as tis said, because the Dean and Chapter had not confirmed it, yet more was in the grant of the Bishop, as Misnosmer, and the like, for the said A. F. was named Ethel­dredus, where it should be Aldre­dus, and so he was misnamed. Also there was a default in the Seale (B. Charge 58. Confirmation. 30) And also the Deed was Quod sigillum nostrum apposuimus, which may bee [Page 68] referred to the Bishop onely, and not to the Bishop, Dean and Chapter: And therefore by more, to this day the grant was avoided for these causes, and not for the other cause; and so a grant with assent of the Dean and Chapter, with all perfections is good. 33. H. 8. B. Confirmation. 30. the end.

If the bishop be patron, and the par­son makes a lease or grant by deed, Casus Hill for the Par­sonage & glebe of Stoke, su­per Derne in Com. Sa­lop. where the Par­son, Pa­tron, Dean & Chapter made the assurrnce B. Charg 40. the end. there the Bishop patron, and the or­dinary, and the dean and chapter ought to confirm, if the grant or lease shall be sure; otherwise where a lay man is patron in fee, and he and the ordinary confirmes, this suffices without the dean and chapter, for in the first case, the Bishop patron hath an interest in inhe­ritance to the Bishoprick. But in the other case, he hath but a judicial po­wer, therefore it suffices that he who hath the power at the time, &c. con­firmes, for tis a judicial act. But in the other case, it bindes the inheritance, which he hath in jure Ecclesiae which he cannot do against his successor, with­out confirmation by the dean and chap­ter. (33. H. 8. B. Confirmation. 21: Charge. 40. Leases. See Tit. Leases. 64.) Patet hic that the patron ought to have a fee simple, [Page 69] and this juri proprio, because of the dean and chapter, to be joyned with the Bishop, where he is patron. B. Charge 40.

Note, that if the King for him and his heires grants Catalla felonum & fu­gitivorum, or the like, which lie in grant, and dies, the grantee needs no confirmation of the new King. But if it be a fair, or market, or the like, and tis abused or misused, as it may be, or if it be a judicial, or ministerial office or power, as to be a Justice of peace, Es­cheator, 1. R. 3. 4. See Cokes Rep. or the like, there he ought to have a confirmation of the new King (B. Confirmation. 19. & 29.) yet B. seems that the grant of a thing which lies in grant, is good clearly, without these words, for him and his heires; But of warranty, covenant, Annuity, or the like, there he ought to make it for him and his heirs. 33. H. 8. B. Confirma­tion. 19.

Conscience.

If a man buyès land, See Time. H 8. after. 7. & 8. E. Com. 302. and the ven­dor executes an estate to the vendee, Habendum sibi imperpetuum, with­out words of heires, where the in­tent of the bargain is to pass a fee sim­ple, and the vender upon request refuses to make other assurance, there lies a writ of Subpaena. 32. H. 8. B. Con­science 25.

Audely, See 4. E. 6. Tit. Estates. & 6. E. 6. Faits in­rolle 27. H. 8. cap. 16. Rast. Inrol­ments. Chancellor of England held clearly that if a man sell his land before the Statute of Uses, this shall change the use of the fee simple. And the same Law of a sale by Inden­ture, by the Statute of 27. H. 8. with­out words heires. Time H. 8. B. Consci­ence. 25. the end.

Continuances.

Note, that in the common recove­ries by sufferance, for assurances, the Tenant tenders issue, the de­mandant may imparle to a day in the same terme, and then the Tenant is demandant, and retracts, and judge­ment is given for the demand: against him, and after the Tenant over in value [Page 71] upon the vouchee, &c. Regulae. 22. H. 7. B. Continuances 69.

Contract.

A man sells a lease of land, See 30. H 8. Tit. Apporti­onment. & 12. H. 8. 18. and cer­tain cloath for 10 l. the contract is intire, and if the one of these were by defeasible Title, yet the ven­dor shall have the intire summe, though the one part were devested from the vendee, See 33. H▪ 8. Tit Prescrip­tion. 18. H. 7. 21. 24. Fitz. 121. M. 9. E 4▪ 25 by Gen­ny & Choke 50. for contract cannot be severed. 24. H. 8. B. Contract 35.

If a man be indebted to me upon contract, and after makes to me an obligation for the same debt, the contract by this is determined, for in debt upon the contract, tis a good plea, that he hath an obligation for the same debt. So if the obligation be made for parcell of the contract, which is intire. 1. H. 6. 8. by Ba­bing. 22. H. 6. 56. by Choke. 20. 3. H. 4. 17. But if a stranger makes an obligation to me, for the same debt, yet the contract re­mains, because that tis by another per­son, and both are now debtors▪ 29. H. 8. B. Contract 29. H. 6. 21. by New­ton 28. H 6. 4. 21. H. 7. 5. by Cutler.

Corone, Crown.

Note, A man pleads M▪ 3. M. 1. cont. 11. H. 4. 41. by H [...]ls & Firwith accord. St. 34. C. see 9. E. 4. 28 by Neele. if a felon hath a pardon to plead, and pleads not guilty, he shall lose the advantage of his pardon, and shall not plead it after. 18. H. 8. B. Coro­ne. 199.

Note, that at the Sessions at New­gate, a man was judged to be hanged, and delivered to the Sheriff to make ex­ecution, and after escapes, and flees to the Church: and had the priviledg of it. 22. H. 8. B. Corone. 1 10. the end.

Note, St. 13. D. See Coke up­on Lit. S. D. S▪ 134. 35. H. 6. 58. St. 13. C. twas holden by all in the house of Parliament, that if a man kill one who is attainted by Premunire, this is no felony, for he is out of the protecti­on of the King, which is, as if he were out of the Kingdom, and power of the King. Otherwise of him who is at­tainted of felony, St. 198▪ C. 23. Ass. 2. and judged to death, the killing of him is felony. 24. H. 8. B. Corone. 196.

Tis said, where a woman is arraigned, and adjudged to be hanged, or burnt, according to the Crime, and because that she is with childe, Execution is respited untill shee bee [Page 73] delivered, 12. Ass. 11. and now she is with childe again, because that once execution was spared for the same cause, now execu­tion shall be commanded to be done: and the Gaoler shall not be punished 28. H. 8. B. Corone. 97.

A man steals goods in one County, 4. H. 7. 5. by Fro­wick. B. Corone. 139. St. 182. C. and flees with them into another, he may be indicted, or appealed in any of the Counties, for tis felony in every of the Counties, for felony alters not the property. 34, H. 8. B. Corone. 170.

Note, 1. M. 1. Com. 98. See Coke. Lib. that if 12 come for to do rob­bery, affray, riot, or the like, which are unlawful acts, one of them enters into the house, and kills a man, or doth o­ther unlawful act, all the others which came with him to do the unlawfull act are principals. See 33. H. 8. Tit. Triall. The same Law in the case of Fines Lord Dacres, one of his company killed a man in hunting in a Forrest, and the Lord Dacres, and the other hunters, as Mantel, and others were principals, and were all hanged. 34. H. 8. B. Corone. 171.

A man shall not plead that the dead assaulted him, and in his own defence, &c. but not guilty in an appeal, and give it in evidence, and murder cannot be justified. See Tit. Appeal.

[Page 74] Note, 11. H. 7. 20. ac­cord. by Fineux. by the Justices, that tis felony to kill a man in Justing, or where men play at sword and buckler, and the one kills the other, and the like notwithstan­ding the commandement of the King, for twas against Law. Time. H. 8. B. Co­rone. 228.

Note, by all the Justices, that if a man be indicted of felony, 1. E. 3. 4. by Bo­rous. in the time of H. 8. the King dies, he shall be arraigned for it in the time of E. 6. But by some this indictment shall be removed by Cerciorari from the antient custos Ro­tulorum, and put to the new commis­sioners. 1. E. 6. B. Corone. 177.

Note, See 38. H. 8 Tit. Oyer & Termi­ner. that Indictments and Re­cords, which are taken before Justi­ces of Oyer and Terminer, and not determined before their commission be ended, these shall be put into the Kings Bench to arraign the par­ties there. 44 E. 3. 43. ac­cord. S. by Cerciorari out of the Chancerie, which shall be to com­missioners of Oyer and Terminer, and after shall be sent into the Kings Bench by Mittimus (B. Corone. 178. Oyer and Terminer. 2.) But indict­ments taken before Justices of Gaol de­livery, and not determined, shall be [Page 75] delivered to the Clerk of the peace, See Tit. Com­mission the end. or shall remain with the custos rotulo­rum of the County, where, &c. and when other Justices of Gaol delivery come there, they may proceed upon them upon judgement of death, 1. E. 6. cap. 7. and this by Statute. And B. seems that they shall proceed by the equity of the words, to allowance of Clergy or Sanctuary; Clergy. Sanctua­ry. and the like. 1. E. 6. B. Co­rone. 178.

Note, See Tit-Com­mission the end. that twas holden, that where a stable is near a house inherita­ble, as parcell of the house, and a man breaks it by night, See Cokes Rep. to the intent to rob in it, tis felony, though he takes no­thing, for tis burglary. 2. E. 6. B. Corone. 179.

Burglary shall not be judged, but where there is breaking of a house by night. And by the Just­ices, where the principall and acces­sarie are arraigned, St. 30. B. 3. H. 7. 12. by Justices. and the princi­pall hath his Clergie, this shall not serve the accessarie, but he shall be arraigned and hanged, See St. 47. H. & Cokes 4. Book. where both are found guilty. 4. E, 6. B. Corone. 184.

A man is indicted as accessary to a felony, and acquitted, and after is in­dicted [Page 76] of the same felony, as principal, he shall be arraigned and hanged, not­withstanding the acquittal as accessary. And so was Thomas Knightly first in­dicted and arraigned as accessary of I. S. and acquitted, and after was indicted of the same murder as principal, and arraigned of it again. 4. E. 6. B. Corone. 185.

A woman took the Church for felo­ny, and abjured the Kingdome. 6. E. 6. B▪ Corone. 213.

Note, 5. &. 6. E. 6 cap. 11. that 'twas agreed by all the Justices at Serjeants Inn in Chancery Lane 25 Octob. 1556. as to the Trial of Treason, and misprison of Treason, that by the Statutes, 2 accusers or te­stes ought to be at the indictment, or the sayings and accusations in writing under their hands, or the testimony of others of the same accusation, which shall be read to the Jury at the indict­ment; and if the accusers are dead at the time of the indictment, yet it suffi­ces if the accusation be there testifying it, Rast. Treason 23. St. 9. A. for then there were two accusers. But for any Treason de Anno 25. E. 3: there needs no accusers at the trial, be­cause that 'tis enacted by the Statute of 2. M. 1. cap. 10. That all trials of Trea­sons, [Page 77] shall be by the order of the com­mon Law onely, & non aliter. And the common trial by common Law, is by Jurie, and by witness, and by no accu­sers. And the same Law of Treason of coyning, that accusers need not at the arraignment, but at the indictment ut supra onely. But for all treasons done by the said Act of 2. M. 1. there ought to be witnesses, or accusers, as well at the indictment, as at the arraignment, according to an Article contained in the said Statute, in Fine. And for mispri­sion of treason there ought to be wit­nesses, Rast. Treason 18. or accusers, as well upon the in­dictment, as upon the arraignment, by the Statute of 1. E. 6. cap. 12. the end, for the said Statute of Q. Mary, doth not restrain accusers at the trial, but only in cases of treason, and not for misprision. And twas agreed that pet­ty treason ought to be tried as high treason, S. by accusers by indictment; But at the trial there needs not accu­sers, And at this resolution, wer Sir William Portman chief Justice, Mr. Hare Master of the Rolls, Sir Robert Brook, Sir David Brook, Sir Humfrey Brown, Sir John Whiddon, Sir Ed­ward Saunders, Sir William Stamp­forde, [Page 78] and Master Dalyson, Justi­ces, Dyer Serjant, and Griffine, and Cordell Attorney and Soliciter. And twas agreed, that Counsellers who give evidence against Traytors, are not accusers. And by the Civill Law, accusers are as parties, and not witnes­ses, for witnesses ought to be indiffe­rent, and not come till they are called, but accusers offer themselves to accuse, for tis a good challenge to witnesses, to say, that he was one of his accusers. 4. M. 1. B. Corone. 219,

'Twas said for Law, St. 116. that a man can­not abjure for high treason. Quaere of petty treason, for tis manifest in a Chronicle in the time of H. 6. that a wo­man that killed her Mistress abjured the Realm. 5. M. 1. B. Corone. 180. the end.

Manningt'. and another were indict­ed of felony in the high way in the County of Bedford, for robbery of one Edward Keble Clerk with daggs, & the indictment and the body were removed into the Kings Bench, and there they were arraigned, and pleaded not guilty to the countrey, and were tried. But after a writ was sent with the body in­to the countrey with Nisi prius to trie them in the county of Bedford. And [Page 79] this is a common course, so to remove the body and the Record out of the Kings Bench to the countrey again. 4. M. 1. B. Corone. 230.

A man takes Church, and the Coro­ner comes to him, Lectura. W. N. Time. H. 7. and demands of him for what cause he does it, who said that he would be advised by 40. days before that he would declare his cause, the Coroner may draw him out presently; but if he will confess to him felony, he may remain there by 40 days, before that he abjures. Otherwise where he takes Sanctuary, as Westm'. Knoll, and the like, for this may hold him for term of life, except in case where a Statute changes it (B. Corone 180. San­ctuary. 11.) But if he will abjure with­in the 40 days, the Coroner shall give him a certaine day to doe it. (B. Corone supra.) None shall take priviledg of the church, except that he be in danger of his life (B. Corone. 181.) Nor none shall have the priviledg of Sanctuary except he in periculo vitae. And note that Sanctuary cannot have a lawful commencement, Nisi pro vita ho­minis, as for treason, felony, or the like; and not for debt, therefore where a grant, or prescription is to have Sanctu­ary [Page 80] for debt, tis worth nothing, for tis against the Law. But if his body were in execution, and he escapes, and comes to a Sanctuary ordained for safeguard of the life of a man, he shall enjoy it, for by long imprisonment his life may be in jeopardy. And if the church be su­spended for bloodshed, yet he which takes the church for felony, shall en­joy it by 40 daies (B. Sanctuary supra.) There are two manner of Sanctuaries. S. private, as Westminster Knoll, and the like. And general sanctuaries, as every church (B. Corone. 181. the end.) Abjuration for felony, discharges all fe­lonies done before the abjuration. A man cannot abjure for petty larceny, but for such felonies for which he shall suffer death. Lecture B. Corone. 182.

Note, See St. 6. C. that these words (Quod pred. vitam & membra) in a Statute, are in­tended felony, without the word of fe­lony in it. Regula (B. Corone. 203.)

Corporations.

Note, 1. E. 4. 7. Mark. accord. that the Justices of the com­mon bench accords in case of a corpora­tion, that known by the one and the other, in a suite by a name known, is [Page 71] no plea for the plaintiff, 21. H. 6. 4. by Newton. for he ought to acknowledge his proper name. But if the defendant be named by the plain­tiff by a name known, See 20. H 6. 29. though the de­fendant be corporate, it suffices. Yet Quaere; if there be not a diversity be­twixt an action real, and an action per­sonal. 25. H. 8. B. Corporations. 82.

By Fitz. [...]f the Abbot and Covent sel all the lands and the Abby, See 10. H 8. 10. See Coke lib. yet the Cor­poration remains Quaere by B. of what he shall be Abbot, for there is no church nor monastery. And by him Quaere if the Abbot die, if they S. the Covent, may chuse another, the house being dissolved 32. H. 8. B, Corporati­ons. 78. See Tit Extinguishment.

The King makes a Duke or Earl, See 2. H. 7. 13. by Keble. and gives to him 20. l. of land, or the like, by the same name, so that the creati­on and the grant, is all by one and the same patent, yet tis good. And the same Law of making a corporation and giving to them land by the same patent, and name. 2. E. 6. B. Corporations. 89.

Costes.

Note, 9 H. 6. 32 by New­ton. 27. H. 6. 1 [...]. by Spilman Justice, that at common Law, a man shall recover costs [Page 72] in a Quare impedit: but otherwise, af­ter the Statute of Westm. 2. cap. 5. be­cause the Statute gives great damma­ges in a Quare impedit. 22. H. 8. B. costes. 25.

Note, T. 4. M. 1 accord. where an action penal is gi­ven by Statute, to recover a great summ by action of Debt for ingrossing, or the like, there the Plaintiff shall not reco­ver costs nor dammages in this action of Debt 35. H. 8. B. Dammages 200. costs 32.

Twas said, 23 H. 8. c. 15. Rast. dam. 6. That if a Lessor brings Debt against his Lessee for years, for Rent, and the Plaintiff is nonsuit, or if the inquest pass against him, he shall render costs to the Defendant by the Stat. for a Lease for years rendring rent, is a contract. 2. M. 1. B. costs 23.

Covenant.

Where an assignee shall be charged with the Covenant of his Grantor. See Tit. Assignee.

Plea of Covenants perform gene­rally, without shewing how, is no good plea, See Tit. conditions.

Tis said by the Justices, That a Writ of Covenant lies upon an Indenture, Sta [...]. 1. 8. [Page 73] without this word Covenant and grant for him, his heirs and executors. 1 M. 1. B. covenant 38. the end.

Coverture.

Note, 19 H. 8. 19. See Coke l. 19. Mary Porting­toes case. that a Statute Staple, nor Deed enrolled, shall not be accepted of a Fem Covert, by the Common Law: contra­ry, by the custom in London of a Deed enrolled; for this shall binde in Lon­don as a Fine at Common law, [...]9 H. 8. See 30. H. 8. Tit Fines. (B. cover­ture 59. 76. the end.)

Nor a Fine, Statute, nor Deed enrol­led, shall not be suffered by an Infant. 32. H. 8. B. coverture 59. the end.

Count.

Precipe quod reddat against Tenant for life, who prays in aid of him in re­version, who appears gratis, and joyns in aid; and the Demandant counts de Nono against the Tenant, and the Prayee, and they vouch the common Voucher, and suffer recovery for assu­rance. And yet tis said, That the Priee shall not have Oyer, but of the Count. cusus 22. H. 7. B. count 87.

Court Baron.

Twas said that the Lord of a Man­nor cannot hold Court, See 33. H 8. Tit. Mannor. nor do justice without two Suitors: and if they die, or if that there be but one suitor, the mannor is determined; for tis not a Mannor without Suitors. 23. H. 8. B. Court baron 22. the end.

If an understeward holds a Court Ba­ron, and grants Copy-holds to the Te­nants by Copy of Court Roll, without authority of the Lord, or high Steward this is a good grant; for in plena curia Contrary if he doth it out of Court, without such authority. Yet the high Steward may demise customary land by copy out of Court by some. Quaere thereof by B. if he hath not a special au­thority from the Lord to demise. 2. E. 6. B. Court baron 22. Tenant by copie, 26.

Customs.

Information in the Exchequer against a Merchant for lading Wine in a strange Ship; the Defendant pleads the licence of the King made to I. S. to do it, [Page 75] which I. S. had granted his authority thereof to the Defendant & quod habe­tur consuetudo inter mercatores per to­tam Angliam: that one may assigne such a licence over to another, and that the assignee shall enjoy it, &c. to which twas demurred in law: and twas agreed for law, That a man cannot prescribe a custom per totam Angliam: for if it be per totam Angliam, this is the Com­mon law, and not a Custom: contrary, if the custom had been pleaded to be in such a City or County, as Gavelkinde, Borrow-English, Glocest. Fee, and the like, 35. H. 8. B. Customes 59.

NOte in Trespass local, 19 H. 6. 10. 27. H 8. 2. con­tra. 3. M 1. See tit. Abridg­ment. That upon an inquest of Office to enquire of Dammages, the Court may abridge, or in­crease them. But otherwise upon the Principall, S. upon issue tryed betwixt party and party, 34 H. 6. 12. by Moyle. (but there it may en­crease costs.) For the party is at his at­taint: but upon an inquest of Office he cannot have an attaint, 34. H. 8. B. dam­mages 144. See Tit. costs.

Default.

If a woman be received in default of her Husband, 22 H. 6. 14. per. [...]ur. and after shee makes de­fault, judgement shall be given upon default of the husband; and no menti­on shall be made of the receit. Time H. 8. B. default 85.

Demurrer.

Inquisition found that I. S. held cer­tain land of the King, See Tit. Livery. ut de honor suo Gloucester, which is not in Capite, up­on which proces issued against W. S. who had intruded, &c. and to sue Li­very: and because that this Tenure is not in capite, and therefore Livery not due; the party demurred upon the re­cord; for tis no cause of Livery. And where a man declares upon a Statute, and recites it otherwise then tis, or pleads it otherwise then tis, See 33 H▪ 8. Tit. Parliam. the other may demur upon it; for no such Law if it be misrecited. 32. H. 8. B. Demur­rer in Law 25.

Denizen. See Tit. Alien

Note, for Law, That where an Alien born comes into England, and brings his son with who was born beyond Sea, See Tit. Restitu­tion. and Coke up­on Lit. the be­gining. and is an Alien as his Father is, there the King by his Letters pattents cannot make the son Heir to his Father, nor to any other: for he cannot alter his law by his letters Pattents, nor other­wise, but by Parliament; for he cannot disinherit the right heir, nor disappoint the Lord of his escheat: and the son of an Alien, which son is born in England, he [Page 78] is English, and not an Alien, 36. H. 8. B. Denizen 9.

Deputie.

Tis said that a Deputation of an Of­fice which lies in grant, ought to be by Deed, and not by word, 28. H. 8. B. Deputy 17.

Detinue.

By Shelley and others, 27 H. 8. 13. cont. by Fitz. if a man med­dle with goods, as by trover of them, he shall be thereof charged, though that he deliver them over before acti­on brought, 32. H. 8. B. Detinue de biens 1. The end.

Debt.

Where Debt lies, and where a Scire facias? See Tit. Age.

Debt upon Indentures of Covenants: where the Defendant had Covenanted to do many things, and the Plaintiff the like, to do many other things, ad quas quidem conventiones per implen­dam uterque obligatur alteri in one hundred pound, and the one breaks Covenant, by which the other brings Debt, and the Defendant pleads pay­ment [Page 79] of ten pound to D. which was all to which he was bound: Curia. judgement if action, and no plea per curiam, because he did not shew thereof a Deed, 45 E. 3. 5 Chetle ac­cord. where the Plaintiff declared upon the Inden­ture, which is a Deed, And yet other­wise in pleading of payment of Rent re­served upon a Lease for years, made by Indentures: For there he may levy it by distress, and therefore an averment may come in ure.

But otherwise where all rises by spe­cialty, where it lies in payment. 25. H. 8. B. Debt 173.

Debt upon an obligation with Con­dition, B. debt 126. the end ac­cord. where the condition is not bro­ken, by which he is barred, he shall ne­ver sue this obligation again: for once barred est pro imperpetuo, 29. H. 8. B. Debt 174.

Administrator of a Lord brings an a­ction of Debt for relief, See Coke l. & his Lit. which fell tem­pore intestati, and the Defendant plead­ed in Bar, and traversed the Tenure, and so at issue.

And therefore B. seems that the acti­on lies clearly for him: for the Defend. did not demur: 9 H. 61. 13. by Rolfe. so if it be brought by an Executor of the Lord for relief due to the Testitor, Rot. 5 [...]9: [Page 80] in the Common Bench. 32. H. 8. B. debt 193. Relief 11. the ends.

Devise.

Not, The same case 34 H. 8. at S. Al­bons that a Fem Covert with assent and will of her husband, may make her Testament, and devise the goods of her Husband, yet if the Husband pro­hibit the probat of the Testament of the Wife after her death, then all is void: For the husband may countermand it: B. devise 34. the end. Testament 21. the end.

And a Devise by the husband to his Wife is good, Lit. 37. N. B. 86. though they are one and the same person in the Law; for the devise takes not effect till after the death of the husband, and then they are not one person, 24. H. 8. B Devise 34:

Twas agreed by all, 13 H. 7. 17. by Fi­neux. 3. M. 1. com. 158 that if a man wills that I. S. shall have in his Land in date after the death of his Wife, and dies, now the wife of the Devisor by these words shall have the Land for her life, by reason of the intent of the Will. 29. H. 8. B devise 48.

Note, [...] H. 7. 10 D. S. 21. That in London a man may Devise by Testament to a common per­son, [Page 81] though the Testament be not en­rolled. but if he Devises in Mortmain he ought to be a Citizen, See 45 E. 3. 26. and a Free­man resident: and the Testament o [...]ght to be enrolled at the next Hustings. 30. H. 8. B. devise 28.

A man Devises to two & heredibus eorum, and dies; and after one of the Devisees dies, and the other survives, he shall not have the intire by Survi­vor, but onely a moytie; for this was the intent of the Devisor: by Audley Chancellor of England, B. devise 29. and by B. there the end. Perk. 106. G. If one devise to another in feodo simplic [...], the devisee hath a Fee simple. 30. H. 8.

A man wills that his land Devisable shall be sold by his Executors, and makes four Executors, and dies, all the Executors ought to sell, See Coke upon Lit. for the trust is put joyntly in them. Quaere, for B. seems, That if one or two die, that the three or two which survive, may sell; for there is the plural number, Executors: and death is the act of God (B. Devise 31.) and by him where such will is made, and some of the Executors refuse, and the other prove the Testament, 21 H. 8. c. 4. Rast. Probat. of Test. 3 those, or he which proves the Testament may sell by the Statute, (B. devise 29. [Page 82] 31.) where tis expressed that twas doubted at Common Law, if the sale by one executor were good, or not (B. Devise 31.)

And by some, See Coke upon Lit where a man wills that the Land shall be sold post mortem I. S. by his Executors, and makes four Executors, and dies, and after two of the Executors dies, and after I. S. dies, there the two Executors that survive may sel, for the time is not com til now, 30. H. 8. B. Devise 31.

Twas said that Baldwin, Shelley, and Montague, Justices, determined for Law, That where a man hath Feoffees to his use before the Statute of uses made 27. H. 8. and after the same Statute; and also after the Statute of 32. H. 8. of Wills, he wills that his Fe­offees shall make an estate to W. N. and his heirs of his body, and dies, that this is a good Will and devise ratione inten­tionis, &c. 38. H. 8. B. Devise 48. the end.

If a man devises his land to be sold by his Executors, See Coke upon Lit & Tit. Mort­main. and dies, the heir enters, and after is deseised, yet the Executors may sell, and the Vendee may enter, B. Devise 36. Entre congeable. 134. the same Law if the heir suffer a Recovery [Page 83] or levies a Fine. And the same law by some, where a man disseises the heir, & dies seised, and his heir enters, the Ex­ecutors shall sell, and by the vendee may enter; for he hath no right, nor no action is given to him: for he hath but a Title of entry by the sale, and therefore he may enter, for otherwise he hath not any remedy, by Hales Justice 1. E. 6. B. Devise 36.

Agreed for good Law, See 2. E. 6. after. & Tit. Chattels. that the occu­pation of a Chattel may be devised by way of Remainder, but if the thing it self were devised to use, the Remainder is void; for a gift or devise of a Chat­tel for an hour, is for ever; and the do­nee, or devisee may give, sel, and dispose it, & the remainder depending upon it, is void, Time H. 8. B, Devise 13. the middle. See be­ [...]ore & T [...]t chat▪ Where a man devises that W. O. shal have the occupation of his plate for term of his life, and if he dies, that it shal remain to I. S. this is a good re­mainder: For the first hath but the oc­cupation, & the other after him shal have the property, 2. E. 6. B. Devise 13. the end. Note if a man hath issue 3. sons, and devises his Lands: S. one part to the two of his Sons in Tail, and another part to the third son in Tail, and that [Page 84] none of them sell any part, but that eve­ry one shal be heir to the other, & dies, that in this case if one dies without issue his part shall not revert to the eldest son; but shall remain to the other son: for these words (That every one shall be heir to the other) implies a Remain­der; because that tis a Will, which shal be intended and adjudged according to the intent of the Devisor. 7. E. 6. B. devise 38. Done 44.

A man Devises his Land to another, 19 H. 8, 9 by Nor­wich. Fitz. & More See Coke up­on Lit. for to give, sell, or to do with it at his pleasure; this is a Fee-simple: for his intent shall be taken to give a Fee-sim­ple. 7. E. 6. B. Devise 38.

Note, by Bromley Chief Justice, and others; where a man Devises his land to a stranger for Term of years, the Remainder to his son in Fee, and dies; the son may waive the Devise, and claim by discent, and yet he shall not avoid the Term: No more then where a man Leases for years, and dies, the Lease is good: and yet the dying seised is good also to toll the entry, B. devise 41. And B. seems where the Father devises to his son and heir in Fee, that the heir may waive the Devise, and take himself to the discent, ( [...]. Discent 4.) Contrary, [Page 58] where the Father Devises to his son in Tail, the remainder to a stranger in Fee, there the Heir shall not claim in Fee, nor waive the Devise, for the loss and prejudice of him in remainder in Fee. 2. M. 1. B. Devise 41.

Tenant in Tail of Land Devisable, discontinues in Fee, and retakes in Fee, and Devises to a stranger in Fee, and dies, the issue in Tail is remitted; for nothing is discended to him by reason of the Devise, which Tolls the discent, except that the Devisee waives it. 4. M. 1. B. Devise 49. Remitter 52.

Divorce.

What divorce may Bastardize the issue? what not? See Title Bastar­die.

Note, for Law, That where the hus­band and wife are divorced where shee is an Inheritrix; yet mean acts executed shall not be reversed by the divorce; as waste, receit of Rents, taking of Ward, presentment to a Benefice, gift of goods of the wife, otherwise of inhe­ritance, as if the husband had disconti­nued, or charged the land of his wife, cui ante Divorcium lies. The same of a [Page 86] release of the husband, or Manumission of villains, See Coke upon Lit. or the like. And if the hus­band and wife purchase joyntly, and are disseised, the husband releases, and after are divorced, the wife shall have the Moytie, though there were not Moyties before the divorce; for the divorce converts it into Moyties. 32. H. 8. B. Deraignment 18.

Discent.

If Land be given for Term of life, 38. H. 8. B. Dis­cents 59. accord. vide infra the Remainder to the right heirs of W. N. which W. N. is attainted of Felony, and dies, and after the Tenant for life dies, the Remainder shall not take effect, nor none shall have the Land; for he hath not heir ratione attincturae. And though all be a name of purchase, yet none can take it, but he which is heir, (B. Discent 59. Done 42.) And where Land in Gavelkinde is given to one for life, or in tail, the Remainder to the right heirs of W. N. who hath issue 4. sons and dies, and after the Tenant for life, or the Donee dies, the eldest son shal have the land, for he is right heir at Common Law, & this is a name of pur­chase, which shall be ordered by the Common Law.

[Page 87] But otherwise of discents to heires in Gavil kinde, See 26. H 8. 4. for then it shall goe to all the sons. 37. H. 8. B. Discent, & Do­ne. 42. Nosme. 6. B. Done. 61.

Note, See 32. H 8. Tit. Livery. that Sir John Hussey Knight, enfeoffed certain persons in fee to the use of Anne his wife, for terme of her life, and after to the use of the heirs males of his body, and for default of such issue, to the use of the heires males of the body of Sir William Hussey his father, and for default of such issue, to the use of his right heires, and after had issue William Hussey the elder; and af­ter Sir John was attainted of Treason. 29. H. 8. and put to execution, and af­ter Anne died, and the said William Hussey the son prayed an Ouster l'main of the King. And by Whorewood the Kings Attorney he shall have it, for this name heires males of the body, See Coke upon Litt. is but a name of purchase, and Sir W. H. shall not have it as heir to Sir John, but as purchaser. (B. Nosme. 1. Livery 1. Di­scent. 1.) As if land is given to a man and his heires males of his body, and he hath issue 2 sons, the eldest hath issue a daughter, and the father, and the el­dest son dies, the younger brother shal have the land, and yet he is not heir to his father. And the same Law where [Page 88] land is given to a man, Litt. 5. and to his heirs females of his body, and he hath a son and daughter, Litt. 169 3. E. and dies, the daughter shall have the land, and not the son. (B. Nosme. 1. 40.) Com. 237. c. 13 Rast▪ And so where Tenant in tail is attainted of Treason before the Statute of 26. H. 8. his son shall have the land, Treason 12. W. 2. c. 1. for he doth not claim onely as heir, but by the Statute and per for­mam doni (B. Nosme. 1.) Yet some were of a contrary opinion, and took a Di­versity, 9. H 6. 24. by Eller­ker. where the gift is to the father himself, and where tis to the heires of his body by remainder (B. Nosme. 1. & 40.) See Coke upon Litt. And therefore in 9. H. 6. if lands are given for term of life, the remain­der to the heires females of the body of I. S. who is dead, and hath issue a son and daughter, and after the Te­nant for life dies, the daughter shal not have the land, for she is not heir: for by Hare Master of the Rolls an antient apprentice, there is a difference betwixt a gift in possession to a man and his heires females, &c. and a gift to a stran­ger, the remainder to the heirs females of another, for there he ought to be heir indeed when the remainder falls, or otherwise the rem' is void for ever. (B. Done. 61.) for though that the case [Page 89] holds place in the two cases put by Whorewood, this is because that the gift was once vested which was in the fa­ther, and therefore good law there, o­therwise in the principall case, where the rem'. is not vested. Yet by some the opinion of Whorewood is the better, for where land is given to a man and his wife for term of life, the rem' to the heires males of the body of the man, this remainder cannot be vested in the life of the wife, for tis not a tail in the man, by reason of the estate of the wife; yet, if he hath issue 2 sons, and the el­dest hath issue a daughter and dies, the father and mother dies, the younger son shall have the land, as heir male, and yet he is not heir indeed; The same Law, if such gift were, the rem' to the heirs females of the body of the man, who hath a son and daughter and dies, the daughter shall have the land though she is not heir; The same Law where land is given to W. N. for life, the remainder to I. S. for life, the remainder to the heires males of the body of the said W. N. who hath 2 sons, the eldest hath issue a daughter and dies, W. N. and I. S. die, the youn­ger son shall have the land as heir male, [Page 90] yet he is not heir indeed, See be­fore. B. Nosme 1. Whor­wood. 35 H. 8. but his Neece is heir to his father; for tis not matter of the first vesting, nor of the remainder, for where the first estate for term of life is executed, the remainder over ut supra, the remainder may depend in a­beyance quousque, &c. ut supra. But o­therwise of a remainder to the right heires, for none can have that, but he which shall be heir indeed. (B. Nosme. 40.) and therefore twas agreed, that the 2 remainders to the right heires of Sir John Hussey was forfeited by the at­tainder. 37. H. 8. B Nosme.

If land discends to the daughter within age, and after she is disseised, the disseisor dies and his heir enters, and af­ter a son is born, he born shal avoid the discent, for he claims not as heir to his sister, nor was he in esse at the time of the discent. Lecture. B. Discent. 40.

Discontinuance of Possession.

Recovery against Tenant in tail, See Tit. Assuran­ces, &. Recove­ry in va­lue. the reversion or remainder in the King in fee, shall binde the Tenant in tail, and the issue in tail, but not the King. But now by the Statute it shall not binde the issue in tail, but that he may enter. 32. H. 8. B. Discontinuance of possession. 32.

[Page 91] Note, The like was a­greed 37 H. 8. B. Patents 101. See Time H. 8. Tit. Patents. that twas agreed in the case betwixt the King and Anthony Lee Knight, if the King Tenant in tail of the gift of another makes a lease for years, or for life, and hath issue and dies, the issue may make another grant without reciting them; for they are void by the death of the King Tenant in tail, who granted, and the heir of the King shall avoid it, so that this shall not binde but during the life of the grantor, for a grant without war­ranty or livery, is no discontinuance, and the King upon his grant doth not make livery. And also every discon­tinuance is a wrong, which the King cannot do; the same law if he had gran­ted in fee, 4 ECom. 250. 2. 1. B. Tail 39. & 4. ECom M 234. tis no discontinuance; (B. Patents. 101. Discontinuance of Posses­sion. 35. Tail. 39. Leases 61.) And so see that the King may be Tenant in tail, for when a man gives to the King in tail, he cannot have a greater estate then the donor will depart with to him. 38. H. 8. B. Tail. 39.

Release no Discontinuance. See Tit. Releases. Discontinuance of Proces.

Note, that a Discontinuance puts the party to a new originall, but where the Parol is without day, this may be revived by a re-summons or re-attach­ment, for the originall remains. Regu­lae. B. Discontinuance of proces. 43.

Dismes, Tythes.

Twas said that if a Parson demise his Glebe to a lay man, there he shall pay Tythes; contrary of the Parson him­self, that reserves them in his proper hands. And that land first discharged of Tythes, shall be ever discharged of them. Yet if he which hath purchas­ed a Mannor and Rectory, which is discharged of Tythes, Leases part of his demeanes, the lessor shall have Tythes of that, because that he hath the Par­sonage. 32. H. 8. B Dismes 17.

Disseisor.

Twas said for Law, if A. leases the [Page 93] land of I. N. to me for years, T. 25. H. 8. accord Fitz. 179 G. rendring rent, the lessee enters, and payes the rent to the lessor, the lessor is a dissei­sor, See Coke upon Litt. for countervails a commandment to enter, and he which commands is a disseisor, which note by his void lease. 23. H. 8. B. Disseis'▪ 77.

Distress.

Where land shall be charged with 2 distresses by Dower of part, and so of partition. See Tit. Avowry. See 4. E. 6. Com. 68 by Mounta­gue, and Coke up­on Litt.

Note, for Law, that he which di­strains beasts may put them into a close house, if he will feed them; for the distress in pound overt, is but to the intent, that the owner may feed them. 33. H. 8. B. Distress. 66.

Twas agreed for Law by the Justices, that if a man distrain without cause, the owner may make rescous, but if he impounds them, the owner cannnot ju­stifie the breaking of the pound, and taking them out, for they are in Custo­dia Legis. 4. E 6 B. Distress 74. Rescous. 12. the end.

Done, Gift.

Devisee for life of a Chattell, the re­mainder over, See Tit. Grants. he for life gives the Chattell, whether this shall barr the remainder. See Tit. Chattells.

Tis said for Law, that if a man gives omnia terras & tenementa sua in D by this leases for years do not pass, for these words lands and tenements shall be intended free hold at least. 37. H. 8. B. Done. 41.

The difference betwixt a gift in Re­mainder, Heredibus masculis de corpo­re & rectis Heredibus. See Tit. Discent.

Twas granted by Shelly Justice, See Tit. Prerogative. 37. H 6 10. by Davers 26. H. 8. 8. cont. and others, that if the King give a Chattell without deed, and the donee takes it by his commandment, tis good. 2. E. 6. B. Done. 16. the middle.

If a man gives or grants omnia bona sua, leases for years, nor award, shall not pass, for they are Chattels reals. And B. seems that a grant of Prox' pre­sent. Ecclesiae unica vice is a Chattell, & non bona, for bona are goods movea­ble, living and dead, but not Chattels. 4. E. 6. B. Grants. 51. Done. 43:

Dower.

A woman shall not be endowed of a rent reserved upon a lease of her hus­band for term of life, 7. H. 6. 3. by Jane Perk. 68. See Coke upon Lit. Dower. Perk. 67. Perk. 69. for the rent is not an inheritance, and tis determinable upon the death of the Lessee, and yet the heir shall have it, for tis incident to the reversion. And where a man seis­ed in fee, leases for years rendring rent, and afterwards takes wife and dies, the wife shall have dower of the land, but shall not have execution during the term of years, for elder title, &c. and she cannot be indowed of the rent for the cause aforesaid. 1. E. 6. B: Dower: 89.

Note, by the Justices, by the Statute where a man makes his wife joynt pur­chaser with him after the coverture, 27. H. 8. c. 10. See Vernons c. Coke. l. of any estate of free-hold, except it be to him and his wife, and their heires in see simple, this is barr of Dower, if she agree to the joynture post mortem viri, otherwise of fee simple, for such joyn­ture is not spoken in the Statute. Nor a devise of land by the husband to the wife by testament, is no barr to Dower, for this is a benevolence, and not a [Page 96] joynture. 6. E. 6. B. Dower▪ 69▪

Dum non fuit compos mentis

Note, See Coke Bever­lies c. lib. that if a Judge or Justice be of non sane memory, yet the Fines, Judge­ments, & other records which are before him, shalbe good. But otherwise of the gift of an office or the like by him; for this is matter in fact, and the others are matters of record; for matters in fact may be avoided by non sane memo­ry, otherwise of matter of record. 1. M. 1. B. Dum non fuit compos mentis. 7.

Ejectione Custod.

TWas said that a man shall have a Writ de Ejectione custodie of a rent, and this before seisin of it; for seisin in Law shall be thereof adjudged, 14. H. 8. 23. by Brudnel. by reason that he cannot receive it before the rent day. Yet otherwise of land, for there he may enter▪ 23▪ H▪ 8▪ [Page 97] B. Quare ejecit infra terminum. 5.

Enquest.

Note, See Tit. Tryall. betwixt the King and the Bi­shop of Rochester for Treason, the Bi­shop shall not have Knights in his Ju­ry▪ where Knights ought to be retur­ned, when a Peer of the Realm, as a Bishop, and the like, is party▪ yet quae­re, if it were challenged. 27. H. 8. B. En­quest. 100.

Twas holden in the common Bench by the Prothonatories, if a protection be cast at the day of Nisi prius, 35. H. 6. 59. Moil accord. and the Justices take the Jury de bene esse, and at the day in bank, the protection is allowed, now though the first [...]a­king is void, yet the Inquest shall not be recharged by resummons, for when the Inquest is once sworn, and give verdict, they shall never be sworn again upon this issue. 2. M. 1. B. Enquest 86.

Entre congeable: lawfull Entry

Tenant for term of life aliens to B. to have to him and his heires for term of life, See 21. H. 8. 1. Fitz. & Brook. accord. 12. H. 8. 7. N. B. 124. 4. H. 7. 2. 14. H. 7. 6. of Tenant for term of life, this is no forfeiture, for all is but the limi­tation [Page 98] of the estate. See Coke. l. 23. H. 8. 39. 30. H. 8. 143. book at large. 1. H. 7. 22. 10. H. 7. 20. by Keble 25. H. 8. 70. B. Forfeiture of lands. 87.) And if Tenant for terme of life suffers a recovery, he in rever­sion cannot enter, but is put to his Writ of Entrie, ad terminum qui pre­teriit, or Writ of Right, and shall falsifie the recovery in it, if he hath cause. (And if he will have it sure, the Tenant for life ought to pray in aid of him in reversion, and if he joynes in aid, and both vouch over, then well upon recovery had, &c. as betwixt Corbet and Clifford in the Countie of Buck' this year.) But if Tenant for life be impleaded, and prayes in aid of a stranger, he in Re­version may enter, for this is a for­feiture. But if he doth not enter till the other hath recovered, then he can­not enter, but is put to his writ of Entrie, ad terminum qui preteriit, vel ingres. ad communem legem, and shall falsifie the recovery there. 24. H. 8. B. Entrecongeable. 115. Faux­ifier. 44. Forfeiture of Lands. 87. the end.

Cestuy que use in tail suffers a reco­very against him upon a faint title be­fore the Statute of Uses, See 20. H. 8. af­ter. See Coke up­on Litt. and dies, the Feoffees cannot falsifie it in an assise [Page 99] by way of entry, but shall have a writ of entry, ad terminum qui preteriit, or a writ of right, and shall falsifie it by this action. B. Entre congeable. 123. Fauxifier. 49.) And if he Leuies a fine with proclamation, and dies, if a stranger of his own head enters in name of the Feoffees, or to their use within the 5 years, this shall avoid the [...]ine though the Feoffees did not com­mand him; for by this the freehold is in them till they disagree, or till ano­ther enters. 31. H, 8. B. Entre congeable. 123. the end.

Twas doubted, See 29. H 8. 111. the book at large. and an­tea. See Coke upon Litt. 19. H. 8. 13. See Fines le­vies. W. [...] cap. 1. if a recovery had a­gainst cestuy que use in tail, shall binde the heire in tail. But by Hales Just. by such recovery the entry of the Feoffees seised to the use of the estate taile is taken away, but after the death cestuy que use, who suffered the recove­ry, the Feoffees may have a writ of right, or writ of entrie, ad terminum qui preteriit in the post, or the like. And by some, there is no use in tail, but tis a fee simple conditional at the common Law, as twas of a tail before the Statute of W. 2. And this Statute makes not mention but of gifts in tail, which is tails in possession. And ther­fore [Page 100] quaere, if the tail in use cannot be taken by the equity of it, yet twas doubted if the issues and the Feoffees shall be bound after the death of ce­stuy que use, 1. R. 3. cap. 5. See be­fore. 32. H. 8. cap. 36. who suffered the recove­ry, by reason of those words in the Statute of 1. R. 3. which wills that the recovery shall be good against the ven­dor, and his heires, claiming only as heir, and against all others, claiming onely to the use of the vendor and his heires, and this is intended by some of a fee simple, and in the case afore the issue in tail, claims as heir in tail in use. (B. Feoffements to uses. 56. the middle.) Yet see the Statute of 32. H. 8. that a Fine with proclamation levied, or to be levied by Tenant in tail in possession, reversion, remainder, or in use, after proclamation had, shall binde those Tenants of those tails and their heire for ever. And see that the same Sta­tute is as well pro temporibus preteri­tis, quam futuris. 30. H. 8. B. Feoffe­ments to uses. 57. the end.

G. T. Knight seised in tail to him and the heires males of his body, disconti­nues, and retakes to him and E. his wife, and to the heires of their two bodies, and had issue, T. and W. [Page 101] and died, The like case be­twixt Villiers and Bea­mont was ad­judged in the Commō bench. T 4. M. 1. 4 E. 6. Com 42▪ 11. H. 7. 20. Rast Discon­tinuance of pro­ces. 1. and after E. his wife survi­ved, and T. had issue E. nuptam T. W. and died, and after W. by covin of E. his mother, Tenant in joynture, brings a Formedon upon the elder tail against his mother, and she appeared the first day, and W. recovered by Nihil dicit, and T. W. and E. his wife heir to G. enters by the Statute of 11. H. 7. and the entry adjudged lawfull by the same Statute, which wills such discontinuan­ces, alienation, warranties, and reco­veries shall be void (B. Entre congeable 140. Judgement. 153.) And it need not to say that the recovery was execu­ted, for because twas void, it shal ne­ver be executed. And E. the heir a­verred that he is the same person to whom the reversion appertained, and shewed not how heir to it, and yet good by Molineux, and Hales Justices, contra Brown and Mountague chief Justice of the Common Bench. But all agreed that twas a recovery by co­vin, notwithstanding twas upon a true title. And good, notwithstanding he did not shew cause of covin. 32. H. 8. B. Entre congeable. 140. Collusion. 47.

Agreed for Law, that if land escheat to the King, which is in lease for [Page 102] years, or charged with a rent charge, and office is found for the King of the escheat (the lease or grant not found in the office) the lessee cannot enter, nor the Grantee cannot distrian, but if the King grant the land over, the lessee may enter, and the grantee may distraine. But a man which claims free hold in the land, cannot enter without traverse of the office, by B. 33. H. 8. B. Entre congeable. 124.

Note, 4. M. 1. Com. 175. 32. H. 8. cap. 34. Rast. Com. 1. 4. E. 6. Com. 34▪ 4. M. 1. Com. 177. See Coke upon Litt. that tis ruled in the Serje­ants case, that where a common per­son leases lands for years, rendring rent with a clause of reentry, and af­ter grants the reversion over, the te­nant atturns, the grantee may reen­ter for condition broken, by the Sta­tute by express words. And the same Law of the grantees of the King. E. 6. and all others heires to King H. 8. by the equitie of the said Statute, which provides remedy for the patentees of the King. H. 8. And for grantees of common persons. 4. M. 1. B [...] Entre congeable. 139.

Twas said that where the interest of the King is certain and determined, the party may enter, quaere by B. Time. H. B. Reseiser. 36. the end.

Error.

'Twas said in the Kings Bench, where a writ of Error beares teste be­fore the first Judgement, and the Re­cord is certified in the Bench, that 'tis good; and yet the Writ saith, quod si judiciū reddit. fit, tunc Record. & pro­cess. habeatis, &c. 5 E: 6. B: Errour.

Escape.

Debt upon an Escape, against the Sheriffe, who said That before the E­scape the Prisoner was condemned in the said condemnation, and in Execu­tion, ut in narratione, in the time of a former Sheriffe, who suffered him to Escape, and after re-took and impri­soned him, and was removed, and this Defendant was made Sheriffe, and af­ter suffered him to Escape; judge­ment is, Of this second Escape you ought to have your Action: and a good Plea, 10 E. 4. 11 by Billing see Cooke lib. 3. Ridgways Case. for he hath confessed and avoided the Plaint; for when the Pri­soner first Escaped, and the first She­riffe re-took and imprisoned him: This second Imprisonment is no Exe­cution [Page 104] for the party, but the Party is put to his Action, for the Escape a­gainst the first Sheriffe, 5 E: 6. B: E­scape 45.

Escheate.

Foundership cannot Escheate by death without Heir, nor bee forfeited by attaindor of Felony or Treason; for 'tis a thing annexed to the blood, which cannot be divided, as 'twas said, after the augmentation Court took commencement; for a man who is Heir to another, cannot make ano­ther to be Heir, Time: H: 8. B: Co­rodies 5. the end.

Note, by Brown, Hales & Cooke, Justices; if there bee Lord and Te­nant by Fealty and Rent, the Tenant is disseised and dies without Heir, the Lord accepts the Rent by the hands of the said disseisor, yet hee may enter for the Escheate, or have a Writ of Escheate, and the receipt of the Rent no barre; Fitz. 144. C. for the Disseisor is in by wrong: Otherwise if he had allowed for it in a court of Record, Fitz. 144. N. accord see Cooke vpon Lit. or had ta­ken corporall service, as Homage, &c. So of acceptance of Rent by the hands [Page 105] of the Heir of the Disseisor, or of his Feoffee, which are in by Title, 7 E: 6. B: Escheate 18.

Essoign,

If the Tenant in a Praecipe quod redd: prayes the vJew by Attorney; his Attorney shall bee Essoyned upon the vJew: But if he himselfe prayes the vJew in proper person; then per plu­res, none shall be Essoyned upon the vJew but the Tenant himself; for af­ter Processe upon a Voucher, he him­self shall bee Essoyned, and by conse­quence in like manner shall be upon the vJew. So of ayde prayer, 5 H. 7, 8, & 9. And note, That granting of an Essoyn, whereon Essoyn lyes not, is not error. Contrary of denying of Essoyn where it lyes, 33 H: 8. B: Essoine 116.

Estates.

The King gives Land to I: S: & heredibus masculis suis; Rast. 60. M 9. & 10 Eliz. Com. 335. Lit. 6. & Cook upon it. Rast. 60. 27 H. 8. 27 and 'twas adjudged by all the Justices in the Ex­chequer Camber, that the Grant is void; because the King is deceived in his Grant; for it sounds in Fee sim­ple; [Page 106] whereas it seems the King intend­ed but an estate tail, which is not so expressed; and therefore now he is but Tenant at will. Otherwise in case of a common person, 18 H: 8. B: Pa­tents 104, Estates 84.

'Twas said for Law, 27 H. 8 29 cont sec 24 H 8 tit Entre con­geable: & Cook lib. That if a Feoff­ment bee made to W: N: during the life of I: S: these words (during the life of I: S:) &c. shall be void; for they are contrary to a Fee. Con­trary of a Feoffment in Fee so long as Pauls Steeple shall stand, 21 H: 8. B: Estates 50.

A man gives Land to two & here­dibus, 22 E 4. 16 by Gen­ney 4. E. 6 Com▪ 28. 20 H 6 36 by Poro­ing. See Cook lib. & his Li [...]. [...]o. 8. b. and doth not say suis; This is no Fee-simple: And 'twas said that the reason is, because that two are na­med in the Deed; and therefore 'tis incertain to which of them heredibus shall bee referred. But if there were but one in the Deed, then it shall be referred to the one only. But in a Devise 'twas said by some, that the words afore are a Fee-simple. Con­trary in a Gift and Feoffment; for the one shall bee taken by intendment, the other not, 31 H: 8. B: Estates 4.

A man gives land to a Husband and [Page 107] Wife for terme of their Lives, & di­utius eorum vivent. the remainer to the Heirs of their bodies, this is a taile executed, by reason of the immediate remainer, notwithstanding the words of the Statute, W [...]stm. 2. c. 1. Rast. Tail. 1. quod voluntas Donato­ris in omnibus observetur, by all the Justices, 35 H: 8. B: Estates 78.

By opinion in the kings Bench, See 29 H. 8. Tit. Te­stament & Cook up­on Lit. &c Tit. Con­science. If a man deviseth his Land to W: N: sol­vend ten pound to his Executors, and dies, the Devisee hath a Fee-simple, by reason of the payment, without words, Heredibus, or in perpetuum, and this shall be intended the intent of the De­visor: The same Law if a man sell his Land to W: N: for twenty pound, this shall be intended a sale in Fee-simple, without words, Heirs, for Conscience &c. & est equum & bonum, which is a ground in every Law, 4 Ed: 6. B. Estates 78.

Estoppell.

If a man hath Liberties, Rent, Com­mon, or the like, by prescription, and after takes a grant thereof of the King by Patent, or of another by Deede, this determines his prescription by [Page 108] conclusion (B: Prescription. 102. E­stoppell 210.) for Writing shall deter­mine Contracts and matter in Fait, 29. H. 8. See Tit. Contract. 33 H: 8. B: Prescrip. 102.

'Twas agreed that a stranger to a Fine or Recovery, 30 H. 6. 2. by Fortes­cue accord See Cooke upon Lit. Estoppell. shall not pleade it for Estoppell; contra, If hee claim the same Land under the Fine or Record, by those which were parties, or claims the same Estate, or part of it, and that this estate continues, for then he is pri­vy in the Per: 36 H: 8. B: Estoppell 216. the end.

If two joyn-Tenants are which hold of the King in chiefe, and the one re­leases to the other in Fee, and after both respit Homage in the Exchequor; 33 H 6 7. by Laken D. 8. 33. by this, he which released hath gained the moity by conclusion, as it shall be where two joyne in suite of livery out of the hands of the King, where the one hath nothing, by the opinion of some: And the same of Partition by two, Lit. 12. see Cook 34 H. 6. 48. Danby ac­cord. see 5 H 7. 19 where the one hath nothing, 37 H: 8. B: Estoppell 218,

Note that a man which Leases by Deede poll for yeeres, or by Parol, may avoid this Lease to say, That hee had nothing in the Land, tempore di­missionis: Contrary, Upon a Lease by [Page 109] Indenture, 9 H. 6. 60. per Cur. for this is an Estoppell 38 H: 8. B. Estoppell 8.

If a man Indicted of Extortion, or Trespasse, puts himself upon the grace of the King, and makes a Fine, and after the party sues him for it, by Bill or Writ, and he pleades Not Guilty, hee shall have the Plea, and the mak­ing the Fine to the King shall not e­stop him; 9 H. 6. 60. by Babington. for there the Entry is, quod petit se admitti per Finem, and doth not confesse it precisely, and therefore no Estoppell: Yet B seemes to make the Fine by protestation that hee is not guilty, and then 'tis all cleere, See [...]8 H. 8. before. Time: H: 8. Estoppell 82.

A man pleads a Pardon of the King, in the Exchequer, for alienation, with­out License, where the Land is not holden of the King in capite: This is an Estoppell, to him to say after that, He doth not hold in capite, See Cook upon Lit. Jo. 7 Ed: 6. B: Estoppell 222.

By Hales and Montague, If a man Leases to N: his own Land, by Deed intended; the Indenture is no Estop­pell, but during the Lease; and not after, Casus B: Estoppell 221.

Estranger.

A: is bound to B: in a 100. l. and B: makes a Defesance to W: S: That if W: S: payes 40. l. that the Obliga­tion shall be void. This is worth nothing per opinionem; because that A: that should plead it, is a Stranger to the Deed: Lit. 82. 14 H. 8. 10. by Brud­nell. Hus­sey accord. 22 E. 47. But where two are bound to me, and I make a Defesance to one; this shall serve the other to plead, if he can shew it: as in Trespas against two, a release to one shall serve the other, if he can shew it, 34 H: 8. B: Estranger al fait 21.

Estray.

If a man takes Beasts as an Estray, Eliot ac­cord. 12 H. 8. 10. and keeps them three quarters of a yeer, and after they stray from him, and another happens on them; the first Lord which kept them for three quar­ters, cannot take them again, because that he had no property in them till hee had kept them a yeer and a day, and Proclamation passed in the two next Market Towns, and two Market dayes, the one in the one Town, and [Page 111] the other in the other; for the pos­session of the second Seizor is good against him who hath no property, 33 H: 8. B: Estray 11.

Executions.

Note, 11 H. 4. 34. by Thirning 6 E. 6. Com. 137. 2 H. 6. 9. cas. 6. by Fitz: and the Court, If a man recover in a Writ of Annuity, he shall have a Fierifacias of the Ar­rearages incurred within the yeer, and a Scire fac: after, as soon as the An­nuity is Arrear, and never a Writ of Annuity again; for 'tis executory, and the same Law of an Action, and Judgement upon composition, which is executory de tempore in tempus, and the like. And in every Scire fac: in which he recovers after the first Judgement, he shall have execution of the Arrearages within the yeer, by Fiere fac: for every one is founded upon the Judgement, 23 H: 8. B: Executions 119. Scirefac: 213.

By the whole Court in the Com­mon-Bench, If two are bound in an Obligation conjunctim & divisim, the Obligee impleads the one, and hath execution of his body; and after im­pleads the other, and condemns him, [Page 112] hee may have execution against him also; for the taking of the body is a good execution, but 'tis no satisfacti­on; 4 H. 7. 8. 45 E. 34 by Thorpe and therefore hee may take the other also. But if the one satisfie the Plaintiff, hee shall not have execution after; and therefore this Order, That the Plaintiff upon an Obligation shall have but one execution, is intended such execution which is a satisfaction, and where both are impleaded by one originall, by severall Precipes, &c. 29 H: 8. B: Execution 132.

Scire fac: upon recovery of Debt and Damages; the Defendant said, that once the Plaintiff sued a Capias ad satisfaciend. by which the She­riff had took his body, Judgement, &c. And there 'tis said, That a Capias ad satisfaciend. is not of Record be­fore the retorn of it; therefore no Plea: Yet B: seems the Plea good by the taking of the Body, though no Writ bee returned, 37 H: 8. B: Exe­cutions 6.

Executors.

'Twas noted by Fitz: 6 E. 4. 1. 7 E. 4. 9. by Ch [...]ke. and others, That in an Action of Debt against an [Page 113] Executor, 34 H: 6. upon an Obliga­tion of his Testators, who pleaded not his Deed, and found against him, the Judgement by the Record was, That the Plaintiff should recover of the dead, if hee hath any; and for that, the book at large, fol. 24. is reported further in these words; and if he have not, then de bonis proprijs, which words are not in the Record; 'Twas cōman­ded by them to mend the Book; for 'tis contrary to the Record, and so mis-reported, 23 H: 8. B: Executors 22.

A man makes two Executors, Moile and Ashton [...]c­cord. 39 H. 6. 45. and dyes; the one Executor makes an Ex­ecutor, and the other survives, and dyes intestate; the Executor of the Executor shall not meddle; for the power of his Testator was determined by his death, and by the survivor of the other; so that now the Ordinary shall commit the Administration of the goods of the Executor which survived, & de bonis non Administratis of the first Testator, 32 H: 8. B: Executors 149.

A man makes A: and B: his Execu­tors, 19 H 8 8. by Fitz. See Dyer. 19 H. 8. and wills that B: shall not med­dle during the life of A: and good; [Page 114] for he doth not restrain his intire po­wer; for he may make one Executor of his goods in C: and another Execu­tor of his goods in D: and so he may divide the time ut supra, 32 H: 8. B: Executors 155.

A man hath a Lease for yeers as Ex­ecutor B: and after purchases the re­version of the Land in fee, Hales and Whore­wood ac­cord. 2 E. B. Surr. 52. the end See Cook upon Litt. Jo. See Tit. Extin­guishment the Lease is extinct. But yet the Lease shall be a­gainst the Executor assets by Whore­wood and Hales Justices. (B: Extin­guishment 54. Leases 63. Surrender 52.) And if it shall bee extinct, B: seems to be a devastavit ad ultim: 4 E: 6. B: Extinguishment 57. the end.

Exposition.

The severall exposition of infra ter­minum 10. annorum & infra termi­num predict: See Tit: Conditions.

Extinguishment.

If the Abbot and Covent give all their Lands and Possessions to another in fee, See 32 H. 8. Tit. cor­poration. yet the corporation remains by Fitz: Justice, 20 H: 8. B: Extinguish­ment 35.

[Page 115] Lord and Tenant; See 27 H. 8. Tit Par­liament. the Tenant is attainted of Treason by Act of Parli­ament, and to forfeit all his Lands; and after he is pardoned, and resto­red, by another Parliament, habend. sibi & heredibus, as if no such attain­der, nor former Act had been. Or if the Heir of him who was attainted, be restored by Parliament in such form; now the Seigniory which was extin­guished, is revived, and he shall hold of the common person as before; and yet once the tenure was extinct by the forfeiture of the Land to the King, 31 H: 8. B: Extinguishment 47. Revivings 8. Tenures 70.

Lord and Tenant; See Tit. Apporti­onment. Lit. 48. 11 H. 7. 13. by Da­vers ac­cord. Perk. 16. C. The Tenant holds by third three Acres of Land, the Tenant infeoffs the Lord in fee, of one Acre; the Seigniory is extinct for the third part, and remains for the other two parts; but if the Tenant had let to the Lord one Acre for yeers, there the Seigniory is suspended in the whole, during the term; for the Seig­niory may be extinct in part, but not suspended in part, but for the intire, 32 H: 8. B: Extinguishment 48.

Where a Condition shall not be ap­portioned, but extinct, See Tit: Condi­tions.

[Page 116] A man hath a Lease for yeers as Executor B. and after purchases the reversion of the Land in fee, 2 E. 6. B. Surr. 52. the end. See Tit. Executors and Sur­rendor. the Lease is extinct; but yet the Lease shall be a­gainst the Executor assets, by Whorwood and Hales Justices. (B: Extinguish­ment 54. Leases 63. Surrender 52.) And if it shall be extinct, B: seems to be a devastavit ad ultimum, Extin­guishment 57 the end. But where he hath it as Executor, & there is a mean Lease in reversion for years, and hee purchases the reversion in fee; the first Lease remains by reason of the mean remainder (B: Leases 63.) And by Hales, If a man Leases to another for ten years, and after Leases the same Land to another for twenty years; the first Less [...]e purchases the reversion in fee; yet the first Lease is not extinct, because that the second Lease, which is for twenty years, is mean betwixt the first Lease and the Fee-simple, which is an impediment of the extinguish­ment, 4 E: 6. Extinguishment 57.

Where an Action by Entry and Feoffment shall be extinguished, See Tit: Restor: al primer action.

Faits, Deeds.

NOTE, 48 E. 3. per accord If an Action be sued upon a Deed, bearing date at Cane in Normandy, 5 Dat: apud Cane, &c. That the Plaintiffe shall count that the Deed was made at Cane in Com: See 34 H. 8. Tit. A­ction up­on the Case. 21 E. 474 per Cur. see Cooke upon Lit. so. Kanc: and good; for the place is not traversable (B: Faits 95. the end) And also where it truth it was written in Cane, 'tis suable in Eng­land, where it beares date at large, and at no place certaine: But if it bee (dat: apud Cane in Normandy, &c.) quaere If the Action lyes, &c. Time: H: 8.

Note, That 'twas agreed by the Ju­stices, that this clause which comes af­ter these words, In cujus rei, &c. Si­gillum apposui, &c. is not any part of the Deede, though 'twere written before the sealing and delivery, 1 M: 1. B: Faits 72.

Faits inroll: Deeds inrolled.

Note, that a Deed of Husband and [Page 118] Wife shall not be inrolled in the com­mon Bench, See 32. H. 8. Tit. co­verture. 7 E. 4. 5. by Lit. except for the Husband only, and not for the Wife; by rea­son of coverture: Nor she shall not be bound with her Husband in a Sta­tute-Marchant, nor the like: But if they make a Deed inrolled of Land in London, and acknowledge it before the Recorder and an Alderman, and the Wife examined; See Tit. Fines, Levies. this shall binde as a Fine at common-Law, by their custome, and not only as a Deede, and it suffiseth without Livery of Sei­sin, 29 H: 8. B: Faits inroll: 14. & 15.

A man infeoffs the King by Deede, and makes Livery; 12 H. 4 21. see 37 H 6. 10 by Davers. 4 Eliz Con. 213. & 242 this is worth no­thing, for the King shall not take but by matter of record: But if he inroll the Deed, then 'tis good to the King without Livery, for the King takes not by Livery, 29 H: 8. B. Faits inroll: 16. Feoffments 69.

Note, 27 H. 8. ca. 16. by the Justices, That where two joyn-Tenants are, the one aliens all his Lands and Tenements in D: af­ter the Statute of Inrollments, and before the Inrollment the other joyn-Tenant dies, so that his moitie sur­vives to the Vendor, and after the [Page 119] Vendor, within the halfe yeere, in­rolls the Deede; yet nothing passes but the Moitie, for the Inrollment hath relation to the making and deli­very of the Deede, so that it shall give nothing but that which was sold by it at the time of delivery of the Deede: And by more Justices, Where a man sells his Land by Deede Indented to one, and after hee sells it by another Indenture to another, and the last Deede is first Inrolled, and after the first Deed is Inrolled, within the halfe yeere, there the first Vendee shall have the Land, for it hath relation to make it the Deed of the Vendor, and to passe the Land ab deliberatione facti; for the Statute is, That a Free-hold, nor use of it shall not passe, nor change from one to another by bar­gain and sale only, except it bee by Deed Indented and Inrolled within the halfe yeere; Ergo, if it bee by Deede Indented and Inrolled within the halfe yeere it shall passe as the use might passe at common Law, See Tit. Consci­ence. by sale of the Land which was presently upon the sale, 6 E: 6. B: Faits Inroll: 9.

Fauxifier, Falsefying.

Where he in reversion shall falsifie a recovery had against Tenant for term of life, where not, See Tit. Entre Congeable.

Where the Feoffees may falsifie a recovery suffered by Cesty que use in tayl; where not, See Tit: Entre Con­geable.

'Twas holden that an attaint shall goe with the Land, as a Writ of Error shall, Fitz 21. L. Time: H: 8. B: Fauxifier 50. the end.

Faux Imprisonment, false Imprisonment.

'Tis said, That a man, as Constable, cannot Arrest another for an Affray, after that the affray is past, without Warrant: contrary, before the Affray, and in the time of the Affray &c. And the same Law of a Justice of Peace, 38 H: 8. B: Faux Imprisonment 6. the end.

Faux Judgement, False Judgement.

Note, by Fitz: for cleer Law, That in a Writ of falfe Judgement in nullo est erratum is no Plea; for they joyn issue upon some matter in fait certain alledged by the party, and shall bee tryed by the Country; for 'tis no Re­cord, contra, in Error, 23 H: 8. B: Faux Judgement 17.

Fealtie.

Note, in the Chequer, That if Land descend to me, which is holden of I: S: by homage, and I doe to him homage; and after other Land descends to me by another Ancestor, holden of him by homage, I shall doe fealty, but not ho­mage again; for I became to him his man before. And if both the Tene­ments are holden of the King by ho­mage; he shall not respit both the ho­mages in the Exchequer; but one ho­mage only, 24 H: 8. B: Fealty 8.

Note, in the Exchequer, That a Dean and Chapter, and other bodies politique, shall not doe homage; for this shall be done in person: And a [Page 122] Corporation cannot appear in person, but by Attorney; and homage can­not be done by Attorney, but only in person, 33 H: 8. B: Fealty 15.

Feoffments.

A man makes a Feoffment of a house cum pertinentiis, 9 E. 4 32. See 31 H 8. Tit. Leases 6 & 7 E. 6 Com. 86. by Hal [...]s Just. 4 M. 1. Com. 171. 6 & 7 E. 6. Com. 85 3. M. 1. Com. 168 27 H 6 2. nothing pas­ses by these words cum pertin: but the Garden, the Curtilage, and Close ad­joyning to the house, and upon which the house is built, and no other Land, though other Land hath been occupied with the house, 23 H: 8. B: Feoff­ments 53.

Note, by Fitz james ch: Justice, En­glefield Just: and divers others, where a Disseizor makes a Feoffment for maintenance, and takes the profits, the Feoffment is void by the Stat: of 1 R: 2. ca: 9. as to a Stranger which shall have an Action, 27 H 8. 23 by Fitz. for he shall have it a­gainst the pernour of the profits; but 'tis not betwixt the Feoffor and the Feoffee. And also a man who vou­ches by such Feoffment, one of the Feoffees, the Demandant, shall coun­ter-plead by the same Stat: 21 H 6. Counter-plea of Voucher 3. because the Feoffment was void. And B: [Page 123] seems that such Feoffment shall not be a remitter in prejudice of a third per­son, 24 H: 8. B: Feoffments 19.

If a man makes a Feoffment to four, See Time. H. 8. after. and the one of the four makes a letter of Attorney to I: N: for to take livery for him and his companions, who doth it accordingly; nothing passes, but to him who made the Let­ter of Attorney only, 27 H: 8. B: Feoffments 67.

'Twas said for Law, That if a man Leases Land for ten years, and the same Lessee lets it over to another for four years; the Lessor makes a Feoff­ment to a Stranger by sufferance of the second Lessee; this is a good Feoff­ment without Attornment of the first Lessee, 28 H: 8. B: Feoffments 68.

'Tis said, Lit. 67. 21 E. 4. 22 by R [...]de ac­cord. That a Feoffment of a moity, is good, 31 H: 8. B: Feoff­ments to uses 19.

If a man makes a feofmēt of a house, ac omnia terras, tenemeta et heredita­mēta eidem messuag: pertinen: aut cum eodem occupat: locat: aut dimiss: exi­sten: by this the Land used with the house shall passe, 32 H: 8. B: Feoff­ments 53. the end. See 31 H. 8. Tit. Leases.

A man makes a Deed of Feoffment [Page 124] to another, and delivers the Deed to him in the Land, or upon the Land; this is a good Feoffment by all the Ju­stices in the Common-Bench, 35 H: 8. B: Feoffments 74.

If a man bee seized of one acre of Land in Fee, Accord Frow. 9 H. 7. 25. & 7 E. 4 20. 3. M. 1. Com. 154 and another is seized to his use in Fee of another acre, and hee makes a Feoffment of both acres, and Livery of the acre which he hath in possession, by this the acre in use pas­ses not, though he made the Livery in the one in the name of both, for this is not his acre, but the acre of the Feof­fees, 1 R. 3. ca. 4. and the Stat: saies that his feof­ment shall be good, but 'tis no Feoff­ment except hee makes Livery in the same Land: Otherwise if Livery were made in the Land, in use, by reason of the Stat: 37 H: 8. B: Feoffments 77. Feoffments to uses, 55.

If a Feoffment be made within the vJew, when this is pleaded; 'tis said that expresse mention shall be made in the pleading, that the Land was within the vJew, Time H: 8. B: Feoffments 57. the end.

Feoffment is good of the Land by Deede, by Livery of the Deed within the vJew, so that the Feoffee enters [Page 125] accordingly: But if the Feoffor dies before the Feoffee enters, then the Land is discended to the Heir of the Feoffor, and the Feoffment shall not take effect, Time H: 8. B: Feoffments 72.

A man makes a Feoffment by Deed to twenty, 10 E. 4. 1. by Choke see 27 H. 8 before 40. E. 3. 41 by Finch 18 E 4. 12. by Collow & Townes. and delivers the Deed and Seisin to one in the name of all, this is good to all; but if hee Infeoffs twen­ty without Deed, and delivers Seisin to one in the name of all, this is no feofment to any but to him who takes the Livery, Time H: 8. B: Feoff­ments 72.

Note, 1 R. 2 c 9. Rast. Feoffments 1. See 24 H. 8. before. that by the Stat: of 1 R: 2. where a Disseizor makes a Feoffment, for maintenance, and takes the pro­fits; the Feoffment is void by the Stat: to all intents, Lecture Whorwood 35 H: 8. B. Feoffments 19.

Feoffments to uses.

By Shelly Just: See the next sect. prope finé. Where the Father Infeoffs his Son and Heir apparent, to the intent to defraud the Lord of his Ward, this Feoffment was to the use of the Father, 33 H 6. 16. by Prisot. during his life, and hee takes the profits during his life, and so [Page 126] see that uses were in antient times, 24 H: 8. B: Feoffments to uses 20. the end.

A man makes a Feoffment in Fee, See Cook upon Lit. to four, to his use, and the Feoffees make a gift in tayle without conside­ration, to a stranger, who had not co­nusance of the first use, habend: in tayle, to the use of cestuy que use, and his Heirs; the tenant in tayle shall not be Seised to the first use, but to his own use, West. 2. ca. 1. for the Stat: of Westm: 2 cap: 1. wills, quod Voluntas Donato­ris in omnibus observetur; 27 H. 8. 10 by Monta­gue. See Cook lib. 1. Chud­leighs case that a man ought to refer his Will to the Lawe, and not the Lawe to his Will: Also none can bee Seised to the use of ano­ther, but hee which may execute an E­state to cestuy que use, which shall bee perfect in Law, which tenant in tayle cannot doe; for if hee executes an E­state, his Issue shall have a Formedon; And the best opinion that an Abbot, Mayor and Commonalty, nor other Corporations shall not bee seised to a use, for their capacitie is only to take to their own use: And also if the Ab­bot execute an estate, the successor shall have a writ of Entry sine assensu capituli: and those that are in the [Page 127] [...]ost, Of the Es­cheat, 14. H 8 8. by Pollard: of the Reco­very, 4 E. 6. Com 54. by Halles. 1 R. 3. ca. 5. as by Escheate, Mortmain, Per­ [...]uisite of Villeine, Recovery, Dower by the courtesie, and the like, are sei­sed to their own use and to another use: And also the Stat: of 1 R: 3. is, That all Gifts, Feoffments & Grants of cestuy que use shall be good against all, &c. saving to all persons their rights and interests in tayl, as if this Stat: had not been made; and there­fore Tenant in tayl shall not bee sei­zed to a use. And 'twas agreed by the Court, That the words in the end of the Stat: See 29 H. 8. after. 14 H. 8. 8. by Br. Just. Perk. 103. C. of 1 R: 3. saving such right and interest to the Tenant in tayl, &c. is taken Tenant in tayl in possession; and not Tenant in tayl in use: for cestuy que use in tayl hath no right nor interest. And also here there is a Tenure betwixt the Donors and the Donees, Litt. 29. Perk. 103. D. see af­ter. which is a consideration that the Tenant in tayl shall be seized to his own use: And the same Law of Tenant for term of yeers, and Tenant for life, their fealty is due; and where a rent is reserved, there, though a use be▪ expressed to the use of the Donor, or Lessor; yet this is a consideration that the Donee▪ or Lessee shall have it to his own use: See Dyer 5. M. fo. 155. And the same Law [Page 128] where a man sells his Land for 20. l. by Indenture, and executes an Estate to his own use; this is a void limita­tion of the use: for the Law by the consideration of money, makes the Land to bee in the Vendee. Et opinio fuit, That a use was at Common-Law before the Stat: Westm. 3. ca. 2. Rast. Tenure 4. 45 E. 3. 15 by Finch. Perk. 103. B. of Quia emptores ter­rarum, but uses were not common be­fore the same Stat: For upon every Feofment before this Stat: there was a Tenure betwixt the Feoffors and the Feoffee; which was consideration, that the Feoffee shall be seized to his own use; but after this Stat: the Feoffee shall hold de capitali domino, and there is no consideration betwixt the Feoffor and the Feoffee without mony paid, or other especiall matter declared, for which the Feoffee shall be seized to his own use: For where the Stat: Cap. 6. see before. of Marlebr: is, that a Feof­ment by the father, Tenant in chival­ry, made to his son by covin, shall not toll the Lords Ward, &c. In these Cases the Feoffor after such Feofment takes the profits of the Land all his life. See Cook lib. And the same Law by Shelley of a Feofment made by a Woman to a Man to marry her, the Woman takes [Page 129] [...]he profits after the esponsalls: Quaere [...]nde; for this is an expresse considera­tion in it self. And by Norwich, If a man deliver money to I: S: to buy land for him, and he buyes it for himself, & to his own use, this is to the use of the buyer, 20 H 6. 34 by Wangf. and to the use of him who delivered the mony; and there is no other remedy but an action of deceipt, 14 H: 8. B: Feofments to uses 40.

Note, if a Feofment be made to the use of W N, for term of his life, & after to the use of I: S: and his Heirs, their cestuy que use in remainer or reversi­on, may sell the remain or reversi­on in the life of W N, 10 El. Com. 350. but hee cannot make a Feoffment till after his [...]eath, 25 H: 8. B: Froffments to uses 44.

'Tis holden that if the Feoffees seised to the use of an Estate taile, See before Time. H. 8 & after 30 H. 8. or other use, are impleaded, and suffer the common recovery against them upon bargaine, this shall bind the Feoffees and their Heirs, and cestuy que use and his Heirs, where the buyer and re­coveror hath not conusance of the first use: And by Fitz: it shall binde, though they had notice of the use; for the Feoffees have the Feesimple: Et [Page 130] per plures, if cestuy que use in tail [...] be vouched in a recovery, and so the recovery passes, it shall bind the tait [...] in use s: 1 R. 3. ca. 5. Rast. Uses 4. cestuy que use and his Heirs▪ and otherwise not; And this B seem to be by the Stat: which excepts tenant in taile, which is intended tenant i [...] taile in possession, and not cestuy que use in taile, for cestuy que use in tai [...] is not tenant in taile, 29 H: 8. B▪ Recovery in value, 20. Feoffments to uses, 56.

Feoffees in use make a lease for yeers rendring rent, See before to another who hath notice of the first use, yet the Lease shall be only to the use of the Lessee himselfe: 19 H. 8. 1. accord. And the same Law per plu­res though no rent be reserved: And if a man makes a Feofment, and an­nexes a Schedule to the Deed contey­ning the use, hee cannot change the use after; and so if hee expresses the use in the Deed of Feofment, but o­therwise where hee declares the use by words of his Will s: See 20 H. 7. 11. I will that my Feoffees shall bee seized to such a use, there he may change this use, because by Will, &c. And that if a Feofment be made to the use of the Feoffor in tail, & after he execute an estate to him [Page 131] in [...]ee, the use of the Estate taile is determined, 30 H: 8. B: Feofments to uses, 47.

If A: Covenants with B: That when A: shall be Enfeoffed, by B: of three acres of Land in D: that then [...]he said A and his Heirs, and all others seized of the Land of the said in S: shall be thereof seised to the use of the said B: and his Heirs, there if A: makes a Feofment of his Land in S: and after B: Enfeofs A: of the said three acres in D: there the Feoffees of A: shall bee seised to the use of B: notwithstanding they had not notice of the use; for the Land is and was [...]ound with the use aforesaid, 14 H. 8 9. by Pollard to whose hands soever it shall come; and 'tis not like where a Feoffe in use sells the Land to one who had not notice of the first use; for in this first Case the use had not being till the Feof­ment be made of the three acres, and then the use doth commence, 30 H: 8 B: Feoffments to uses 50.

'Twas doubted if a Recovery had a­gainst cestuy que use in taile, See 29 H. 8. before. shall binde the Heir in taile; But by Hales Just: By such Recovery the entry of the Feoffees seised to the use of the E­state [Page 130] [...] [Page 131] [...] [Page 132] taile is taken away, but after the death of cestuy que use who suffered the Recovery; the Feoffees may have a writ of right, or writ of entry ad ter­minum qui preteriit in the post, or the like: And by some there is no use in taile, but 'tis a fee-simple conditiona [...] at common Law, as 'twas of the taile before the Stat: of W: 2. And this Stat: makes no mention but of gifts in taile, which is taile in possession; and therefore quaere, if the taile in use can­not be taken by the equity of it, ye [...] 'twas doubted if the issues and the Feoffees shall be bound after the death of cestuy que use, 19 H 8 13 see before. Westm. 2. ca. 1. 1 R. 3. ca. 5. who suffered the Recovery, by reason of those words in the Stat: of 1 R: 3. which will that the Recovery shall bee good a­gainst the Vendor and his Heirs, clay­ming only as Heir, and against all o­thers clayming only to the use of the Vendor and his Heirs; and this is in­tended, by some, of a Fee simple▪ And in the case aforesaid the issue in taile claymeth as Heir in taile in use, (B: Feofments to uses 56, the middle) yet see the Stat: 32 H. 8. ca. 36. of 32 H: 8. That [...] Fine with Proclamation, levyed or to be levyed by tenant in taile in possessi­on, [Page 133] Reversion, Remainer, or in Use, after Proclamation had, shall binde [...]hose tenants of those tayles and their Heirs for ever: See Tit. Fines. And see that the same [...]tat: is as well for the time past, [...]s to come, 30 H: 8. B. Feofments to uses, 57.

If Covenants and Agreements are [...]onteined in Indentures and not uses; [...]nd 'tis Covenanted by the Indentures [...]hat A: shall recover against B: his Land in D: to the use of the recoveror [...]nd his Heirs, and to the uses of the Covenants and Agreements in the In­dentures; there if he recovers, the re­ [...]overy shall be to the use of the reco­veror and his Heirs; and not to the uses of the Covenants and Agreements in the Indentures, where no uses are in the Indentures. But otherwise, if uses are conteined in the Indentures, [...]nd 'tis Covenanted, That A: shall re­cover to the use of A: and his Heirs, and to the uses in the Indenture; there the recovery shall goe according, 27 H. 8. ca. 10. Rast. Uses 9. and shall be executed by the Stat: 32 H: 8. B: Feoffments to uses 58.

'Twas agreed by all the Justices, up­on great deliberation, in the case of Mantel Esq: of the County of North: [Page 134] who was attainted with the Lord Dacres of the South, for the death of a man (which see Tit: Corone.) that where he at his marriage 31 H: 8. af­ter the Stat: of uses made, 27 H: 8. Covenanted, That for a 100. l. and in consideration of marriage, that hee and his Heirs, and all persons seized of his Lands and Tenements in H: shall bee thereof seized to the use of his wife for term of her life, and after to the Heirs of his body by her ingendred, that this shall change the use well e­nough, and very good: And by this the Land was saved, and was not for­forfeited, 34 H: 8. B: Feoffments to uses 16. the end.

A man purchases Land, and causes an Estate to bee made to him and his wife, and to three others in Fee, this shall bee taken to the use of the hus­band only; and not to the use of the wife without speciall matter to induce it. See 4 E. 6. Com. 44. And so see a Woman may be sei­zed to the use of her husband, and by him such Feofment was, 3 H: 7. and intended as aforesaid, 34 H: 8. B: Feoffments to uses 51.

A man makes a Feofment in Fee to his use for term of life; & that after his [Page 135] decease I N shall take the profits; this makes a use in I N, contrary if he saies, that after his death his Feoffees shall take the profits and deliver them to I N, this doth not make a use in I N: for he hath them not but by the hands of the Feoffees, 36 H: 8. B: Feoff­ments to uses, 52.

A man cannot sell Land to I S, See 24 H. 8. before More held time M. 1. that a use may be well chan­ged for a consid. past. See [...]. 8. El. 309. cont. to the use of the Vendor, nor let Land to him rendring rent, habend: to the use of the Lessor, for this is contrary to Law and Reason, for he hath re­compence for it: And by Hales, a man cannot change a use by a covenant which is executed before, as to cove­nant to bee seised to the use of W S, because that W S is his Cosin; or be­cause that W S before gave to him twenty pound, See Mild­mayes case Cook lib. 7. & 8 El. Com. 302. except the twenty pound was given to have the same Land. But otherwise of a considera­tion, present or future, for the same purpose, as for one hundred pounds paid for the the Land tempore com­mentionis, or to bee paid at a future day, or for to marry his daughter, or the like, 36 H: 8. B: Feoffments to uses, 54.

Note, a Recovery was suffered [Page 136] by Graseley of the County of Stafford, by advice of Fitz Serjeant and others, and he was only cestuy que use in tail, and after he died without issue, and his brother recovered the Land in the Chancery, See 30 H. 8. before. for at this time 'twas taken that a Recovery against cestuy que use in taile, should not serve but for term of his life, by which 'tis not but a grant of his estate, Time H: 8. B: Feoffments to uses 48. the end.

By Fitz Just: See 29 H 8 & 5 E. 6. before. if the Feoffees to the use of an Estate taile, sell the Land to him that hath notice of the first use, yet the buyer shall not be seised to the first use, but to his own use, by reason of the bargaine and sale, for the Feof­fees have the Fee simple, and therefore their sale is good, Time H: 8. B: Feoff­ments to uses 57. the middle.

Note, 27 H 8 ca. 10. See Cook. lib. 1. Chud­leighs case per plures, If a man makes a Feofment in Fee before the Stat: of uses, or after this Stat: to the use of W: and his Heirs, till A: pay fourty pound to the said W, and then to the use of the said A, and his Heirs, and after comes the Stat: of uses and exe­cutes the Estate in W, and after A paies to W the 40. l. there A is seised in Fee, if he enters; yet by some A shall [Page 137] not be seized in Fee by the said pay­ment, except that the Feoffees enter: B doubts thereof, and therefore it seems to him best to enter in the name of the Feoffees, and in his name, and then the one way or the other the entry shall be good, and shall make A to bee seised in Fee; and also see by B, that a man at this day may make a Feoffment to a use, and that the use shall change from one to another by act ex post facto, by circumstance, as well as it should be­fore the said Statute, 6 E: 6. B: Feof­ments to uses 30.

'Twas holden per plures in the Chancery; See before if a Recovery bee had, in which cestuy que use in taile is vou­ched, and the demandant recovers, then this shall bind the issue, Time E: 6. B: Feofments to uses 56. the end.

If a Covenant bee by Indenture, that the sonne of A shall marry the daughter of C, for which C gives to A a hundred pound, and for this A covenants with C, That if the marri­age takes not effect, that A and his Heirs shall bee seised of a hundred and fiftie acres in D, to the use of C and his Heirs, quo usque A his Heirs or [Page 138] Executors repaies the hundred pound, and after C hath issue within age and dies, and after the marriage takes not effect by which the State is executed in the Heir of C, by the Statute of u­ses made 27 H: 8. notwithstanding that C was dead before the refusall of the marriage, 27 H 8 ca. 9 Rast. uses 9. See Cook lib. 1. Shellies case. for now the use and possession vests in the Heirs of C, for that the Indentures and Covenants shall have relation to the making of the Indentures, for these Indentures binde the Land with the use, which Indentures were in the life of C: But by B: quaere if the Heir of C shall bee in Ward to the Lord, for hee is Heir, and yet a Purchasor, as it seemes, 3 M: 1. B: Feofments to uses. 59.

Gift of Land for yeeres, 8 H 7 ca. 4 Rast. uses 6. or of a Lease for yeeres to a use, is good; not­withstanding the Statute; for the Statute is intended to avoide gifts of Chattells to uses for to defraude Creditors only, and so is the pre­amble and intent of this Statute, 3 M: 1. B: Feofments to uses, 60.

Fines levies, Fines levied.

Note, H 38. H 8 accord be­ [...]ween W. Roch. and Radm. That 'twas Covenanted that A shall make to B his wife, daughter of I K, a joynture by Fine, and the Writ was brought by I K against A and B his wife, Latharne, &c. See Tit Co­verture. and they offered to acknowledg to I, to the intent that I should render to them, for life of B, and because B, the wife, was within age, therefore shee was drawne out and rejected: And then because that none can take the first estate by the Fine, but those who shall be named in the Writ of Covenant (but every Stranger may take a remainder) there­fore the Writ was made betweene I and A, only by which A acknowled­ged the Tenements to bee the right of I, ut illa que, &c. and I granted and rendred it to the said A for terme of his life, without impeachment of Waste, the remainder to the said B, his wife, for terme of her life, the re­mainder to the said A and his Heirs, 30 H: 8. B: Fines, Levies, 108.

Fine with proclamation to bind Tenant in tail and his issue, the time [Page 140] for to make proclamation, &c. See Tit: Assurances.

If cestuy que use for term of life le­vies a Fine with Proclamation; there none need to enter nor make claim within the five years, because that 'tis but a Grant of his Estate, which is lawfull, and no forfeiture; for hee hath nothing in the Land; nor hee cannot make a forfeiture of the use. 10 H 7. 20. by Keble. The same Law of a Fine levyed by Te­nant for life in possession: Yet B doubts thereof and thinks otherwise if hee levy it in Fee (B: Feoffments to uses 48. Fines levies 107.) Et per plu­res, 27 H. 8. 20 Fitz. ac­cord. if it be levyed by cestuy que use in tail, it shall bind him and his Heirs; but not cestuy que use in the reversion nor the Feoffees after the death of the Conusor, 1 R. 3. ca. 5. Rast. uses 4. See Tit. Feoff­ments to uses. for the Statute of 1 R: 3. is, That it shall bind him and his heirs and Feoffees clayming onely to the same, which is not so here, Quaere inde; for B seems by the same Statute, that tayl in possession is remedied by this Statute; but not tayl in use: for this seems to him to remain at Common-Law, as a Fee-simple in use conditio­nall; for 'tis not a Gift of the Land; yet quaere, for by him, by the equity of [Page 141] the Statute of W: 2. of tayles, W. 2. ca. 1 devises in tayl are taken; yet this is in nature of a Gift; yet not at this day by the Statute of 32 H: 8. fine with Pro­clamation by cestuy que use in tayl, 32 H. 8. ca. 36. shall bind the tayl after Proclamation, 30 H: 8. B: Fines levyed 107. the end.

Note, See Tit. faits inroll That a Deed inrolled in London, binds as a Fine at Common-Law (but not as a Fine with Procla­mation;) and there need not livery of Seisin upon such Deed: And this is a discontinuance without livery, be­cause that by the custome there (which is reserved by divers Parliaments) it shall bind as a Fine, 31 H: 8. B: Fines Levies 110.

'Twas granted for Law, where two are of the same name (as if there bee two R B) and the one levies a Fine of the others Land; 34 H 6. 19 by Danby. there the other shall avoid it by Plea, s: to say that there are two of the name; and that the o­ther R Blevied the Fine, and not this R B, 33 H: 8. B: Fines levies 115. the end.

Note that if the Writ of Dedimus potestatem, to levie a Fine doth not beare teste after the writ of Covenant, [Page 142] 'tis Error; for the Dedimus potesta­tem saies, cum Breve nostrum de conventione pendet betwixt A B and C D, &c. 35 H: 8. B: Pines, Levies, 116.

Note, that 'twas devised to have a Lease for yeeres to binde Tenant in taile, that the tenant in taile and the Lessee should acknowledge the tene­ments to bee the right of one A, a stranger, and that A should grant and render by the same Fine to the Lessee for sixtie yeeres, the remainder to the Lessor and his Heirs, and 'twas with Proclamation, which shall binde the taile after proclamation made (And so see that the Devise after will not serve for taile, but for Fee simple, for hee which takes by Fine, See Time. H. 8 after. shall not bee concluded if hee bee an Infant, or Feme covert, or the issue in tail of the Conusor:) And in this case no rent can bee reserved; for A was a stran­ger to the Land, by which the Lessee granted ten pound of rent, and extra terra: illa: with a clause of distresse during the yeeres or terme aforesaid to the Lessor, 36 H: 8. B. Fines, Le­vies, 118. See 36 H. 8. before.

Lease may be made by Fine for term [Page 143] of yeeres rendring rent, and first the lessee to acknowledg the tenements to be the right of the Lessor come ceo, &c. and then the other grant and render to him for terme of sixtie yeeres, ren­dring therefore yeerely ten pound per annum, &c. And with Clause of Distresse, Time, H: 8. B: Fines, Le­vies, 106.

Note, Fitz 97. A. by Fitz Just: That a Fine le­vyed by A and B his wife, where the name of the wife is M, shall binde her by estoppell, and the tenant may plead that shee by the name of B: le­vyed the Fine, and so 'twas in ure by him, and 'twas pleaded according, Time H: 8. B: Fines, Levies, 117.

Note, by Bromeley chiefe Justice, and others, That a Writ of Error was brought in the Kings bench, because a Fine was acknowledged by Dedimus potestatem, before one who was not a Judge, Abbot, Knight nor Sargeant: and for this cause 'tis refused to admit any which is taken by such; for the Statute de finibus & Attorn: gives power to none except to Justices, Ab­bot and Knight; quaere, by B: if a Sarjeant at Law, bee not taken as [Page 144] a Justice by the equitie of the Sta­tute, Time H: 8. B: Fines, Levies, 120.

'Twas granted that a Fine may be levyed in a Hamlet; for if a Scire fac: lyes upon a Fine in a Hamlet (as it ap­pears 8 E: 4. that it doth) therefore a Fine is well levyed there, 8 E. 4. 6. per Cur. 6 E: 6. B: Fines Levies 93.

Note, See 6 E. 6. before. that 'twas agreed by the Ju­stices, that a Fine may be well levyed in a Hamlet, and this, notwithstan­ding all the houses are decayed but one. 8 E. 4. 6. per Cur. The same of a Writ of Dower: And the same Law of that which hath been a Ville and no wis decaid; yet the name of the Ville remains, as old Salisbury, which hath at this day Bur­gesses of Parliament, and the like, 7 E: 6. B: Fines Levies 91.

Forcible Entry.

Hee which hath been seized peace­ably by three yeeres, 27 H. 6. 2. may retaine with force: But if a Disseizor hath conti­nued possession three yeers peaceably, 22 H. 6. 18. and after the Disseisee re-enters (as he [Page 145] may lawfully) and after the Disseisor re-enters, hee cannot deteine with force, because that the first disseisin is determined by the entry of the Dissei­see, and the Disseisee by this remitted, and this Entry is a new Disseisin: But if a man hath beene seised by good and just Title by three yeeres, and after is disseised by wrong, and after hee re-enters, hee may retaine with force; for he is remitted▪ and in by his first Title, by which hee first continued peaceably by three yeeres, per quosdam: for it seemes to them, by the Proviso in the end of the Statute, 8 H. 6. ca. 9. that this is good Lawe in the last Case, and stands well with the Statute; yet by some this is not Law, therefore quaere 23 H: 8. B: Forcible entry, 22.

Forfeiture of Marriage.

'Twas said, Fitz. 141. D. if a man brings a Writ of Intrusion maritagio non satisfac: for the single value, and makes men­tion in the Writ of tender of marri­age to the Heir, and that hee refused, &c. that the tender is not traversable, [Page 146] Time H: 8. B: Forfeiture of Marri­age 7. Intrusion 23. in finibus.

Forfeiture de Terre, &c. Forfei­ture of Land, &c.

What shall be a forfeiture of the Estate of Tenant for life, what not, See Tit: Entry Congeable.

Richard Fermor of L: was attain­ted in Premunire, and his Lands for­feited in Fee in perpetuum, and not only for term of life: And so see 'tis not only a forfeiture for life, as in an attaint; for the one is by Statute, the other by the Common-Law, 34 H: 8, B: Praemunire 19. the end, Forfeiture 101.

Note, 4 H. 7. 11. by Townes. If a man bee attainted of Treason by Parliament; by this his Lands and goods are forfeited, with­out words of forfeiture of Lands or Goods in the Act, 35 H: 8. B: For­feiture 99.

Foundership cannot Escheate, nor be forfeited by attaindor of Felony or Treason, See Tit: Escheate.

Note, by Hales Justice cleerly, that [Page 147] [...] Cleark convict, St. 185. 20 E. 4. 5. by Billing 40 E. 3. 42. shall lose his goods, [...] E: 6. B: Forfeiture 113.

Formedon.

'Tis said that if the issue in taile bee [...]arred by Judgement, See 24 H. 8. Tit. Tayl. by reason of warranty and assets discended, and af­ [...]er hee aliens the assets, and hath issue [...]nd dies, the issue of the issue shall not [...]ave a Formedon of the first Land tay­ [...]ed; but if such thing happens before [...]ee bee barred by Judgement, the issue of the issue shall have a Formedon, Time H: 8. B. Formedon 18.

Note, This mat­ter was in ure P. Rot. 505. in the Common Bench be­twixt Jar­veis De­mandant & Brown Tenant. If the Feoffees are infeoffed [...]o the use of the Feoffor, for terme of [...]ife, and after to the use of A in taile, before the Statute of 27 H: 8. of uses, and after the Estates, in uses are ve­ [...]ted in possession by the same Statute, and after the tenant for life dies, and [...]he tenant in tayle enters, and discon­ [...]inues and dies, and the issue brings a Formedon, See 7 E. 6. after. upon this matter hee shall [...]uppose the Feoffor to be Donor, and [...]ot the Feoffees, See 1 M. 1. after, & 7 E. 6. and the Writ shall [...]ee generall quod dedit, &c. but the [Page 148] Declaration shall bee speciall and de­clare the whole matter, That the Feof­for was seised in fee, and enfeoffed th [...] Feoffees to uses ut supra, and shew the Execution of the Estates by th [...] Statute of uses made 27 H: 8. briefly and not at large, and the seisin &c. and the death of tenant for life and te­nant in taile & quod post mortem, &c. discend: jus, &c. 2 E: 6. B: Forme­don, 49.

Formedon upon a gift in Fee to th [...] use of the Feoffor and the Heirs of hi [...] body, 4 E. 6. Com. 59. by Monta­gue. which is executed by the Sta­tute of uses 27 H: 8. and after th [...] Feoffor aliens and dies, his issue shal [...] have a Formedon that the Feoffees [...] derunt tenement: See 2 E. 6. before. predict: to the fa­ther of the Demandant, & discend [...] jus, &c. for it cannot bee suppose [...] that the Feoffor gave to cestuy que us [...] which was himselfe; for a man can­not give to himselfe: and hee sha [...] make a speciall Declaration upon th [...] Feoffment to the use of the taile: But where A makes a Feoffment in Fee, to three, to the use of a Stranger and the Heirs of his body, which is exempte [...] by the Statute aforesaid, and after who was cestuy que use aliens in fee [...] [Page 149] and dyes; there his issue shall have a Formedon, and shall say that the Feof­for gave to his father, and not the Feoffees gave, and shall make a speciall Declaration, 7 E: 6. B. Formedon 46. Generall Briefe 14.

Note by Bromeley chief Justice, That the Demandant (in the case 2 E: 6. before) may declare generallly if he will; and if the Tenant pleads ne dona pas, the Demandant may reply and shew the speciall matter, as appears there, and conclude, & so he gave, &c. and good, 1 M: 1. B: Formedon 49. the end.

Forme.

Note, 3 M. 1. Com. 169. See Cook. lib. that Wood was put before Pasture in a Plaint of Assize, and ex­ception thereof taken, and yet good, though it be contrary to the Register, Time: E: 6. B: Faux Latin & Forme 66.

Franke-marriage.

Note, 7 E. 4. 12. cont. by Moile and Fitz. 172. H. Litt. 4. accord. that 'twas said for Law, that Land cannot bee given in Frank-mar­riage with a man who is Cosin to the Donor; but it ought to be with a wo­man who is Cosin to the Donor. Time: H: 8. B. Frank-marrige 10. Perk. 48. E.

Note, See 4 E 6. Com. 14. by Harris. Fitz. 136. B. of the acquittall. See Cook upon Litt. 'tis said for Law, that a Gift in Frank-marriage, the remainder to I N in Fee, is not Frank-marriage; for warranty and acquittall is incident to Frank-marriage, by reason of the Reversion in the Donor, which can­not be where the Donor puts the re­mainder and Fee to a Stranger upon the same Gift, Time. H: 8. B: Frank-marriage 11.

Garranties, Warranties.

If the husband & wife alien land of which she is dowable, there to have collateral warranty, tis good to have the Warranty of the Wife against her and her heirs; and then if she hath issue by the husband, and she and the husband die, the Warranty shall be collateral to the issues, be­cause that the land came by the Father, and not by the Mother, 31. H. 8. B. Garranties 79.

Note if the husband disconti­nues the right of his wife, and an ancestor collaterall of the wife releases with Warranty and dies, to whom the Wife is heir, and after the husband dies, the wife shall be barred in a Cui in vita by this Warranty, notwithstanding the Coverture; because that she is put to her action by the [Page 160] discontinuance; for Coverture cannot avoid Warranty, but where the entry of the wife is lawful, which is not upon discon­tinuance. 33. H. 8. B. Garranties 84.

If a man saies in his Warranty, Et ego tenement a predict. See Coke upon Lit cum perti­nent. prefato A. B. the Donee War­rantizabo, aud doth not say, eg [...] & heredes mei, he himselfe shall warrant it, but his heir is not bound to warrant it; because that (heirs) are not expressed in the Warranty, 35. H. 8. B. Garren­ties 50.

Sir Robert Brudnel, late Chief Justice of the Common Bench, devised a Warranty now in use, viz. That the warrantor for him and his heirs Warrantizabit contra ipsum & heredes suos, and by this the Feoffee shall rebut, but not vouch, Casus B. Garranties 30. the end.

[Page 161] Where upon a Formedon upon use, there shall be a General Writ, and special Declaration? See Tit. Formedon.

General issue.

In an Assise or Trespass, if a [...]an entitles a stranger, and ju­stifies by his Commandment, his ought to be pleaded; and not given in evidence up­on Nul tort. or not guilty plead­ed.

So of Common Rent Service, Of the Licence 4 E. 6. com. 14. by Harris Rent Charge, Licence, and the like, these ought to be pleaded and not given in evi­dence upon a general issue. Con­trary of a Lease of Land for years upon not guilty pleaded, the Defendant may give it in e­vidence [Page 162] (B. General issue, 81.) otherwise of a Lease at will; 12 H 8. 1 by Brook for this is as a Li­cence, which may be Countermanded, or deter­mined at pleasure.

And if a Villen plead Free, and of Free Estate he may give manumission in evidence; for this is Ma­numission indeed.

But where he is Manu­mitted by act in Law, Lit. 45. See the Act of this pre­sent Par­liament which in ables to plead the general issue & to give the special matter in evidence as a suit taken against him by his Lord; or an Obligation made to him by his Lord, or a Lease for years, and the like, which are manumissi­ons in Law, of which the Jury cannot discuss, and [Page 163] therefore these shall be plea­ded, 25 H. 8. B. General issue [...]2.

Debt upon an escape in the Exchequer against the She­riffs of London, for leting a man arrested by them by ca­pias ad satisfaciendam, and [...]n Execution to escape: the Defendants cannot say that he did not escape, and give in evidence that he was not arrested for the arrest is confessed, if he saies that he did not escape, 34. H. 8. B. General issue 89.

Grants.

Nota per plures Just. M. 5. E. 6 accord. See 34 N. 8. after. & alios legis peritos, That where a man grants an of­fice of Bayliff, Steward, Receiver, Parker, and the like; and a Fee certain for his labour onely, there the Grantor may expulse such Officers.

But they shall have their Fee, for tis but an Office of Charge.

[Page 165] But where the Steward, & Parker have profits of Courts, Winde-Falls, Dear­ [...]kinnes, and the like casu­ [...]ll profits, tis said that they cannot be expulsed, and that of such Offices they may have an Assise.

And tis said that twas so taken in the time of James Hobert Attorney of King HENRY the 7. And the Officers may relinquish their Offices when they will, but then their Fee cea­ses.

[Page 166] And Whorewood Attor­ney of King HENRY the 8. granted the Cases afore­said, 31. H. 8. B. Grants, 134.

Twas said for Law, That I may Ouste my Bayliff, See 31 H. 8. before. Receiver, and the like, gi­ving to them their Fee; fo [...] it rests in Charge, and no profit.

B. doubts of the Steward, for an Assise lies of such Ousters, 34. H. 8. B. Grants 93. the end.

[Page 167] What shall pass by a Grant of omnia [...]ona sua. See Tit. Done.

A man possessed of a Lease for term of fourty yeers, See Coke Litt. and the Rector of Che­dingtons case. grants so many of them to [...]. N. which shall be arrear tempore mor­ [...]is suae, and held void by Hales Just▪ and others, for the incertainty, because it doth not appear how many shall be be­hinde at the time of his death: for the Granter may live all the 40 yeers, and then nothing shall be arrear at his death, quare. Accord. Finch 46. E. 3. 31. 11 H. 4. 34 by Hank. (B. Grants 154. Leases 66.) [...]ut such Devise by Testament is good, (B. Grants 154.) And 'tis not like where a man leases Land for term of life, and four yeers over: this is certain, that his Executors shall have four yeers after his death. (B. Leases 66.) And also, if a man leases his Land to have from his death for four yeers, 'tis good: for this is cer­tain; and he hath authority to charge his own Land. 7 E. 6. B. Grants 155.

A man grants omnia terras & tene­menta sua in D. a Lease for yeers shall not pass. See 37 H. 8 Tit. Done. Contrary, if he grants omnes firmas suas, there by this a Lease shall pass: for of this an ejectione Firme lies, and by this he shall recover the Term; and therefore 'tis a good word of Grant. 7 E. 6. B. Grants 155.

Heresie.

Note, that 'twas agreed by all the Justices, and by Bake, learned in the Law and Chancellor of the Exchequer; and by H [...]re, 2 H. 4. c. 15 Rast. Here­sie, 1. learned in the Law, and Maste [...] of the Rolls, That by the Statute of He­reticks and Lollards, that if a Heretick be convicted in presence of the Sheriff, th [...] Ordinary may commit him to the sam [...] Sheriff; and he ought to burn him, with­out having a Writ de haeretico combu­rendo. But if the Sheriff be absent, o [...] if the Heretick shall be burnt in another County in which he is not convicted, ther [...] in these cases the Writ de haeret. com­burend. shall be awarded to that Sheriff [Page 169] [...] Officer who shall make execution. And [...]e said Statute in the end wills, that the [...]heriff shall be present at the convicti­ [...], if the Bishop requires him. And [...]erefore the use is that the Ordinary shall [...]ll the Sheriff to be present at the con­ [...]tion. And so in the Writ de haeret. [...]mburend. F. N. B. 269. in the Nat. Brin. that the [...]chbishop and his Province in their Con­ [...]ation might and used to convict Here­ [...]ks by the Common Law, and to put [...] to lay hands: And then the Sheriffs Writ de haeret▪ comburend▪ burnt them. [...]t because that this was troublesome, to [...] the Convocation of all the Province, was ordained by the Statute aforesaid, [...]hat every Bishop in his Diocess may [...]nvict a heretick, and after abjura­ [...]n upon relapse, put him to lay hands be burnt. And B. seems that if the [...]retick will not abjure at the first Con­ [...]tion, that he may be burnt at the first [...]nviction without abjuration. Other­ [...]e, if he will abjure: for then he shall [...] be burnt the first time, but upon re­ [...]se he shall be burnt. 2. M. 1. B. [...]eresie.

Homage. See Tit. Fealty.

Ideot.

BRent of the County of S [...]merset, who was presen [...]ed for an Ideot, cou [...] write Letters and Acqui [...]tances, and the like; an [...] therefore was adjudge [...] an Unthrift, but no Ideot. Time. E. Ideot 4. the end.

Imprisonment.

'Twas determined in Parliament, th [...] Imprisonment almost in all cases is but retain the offender till he hath made Fine; and therefore if he offers his Fi [...] he ought to be delivered presently; [...] the King cannot retain him in prison af [...] the Fine tendered. See 33 H. 8 Tit. Man­nor. DS. 11 8 H. 7. 5. by Vav [...]our. 12 H. 7. 16. by Yaxley. & 17. by Tremaile. 12 E. 4. 9. by Genny. 22 E. 4. 33. by Suliard. Ske Cokes books. 2 M. 1. B. Imp [...]sonment 100 the end.

Incident.

Court-Baron is incident to a Man [...] and Court of Pipowders to a Fayr; a [...] 'twas sed arguendo, that therefore Lord of the Mannor or Fayr cannot gr [...] over the Court-Baron, nor the Court Pipowders: or if they grant the M [...]

[...]or with the Fayr, they cannot reserve [...]ch Courts, for they are incident, &c. 9 H. 8. B. Incidents 34.

'Twas said, 39 H. 6. 25 by Moile, & 44 E. 3. 19. p. Cur. & Perk. 24 cont. See Cokes books. that if a Seigniory rests in [...]omage, Fealty, and Rent, and a man [...]covers the Rent; by this is the Homage [...]covered: for a Precipe lies not of it. [...]ime. H. 8. B. Incidents 24. the [...]id.

Indictments.

An Indictment of Death ought to com­ [...]rehend the day of the stroke, St. 21. D. and day of [...] death; and the same Law of Poy­ [...]ning; so that it may be known if he [...]ed of the same stroke or not. 24 H. 8. [...]. Indictments 41.

By Fitz Just. a Justice of Record may [...] indicted of taking of money, Fitz. 243. and other [...]ch falsity, but not of that which goes in [...]lsifying or defeating of the Record, as [...] say that he altered the Record from [...]respass into Felony, and the like, which [...]lsifies the Record. Casus B. Indict­ [...]ent 50. the end.

Intrusion.

Tenant in Tayl of Lands holden of [...] King, See Tit. Gard [...], & 33 H. 8. after 8 E. 4 4 by Choke Stp. 84. See Tit. Leases. aliens without license, which found by Office, the King shall have [...] Issues of the Land à tempore inquisiti [...]nis capt. and not before. (B. Alienat [...]ons, 26. in medio.) But where the t [...]nant dies, and his [...] heir enters, upon Off [...] found for the King of the dying seised the ancestor; there the heir shall answ [...] the profits taken by him before. 26 H. B. Intrusion, 18. the end.

Note, M. 4. M. 1. accord in casu Main­waring. See Tit. Leases. where 'tis found by Office th [...] I. N. tenant of the King was seized, a [...] died seized, and that W. his heir intrude [...] and after by Act of Parliament the Ki [...] pardons all Intrusions; in this case the e [...]try and the offence is pardoned, but not [...] issues and profits: for the escheat or sh [...] be charged of this by way of accou [...] whether he hath received them or not: [...] when the office is of Record, he ought receive them, except where 'tis found the Office that such a man took the pro [...] thereof. But where the King pardo [...] where no Office is found, See 30 H. 8 Tit. Char­ters de Pardon. the heir is [...]charged as well of the issues and prof [...] and also of Livery as of Intrusion, by r [...]son of the pardon: for by this is p [...] ­doned.

And there though the Office comes after which findes the intrusion of the heir, yet all is gone by the Pardon; and this shall serve, because all was pardoned be­fore, to which the King was intitled of Record, 33 H. 8. B. Charters de pardon, 71. Intrusion 21. Issues returns 22.

Office shall have relation to the death of the ancestor, See 26 H. 8. before. See Tit. Leases. as to Land descended to the heir of the Kings tenant and as to in­trusion. (B. Relation 18. the end.) Otherwise, as to alienation made by the Kings tenant without License: this shall not relate before the finding of it. (B. Relation 18. Intrusion 19.) And such en­try by purchase is not called Intrusion, but a Trespass; and so are the words of the pardon thereof, quod pardonamus trans­gression' praedict. &c. 33. H. 8. B. In­trusion 19.

Joyntenants.

If a Lease be made to three of Land at Common Law, See Coke upon Litt. & Baldw. case, lib. 3. for term of life, or for yeers habendum successivè, yet this is a [...]oynt estate, and they shall hold in Joyn­ture, and successivè is void: But where the custom of Copie-holds is, that this word successive shall hold place, this is good there by the custom. 30 H. 8. B. [Page 144] Joyntenants 53. Leases 54.

If a man inf [...]offs two, 41 E. 3. 18. by Finch. upon condition that they shall infeoff W. N. before Mi­chael' and the one dies, the other sole makes the Feoffment; this is good. The same Law if two lease Land rendring rent, and that if it bearrear by two months, and lawfully demanded by the said Lessors, that they may re-enter, the one dies, and the other that survives de­mands it, and 'tis not paid, he may re-en­ter. And the same Law if the Lease were made to two, with words that if it be arrear, and demanded of them two, &c. and the one dies, and the Lessor de­manded it of the other that survived, and he doth not pay, this is a good demand, and the Lessor may re-enter. 33 H. 8. B. Joyntenants 62.

Journeys accounts.

Grantee of a next presentation brings a Q. impedit, and dies after the six months past, and his Executors bring ano­ther Q. impedit by Journeys accounts, and by the Justices it will not lie. See Tit. Q. impedit.

Judgement.

A man recovers by default against an [...]fants, 2 M. 1. ac­cord B. Judgment 147. the end. and the Infant brings a Writ of [...]rour, and reverses it for his non-age. [...]therwise, if he had appeared, and lost [...] plea, or by voucher, he shall not re­ [...]rse it for non-age. B. 6 H. 8. Saver de fault 50.

If I have Title by Formedon, See after Tit. Re­store al primer action. or cui vita, and enter, and the other recovers [...]gainst me, I am remitted to my first acti­ [...]: But if a man recovers against me by [...]lse Title, by Action tried, where I was by good Title, I shall then have Error, [...] Attaint, or a Writ of Right. 23 H. 8. [...]. Judgement 111.

Assise in Com. B. the tenant pleads in [...]ar a recovery by Assise by him against [...] Plaintiff of the same Tenements in [...]om. O. and this now Plaintiff then [...]nant pleaded in Bar by release of the [...]ncestor of the Plaintiff with Warran­ [...], which was void by non-age: and [...]his found for the Plaintiff▪ by which he [...]ecovered, against this Plaintiff judge­ment si, where he accepts the Land to be [Page 146] in the Country of O. now he shall be re­ceived to say, that it lies in the County [...] B. And 'twas said in the Common Bench [...] that though this Land were then put [...] vJew, the Plaintiff shall not be bound [...] the recovery: for it cannot be intended one and the same Land. 25 H. 8. [...]. Judgement 62.

Assize of Land in N. the Defendan [...] said that once before he brought an assiz [...] of the same Land in H. against the sam [...] Plaintiff, and these Lands put in vJew▪ and this now Plaintiff then took the [...] ­nancie, and pleaded in Bar, and said th [...] H. and N. are one and the same Ville, an known by the one name and the other▪ and that A. brought a Formedon of th [...] tenements, and pleaded certain, &c. an [...] recovered by Action tried, and the esta [...] of the Plaintiff mean betwixt the title [...] and his recovery, judgeme [...] si of such an estate assize, &c. to wh [...] the other said, that every of the said [...] and N. were Villes by themselves, and [...] at issue: and 'twas found that they we [...] several Villes, and the seisin and disseis [...] by which 'twas awarded that this tena [...] then Plaintiff should recover. And be­cause that he hath recovered these sain [...] Lands against the Plaintiff himself in H. [Page 147] judgement si assise. 44 E. 3. 45. cont. 23. Ass' 16. And Shelly Just. held strongly, that this recovery of Land in H. is no plea in an assise of Land in N. and therefore the assise ought to be awarded: and so it seems to B. 25 H. 8. B. Judge­ment 66.

If A. infeoffs B. upon condition &c. to re-enter, there if a man impleads B. who vouches A. and so recovers; or if A. re-enters upon B. without cause, and [...]s impleaded and loses; there in the one case, and the other, the condition is de­termined: for the Land is recovered a­gainst him who made the condition. 26 H. 8. B. Judgement 136.

Note, by Bromley chief Just. that a Judgement, Tr. 13. El. Com. 394 cont. where there is no original, is void, (as in an assise the Plaintiff appears, and after makes a retraxit; and after the Justices of Assize record an agreement be­twixt them, in nature of a Fine: this is void, and coram non Judice, and shall not be executed, by reason that no Origi­nal was pending, but was determined be­fore by the retraxit.) For without Ori­ginal they have not Commission to hold Plea; and then they are not Judges of this cause. 2 M. 1. B. Judgement. 114.

Issues joyns, Issues joyned.

Trespass upon the case, quod def. as­sumpsit deliberat. quer. 4 pannos laneos, and he pleads, quod assumpsit liberare 4 pannos lineos, without that qd. as­sumpsit modo & forma, and so at issue. And 'tis found that he assumed to deliver 2 pannos laneos, sed non 4 (so see that this issue, See 2. M. 1. after. though that it comes in a tra­verse, doth not amount but to the general issue) the Pl. recovered dammages, for the 2, and was barred and amercied for the rest. But otherwise 'tis if the issue be; If A. and B. infeoffed the tenant in a Precipe quod reddat, necne, and 'tis found that A. infeoffed him, but that A. and B. did not infeoff him, this is found against the tenant in toto, 10. E. 4. 2. by Litt. or against him who pleads such Feoffment, which is so found, 32. H. 8. B. Issues joyns. 80, Verdict 90.

Informed in the Excheq. against A. B. for buying Wools betwixt shearing time and the Assumption, 24 H. 8. cap. such a year of C. D. contra forma Statuti, where 'tis not cloth, nor he did not make thereof cloth nor yarn; He sees that he did not buy of C. D. contra formam Statut. propt. &c. [Page 149] And no issue▪ for 'tis not material nor traversable whether he bought of C. D. or of E. F. or of another, but whether he bought them contra formam Statut. necne. And therefore the Issue shall be that he did not buy modo & forma, &c. 33. H. 8. B. Issues joyns. 81. Ne­gativa pregnans. 54. Travers, per 367.

In waste issue was taken if the defen­dant cut twenty Oaks, See 32. H. 8. before. there if the Jury finde ten and not the rest, the Plaintiff shall recover for the ten, and shall be a­mercied for the rest. 2 M. 1. B. Issues joyns 80. the middle.

Issues returns; Issues returned. See Tit. Intrusion. Jurisdiction.

If the Lord of a Mannor claim the Tythes of such Lands in D. to finde a Chaplain in D. and the Parochians claim them also for the same purpose, 'tis said for Law, that the Lay Court shall have jurisdiction betwixt them, and not the Spi­ritual Court. 25 H. 8. B. Jurisdiction 95.

'Twas said where a man pleads a plea in [Page 150] Banco ultra mare, Thorp ac­cords, 41 E. 3. 4. it shall be condemned at this day, because that it cannot be tri­ed in England. 36 H. 8. B. Jurisdi­ction 29.

Jurors.

Trial of a Peer of the Realm arraign­ed upon an Indictment, and appeal diver­sity. See Tit. Trial, and Tit. Enquest.

Where Jurors may take conusance and notice of a thing in another County. See Tit. Attaint.

Jury took a Scroll of the Plaintiff, M. 11. H. 4. 18. which was not delivered to them in Court, and passed for the Plaintiff: and because that this matter appeared to the Court by examination, therefore the Plaintiff shall not have Judgement. 3 M. 1. B. Ju­rors 8.

Leet.

NOte, for Law, if a pain be put upon a man in a Leet for to redress a Nusance by a day sub poena 10 l. and after 'tis presented that he did it not, and shall forfeit the [Page 151] pain; 10 H. 7. 4. by Keble. Vavisour accord. 13. H. 7. 19. See Coke, Beechers Case. this is a good presentment, and the pain shall not be otherwise affeered. And the Lord shall have an Action of Debt clearly; but he cannot distrain, and make avowry, except by prescription of usage to distrain and make avowry. 23 H. 8. B. Leet 37.

Note, Magna Chart. c. 15. where the Statute of Magna Charta cap. 25. saith, Et visus de Fran­ [...]hi-plegio tunc fiat ad illum Terminum, St. Michaelis, sine occasione; this is [...]tended the Leet of the Tourne of the Sheriff, and not other Leets. 25 H. 8. B. Leet 23 the end.

Leases.

By Fitz-James ch. Just. 22 H. 8. 16 14 H. 8. 14 by Brudne [...] 22 E. 4. 27. by Wood, 4 E. 6. Com. 30. 4 & 5. El. Com. 264. See 32 H. 8. after, & Coke lib. and Tit. Accept­ance. Englefield [...]ust, and many others, if tenant for life [...]ases Land for yeers, rendring rent, and [...]es, the Lease is void, and then the rent is [...]etermined. The same Law of a Parson. [...]nd though the successor receives the rent, [...]he Lease is not good against him: for [...]hen 'tis void by the death of the Lessor, [...] cannot be perfected by no acceptance. B. Leases 19. Debt 122.) Otherwise [...] seems of a Lease for life made by a Par­ [...] rendring rent and the successor accepts [...] rent, this affirms the Lease for life. 24 [...]. 8. B. Leases 19.

[Page 152] A man leases for ten yeers, See 37 H. 8. Tit. At­tornment. and the ne [...] day leases the same Land to another fo [...] twenty yeers: this is a good Lease for th [...] last ten yeers of the second Lease. 26 H. 8. B. Leases 48.

Where a Lease for 300 or 400 yee [...] shall be Mortm in. See Tit. Mortmain.

A man leases a house cum pertin. M. 3. M. 1. accord. 23. H. 8. 31. 3. M. 1. Com. 168. See 6. & 7 E. 6. Com. 85. See 2 M. 1. Com. 103. [...] Land shall pass by these words cum per [...] Contrary, if a man leases a house cu [...] omnibus terris eidem pertin. there [...] Lands to this used pass: and many Gra [...] are de omnibus terris in D. nuper M [...] nasterii de G. pertin. and especially [...] heavers that it hath pertained de tempor [...] &c. 31 H. 8. B. Leases 55.

If a Parson of a Church leases for [...] and dies, 11 E. 3. Fitz. Abbe [...]. See be­fore, and see tit. Ac­ceptance, and 38 H. 8 after. the successor accepts fealty; [...] shall be bound by this during his [...] Contra upon a Lease for yeers made [...] him; this shall not binde the successor [...] acceptance of the rent: for 'twas void [...] the death of the Lessor. 32 H. 8. [...] Dean 20. Encumbent 18. Leases 5 [...] ▪

Where a confirmation shall be by [...] Bishop, Dean and Chapt, of a Lease [...] by the Parson. Et contra. See Tit. C [...]firmation.

A man is a purchaser with his wife [...] them and to the heirs of the husband; [...] [Page 153] after the husband leases for years and [...]dies, See 37 H. 8 after: and 35 H. 8 tit. Garde. the wife enters, this shall avoid the Lease for her life; but if she dies during the term, Fitz: 142. C. cont. there the rest of the term is good to the Lessee against the heir of the hus­band. Fitz: 198. F. accord. And the same Law of a Rent­charge granted out of it: for the hus­band had thee Fee-simple tempore, &c. and might well charge it. And note by all the Justices, that the GuardJan in Knights service shall not ouste the termor of the ancestor of the heir. And the same Law of the Lord by Escheat. 36 H. 8. B. Leases 58.

If a man leases for life to I. S. and the next day leases to W. D. for twenty yeers, H. 1. E. 6. accord. See before. the second Lease is void, if it be not a grant of a Reversion with Attornment: for in Law the Free-hold is more worthy and perdurable then a Lease for yeers. Yet if the Lessee for life dies within the term, See 36 H. 8 before. the Lease for yeers is good for the rest of the yeers to come. 37 H. 8. B. Leases 48. the end.

'Twas agreed per plures, Admitted P. 1. E. 6. in Chancery. that where I. N. convenit & concessit to W. S. that he shall have 28 acres in D. for 20 yeers, that this was a good Lease: for this word concessit is as strong as dimisit vel l [...]avit. 37 H. 8. B. Leases 60.

[Page 154] King tenant in Tayl makes a Lease for yeers, or life, his issue may avoid it. See Tit. Discontinuance in possession.

If a Parson lets Land for term of yeers rendring rent, See 32 H. 8 before, and Tit. Ac­ceptance. 44 E. 3. 11 plur Fitz: 5. contr. Lit. 144. and dies, the successor re­ceives the rent, the Lease is not good a­gainst him, for he hath not Fee-simple. Nor he cannot have a Writ of Right but Juris utrum therefore the receipt of the rent by his successor, doth not affirm the Lease; for this was void by the death of the Parson who leased. 38 H. 8. B. Leases 18. the end.

'Twas holden by Bromley Just. and others, See 26 H. 8 and 37 H. 8 before. that if a man leases for 20 yeers, and the next day leases for 40 yeers, the second Lease shall take effect for 40 yeers, s. after the twenty yeers past. Time. H. 8. B. Leases 35. the end.

'Twas agreed for Law in the Chan­cery by the Justices, Goosan Abbot. 14. H. 8. 12. by Carel. & 21 H. 7. 38. by Lee. that if a Lease for yeers be made by a Bishop, that 'tis not void, but voidable; for he had a Fee-sim­ple. Otherwise of such a Lease by a Par­son; this is void by his death: for he hath not the Fee-simple, but 'tis in abeyance. And the Bishop may have a Writ of Right, or a Writ of Entry sine assensu capituli, where a Parson shall have but a Juris utrum. And therefore if the suc­cessor [Page 155] of a Bishop, Dean, Prebend, and [...] like, who have a Fee and Lease, and [...], accepts the Rent, this affirms the Lease [...] be good. And otherwise of such ac­ [...]ptance by the successor of a Parson who [...]ade such Lease: See before, and Tit. Accept­ance. for this Lease is void [...]resently. But if a Chantry Priest makes [...] Lease, his successor shall avoid it, not­ [...]ithstanding the predecessor had a Fee, [...]ecause that 'tis donative, or presentative, [...]nd then such Lease is not perdurable, ex­ [...]ept it be confirmed by the Patron in the [...] case, and by the Patron and Ordina­ [...]y in the other case. 2 E. 6. B. Leases [...]3. the end.

A man leases for yeers, See Coke upon Lit. habendum post [...]imissionem in factā to I. N. finitā, and [...] truth I. N. hath no Lease in it, there the Lease commences immediately, H. 1. M. 1. accord. See Coke upon Lit. by Hales [...]ust. and many others. And by him if [...] Prebend makes a Lease for 21 yeers by [...]ndenture rendring the usual rent, this shall [...]inde the successor by the Statute of Lea­ [...]es: for where the Statute saith, 23 H. 8. ca. in Jure Ecclesiae, and the entry for a Prebend est [...]isitus in jure Prebende, yet it shal bind by the equity. 3 E. 6. B. Leases 62.

An Executor hath a term and purchases the reversion in Fee, whether the term be extinct, or no. See Tit. Extinguishment.

[Page 156] Tenant of the King in Capite dies, 1 H. 7. 17. See Tit. Intrusion. and the heir before Livery sued, makes a Lease for yeers, 'tis good, if no intrusion be found by Office, and an Office found af­ter, which findes the dying seized, and no intrusion, hath not relation to th [...] death of the ancestor, but for the pro­fits, and not to defeat the Lease: for th [...] Free-hold and Inheritance remain in th [...] heir. But if intrusion be found, tunc nu [...]lum accrescit ei liberum tenementum▪ and then the Lease, and dower of th [...] wife of the heir, are void. 5 E. 6. B. Leases 57.

A man possessed of a Lease for 40 yeer [...] grants so many of them as shall be behin [...] at his death, 'tis void. See Tit. Grants.

Note, See 3 M. 1. after: con­tra. See Coke up­on Litt. by Bromley and others Justice [...] if I let Land to W. N. habendum [...] 100 l. be paid, and without Livery; th [...] 'tis but a Lease at will for the incertaint [...] But if he makes Livery, the Lessee sh [...] have it for life upon condition implied [...] cease upon the 100 l. levied. 2 M. 1. [...] Leases 67.

'Tis said that Bishops in the time [...] E. 6. were not sacred, See 37 H. 6 26. and therefore we [...] not Bishops, and therefore a Lease [...] yeers by such, and confirmed by the [...] and Chapter, shall not binde the success [...] [Page 157] for such never were Bishops. Contra of a Bishop deprived who was Bishop indeed at the time of the demise, and confirmati­on made, 2 M. 1. B. Leases 68.

What shall be said to be a Lease in re­version, and what a grant of reversion? see Tit. See 2 M. 1 before, contra. Attornment.

'Twas holden by all, if a man Leases Land to another till the Lessee hath levy­ [...]d 20l, 14 H. 8. 14 by Brud­nel. 4 & 5 E. 6. that 'tis a good Lease, notwith­standing the incertainty. 3 M. 1. B. Lea­ses 67. the end.

'Twas ruled in the Serjants case, Com. 70. 4 M. 1. Com. 171 172. that if a man let Land 4 Ian. habend. for forty years, Reddend, annuatim at Mich. and Easter 20. s. the tenant shall pay at Ea­ster and at Mich. I. equales porciones, and the Lessor shall not lose the rent at Easter. 4. M. 1. B. Leases 65.

Ley gager, Law wager.

Detinue of a Deed indented, where an obligation of a Lease for term of years the defendant shall not wage his Law, for this concerns Land, and a Chattel real. And so 'twas late adjudged in the Kings-Bench 34. H. 8. B. Ley gager 97.

'Twas said for Law, 8 H. 5. Fitz. Ley 66. that a man shall not wage his Law in a Quo minus. 35. H. 8. B. Ley 102. Quo minus 5. in finibus.

Licenses.

'Twas agreed, that if a Bishop, De [...] and Chapter give their Land in Fee with out License of the King, who is Founder and is found so by Office, the King shal [...] have the Land. And another Founde [...] may have a contra formam collationis And if he aliens sine assensu Decani & Capituli, Litt. 145. then lies the Writ de in [...] gressu sine assensu Capituli. 36 H. 8▪ B. Licenses 21.

Lieu, Place.

Place is not material in actions transi­tory. See Tit. Attaint.

Where a Recognizance is acknow­ledged in London before a Justice of th [...] Common Bench, and certified in banco [...] and there ingrossed, a Scire facias shal [...] be brought there directed to the Sherif [...] of London, and not to the Sheriff o [...] Middlesex where the Bench is, by all the Prothonotaries of the Common Bench. 4 M. 1. B. Lieu 85.

Limitations.

Note, that it seems cleer, that the new Limitation, 32 H. 8. ca. 2. Li­mitation 3. and also the ancient Limita­tion extends to Copie-hold, as well as to Free-hold: for the Statute is, that he shall not make prescription, title, nor claim, &c. And those who claim by Copie, make prescription, title, and claim, &c. And also the plaints are in natura & forma Brevis Domini Regis ad communem Legem, &c. And those Writs which now are brought at Com­mon Law, are ruled by the new Limita­tion, and therefore the plaints of Copie­hold shall be of the same nature and form. 6 E. 6. B. Limitations 2.

Livery.

Note, See 13. E. 4. 10. if the King hath a Ward be­cause of Ward, and the first Ward comes to full age, and sues Livery, the other Ward being within age, there the Ward shall not sue Livery, but ouster le maine; for now the Seigniory of his Land is revi­ved by the Livery, so that he holds not of the King as afore, but of his immediate Lord. But if the Ward because of Ward [Page 160] had been of full age before the first Ward, 28 H. 6. 11 Stp. 18. he should sue Livery [...] 25 H. 8. B. Li­very 47.

Where a woman out of Ward by Mar­riage shall sue Livery at fourteen yeers. See Tit. Garde.

He which holds Land within the County Palatine of Lancaster of the King in Knight service▪ ut de Ducato Lan­castr. Time. H. 8. after contra. 28 H. 6. 11. shall sue Livery. Contra of him who holds Land which lies out of the County Palatine of the King in Knight-service▪ &c. 28 H. 8. B. Livery 55.

Note, that general Livery cannot be, but upon Office found: but special Livery may be without Office, and without pro­bation of age, but there he shall be bound to a rate and sum certain to be paid to the King. (B. Livery 56.) And by B. ibi­dem 31. this cannot be claimed by the Common Law, as general Livery may, but is at the will of the King. 28 H. 8.

If the King purchases a Mannor of which I. S. held in Knight service, the te­nant shall hold as he held before, and he shall not render Livery nor primer seisin: See after. for he holds not in Capite, but holds, ut de manerio: And if his heir be in Ward by reason of that, he shall have an ouster le maine at full age. [Page 161] [...]nd 'tis said, See 33. H. 8. Tit. Te­nures. and 3. E [...]. Com. 241. if the King after grant the [...]annor to W. N. in fee, excepting the [...]rvices of I. S. now I. S. holds of the King, [...]sof the person of the King, and yet he [...]all not hold in Capite, but shall hold [...] he held before, for the act of the King [...]hall not prejudice the tenant. But if the [...]ing give Land to me in fee, 33 H. 6. 7. by Brisot. tenend. mi­ [...]i & heredibus meis of the King, &c. [...]nd expresses no certain services, I shall [...]old in Capite, for 'tis of the person of [...]e King. 8 H. 7. 13. 13. H. 7. 11 by Davers. And note that tenure in Ca­ [...]ite, is of the person of the King. 29 H. [...]. B. Livery 57. Tenures 61.

Extent of livery is the value of the [...]and by half a year. See 30. H. 8. Tit. Of­fice de­vant. &c. 3 El. Com 243. by Carus. But if he intrudes [...]nd enters without livery, he shall pay the [...]early value by experience of the Ex­ [...]hequer. And where cestuy and use [...] attainted of Treason, and 'tis enacted [...]y Parliamen, That he shall forfeit his [...]and in possession, See 31 H. 8. Tit. A­lienation. & 32 H. 8. after. and in use, that [...]here the King is but a purchaser, and [...]herefore those who hold of him that was [...]ttainted, shall not sue livery. Quaere, [...]f it be enacted that he shall forfeit it [...]o the King, his heirs and successors. E­ [...]contra, if he had been sole seised, and [...]ad been attainted by the Common Law, [...]or there the King hath the Land as [Page 162] King, and there those who held, & [...] shall sue livery. Magna Charta. cap. 31. Ratt. Te­nures. And yet the Statute [...] Si quis temerit de nobis de aliqua [...] chaeta, ut de honore Wallingford▪ Bose [...] &c. non faciet aliud servivum qua [...] fecit preantea. And therefore this [...] intended of a common escheat. And a [...] so some Honours are in Capite, as pa [...] of Peverel, and others. 29 H. 8. [...] Livery 58.

The Kings tenant leases for years an [...] dies, Stp. 13. the heir shall sue livery notwith [...]standing the Lease indures. And th [...] same where the Father declares his wi [...] of the Land for yeers and dies. 30 H▪ 8. B. Livery 59.

If a man holds of the King before th [...] Statute of uses, and infeoffs others [...] his for term of life, See 37. H. 8. Tit. di­scent Sir John Hus­seys case. the rem' over in tai [...] the rem' to his right heirs, and dies, an [...] after the tenant in tail dies without issue [...] the heir of the Feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir, an [...] if he hath it by descent, he shall sue live­ry. And the same Law and for the sam [...] reason, if at this day a man gives in tail [...] the rem' to his right heirs. Otherwise B. 2. seems where a man makes a Feoff­ment in fee in possession, and dismisses [Page 163] [...]mself of all, and retakes for term of [...], the rem' in tail, the rem' to his [...]ght heirs, and dies, and after the te­ [...]ant in tail dies without issue, there the [...]eir, who is right heir is a purchaser. [...]nd if the King seises, he shall sue [...]ister le main, and shall not be com­ [...]elled to sue livery; But if the tenant [...] tail had dyed without issue in the life [...]f tenant for life, and after the tenant [...]or life dies, there his heir shall sue livery, for the fee simple was vested in the tenant [...]or life, by extinguishment of the mean [...]em' and therefore the fee simple de­scends. See 29. H. 8. before, and 38 H. 8. after. And note, livery is that the King [...]hall have the value of the land by half [...] year. And ouster le main is a Writ [...]o ouste the King of the Land without a­ [...]y profit given to the King, 32 H. 8. B. Livery 61.

Where a man holds certain Land of the King in Soccage in Capite, F. N. B. 256. C. See 38. H. 8. after. the King shall [...]ot have liberty of more then the Soccage-Land, 32 H. 8. B. Garde 97.

He which holds of the King in Knight service and not in Capite, See 33. H. 8. Tit. Fe­nuces. shall not sue li­very, because he holds not in Capite, and there when the heir comes to full age, he shall have an ouster le main, for none can enter upon the King. But if he be of [Page 164] full age at the time of the death of his an­cestor, Stp. 13. See 32. H. 8. Tit. Demurrer in Law. then he shall render relief to the King and goe quite, as if he had holden of a common person. Contra, of Tenure in Capite. 32 H. 8. B. Livery 62.

Note, that the heir of him who holds of the King in Capite in Soccage shall not ren­der primer seisin to the King for all his Lands, Stp. 13. 2. M. 1 Com. 109. 2. El. Com. 204 See 32. H. 8. before. but onely for those Lands holden in Soccage in Capite. Contrary of him who holds in Knight service in Capite, by the experience of the Exchequer. And the heir which sues Livery shall have in every County a several livery. And note that livery is where the heir hath been in Ward, and comes to full age, he shall have livery extra manus Regis. Stp. 13. 44. E. 3. 12. Fitx. 257 L. See the extent of it. 32, H. 8, before, and 29. H▪ 8. And primer seisin [...] is, where the heir is of full age at the time of the death of his ancestor, or where his tenant holds in Soccage in Capite, and dies, there the King shall have primer seisin of the Land, which amounts to the like charge to the heir, as the livery is. 38▪ H. 8. B. Livery 60.

Note that a man cannot sue livery in the Chancery for Land in Wales, 28 H. 8. before contra. Nor in a County Palatine by experience. Time H. 8. B. Livery 63.

If the heir of cestuy que use be of full age at the time of the death of his ancestor, [Page 165] the King shall not have primer seisin, 27 H. 8. 4. Mounta­gue accord 4 H. 7. c. 17 Rast. Wards 20. for 'tis not given by the Stat. but onely the ward of Land and body. And if a will were declared by cestuy que use, which is not performed during the nonage of the heir, there the King shall not have the Land, but the heir at full age, shall prove his age, and shall goe quite by expe­rience in the Exchequer. Casus B. Livery 77. the middle.

Mainprise.

IF a man be arrested in London, and finds sureties to the Plaintiff there, See [...]1 H. 8 Tit. Proce­dendo cont. and after is dismissed in banco by Writ of priviledge, and after a Procedendo comes in the same suit to the court of London, this shall not revive the first mainprise, or sure­tiship, for once dismissed, and always dis­missed. And 'tis said that after a man hath found mainprise to a Bill in the Kings Bench, and after is at issue or demurrer, and after is awarded to replead, and to make a new declaration, the Mainprise is by this discharged. Contrary, where they manuceperunt usque ad finem pliti, and where the original remains. 32 H. 8. B. Mainprise 96.

[Page 166] If a man be convicted of Felony, and remains in prison, and after the King par­dons him, there the Justices of Goal-de­livery may bail him till the next Sessions o [...] Goal-delivery, so that he may then com [...] with his Pardon, and plead it. 2 E. 6. B▪ Mainprise 94.

Maintenance.

Note, 19 E. 4. 3. Ascue & Markham accord. 21 H. 6. 16. 14▪ H. 7. 2. by Rede. See H. 6 & 7. E. 6. 33. by all, where Tenant in Tayl, o [...] for term of Life, is impleaded, he in rem [...] or reversion, may maintain, and give of his proper money to maintain for safe­guard of his interest: for 'twas agreed that he who hath an interest in the Land may maintain to save it. 1 E. 6. B. Main­tenance 53.

Note, that upon the Statute of buying Titles, and to maintain that a man shal [...] not buy Land, except the vendor hath been in possession, 32 H. 8. ca. 9. See H. 6 & 7. E. 6. Com. 88, 89. &c. by a yeer before, 'twas agreed by Mountague chief Justice, and by all of Serjeants Inne in Fleet-street, that if a man morgages his Land, and re­deems it, he may sell his Land infra unum annum prox. &c. without danger of the State aforesaid: for so is the intendment of the Statute: for the ancient Statutes are, That none shall maintain; and yet a [Page 167] [...]an may maintain his Cousin, and so of [...]e like: for 'tis not intended, but of un­ [...]wful maintenance; and so of a preten­ [...]d Title, and not of that which is clear [...]itle. 6 E. 6. B. Maintenance 38.

Mannor.

A man cannot make a Mannor at this [...]ay, See 35 H. 8 Tit. Te­nures. notwithstanding that he gives Land [...] many severally in Tayl, to hold of him [...] Services, and suit of his Court: for he [...]ay make a Tenure, but not a Court: for [...] Court cannot be but by continuance cu­ [...] contrarium memoria hominum non [...]sist it. See 23 H. 8 tit. Court-Baron, & Time. H. 8 Tit. Suitor. And 'tis said for Law, that if a [...]annor be, and all the Free-tenures es­ [...]eat to the Lord, but one, or if he pur­ [...]hases all but one, there after this the Mannor is extinct: for there cannot be a Mannor, except there be a Court-Baron [...] it. And a Court-Baron cannot be [...]olden but before Suitors, and not before [...] Suitor: therefore one Free-holder [...]ely cannot make a Mannor. 33 H. 8. [...]. Comprise 31. Mannor 5.

Misnosmer, Misnamer.

A Statute was acknowledged by man in the name of I. S. de D. in Co [...] E. Butcher, and he was taken upon Pr [...] ­cess, and said in avoydance of the Statut [...] that he was always dwelling at S. a [...] not at D. and was a Husbandman, and n [...] a Butcher; and that I. S. of D. acknowledged the Statute without this, that he the same person that acknowledged i [...] which Plea was refused, for a great incon­venience that might fall upon it. 36 H. B. Misnosmer 34. the end.

Monstrans de faits, Shewing of Deeds.

See that he which pleads a Deed Record, See Cokes books. or which declares upon a Deed Record, it behoves him to shew it: Oyer of those is always to be had by [...] which is charged by it. Regulae Monstrans 165. Oyer de Recordes 1 [...] the end.

Mortdauncestor.

By the best opinion in the Comm [...] Bench, if two purchase jointly to them [...] [Page 209] to the heires of one, See Cokes Rep. and he which hath the Fee dies, and after the other dies, the heir of the first shall not have a Mortdauncestor (and B. seems the rea­son to be, because the Fee was not ex­ecuted in Possession, by reason of the survivor of the other, and tis in effect now but the discent of a reversion) and the wife of him who had the Fee, shall not have Dower, and yet he might have forfeited the Fee simple or given it by Feoffement, but not by grant of the Reversion. 12. E. 4. 2. and joyn the Mise in a Writ of Right, for he in Reversion, and the Tenant for life may do it. Quaere, if he may release it. 29. H. 8. B. Mortdaun­cestor. 59.

Mortmain.

Lord and Tenant, the Tenant leas­es for life to I▪ S. the remainder to an Abbot and his successors, the Lord need not to make claim, till the Te­nant for life be dead; for if he will wave the Remainder tis not Mortmain. But of a grant of a Reversion with Attorn­ment, tis otherwise. And if the Te­nant makes a Feoffment in Fee, to the [Page 210] use of A. for life, and after to the use of an Abbot and his successors, there tis not Mortmain, till the Tenant for life in use dies, and he in Remainder takes the profits. Note that appro­priation of an advowson without li­cence is Mortmain. 25. H 8. B. Mortmain. 37.

If a man leases to an Abbot and his successors, 8. H 4. 15. B. Mort­main 11. or to another Religious person for a 100 years, and so from a 100. years to a 100 years, untill 300 years be incurred, this is one Lease, and such Lease is Mortmain by the words of the Statute de religiosis. 6. El. Com. 273. 7 E▪ 1 [...] S. colore termini, for the said Statute is, quod nullus emeret, vel sub colore donationis aut termini, aut ratione alterius tituli ab aliquo reciperi, aut arte vel ingenio sibi appropriare presu­mat, &c. And the same Law o [...] a Lease for 400 years, or the like, Con­trary, if a man leases for a 100 years, or the like, and covenants that he or his heirs at the end of a 100 years, will make another Lease for another 100 years, and so further, this is not Mort­main, 3. E▪ 4. 13. by Nele ac­cord. for tis but one Lease for a 100 years, and the rest is but a Covenant, but in the first case, for that is for 300 [Page 211] years at first in effect, and all by one and the same Deed, 3. E▪ 4. 13. by Nele contra. (B. Mortmain 30. Leases 49.) And 99 years is not Mort­main. And also a Lease for a 100 years is not Mortmain by B. for tis a usual term. 47. E. 3. 11. see. 1. E. 6. Tis. Devise. 29. H. 8. B. Mortmain 30.

By Br. if an alienation in Mortmain be, and the alienee is disseised, and the disseisor dies seised, his heir is in by discent, yet the Lord may enter within the year, for he hath but onely a Title of Entry, and cannot have an Action. But otherwise of him who hath right of Entry, and may have an Action. 1. E. 6. B. Mortmain. 6. the end.

Negativa pre­ignans;

see Tit. Issues joyns.

Non-ability.

VVHere, and in what Case a [...] Alien is disabled from bring­ing of an Action, what not? See Tit Alien.

Non est factum.

Note, See Cokes Rep. Whelp­dales case▪ that in Debt upon an obligati­on made for Usury, and the Defen­dant pleads this matter, he shall con­clude, and so the obligation is void Judgement si action, and shall not con­clude non est factum. 7. E. 6. B. Non es [...] factum. 14. the end.

Nonsuit.

Note, that the King cannot be non­suited; Yet B. seems that he who tam pro Domino rege, Entries? quam pro seipso sequi­tur may be nonsuited. 25. H. 8. B. Non­suit. 68.

Note, 14. H. 8. 24. per Cur. 28. when the parties in an Acti­on have demurred in judgement, and have a day over, H. 6. 8. & 4. E▪ 4. 24▪ accord. there at that day the Plaintiff may be demanded, and may be [...]onsuited, as well as at a day given after issue joyned. 38. H. 8. B. Nonsuit. 67.

Nontenure.

Where a man is barred by a false ver­dict, See 20 H. 8. after. and brings an attaint against the first Tenant, nontenure is no plea, for he is privy; contrary of a stranger, as where the Tenant infeoffs a stranger after. 19. H. 8. B. Nontenure 6.

In an attaint Non tenure is no plea [...]or a privy to the first action: 29 H. 8. 2▪ see 19 H. 8. before. contra [...]or a stranger to the first Action (B. Nontenure 16.) And tis said that tis [...]o plea in an attaint, to say that the Plaintiff in the Attaint hath entered [...]fter the last continuance. 20. H. 8. B. Nontenure 22.

[Page 214] Nontenure is no plea in Waste. See Tit. 14. H. 6. 2. See Cokes Rep. the Countess of Rut­lands Case: noble: by mariage loses her dignitie: in such case not noble by discent. Waste.

Nosme. Name.

What shall be a good name of Pur­chase. See Tit. Discent.

Note, if a Dutchess, or other such state marries with a Gentleman or an Esquire, she by this shal lose her dignity and name by which she was called be­fore as in the case of the Lady Powes, and Dutches of Suffolk, the one e­spoused R. Haward, and the other S. the Dutches, AdrJan Stokes; and therefore Writs were abated in their Cases; For by the book of Heralds; quando mulier nobilis nupserit ignobi­li, desinit esse nobilis. 4. M. 1. B. Brief; 546. Nosme. 69.

Notice. Fitz. 35. H.

The Patron shall take notice of eve­ry voidance of an Advowson, except resignation, and of this the ordinary shall give him notice. Lecture Frowick. B. Notice 27.

Office devant, &c. Office before, &c.

NOTE, See 35. H▪ 8. Tit. Forfei­ture. St. 54. by those of the Ex­chequer; where a man is attainted by Parliament, and all his Lands to be for­feited; and doth not say that they shall be in the King without Office, there they are not in seisure of the King without Office, for non con­stat of Record what Lands they are. 27. H. 8. B Office devant 17.

If the King grant Land for term of life, 18. H. 6. cap. 6. & after the Patentee dies, yet the King cannot grant it over till the death be found by office, & this by reason of the Stat. that a grant before [Page 216] office shall be void. 29. H. 8. B. Office devant [...]6.

If an Office finde the death of the Kings Tenant, and that his heir is of full age, and doth not say when, there it shall be intended that he is of full age, tempore captionis inquisitionis, but that he was within age tempore mortis tenentis, and therefore it ought to be expressed certain when he was of full age. 29. H. 8. B. Office devant 58.

Note, that tis an antient course in the Exchequer, See 13. H. 7. 11. that if it be found by Office that I▪ S. was seised in Fee and died, sed de quo vel de quibus tenementa tenentur, ignorant; that a Commission shall issue to enquire of it certainly, de quo &c. and if it be found that of W. N. then the party shall have Ouster l'main of the King. But if an Office be found, Kings & Fineux accord. quod tenetur de Rege, sed per que ser­vitia ignoratur, 13. H. 7. 5 & 9. 26. H 8. 9. by Bromley see 29. H 8. Tit. this is good for the King, and it shall be intended to be holden in Capite per servitium Militare, for the best shall be taken for the King. But now in these ca­ses, Livery. 2▪ E. 6. cap. 8. a Melius in quirendum shall be awarded by the Statute 30. H. 8. B. Office devant. 59▪

[Page 217] Land was given by the King pro e­rectione Collegii Cardinalis Eborum, 3. E. Com. 229. See after. and the Colledg was not erected, and upon office found thereof, the King seised. Time. H. 8. B. Office. 4. the end.

Twas agreed by the Justices, See 5. E. 6. before. that the King is not intitled to the land of his ward without office, though he hath in it but a Chattell, yet it comes ratio­ne tenure, which is a seigniory and free hold in the King. 5. E. 6. B. Office de­vant. 55.

Note, that of a Chattell the King is in possession without office. And [...]contra of land and of free hold, except of a term; And sometimes he shall be in possession of inheritance without office; yet the King shall not have the land of his ward without office, though he hath in it but a Chattel; for the ward comes by reason of the tenure, which is a seigniory and free hold in the King, and therefore a difference be­twixt this, and a lease for years of a man outlawed: For if a man hath a term for years, or a ward, and is out­lawed, this is in the King without office. Lecture B. Office devant. 60.

Officer.

Note, for Law, if a man hath a fee of a Lord, and after is made Justice, this fee is not void by the Law, but af­ter the making of him Justice, he is not to take any fee, but of the King; and the same law of him who hath an office of Steward, and after is made Justice. Et per plures where a man is a Baily of a Mannor by patent, 39. H. 6. 5. by Prisot. See. 5 M. 1. Tit. Com­mission. and after is made Steward of the same Mannor by ano­ther patent, both patents are good; For the Suitors are Judges, and not the Baily. But per plures if a man be a Forrester by patent, and after is made Justice of the same Forrest, the first pa­tent is void. As where a Parson is made a Bishop, the Parsonage is void, for he cannot be ordinary of himself, 10. H. 7. 7. by Va­visor. 15. E. 4 [...]3. by Brian. nor punish himself. And B accords that a man cannot be Keeper of a Forrest, and Justice of the Forrest, for the kil­ling of the Deer by the Keeper, and the like, is a forfeiture of his office, which shall be adjudged by the Justices of the Forrest, and he cannot judge him [...] self. But a man may be a Steward of a Forrest by patent, and Justice of the same Forrest by another patent, and [Page 219] both good, for both are judicial, And Justices of the Forrest may make a Steward of the Forrest. 29. H. 8. B. Offi­cer. 47.

Note, See Coke Rep. Case of Dis­continu­ance. that the Sheriff and Escheator void their office by demise of the King, for they are made by patents, which are as a commission is, and therefore tis used at the demise of the King for to sue out new patents, as 'twas this year. 1. M. 1. B. Officer. 25. the end.

Obligation.

If A. be bound to B: in 40. s. ad usum [...]. S. there I. S. may release the obliga­tion, See Bil­ling, 2. E. 4. 2. because that (ad usum) is expres­sed in the obligation. Et econtra if this did not appear in the obligation. 36. H. 8. B. Obligation 72.

Oyer of Records, &c. see Tit. Monstrans de faits. Oyer & Terminer.

Tis said that if a Commission of O [...]er and Terminer expire or discontinue, [...]hen the indictments and record shall [...]e sent into the Kings Bench, and there [Page 120] they shall be finished (see how Tit. Corone.) 38. H. B. Oyer & Terminer. 1. the end.

Twas granted in the case of Ben: Smith upon the Statute of 2. E: 6. cap: 24. of Felony in one County, and ac­cessary in another County; that the Justices of the Kings Bench are Justices of Oyer and Terminer of Felony, Trea­sons, and the like, by the Common Law, and Custom of the Realm. 3. M. 1. B. Oyer & Terminer. 8.

Pain.

TWas adjudged in Curia hospitii Domini Regis apud Greenwich versus Edmundum Knivet mili­tem, See St. 38. C. that he should be disinherited, imprisoned for ever, and his hands cut off, quia percussit quendam hominem ibidem, the King being there in his Court. 33. H. 8. B. Pain 16. the end:

Panell:

Twas agreed in the Exchequer where [...] jury is awarded de medietate lingue, where an alien is party, and the panel [...]eturned, that the one of the denizens and the other of aliens shall be sworn, till they have 6 denizens, and 6 aliens sworn. See Coke upon Lit. & Dyer econtra. 32. H. 8. cap. The same Law there, where the jury remains for default of jurors, there a Tail shall be part of English, and part of aliens, and this if the party prayes it. But if he doth not pray it, B. seems tis error, except by the Statute of Jeofails it be holpen. 32. H. 8. and so by him where the panel is party, the party is not compellable to take the ju­ry, except 6 of the one, and 6 of the other are sworn. 4. E. 6. B. Panel 2. the end.

Parliament.

If the King be intitled to the land of I. S. by forfeiture of Treason, See 31. H 8. Tit. Extin­guish­ment. or Felo­ny, by act of Parliament or office, by this all tenures are determined, as well of the King, as of all others. And there, if this land after be given to another, by another Act of Parliament saving to [Page 222] all others all their Rights, Interests, Titles, Rent-service, and the like, as if no such Act had been, there the Seig­niories and the like shall not be revi­ved, for no Seigniorie was in esse at the time of the second Act made. And here are not words of Gift, 35. H. 6. 34. Dan­by ac­cord. nor Revi­ving, but words of Saving, which serves not but to save that which in esse at the time of the Saving, &c. But such Pro­viso in the first Act would serve; for this comes with the Act which Intitles the King. And where the King is In­titled to Land by Office for Escheat, and after tis enacted by Parliament that the King shall enjoy it, saving to all others their Seigniories, and the like, there such Saving will not serve (for the reason aforesaid) for all was extinct before by the Office, and no­thing was in esse at the time of the Sa­ving (which was in ure between the King and Keckwich in the County of Essex, where R. lost his Seigniory) But there ought to be words affirmative, that the Lords shall have their Seignio­ries. 27. H. 8. B. Parliament 77.

Note by Englefield Justice, See 34 H 8. Tit. Remit­ter. & Dyer. in the Case between Button and Savage, that where a man hath Title to Land by a [Page 223] Tail, and after the same Land is given to him by Parliament, that his Heirs shall not be remitted; for by the Act of Parliament all other Titles are excluded for ever; for this is a Judgement of the Parliament: And where the Land is gi­ [...]en expresly to any person by name, by Act of Parliament, he, nor his Heirs shall not have other Estate then is gi­ [...]en by the Act, but that that onely [...]hall stand. (B. Parliament 73. Remitter [...]9. the end.) And the same Law where [...]he King had Title in Tail, and the [...]and is given to him by Parliament in [...]ee, the Tail is determined. So that [...]e Heir shall not avoid Leases made [...] his Father, nor Charges, and the [...]; for the last Statute bindes all for­ [...]er Titles and Estates not excepted. [...]9. H. 8. B. Parliament. 73.

If divers Sessions are in one and the [...] Parliament, H. 6 & 7. E. 6. Com 79. per Justicia­rios. and the signes not a [...] till at last, there all is but one and [...] same day, and all shall have relati­ [...] to the first day of the first Sessions, [...] the first day and the last, all is but [...] and the same Parliament, and one [...] the same day in Law, except special [...]ntion be made in the Act when it [...]ll take force. But every Sessions in [Page 224] which the King signes the Bills, H. 6. & 7. E. 6. Com 79 by Hales Just. is a da [...] by it self, and a Parliament by it self and shall not have other relation but to the same Sessions. 33. H. 8. B. Parlia [...]ment 86. Relation 35.

Note, See 32. H 8. Tit. Demur­ror in Law. 6, & 7. E. 6. Com. 79. 84. if a man in an Action, or pleading alledges a Statute, and mis-recite it in matter, or in year, day, or place the other may demurr generally, fo [...] there is no such Statute, and then ther [...] is no such Law, for every one that med [...]dles with it, ought to shew the La [...] truely. But in case of the King it ma [...] be amended, and this in another Term Contrary for a common person. 33. H▪ 8. B. Parliament 87.

Memorandum, that at the Parli [...]ment holden by adjournment H. th [...] year, twas admitted by the Kings [...] and so accepted, that if one Burgess [...] made Major of a Town which hath j [...]dicial jurisdiction, and another is [...] that these are sufficient causes to ele [...] new ones, wherefore they did so [...] the Kings Writ out of the Chancer comprising this matter, which was a [...]mitted and accepted in the Commo [...] House of Parliament. 38. H. 8. B. Par [...]ament. 7.

Parnour, Taker of the profits.

An Office is found after the death [Page 225] Cestuy que use that he died seised, and the heir is in ward of the King, 27. H. 8. cap. 10. and af­ter a Recovery is had against the Heir during the Possession of the King as a­gainst the Pernour of the profits, Rast, U­ses 4. 9. E 4. 24. 26. H. 8. 3. 8. 13. H. 7. 15. Vavi­sor ac­cord. be­fore the Statute of Uses 27. H. 8. the Feoffees traverse the office, or sue an Ouster l'main, this Recovery shall binde the heir, but the Recoverer can­not enter during the Possession of the King. 29. H. 8. B. Pernour 32:

A man cannot aver another Pernour of the Profits of other things, which are not in demand. B Pernour 4. the middle.

Patents.

The King gives Land to I▪ S. Et here­dibus masculis suis, the grant is void. See Tit Estates.

If the King Licences his Tenant to alien his Mannor of D: See Stp. 31. and he aliens it except one acre, the licence shall not serve it, for the King is not assertained of his Tenant of all. And if I have a Li­cence to impark 200 acres, and do it ac­cording, and after increase by other 10 acres, there this is not a Park. 23. H. 8. B. Patents. 76.

If the King grants omnia terras & te­nementa sua in D. this is a good grant [Page 226] these general words. 30. H. 8: B. Pa­tents 95.

The King gave to the Earl of Rut­land in Tail, and after intended to give to him in Fee simple, and to extinct the Tail, and twas doubted that the sur­render of the Letters. Patents of the Tail, and the cancelling of them, and of the Inrollment and Bill assigned, will not extinct the Tail, for the Tail executed may be averred without shew­ing the Patent. 4. E 6. Com. 5. ècontra. And a Formedon lies after the Tail executep, without shew­ing the Patent. And twas taken that twas not a good surety for the King, for his services to give the reversion, to to hold the reversion by such services when it vests, and to except the first services during the Tail, for when the reversion is gone, the Rent and Servi­ces reserved upon the Tail, are gone as wel in case of the King, as a common person. And therefore the devise was, that the King by a new Patent, reci­ting the first Patent, shall give the Re­version, and the first Rent and Servi­ces to have in Fee, to hold by such Services, and rendring such Rent, and by this the King shall have the new Tenur presently, and the Grantee shal [Page 227] not be charged with double Services and Rents during the Tail, See 35. H 8. Tit. Tail, contra. and twas a­greed for Law, that if a man loses his Letters Patents, he shall have a Constat of the Letters, Patents out of the Inrol­ment, and Bill assigned, which re­mains in the Chancery: And therefore B. seems that the Inrolment shall not be cancelled (B. Patents 97) And twas agreed by Whorewood the Kings At­torney, See 12. H 7. 12. by Fisher. & optimos legis peritos, that if Tenant in Tail of the Gift of the King surrenders his Letters Patents, this shal not extinct the Tail, for the Inrolment remains of Record, out of which the issue in Tail may have a Constat, and recover the Land, wherefore they made the Devise aforesaid, viz▪ that the King shall grant to the said Earl Te­nant in Tail the Fee simple also, and then a Recovery against him will barr the Tail. See 32. H 8. Tit. Discon­tinuance de pos­session. Otherwise the Reversion be­ing in the King (B. Surrenders 51.) And tis said for Law, if the King gives in Fee, or in Tail, or for life, the Pa­tentee Leases for years, or grants, Lea­ses, or gives part of the Land or of the Interest to another, and after surren­ders his Patent, by which tis cancelled, this shall not prejudice the third per­son, [Page 228] that he shall lose his interest by it: for he may have a Constat out of the enrolment which shall serve him. Quae­re inde, because a Statute is made of it. 4. E. 6. c. 4. And Quaere if the Common Law shall not serve: for it appears in the book of Entries fo. that a man pleaded a Constat, 32. H. 8. B. Pattents 79. the end. Surrender 51.

What thing in action the King may grant, what not? See Tit. Choise in a­ction.

If the King grant a Balywick, or she­riffwick to I. S. absque compotoreddend. the word absque compot. is worth no­thing: for tis contrary to the Na­ture of the thing granted, 36. H. 8. B. pattents 99.

If Conusance of plea be granted by the King, he ought to shew where; as in Guild-hall, or the like; and before whom, as before his Steward, &c. And the King may grant Toll, Fair, Market, and the like: but not to have Assise of Fresh force, nor Toll traverse, nor Through Toll, nor that the Land shall be Devisable, 2. H 7. 13. by Keble 37. H. 6. 27. by Litt. Borrough-English Gavel­kinde, nor the like: for these are by Custom, which cannot commence at this day by grant: for the King cannot [Page 229] make a Law by his grant: Abr' of the Ass. 56 9. H. 6. 27. by Martin. and that by grant of Conusance of pleas, he shall not hold plea of an assise, nor of a certi­ficate of assise.

And tis said for Law, 44. E. 3. 18. by Thorp. Fi [...]z. ac­cord. 26. H. 8. 1. & 21. E 48. by Hus­sey. 3. H. 7. 6. 11. E. 41. by Litt. See Coke Rep. Al­ton­woods case. That a false con­sideration in Letters patents shal not a­void them: as where the King for ten pound to him paid, gave such Land, and the ten pound is not paid, the patent is not void, shall not be repealed: Contrary of a patent granted upon a false surmise: as to falsifie that the land came to the King by attainder of I. S. which is not true, or the like. Quaere, the diversity, 37. H. 8. B. patents 100.

Where the King, Tenant in Tail, can­not discontinue, or charge by grant, by patent, See Tit. Discontinuance de pos­session. Time E. 6. ac­cord.

Note, that twas agreed, That where the King grants Land which is in Lease for tearm of years, See 38 H 8. Tit. Discon­tinuance de pos­session. & Cokes Rep. of one who was at­tainted, or of an Abby, and the like, that the grant is good without recital of the Lease of him who was attainted, or of the Abby: for he shall not recite any Lease but Leases of Record, Time H. 8. B. patents 93.

Twas granted in the case of Tho­mas Inglefield, Knight, where the [Page 230] King Receits, 38. H. 6. 37. by Danby. quod oum A. B. tenet ma­nerium de B. protermino vitae suae de concessione nostra, &c. Sciatis nos con­cessisse C. S. reversionem manerii pre­dict, &c. Habendum, &c. that this is a good Grant. Therefor B. seems that if the King mis-recites the date of the first Letters Patents, or the like, yet if he well recites the estate and the thing, and the name of the Lessee, that then the Grant of the Reversion is good. For where the King takes notice of his Te­nant for term of life, and of his estate, and grants the Reversion, he is not de­ceived in his Grant, for he takes upon him notice of the former Interest for life, and then the date of the first Pa­tent is not material. Time H. 8. B. Pa­tents 96.

By Mervin Justice, a Constat is plea­dable; contrary of an Inspeximus, for in the one case the Patent remains, Sec 32. H. 8. be­fore. and in the other tis lost, And by B. in the Book of entries a Constat was pleaded, and aid granted of the King upon it. 1. E. 6. B. Patents 97. the end.

Peace.

A man is bound to the peace, and pro­cures another to break, the peace, this [Page 231] is a forfeiture of his Bond, as twas said Time. H. 8. B. Peace 20.

Peremptorie.

A man recovers debt or damages and after brings thereof a Scire Fac' the first return of Nihil against the Defen­dant is peremptory, 8 E 4. 15. by Dan­by. if he makes default. 24. H. 8. B. Peremptorie. 63.

Where a man brings an Action real or mixt, or makes an avowry or conusans, and issue is taken upon the seisin infra tempus statuti, and tis found against the demandant, Plaintiff, or avowant, this is peremptory by the same Statute. 1. M. 1. B. Peremptorie. 78.

Petition.

Tis held for Law, 3. H 7. 3. by Keble 3. E. 4. 25. & 4. E 4. 25 See Cokes Rep. Com­munalty of Sad­lers Case & Tit. Traverss &c. 10. H. 6. 15. 4. E 4. 25. if the King be Intit­led by double matter of Record, as tis enacted by Parliament, that I. S. shal be attainted of Treason, or Felony, and shall forfeit all his Lands, and also an Office is found thereof, there the party who hath right, cannot traverse, but is put to petition. And the same Law if the King grant it over after the double matter of Record found. 33. H. 8. B. Petition. 35, Trovers de office 51.

[Page 232] Note, That Petition was at Com­mon Law, but Traverse is by Statute, Lecture B. Petition 41. Travers de of­fice 54. See Tit. Travers de Office.

Pledges.

A man gages his goods in pledge for 40 l. borrowed, 22. E. 4. [...]1. accord and after the Debtor is convicted in 100 l. in debt to ano­ther, these goods shall not be taken in Execution till the 40 l. be paid: for the Creditor hath an interest in them: and also goods taken for Distress, cannot be taken in Execution, 34. H. 8. B. pledges 28.

Pleadings.

Note that it is said for Law, 22 E. 4. 32. by Brian. That he which pleads a Recovery by default, ought to aver his Title of his Writ. And also that the Defendant in the Recove­ry was Tenant of the Free-hold die bre­vis: but if the recovery were by action tried, he needs not to take the one aver­ment or the other. Yet twas said, that in a quod ei deforce at he that pleads the re­covery by defalt, need not aver the par­ty tenant of the Freehold tempore brevis sui, for tis proved that he was Tenant [Page 233] tempore, &c. by the use of the Quod ei deforceat, for this is the effect of this action; because that the Demandant in this action, lost by default in the first a­ction: yet he shall aver the Title of his Writ.

And he which pleads a Recovery in a Writ of Waste by default, 36 H. 6. 29. needs not to aver the party Tenant; for Non Tenure in this action is no Plea. 24. H. 8. B. Pleadings 6.

He which pleads an entry for to de­feat a Collateral Warranty, 3 H. 7. 2. 4 E. 6. Com. 46 ought to a­ver that he entred in the life of the An­cestor. And in Dower if the Tenant pleads a disseism by the husband, and the wife pleads a Feoffment by I. N. to the husband, who after infeoffed the Tenant, and after disseised him, she shal say that the Feoffment of I. and the sei­sin of the husband, were during the co­verture; 19. H. 6. 74. 13 H. 8. 15. by Wilby. and he which derives an inte­rest by Lease from Tenant for life, or in Tail, ought to aver the life of the Ten­ant for life, or in Tail, 26. H. 8. B. plead­ings 147.

Where a man ought to aver, that the one and the other are one, and not di­vers, See Tit. Averments.

Where a stranger to a Deed may [Page 234] plead it, where not? See Tit. Estran­ger.

Note, See Tit. Titles. for Law, That tis good plead­ing to say, that I. N. and W. N. were seised in Dominico pro ut de Feodo ad u­sum T. P. and his Heirs, without shewing the Commencement of the use [...] as to say, that A. was seised in Fee, and infeoffed I. N. and W: N. ad usum T. P. &c. But a man cannot plead that A. B. was seised in Tail without shewing the gift; for the one is a particular estate, and not the other, 36, H. 8. B. Blead­ings 160.

Plenartie:

Note, See 13. H. 8. fo. 13. by Newd. & fo. 14. by Brud. 33 H. 6. 12. when there is no Patron, a [...] where the Patron is a Priest and is admitted to this Benifice himselfe. O [...] where my Advowson is aliened in Mortmain, and appropriated to [...] House of Religion, and the like: in these cases I. may have a Quare impe­dit, and there Plenarty by six Month is no plea, 6. H. 8. B. Plenartie 10.

Premunire.

Premunire by Bil in the Kings bench, See Cand. 44 E. 3. 32. & D. S. 57. 104. See Tit. Bill.

A Prohibition lies often where a Premunire lies not; as of great Trees, vel pro decimis, de ceptima parte, pro­hibition lies, and not a Premunire; for the nature of the action belongs to the Spiritual Court, but not the cause in this form. But where tis of a lay thing which never appertained to the Spiritual Court, 44. E. 3. 36. ac­cord. See D. S. 106 & 8 E. 4. 13. by Catesby that a prohibi­tion lies. of this a Premunire [...]ies. as of Debt against Executors up­on a simple contract, or pro lesione fidei, upon a promise to pay 10 l. by such a day, 24. H. 8. B. Premunire 16.

Where a man attainted in a Premu­ [...]ire shall forfeit his Lands in Fee imperpetuum, See Tit. Forfeiture de [...]erre, &c.

Prerogative:

A man hath land in use; See 3 El. com 240 of which, part is holden of A. by prioritie, and the rest of the King by Posterity in Knights service, and dies, the King shal have the ward of the body by his proro­gative, [Page 236] and by the Statute of 4. H. 7▪ which gives the ward of Cestuy que us [...] where no will is declared; 4. H. 7. ca. 17. Pre. Re. ca. 2. Stp. 9. & 4. E. 6. Com▪ 59. by Monta­gue con­tra. and per pre [...]rogativam regis: Yet otherwise tis sai [...] of land in use holden of a common per [...]son; for the Tenant in use dyed no [...] seised, and therefore out of the case o [...] Prerogative for the Land, 21. H. 8. B▪ Prerogative 29.

Note, See 38 H. 8. Tit. traverse. by Whorewood the Kings At­torney, and others: where an informa­tion is in the Exchequer upon a pena [...] Statute, and the Defendant makes bar, and traverses the Plea, that th [...] King is bound to stand to the first tra [...]verse, which tenders an issue, and can [...]not waive such issue tendered, and traverse the former matter of the Plea, See 6 & 7 E. 6. com 85. & 3. El. com. 263. 13 E. 4. 3 Stp. 65. [...] he may upon a traverse of an office, an [...] the like where the King is sole party and intitled by matter of Record; fo [...] upon the information there is no offic [...] found before: and also a subject is pa [...]ty with the King for to recover th [...] moytie or the like, 34: H. 8. B. Prero [...]gative 116.

Shelley Just. See 2 E. 6. Tit. Done. was precise that a gi [...] of the King is good of Chattels movea [...]bles without writing; as of a horse [...] [Page 237] [...]nd the like 35: H. 8. B. Praerogat: 60. [...]nd 71. the ends.

Note by some, the King shall not [...]ave a Precipe quod redd. (as a Writ of Escheat) but his Title shall be found [...] Office. Time H. 8. B. Praeroga­ [...]ive 119.

Where the King shall have his age? [...]here not? See Tit. Ag [...] ▪

Tis said if an information be by a sub­ [...]ect for the King in the Exchequer, 34 H. 8. before. & 38. H. 8. Tit. and [...]e Defendant pleads a Bar, and traver­ [...]s the information, Travers per &c. è contra. Br. Tra­verse per 207. the King may tra­ [...]erse the matter of the Bar if he will, [...]nd is not bound to maintain the mat­ [...]er which is contained in the absque hoc [...]. E. 6. B. Praerogative 65. the end.

The Prerogative of the King is a [...]reatise of the Common Law, Praero­gativa▪ Reg. and not [...]tute nor Declaration by Parliament. [...]d a Mine of Ore, or Argent is to the [...]wner of the soil. Quaere, Lecture B. [...]raerog. 134.

Where the Incumbent is made a Bi­ [...]hop, the King shall present by his Pre­ [...]ogative. See Tit. Presentation.

Prescription.

Where prescription shall be gone by acceptance of a grant of the thing, Se [...] Tit. Estopel.

Twas said for Law, See Coke upon Lit that a custom [...] may be alledged where there is no per­son that can prescribe: as inhabitants cannot prescribe: but they may alledge a custom that the inhabitants may Com­mon in D. for the one goes with the place, and the other with the per [...]son, which person ought to be able [...] prescribe; for otherwise tis worth nothing, 2. M. 1. B. Prescription, 100 the end.

Note, 15. H. 7. 7. contra per curi­am, as I take it See 33. H 8. after. & Dyer. by the Justices, that if a mangran [...] prox. presentationem to A. and aft [...] before avoidance grants prox. presenta­tionem ejusdem Ecclesiae to B. the se­cond grant is void: for this was gran [...]ed over by the Grantor before: and [...] shall not have the second presentatio [...] for the grant doth not import it, 20. H 8. B. Presentation 52.

A man grants prox. presentationem and hath a wife and dies, See 20 H. 8. before. & Dyer. the Grant [...] shall have the first presentation, the he the second, and the wife for Dowre th [...] third, 33. H. 8. B. Presentation 55.

[Page 239] Note, See 4 M. 1 Tit. commissions 41. E. 3. 5. accord See 11 H 4. 37. cont [...]a by Hill. by B. That the Bishop of E­ [...]y said to him, that he saw a presentati­on in the time of E. 3. made by the [...]aid King: That he presented to a Be­ [...]ifice pro illa vice, which was of another patronage, by these words, ratione prae­rogative sue, which Benefice voided by reason that the King had made the in­ [...]umbent of it a Bishop, who was conse­ [...]rated: so that when a Benefice becoms [...]oid by making of an incumbent a Bi­shop, the King shall present to all his [...]ormer benefices pro illa vice, whosoe­ [...]er is Patron of them, 4. M. 1. B. Pre­sentation 61.

Priviledge.

Note, when a Record is removed out of a Court of Record, as London, &c. [...]to the Kings Bench, or into Common [...]ench, there they shall not proceed up­ [...]n the Original which was in London: [...]ut in the Kings Bench the party may [...]d himself by Bill of Midd. brought [...]ere against the party upon his appear­ [...]nce: and in the Common Bench to [...]ing an Original retornable the same [...]ay. 36. H. 8. B. priviledge 48.

Procedendo.

If a man arrested in a Franchise, sue [...] a Writ of Priviledge and removes the body and the cause, and after come [...] not to prove his cause of Priviledge, the Plaintiff in the Franchise may have [...] Procedendo. And therefore B. seem [...] that there the first sureties remain: See 32 H 8. Tit. Main­prize contra. o­therwise if it had been dismissed by al­lowance of the priviledge, for then h [...] Sureties are discharged. Yet it seem [...] to him, that when they remove the bo­dy and the cause, they remove no sure [...]ties: but then there is not any Recor [...] against them; and then it seems tha [...] the priviledge being allowed, the sure [...]ties are discharged. Otherwise whe [...] the priviledge is not allowed; for the [...] the Prisoner and the cause was alwaie [...] remaining in the custodie of those of th [...] Franchise. 31. H. 8. B. Procedendo 1 [...] Sureties 28.

Proclamation.

Note, that none can make Proclama [...]tion but by authority of the King, [...] Majors and the like, who have priv [...]ledge [Page 241] in Cities and Boroughs to do it, or have used it by custom. And Sir Edmund Knightly, Executor to Sir Wil­liam Spencer, made Proclamation in [...]ertain market Towns, That the Credi­tors should come by a certain day, and claim and prove their Debts, &c. due by the Testator; and because that he did it without authority, he was com­mitted to the Fleet, and put to a Fine, 22. H. 8. B. Proclam. 10.

Prohibition.

Tis agreed, That if a man be sued in the Spiritual Court, Fitz. ac­cord 43. H. for Tythes of seasonable wood, the partie grieved may make a suggestion in Chancerie, or in the Kings Bench, that he is sued in the Spiritual Court for Tythes of great Trees, which pass the age of 20. years, by the name of Sylva Cedua, which is seasonable wood used to be cut, where indeed tis great Trees, and pray a Pro­hibition, and have it. And the same Law where a man is sued in curia Ad­miral' for a thing done upon the sea, where indeed twas done upon the land, there upon a surmise that it was done upon the land, he shall have a prohibi­tion. 31. H. 8. B. Prohibition 17.

Property.

Twas agreed by the Justices, That if a Frenchman inhabit in England; and after War is proclaimed betwixt Eng­land and France, none may take his goods, because that he was here before [...] but if a Frenchman comes here after the War proclaimed, be it by his own good will, or by Tempest; or if he yeilds, and renders himself, or stands to his de­fence, every one may arrest him, and take his goods: and by this he hath a propertie in them, and the King shal [...] not have them: and so twas put in ur [...] the same year, betwixt the English and Scotch; and the King himself bough [...] divers prisoners and goods the sam [...] year when Bullen was conquered of hi [...] proper subjects. 36. H. 8, B. Propertie and proprietate probanda 38, the end.

Who shall have property in an estray [...] See Tit. Estray,

Quare Impedit.

BY Whorewood the Kings At­torney, Contra P 36 H. 8. B. Quare imped. 2. the end. by Brom­ley and Hales Serjeants See Coke upon Lit. clearly; If two joynt Tenants are, the one pre­sents sole, and his Clerk in­ [...]cted, the other is out of possession, [...] 5. H. 8. B. quare imped. 52. the end. Quare imped. by Mark Ogle, against [...]arrison, Clerk incumbent; who was in [...]y the presentation of the King: and [...]herefore the Writ was brought against [...]im soly: and pending the Writ of [...]are imped. the Plaintiff dyed after the [...] months past, who had but prox. pre­ [...]tationem by grant, 14 H. 8. 3. by Fitz James. his executors [...]ought another quare imped. by jour­ [...]es accounts, intending to have saved [...]e matter by the journies. And [...] the Justices of the Common Bench, [...]here the Plaintiff dies, the Executors [...]all not have a Writ by journies ac­ [...]unts. (and B. seems that where the [Page 244] plaintiff dies, See Coke Rep case of Jour­nies ac­counts. none can have another writ by journies accounts. But contra in some cases where the Defendant dies having the writ. (B. Journeies accounts 23: Quare imped. 58.) And note by B. where the Grantee de prox. presentati­one brings a Quare impedit as before, and dies, after the six moneths past pending the Writ, and the Executors bring another Quare imped. by Jornies accounts, and take a General Writ, and count how that the grant was made to the Testator, and he brought a Quare imped. and dyed, and that they brough [...] this Writ, and for that reason pertine [...] ad ipsos presentare, and the Defendan [...] ipsos impedit, and then this imports tha [...] this is of a disturbance made to them­selvs after the 6 months past, & the nth [...] Writ lies not; for all ought to hav [...] been comprised in the Writ, and cou [...] specially and demand a writ to the B [...]shop upon the presentation, and wr [...] of the Testator, & quia non ideo mal [...] and nothing thereof comes in the ca [...] aforesaid, betwixt Mark Ogle, an [...] Harriston, by B. 4. E. 6. B. Quare in [...] ped 160.

Que estate, whose estate &c.

Tis said for Law, 39 H. 6. 24. by Nedham That if a man re­covers land against I: S [...] or disseises I. S. he may plead that he hath his estate, and yet he is in in the Post, 31. H. 8. B: que estate 48.

Que estate in another person of the the Tenancy without shewing how, not so in Seigniory. See Tit Avow­rie.

Twas agreed that a Que estate shall not be allowed in one who is mean in the conveyance; H 2. E. 6. in banco regis ac­cord. 37. H. 6. 32. by Da­vers. as to say that A. was seised in Fee, and Feoffed [...]. whose e­state C. hath, who Infeoffed the De­fendant; for the que estate shall be al­lowed onely in the Defendant or Te­nant himself, S. whose estate the Te­nant hath, 1. E. 6. B. Que estate 49.

Note that twas agreed by the Justi­ces, That a man cannot convey an inte­rest by a Que estate, of a particular E­state, as Tail for life or for years, with­out shewing how he hath this estate, be it of the part of the Plaintiff, or Defen­dant, 7. E. 6. B. que estate 31.

Quinzisme.

Twas agreed in the Exchequer, That Cities & Boroughs shall pay at Tenths, and Uplands at Fifteens, 34. H. 8. B. quinzisme, &c. 8.

Note by Exposition of those of the Exchequer, That Tax and Tallage is not other but Tenth, Fifteen, or other Sub­sidie granted by Parliament. And the Fifteen is of the Layitie, and the Tenth is of the Clergy, and is to be Levyed of [...] their Land. And the Tenth and the Fifteen of the Layity, is of their goods: S. decimam partem bonorum in Civita­tibus & Burg. Et quinsesimam partem [...] bonorum of the Layity in patria, which was Levyed in ancient time upon their goods: S. of the beasts upon their lands, which was very troublesom. But now tis levyed Secundum rat. terrarum su­arum by verges of Land, & other quan­tities; so that now all know their cer­tainty in every Town and Countrey throughout the Realm. But tis yet Le­vyed in some places upon their goods: but in most places upon their Lands, which was granted by the Barons. 34. H. 8. B. quinzisme 9.

Twas said for Law, 8 H. 5. Fitz. Ley. 66. that a man shall not wage his Law in a quo minus, 35. H. 8. B. Ley. 102. quo minus 5. the ends.

Rationabile Parte, &c.

TWas said for Law, F. N. B. 122. L. Magna Chart. ca. 18. Rast. det. to the King 2. That the Writ de Rationabili parte bonorum is by the Common Law; and that it hath been often put in ure, as a Common Law, and never demurred to: therefore B. seems that tis the Common Law, 31. H. 8, E. Rationabili parte 6. the end.

Recognizance.

Agreed for clear Law in the Chance­ry; See 36. H. 8. Tit. Stat. marchant. if a man acknowledge a Statute staple, and after infeoffs the Recog­nisee, & he makes a Feoffment over, now [Page 248] the Land is discharged; for the Feoffee is but a stranger. 5 H. 7. 25 by Town send. But if the Cogni­sor repurchases the Land, it shall be put in Execution, and yet twas once dicharged, Time E. 6. B. Recognizance 9. the end.

Note, that it did appear by search of the Records of the Common Bench, that the Justices of the Bench may take and Record Recognizance, as well out of Term, as within Term; and as well in any County of England, as at Westminster 4. M. 1. B. Recognizance 20.

Note, Lecture 8. That the King himself cannot take a Recognizance; for he cannot be Judge himself, but ought to have a Judge under him to take it. And none can take a Recognizance, but a Justice of Record, or by Commission: as the Justices of the two Benches, Justice of Peace, and the like: for a Conservator of the Peace, which is by the custom of the Realm, cannot take surety of the Peace by Recognizance, but by obliga­tion; the same Law of a Constable, Lecture B. Recognizance 14:

Record.

A man shall not pleadia Record, ex­cept it be in the same Court where the Record remains; 19 E. 4 9 See 21 H. 7. 9. without shewing the Record exemplified sub magno sigillo Angliae, if it be denied: for it ought to come into the Chancery by Cerciora­re, and there to be exemplified sub magno sigillo; for if it be exemplified sub sigillo de communi banco, See 11. H. 7. 2. by Fair­fax. Scaccario, or the like, these are but evidence to a Jury. 22. H. 8. B. Record. 65.

'Tis said that he that pleads a recove­ry in a writ of right in a court baron in barre of an Assise before the Justice of Assise, he ought to shew it exemplified sub sigillo cancell. otherwise 'tis no plea. But of a Recod in the common bench, he may vouch it there, and have day to bring it in; the same law by B. of any other court of Record, Yet otherwise in a court baron, for there 'tis a reco­very, but no Record, for 'tis not a court of Record. Time. H. 8. B. Record. 66. the end.

Note that in the Kings bench they have divers presidents, 1. H. 7. 20. Con­tra. Com. 265. that in a writ of error upon a fine, the Record it self shall be certified, so that no plures [Page 250] proclam. shall be made, for if nothing be removed but a Transcript, they may proceed in the common-bench notwith­standing that, and if it be reversed, this makes an end of all: but if it be affir­med, 44. E. 3. 37. by Knivet. then the Record shall be sent into the common-bench by Mittimus to be proclaimed and ingrossed 4. M. 1. B. Record. 49.

Recovery in value.

Recovery against husband and wife, by writ of entry in the Post where the wife is tenant in taile, See 25. H. 8. af­ter. and they vouch over, and so the demandant recovers against the husband and wife and they over in value, this shall binde the taile and the heir of the wife. 23. H. 8. B. Recovery in value. 27.

Where a writ of entry in the Post is a­gainst tenant for terme of life to bind the fee simple, See 24. H. 8. Tit. Entre conge­able. he ought to pray in aide o [...] him in reversion, and then they to vouch upon the joynder, &c. And such re­covery with voucher is used for to doc [...] the taile in ancient demesne upon a writ of right, and voucher over; and this of freehold there. Yet B. doubt of such recovery upon a plaint there o [...] land of base tenure, for this cannot be [Page 251] warranted, Ideo quaere. 23. H. 8. B. Recovery in value 27. the middle.

Note, that t'was taken, if my tenant for life vouches a stranger, See. 27. H. 8. af­ter. 5. E. 4. 2. con­tra. by Haydon. who enters into the warranty, and cannot barre the demandant, by which the demandant recovers, and the tenant over in value, that this land recovered in value shall not go to me in reversion after the death of the tenant for life, See 25. H. 8 after nor the re­version of the land recovered in value, shall not be in me in the life of tenant for life, and so 'tis holden at this day. 25. H. 8. B. Recovery in value. 33.

Note, See 23 H. 8. before. by some, where a writ of en­try in the Post is brought against a hus­band and wife, where the wifis tenant in taile, and they vouch overe and so the demandant recovers against the hus­band and wife, and they over in value; if the wife tenant in taile dyes, and the husband survives, this shall not bind the issue in taile, for the recompence shall go to the survivor, and then it shall not bind the issue in taile. Yet B. seems that this opinion is not law, for the recompence shall go, See 25 H. 8. before. as the first land [Page 252] which was recovered should go. And voucher by husband and wife shall be intended for the interest of the wife. 25. H. 8. B. Recovery in value. 27. the end.

Tenant for life, See 25. H. 8. before. the remainder over, or tenant in taile the remainder over, is impleaded by a writ of entry in the Post, and he vouches a stranger, the deman­dant recovers against the tenant, and the tenant over in value, this shall bind him in remainder by Monntague Just. and others, for the recompence shall go to him in remainder. But yet in the case of the Lord Zouch and Stowell in the Chancery, the law was determined otherwise by all the Justices. B. seems the reason, because that when he vouches a stranger, the recompence shall not go to him in remainder; contrary, if he vouches the donor or his heir who is privy. N. B. 148 But after this day many put in­ [...]ure to bind the remainder. 27. H. 8. B. Recovery in value. 28.

Recovery against Feoffees seised to use in tailes. See Tit Feoffements to uses.

'Tis held, that where tenant for life is, the remainder over in tail, or for life▪ and the tenant for life is impleaded, and vouches him in remainder who vouches [Page 253] over one who hath title of Formedon, and so the recovery passes by voucher, there the issue of him who hath title of Formedon may bring his Formedon, and recover against the tenant for life, for the recompence supposed shall not go to the tenant for life, and therefore he may recover; for his ancestor warran­ted but the remainder, and not the estate for terme of life, and therefore the tenant for life cannot bind him by the recovery, See 24. H. 8. Tit. Entre. conge­able. for he did not warrant to him. And therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder, and they to joyn and vouch him who hath title of Formedon, and so to passe the recove­ry, for there the recompence shall go to both. 30. H. 8. B. Recovery in value. 30.

'Twas agreed that if tenant in taile the reversion to the King, See 22. H. 8. Tit. Discon­tinuance de posses­sion. suffers a re­covery, this shall bind him and his issue, but not the King by the common law. See now the Statute of thereof that it shall not bind the issue. 33. H. 8. B. Recovery in value. 31. Taile. 41. the end.

Relation.

Where an office found for the King shall relate, where not. See Tit. In­trusion.

Of the Relation of an Act of Parlia­ment. See Tit. Parliament.

Note, that the attainder of Treason by Act of Parliament, shall not have elder relation then to the first day of the Parliament, except it be by speciall words that he shall forfeit his lands that he had such a day and after. 35. H. 8. B. Relation. 43.

'Tis held for good Law, 30. H. 6. 5. Perk. 6 C. St. 192 A. that by at­tainder of felony by verdict, a man shall forfeit all his lands that he had the day of his felony done or ever after, for this shall have relation to the Act, contra upon an attainder by out lawry; For B. seems there that he shall not forfeit but those which he had, 30. H. 6. 5 & St. 192 A. Con­tra. Perk. 6. B. See Coke up­on Lit. the time of the outlawry pronounced, or after, for outlawry hath not relation, as a verdict hath. Time. H. 8. B. Rela­tion. 42. the end.

Relation of an Inrolment: See Tit. Faitz inrol.

Releases.

Husband and wife purchase in fee, and after they lease for years by Inden­ture, and after the husband releases to the lessee and his heirs, this is no discon­tinuance, and yet this gives a freehold to the lessee during the life of the hus­band; Per plures, without doubt: 29. H. 8. B. Releases. 81.

G. Chancery was possessed of an In­denture, See Lit. Sect. 508 509 ac­cord. and lost it, and I. S. found it, to whom the said G. C. released all acti­ons and demands, and after the said I. S. gave the same Indentrue to John Tison, and after the said G. C. brought in action of detinue against the said I. T. who pleaded that the said I. S. found the Indenture, and that the said G. C. released to the said I. S. all actions and demandes, and after the said I. S. gave the said Indenture to the said I. T. Judgment if action. And t'was agreed in the common Bench, the case being of land demanded ibidem, that this is a good barre, and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land, 6. H. 7. 15 and of [Page 256] the property of the chattell which he had before. And it was moved in the Kings bench, and they were of the same opinion, and said that the reason is, because that entry in land, and sei­sure of goods are demandes in Law. 34. H. 8. B. Releases. 90.

Relief,

See Tit. Debt.

Remainder:

See Tit. Discent:

Remitter.

No Remitter against an Act of Par­liament. See Tit. Parliament.

Note a Per curiam, See 29. H. 8. Tit. Parlia­ment. 2. M. 1. Com. 114. See Dier. if Tenant in Taile makes a Feoffement to his use in Fee be­fore the statute of uses made, 27. H. 8. and dyes before the said Stat [...]te, his heir within age, and after the Statute is made before the full age of the heir, by which the heir is in possession by the Statute, he shall not be remitted by it Contrary of a discent after the Satute for this shall be a remitter. 34. H. 8. B. Remitter: 49:

If a man hath a Tittle of entry, See Cok upon Lit. and not a right of entry, as by escheat mort [...]maine, assent by a woman to a ravisho [...] and the like, and takes an estate of th [...] terretenant, he shall not be remited for he hath but a Tittle. (And a ma [...] cannot be remitted, but in respect o [...] [Page 257] a right before, as where a man is di [...]s­eised and takes an estate of the dissei­sor, he is remitted, for he had a right of entry before.) And the same Law where a man decaies his Tenements, or converts Land from tillage into pasture against the Statute, 4 H. 7. ca. 19. and makes an estate for life to his Lord, he shall have no o­ther estate: for he had but a Title of entry, and not a right of entry. Quae­re, for Non adjudicatur. 34. H. 8. B. remitter 50.

Where a Devise shall take away a discent, and will not remit: See Tit: Devise.

Repleder.

Twas in use in the Kings bench, P. 7. E. 4. 1 acccord though that the Jury be ready to pass there, if there be a Jeofail aparent in the Record, the Inquest shall be discharged, 35. H. 8. B. repleder 54.

Rescous,

See Tit. Distress.

Reservations.

If a man Leases his mannor except the wood, 46. E. 3. 22. and underwood, by this the soile of the wood▪ Fank. ac­cord. is excepted by Bald­wine, [Page 258] wine Chief Justice of the Common-Bench: See 14 H 8. by Brudnel. Fitz. Justice, and Knightly, and Mart Serjeants: contrary, Spil­man, and W. Conigs' Just. 33. H. 8. B. Reservations 39.

Restitution.

A man is attainted of Treason, See 32 H 8. Tit. Denizen & Coke upon Lit. the King may restore the Heir to the Land by his Patent of Grant, but he cannot make the heir to be heir of blood, nor to be restored to it without Parliament: for this is in prejudice of others, 3. E. 6. B. Restitution 37.

Restore al primer action. Restored to the first action.

If a man enters▪ where his entry is not lawful, See Tit. Judge­ment. See Coke upon Lit. as the heir in Tail after dis­continuance, or the heir of a Woman, or the Woman her self after discontinu­ance, & the other upon whom he enters recovers against him, there they, S. the heir in Tail, or the woman, or her heir, is restor'd to their first action of Formedon, or, Cui in vita Yet, if such who enters where his entry is not lawfull, makes a Feoffment, and the other upon whom [Page 259] he entered, recovers: 9. H 7. 25 Fineaux accord. & Thor. 41. E. 3. 18. now the first a­ction is not restored to the issue in Tail, nor to the Woman, nor to her heir, by reason of the Feoffment, which extincts right and action. But if he which so en­ters, makes a Feoffment upon condition, and for the condition broken, re-enters before that he upon whom he enter­ed hath recovered: and then he reco­vers after the re-entry made by the con­dition, there he which made the Feoff­nient upon Condition, is restored to his first action: for the entry by the Condi­tion, extincts his Feoffment, 23. H. 8. B. Restore al primer action 5.

Retorne de avers. Retorn of beasts.

Note by the opinion of the Court, 19. H. 8. 11. 6. & 7 E. 6. com. 82. That if a man be nonsuited in a Reple­vin, and a retorn is awarded: and the Plaintiff brings a Writ of second delive­rance, and suffers it to be discontinued, retorn irreplegible shall be awarded, as well as if the Plaintiff had been non suit­ed in the Writ of second deliverance, 17. H. 8. B. Retorne de avers 37. Second de­liverance 15.

Revivings. See Tit. Extinguishments. Riot. Rout, and unlawful Assembly.

Note, that Riot is where three or more do an unlawfull act in Deed, and execute it, as to beat a man, enter upon possession, or the like: unlawfull Assemblie is, where a man assembles people to do an unlawful act, and doth not do it, nor execute it in deed. And Rout is, where many assemble them­selves for their own quarrel; this is a Rout, and against law, though it be not executed: as inhabitants of a Town for to break down a hedge, wall, or the like, to have Common there or to beat a man who hath done to them Common displeasure, or the like, Lecture B Riots 5.

Sanctuary.

See Tit. Corone.

Saver default, Saving default. See Tit. Judgement. Scire facias.

Of a thing Executory; a man shall have Execution for ever by scire facias, See Tit. Execution.

Where Debt lies, and where a scire facias. See Tit. Debt.

Where a scire facias upon a Recog­nisance shall be brought? See Tit. Lieu'

Second Deliverance.

See Tit. Retorn de avers.

Seisin.

If a man holds of the King, 13. H. 7. 15 and holds other Land of another Lord, and dies, his heirs within age, who in­trudes at his full age, and pays the rent to the other Lord, 33. H. 6. 35. by Davers. St. 9. 26. H. 8. 8. by Norw. 2 & 3. E. 6. ca. 8. this is a good Seisin, and shall bind him after he hath sued livery: for the Seigniory was not suspended by the possession of the King, but onely the distress: for after Livery, the other Lord may distrain for the arrearages due before, per optim. opi­nionem tune. See now the Statute there­of, That the officers of the King shall render yearly the rent to the Lord, and the heir shall not be charged with it by distress after upon livery sued, as he was at Common Law, 34. H. 8. B. Seisin, 48.

Several precipe.

Twas agreed that a man may have Debt and Detinue by one and the same Writ by several Precipe, [...]1. H. 6. the one shall be Debet, the other Detinet, Tim. H. 8. B. several precipe 5. the end.

Several Tenancie.

In an Assise, 30 Ass. 14. several Tenancy is no plea: and the same Law in other actions [...]here no land is demanded in certain, 24. H. 8. B. several Tenancy 18.

Statute Merchant.

Twas said for Law, That if a man sues Execution upon a Statute Mer­chant, or Statute staple, and part of the Land is extended nomine omnium terrarum, which is retorned accord­ing, and the party accepts it, he shall never have an Extent, nor re-extent of the rest.

And that upon a Nihil retorned up­on a Testatum est, 26 H. 8. 7 by Fitz. see 33 H. 8. after. he may have Proces in another County: for there the judgement shal be quod habeat exeon­tionem de terris quousque summa Levi­tur.

Yet B. seems otherwise of such re­torn of Goods, 29. H. 8. B. Statute Mer­chant. 40:

Note if a Statute staple be extended, and so remains by seven years without Deliberate made, yet he may have a Deliberate at the end of 7▪ years, but [Page 264] he who hath the land delivered to him by liberate upon a Statute cannot make a surrender conditional to the conusor, & enter for the condition broken, after the time of the extent incurred; as land of 10 l. per an. is delivered in execution for 40l. this may incurre in 4. years, there the Conusee by such condition, cannot enter after the four years incur­red, 15 E. 4. 5 BrJan ac­cord. 7 H. 7. 12. ac­cord. by the Re­Reporter See 29 H 8. before 4 E. 6. Com. 61 for he ought to take the profits upon his Extent presently. And he shal not hold over his time nisi in speciali casu, as where the Land is surround­ed with water, sudden tempest, or the like. And the judgement shall be Quod teneat terram ut liberum tene­mentum suum quousque denarii le­ventur, 33. H. 8. B. Statute Mer­chant. 41.

Tis said for Law, That if the Conu­sor upon a Statute Staple hath a Rever­sion, and grants it over, and after the Tenant for life dies, this Land shall not be put in execution: for the Reversion was never extendable in the hands of the Conusor, 33. H. 8. B. statute Mer­chant. 44. the end.

Note, by 45 E. 3. 22. by Finch. 13 H. 7. 22. by Keble: see Time E. 6. Tit. Recog­nisance. Bromley, Hales, and Port­man Justices, and Rich, who was first Chancellor of England, & Apprenti­cius [Page 265] Curiam That if the Conusee pur­chases parcel of the Land after the Sta­tute acknowledged or Recognised, this [...]s no discharge of the Statute against the Conusor himself. But the Feoffees of [...]he Conusor of other Parcels, shall be [...]here of discharged. But if the Conusee [...]ath the Land delivered in Execution, [...]nd purchases parcel of the land of the Conusor, 11 H. 7. 4, 5. E. 6. com. 72. this is a discharge of the in­ [...]ire Statute. 36. H. 8. B. Statute Mer­chant. 42.

Twas said for Law, that if the Co­nusee upon a Statute staple dies, and [...]is executors sue execution in the name [...]f the Testator, as if he were in life, [...]nd the Sheriff takes the body in the [...]ame of the Testator, &c. yet this is [...]ot execution for the executors, but [...]hey may after have execution in their [...]wn name; for the first execution in [...]he name of him that was dead before [...]he Teste of the Writ, was void, and [...]he body cannot remain to satisfie him who was dead before. Liber intrac. fo. Nor the She­ [...]iff cannot deliver the land nor goods [...]o him who is dead, juxta formam bre­ [...]is. And by B. in the book of En­ [...]ies, the executors of the Conusee shall have execution upon a Statute [Page 267] Merchant, without Scire Facias, and this upon surmise as it seems to him. And if the Conusor be retorned dead, yet execution shall proceed of his Lands and Tenements without Scire Fac' against his heir: And the exten [...] and Liberate shall be served imediat­ly. Yet by B. no remedy appears there for the goods of the Conusor▪ when the conusor is dead, to have any execution of them. 36. H. 8. B. Statute Merchant. 43:

Tis said if a Writ of execution with extendi facias issues upon a Statute Merchant, that the Writ ought to be retorned, and the land upon thi [...] delivered to the Conusee by Libe­rate inde. Time H. 8. B. Statute Mer­chant. 32. the end.

Supercedias.

Twas holden for Law, th [...] a writ of attaint a man shall [...]ot have a Supercedias for to [...]isturb execution; 5 H 7. 22 4 E. 6. Com. 49 4. E. 6. Com. 49. for the [...]erdict shall be intended true [...]ntill tis reversed, &c. And [...]at the Register which gives [...] Supercedias there, is not Law. Contrary upon a Writ [...] Error; for it may be inten­ [...]ed that Error is for the suit [...]f the Defendant, &c. 33. H. B. Supercedias. 24.

Sureties.

Where Sureties in London [...]all remain after the action [...]emoved? & è contra. See Tit. [...]ocedendo.

Affirmatur pro lege, 1. H. 7. 1. & 1. E 3 3. that [...]uretie of the Peace is discharged by the death [Page 268] of the King, for tis to observe t [...] peace of that King, and when he dead, tis not his peace. 1: M. 1. Surety. 20.

Surrender.

Tenant for term of life surrenders him in reversion out of the land which he agrees, 14. H. 8. 21. Br. accord. the free hold by th [...] is in him presently, and he is Tena [...] to the action by precipe quod redd [...] without entry, but he shall not ha [...] Trespass without Entry. 31. H. 8. [...] Surrender. 50.

Where tail shall be extinct by su [...]render of Letters Patents, where no [...] see Tit Patents.

Note in the Case of Culpeper tw [...] said that the King himself cannot r [...]cord, or receive a surrender of land [...] Letters Patents, made to him extr [...] curiam, but this ought to be befor [...] his Chancellor or other Justice to th [...] authorized. 2. E. 6. B. Surrender. 53. th [...] end.

If a man leases for years, the remain­der over for years, See Coke upon Litt. and after the fir [...] Termor grants his interest to the Le [...] ­sor, this is no surrender by reason [...] [Page 269] [...] mean interest of the term in re­ [...]inder. See 4. E. 6. Tit. Extin­guish­ment. And a Termor makes his essor his Executor and dies, this is no [...]rrender, for he hath this to another [...], contra whorewood inde. 2. E. 6. B. [...]rrender 52.

Note, Perk. 115. H. See Coke upon Lit. where a man leases land for [...] of years, the remainder over for [...], the remainder over in fee, or re­ [...]rving the reversion, there he in re­mainder for term of life, may surren­ [...]er to him in reversion, or to him in remainder in Fee, and the estate for [...]erm of years is no impediment, for [...]ough it cannot give the possession of [...] land, yet it gives the possession of [...] free hold which is in the thing [...]hich was surrendred. 3. M. 1. B. Sur­render. 55.

Suitor.

Twas said for Law in the Star-Chamber, See Tit. Court Baron, & Man­nor. betwixt Brown Justice, and [...]ion Grocer of London, that a Court [...] may be holden before two sui­ [...]rs, for the plurall number suffices▪ [...]ime. H. 8. B. Suit. 17.

Tail.

REcovery upon voucher against Te­nant in tail, is a bar by reason of the recompence in value. And a recovery b [...] writ of entry in the post by single vou­cher doth give but the estate which the tenant in tail hath in possession tempor [...] recuperationis, so that if it were in o [...] another estate then the tail, there the tail is not bound against the heir. But the double voucher is to make the tenant in tail to discontinue, and to bring the writ of entry against the feoffee, and then the feoffee shall vouch the tenan [...] in tail, and he shal vouch over, and so shal lose; and this shal binde all interests and tails that the vouchee had. 23. H 8. B. Tail 32.

Tenant in tail hath issue and asiens with warranty, Lit. 160. N. B. 143. 13. H. 7. 24. by Townes. 10. H. 7. 8. Vavi. sor accord. 2. M. 1. com 110. and leaves assets & dies, the issue cannot recover by Formedon; for the warranty and assets is a barr. And if the issue aliens the assets, yet he shall not have a Formedon. But if he hath issue and dies, there the issue of the issue shal have a Formedon, because that the assets is not discended to him. Yet [Page 271] is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement, N. B. 144. & 48. E. 3. 9. by Finch. contra. See Time H 8. Tit. Forme­don. and aliens the assets and dies, his issue shall not have a Formedon, because that his father was barred by judgement. B. Tail 33. And if the tenant in tail hath issue two sons, by divers venters, and discontinues, and dies, and an ancestor collateral of the eldest son releases with warranty, and dies without issue, and the eldest son dies without issue, before [...] Formedon brought, the younger son may recover by Formedon; for he is not heir to the warrantor, and his bro­ther was not barred by judgement. Yet B. doubts thereof; for it seems to him that the discent of the Collateral war­ranty extincts the tail, But if the eldest had been barred by judgement, then clearly the younger is gon also. 24. H. 8. B. Tail 33. Formedon 18.

Tenant in tail, the reversion to the King, suffers a recovery quid operatur [...]y it. See Tit. Discontinuance de pos­session & Recovery in value.

If the King gives lands in tail by his Letters Patents, See 32. H. 8. Tit. Patents. and after the donee surrenders his letters patents to the K. [Page 272] the Tail by this is not extinct. 35. H. 8 B. Tail 38.

The King Tenant in Tail cannot dis­continue by grant by Patent. See Tit. Discontinuance de Possession.

Tenant at Will.

Note for Law, that there is no Te­nant by sufferance, See 22. E 4. 38. by Hussey. but he that first en­ters by authority and lawfully, as where a man leases for years, or for term of anothers life, and holds over his term after the term expired, or after the death of cestuy que vie. And Te­nant at will is, where a man leases his land to another at will; for he who enters of his own head is a Disseisor. Time H. 8. B. Tenant per copy. 15. the end.

Tenant by Copy.

Note, that twas said for Law, M. 26. H 8. accord in Essex, & Fitzh. in the Dutchy Chamber. Lit. 16. 4. El. com. 233. Westm. 2. cap. 1. Rast. Tail 1. See Coke upon Lit. & the 3. Rep. that Tail may be of a Copyhold, and that a Formedon mayly of it in Dis­cender by Protestation, in na­ture of a Writ of Formedon in Discender at common Law, and good by all the Justices, for though that a Formedon in Discender was not given but by Statute; yet now this Writ lies at common Law [Page 273] and it shall be intended that this hath been a custome there de tempore, &c. and the Demandant shall recover by advise of all the Justices, 15 H: 8. B: Tenant per Copy 24.

Where a Stuard, or under-stuard may let by Copy, & e contra, See Tit: Court baron.

Note, See Cook upon Lit. and his Rep. that if a man leases a Mannor for yeeres, in which are Copy-holds, and after a Copyholder dies, the ter­mer of the Mannor grants the land by Copy for three lives, this is good; for the custome through all England is, that the Lord, for the time being, may demise by Copy, &c. and this not­withstanding that hee is but durante bene placit. or at Will. And 'tis held that such Tenant of a Mannor cannot demise, reserving lesse rent then the ancient rent, but he ought to reserve the ancient rent, or more, quaere of that.

Tenant by sufferance,

see Tit: Te­nant at Will.

Tender.

'Tis said for Law, that upon a Lease for yeers, See 4 M. 1. contra. after. rendring rent with re-entry the Lessee ought to bee ready all the [Page 274] day and make attendance to offer it; Cooke up­on Lit. & Cluns case in his Rep and it suffices for the Lessor to come any time of the day, yet the entry is, that the one and the other attended the intire day, quaere inde 36 H: 8. B: Conditions, 192. the end, Entre Congeable, 2. the end.

Note that 'twas agreed in the Ser­jeants Case, 4. M. 1. Com [...]72. 36 H. 8. before cont. 6 H 7. 3 see Cooks 10 booke, Cluns case that where a man leases Land for yeeres, rendring rent, and for default of payment a re-entry, it suf­fices for the Lessee to tender the rent upon the Land, the last houre of the last day of the Moneth, if the money may bee told in that time: And so it sufficeth for the Lessor to demand it the same houre, 4 M: 1. B: Ten­der, 41.

If a man Leases for yeeres rendring rent at Michaelmasse, and other Co­venants, if hee bee bound in an obli­gation to pay the rent precisely, there hee shall seeke the Lessor, but if hee be bound to perform the Covenants, &c. The tender upon the land sufficeth; for there the payment is of the nature of the Rent reserved, Contrary in the first Case, 6 E: 6. B: Ten­der, 20.

Tenures.

What shall bee a Tenure, and what a Condition, see Tit. Conditions.

What shall bee a Tenure in Capite of the King, what not, see Tit. Li­verie.

A man makes a Feoffment of the moytie of his Land, Perk. 129 D. the Lessee shall hold of the Lord by the intyre services which the intire Land was holden be­fore, Westm. 3. ca. 2. Rast. Te­nure 4. for the Statute of Quia empto­res terrarum, tenend. pro particula, holds not place here; Fitz. 235. A. for a moytie is not particula: the same Lawe of a third part, and the like, which goes by the halfe and the whole; 22▪ E. 4. 36. by Catesby. contrary of an acre or of two acres in certain: And if a man holds two acres by a hauke, and makes a Feoffment in Fee of one acre; the Feoffee shall hold it by a hauke, and the Feoffor shall hold the acre by another hauke, 29 H: 8. B: Tenures 64.

Restitution by Parliament revives a Seigniory or Tenure which was ex­tinct by attainder of Treason, by Par­liament, See Tit. Extinguishment. See Tit. Livery.

See in the Exchequer 3 E: 3. Ro: 2. [Page 276] 'twas found that a man held of the King in Knight service in capite, ut de honore suo de Rayleghe, and 'twas taken no tenure in capite, but a tenure of the honour; and therefore his heir shall have ouster Omaine of his other Lands, 11 H. 7. 18 by Rede. which should not be if it had been in capite, for then the King shall have all in Ward by his Prerogative: yet otherwise 'tis if the Honour be annexed to the Crown; for then the Honour is in capite. And 11 H: 7. the Honour of Rayleghe was annexed to the Crown; therefore now 'tis in capite. And where the King gives Land to hold of him by fealty, and 2 d. pro omnibus servitiis, this is Socage in capite, for 'tis of the person of the King, otherwise if it were to hold ut de manerio de R. 33. H: 8. B: Te­nures 94.

'Tis held, Westm. 2. ca. 2. Rast Tenure 4 that if a man made a Feoff­ment of land before the Stat: of Quia emptores terrarum to hold of him, and to make suit to his Court; this is good if he hath a Court. But a man cannot commence a Court by tenure made, where he had not a Mannor before; for there the services should be holden of his person (B: Tenures [Page 277] 34.) And a man cannot make a Man­nor at this day, See 33 H. 8 Tit. Mannor. though that he gives Land in tayl to hold of him, and by suit of his Court; for he cannot make a Court; for a Court cannot be but by continuance. And so a Man may make a tenure, but no Mannor nor Court; for a Mannor and Court cannot be but by usage had de tempore cujus contrarium memoria hominum non existit.

Testament.

Testament by a Feme Covert of the assent of the husband, See Tit: De­vise.

A man devises his Land to I S; 22 E. 3. 16 B. Devise. 33. See 4 E. 6. Tit. Estates. See 24 H. 8. Tit. Conditi­ons. this shall be taken but for term of his life; but if he saith paying a 100. l. to W N this shall be intended a Fee-simple: and if he doth not pay it in his life, yet if his Heir or Executor pay it, that suffises; Quaere of his Assignee, 29 H: 8. B: Testament: 18.

If a man holds three severall Man­nors of three severall Lords in Knight service, and every of them of equall value; he cannot make his will of two of the Mannors, leaving the third [Page 278] Mannor to the Heir; See Cook upon Lit. but of two parts of every Mannor; for otherwise he shall prejudice the other two Lords, 35 H: 8. B: Testament: 19.

Note, 5 M. 1. Com. 185 by the Doctors of the Civill-Law, and Serjeants of the Common-Law; if a man makes his Testament, and names no Executors, this is no Testament; but yet 'tis a good Will of the Land in it, for those are not Te­stamentary; but in the first where Ex­ecutors want, yet the Legacies shall be paid. But if it appears that he made part of the Testament, and not the whole; there the Legacies shall not be paid. And where a man makes a Testament and Executors, and they refuse, yet the Legacies shall be paid; for there is no default in the Testator; and the Testament shall be annexed to Letters of Administration, 37 H: 8. B: Testament 20.

Note, See Cook upon Lit. for Law by the Chancellor of England and Justices, That if the Tenant who holds of the King in Knight service in capite, gives all his Land to a Stranger, by act executed in his life, and dyes; yet the King shall have the third part in Ward, and shall have the Heir in Ward if he be within [Page 289] age: And if of full age, he shall have primer sesin of the third part, by ver­tue of that clause in the Stat: Saving to the King Ward, 32 H. 8. ca. 1. Rast. Wills 2. Primer sesin, Livery, and the like, by which it appears that the intent of the act is, that the King shall have as much as if the Tenant had made a will, See H. 10. El. and had dyed seized; yet by all, after that the King is served of his duty of it, the gift is good to the Donee against the Heir, 2 E: 6. B: Testament 24.

Note, that 'twas adjudged betwixt Vmpton and Hyde, that the explanati­on of the Statute of Wills, is not to take effect only from the time of the explanation; but the first Stat: which is explaned shall be so taken ab initio: So that the Wills of Vmpton, Gaines­ford and others which are excepted in the explanation, shall be taken good by the Stat: 32 H. 8. ca. 1 Rast. Wills 2. of 32 H: 8. of Wills which was explaned, 4 M: 1. B: Te­stament: 26.

Testmoignes, Witnesses.

The age of Witnesses in an Aetate probanda, is 42 years, Lecture B: Test­moignes 30. the end.

Titles.

Note that a man shall make a good title in an Assize to say, See Tit. Pleadings. that I N was seized in Fee to the use of T P, which T P infeoffed the Plaintiff, who was seized and disseized, &c. without shewing what person made the Feoff­ment to the use of T P, or how the use commenced, 36 H: 8. B: Titles 61.

Travers of Office.

'Tis said for Law, that none can traverse, 3 H. 7. 3. by Keble Stp. 63. 21 E. 4. 2. by Noting except he makes title to the same land in the premisses, or close of his traverse, 22 H: 8. B: Traverse d' Office 48.

'Twas found that I S dyed seized, by which W S his son comes, and saith that the said I S in his life was seized in Fee, and infeoffed A B in Fee, to the use of the said I S and his Heirs, and dyed; and after by the Stat: of uses 27 H: 8. he was seized in posses­sion without that that I S his father dyed seized pro ut, &c. and a good traverse: And a Termor cannot tra­verse [Page 281] an Office by the Common-Law, Stp. 62. See Cook upon Lit. except it were found in the Office, and then he might have a monstrans de droit, and ouster L'main the King, 29 H: 8. B: Travers d' Office 50.

Where a man shall have a Petition, where traverse, See Tit: Petition.

Where the King hath no other title but by false Office, 35 H 6. 61 Laicon ac­cord. there the party who can make title, may traverse as well against the King as against the party, 2 E. 6. ca. 8. if the King had granted it over; but now this is helpt by Stat: 33 H: 8. B: Travers d' office 51. the end.

Where a Tenure is found of the King ut de Ducat: See Tit. Age. suo Lancastrie, which in truth is false; yet this need not to be traversed, for the King hath this Duchy as Duke, not as King; and a man shall not be put to traverse but where the Office is found for the King, ut pro rege Angliae, for then he hath a prerogative, and as Duke none, 1 E: 6. B: Travers d' Office 53.

Non-suit or relinquishing of a traverse is peremptory; contra of Non­suit in a Petition; and the Judgement of traverse is no other, 4 H. 6. 13. sed quod manus domini Regis amoneantur, et quod pos­sessio [Page 282] restituatur to him that traversed, Lecture B: Travorse d' Office 54.