SOME NEW CASES OF THE Years and time of King Hen. 8. Edw. 6. and Queen Marry; Written out of the Great Abridgement, Composed by Sir ROBERT BROOK, KNIGHT. etc. There dispersed in the Titles, but here collected under years. And now Translated into English by JOHN MARCH of Grays-Inn, Barrister. All which said Cases are by the Translator Methodised, and reduced Alphabetically under their proper Heads and Titles. With an exact Table of the principal Matter contained therein. London, Printed by T. N. for Richard Best, and John Place, and are to be sold at Grays-Inn gate, and Furnivals' Inn-gate in Holborn, 1651. To the READER. READER, WHEN I considered what great care our Parliament had taken of the public good; in enacting our Laws to be translated into English, the●● which, certainly nothing more equal, that the people might in some measure instruct themselves in that to which they are bound to obedience; and of which by the Law itself, they cannot, nor must not plead ignorance. And when I had likewise considered the excellent, and most useful Law that is contained in this little volume called Petty Brock; I thought it a labour serviceable to the public to Translate it, which I here present you in your own Language: make use of it, and you will find Magnum in parvo, great benefit in this little work; and I doubt not give him thanks for it, who is ambitious of nothing more than to be yours, and the Commonwealths most Faithful Servant, Jo: MARCH: THE TABLE. Abridgement. page 1 DAmages increased after issue and verdict upon it page 1 Costs ibid. Acceptance. Lease of a Tenant for life is void by his death 1 Void, and voidable Lease, diversity 2 Acceptance by the issue in Tail of the second Lessee ibid. Privity ibid. Diversity ibid. Apportionment ibid. Acceptance by him in remainder ibid. Acceptance by the successor of a Bishop ibid. Payment at another place 3 Action Popular 3 Within the year ibid. Action upon the Case 3 Mill 4 Where an Action upon the Case lies, where not, diversity ibid. Delivery of goods traversed in detinue ibid. Negat Pregnans ibid. Action upon the Case for calling a man perjured ibid. Action upon the Case for caling him perjured and justification in it. ibid. Of his own wrong. 5 Bar in an Action upon the Case, by Law wager in det. ibid. Plea to avoid double charge ib Travers ibid. Action upon the Case upon finding of goods 6 Evidence ibid. Action upon the Case upon a devenerunt to the hands of the defendant ibid. Evidence ib Place in an Action upon the Case. Assumpsit is not local 7 Place in det. is not traversable ib Action upon the Case against executors. ib Not guilty a good plea in an Action upon the Case, and where not 8 Hiis similia in an Action upon the Case ib Action upon the Case, upon trover. ib The conversion to use traversed ib Evidence ib Action upon the Case, for not payment of marriage money 9 Action upon the Statute His freehold no plea in an Action upon the statute ib Upon the statute of 5. R. 2. his freehold. ib Avowing upon the statute, and by common Law 10 Diversity ib Disclaimer ib His freehold is an Action upon the statute of 5. R. 2. ib Disseisor ib Account 10 Account against disseisors ib Privity necessary ib Account against a GardJan ib Pleading ib Adjournment 11 Cause and place of Adjournment. ib Demurrer ib Dubious verdict ib Foreign Plea ib Certificate. ib Administrators ibid. Administration committed, pending the writ ib Who shall commit administration vacate ib Episcopatu. ib Relation ib Power and interest certain; diversity 12 Who shall be said proximo de sanguine to take letters of administration by the statute ib Civil Law, the law is since adjudged otherwise 13 See Ratcliffes Case my Lord Cook ib Land which is a Chattel shall by office 14 Age 14 Arrears of rend ●or● of Annuity and damage ib Diversity ib Scire fac, against the heir ib Thing real and thing personal diversity ib Avowry ib Costs ib Where debt lies, and where a scire fac. 15 Diversity ib Where the King shall have his age, where not ib Age of a parson, prebend, etc. 10 Alienations ibid. Where the heir within age shall be in ward, where not ib Alienation by Tenant in Fee and by Tenant in tail diversity ib Relation of an office diversity 17 Fine for alenation, intrusion, licence to alien inmortmaine ib Variance from the licence ib Fine levied ib Averment ib Two joint-tenants, the one releases to the other diversity 18 Fine upon release, & upon conusance of his right, etc. diversity ib Estoppel ib Licence to Alien for life ib Burgages tenure ib Devise is an Alienation ib Alien see Tit. Denizen 18 Alien 19 Alien purchase ib Office ib Information ib The King shall have a Lease for years 20 Purchased by an Alien. ib Amendment ibid. Variance amended after judgement ib Amendment after a writ of error came to the common Bench ib In what thing the King shall amend his declaration in another term 21 Appeal ibid. Not guilty in an appeal ib Se defendendum ib Evidence ib Justify ib Indictment before the Coroners and before oath Justice's ib Diversity 22 Appeal for Homicide ib Woman intiuled to an Appeal of death of her husband, loses it by marriage ib Quarentine ib Coroner and his power ib Apportionment 23 Contract Apportion ib Approportionment by the common Law upon purchase ib Quaere ib Where a rend service shall be apportioned, where not, see before ib Recovery or descent of parcel 24 Rend Charge ib Arbitrement ib Pleading of a Condition in Barr ib Replication ib See Tit. Conditions ib Assets in their hands, see Tit. Extinguishment 25 Demur upon Evidence ib Legacies shall not be paid before Debts ib Assets per Descent Assets by Descent. Judgement upon Assets found false plea ib Assign 26 Assignee charged with the Covenant of his Grantor ib Audita quer. ib Assize 26 Bailie examined in Assize ib Attachment shall not be de bones alterius quam ten. ib Of what things an Attachment ought to be 27 Election of his Tenant ib Assurances 27 Fine with proclamation to bind Tenant in tail, and his issue 28 The Law is now otherwise: see the Case of Fines in my Lord Coke ib Five years for the issue in tail to claim ib Equity ib Quaere ib 4. Hen. 7. cap. 24. ib Rast. Fine. 8. ib Privity ib F●ne confessed and avoided ib Intendment 29 Averment ib Fine by Conclusion ib Stranger ib Fi●e with proclamation by the tenant in tail, the reversion or remainder to the King and common Recovery ib Diversity ib See my Lord Coke first book ib Quere 30 Common recovery by the common Law, and after the Statute diversity ib Assurance that the heir should not sell 31 To except the last obligation ib Attaint 32 False quantity in demands ib Attaint upon an Appeal of Maihew ib Ataint for termor ib GardJan and Tenant by Stature Merchant ib Jurors take conusance and notice of a thing in another County 33 Place not traversable ib Trespass transitory, and Local diversity 34 Information ib Attorment 34 Where the attornment in the absence of the purchaser shall be good, where not, ib Quaere 35 Avowry made without attornment, and the contrary ib Fine Levied ib Per que servitia ib Where a grant shall be good without attornment ib Attornment necessary, where not 36 Attornment upon grant of a reversion of a term ib Diversity ib Whether services pass by Feoffment of the Manor without Attornment 37 Lease for life, and grant of a reversion for years, to commence after ib Attorney 38 In what case a man shall make an Attorney, what not ib Audita Querela ib Feoff or the heir of the Conusor shall have contribution ib Contra of the Conusor himself 39 Averments see Tit. Plead 39 where a man ought to aver, that the one, and the other, are one, and not divers, and where ècontra ib Predict serves for an Averment ib Averment upon Avowry 40 Avowry 40 Land charged with two distresses by Dower of part ib Partition is cause of two distresses ib Avowry changed without notice and ècontra ib Sale by Deed enrolled 41 Fine ib Recovery ib Descent ib Quere ib How and in what place notice shall be made ib Que estate in another person ib Diversity ib Avowry upon the land by the Statute of 21. H. 8. cap. 19 and the answer in it 42 His Free hold in avowry for damage pheasant ib No seisin, and yet ward 43 Limitation in avowry ib Seisin traversed in avowry ib BAR. Bastardy. 44 What divorce may Bastardise the issue, what not ib Divorce after death ib Battle. 45 Before whom bartell shall be made and tried ib Bill 45 Praemunire by Bill ib CERCIORARY. 46 MIttimus ib Cerciorary to remove Indictments ib Certificate of the Bishop. ib Averment contrary to the Certificate of the Bishop ib Challenge 47 Many hundreds ib Challenge ib Charge. 48 Charters of pardon 48 For what thing pardon shall serve, and for what gift or restitution is necessary ib Pardon before office, and after diversity ib Where relation of an office shall not defeat a mean Act ib Pardon of Alienation by Parliament, and Letters Patents diversity 49 Amoveas manum ib Intrusion pardoned before office and after office diversity ib Livery ib Full age ib Chattels 49 Remainder of a Chattel devised ib Diversity 50 Chose in Action 50 Thing in Action ibid. Thing in Action vested in the King by the Stat. 31. H. 8. ib Thing in Action personal, mixed and real 51 Diversity ib Clergy 52 No Clergy in petty larceny 52 Bishop or Metropolitan hath his Clergy ib Laps for the ordinary Metrop. and the King ib Bigamus ib heretic ib Excom. ib Jew ib Turk ib Greek ib Roman ib Cecus ib Quere ib Bastard 53 Colour 53 Matter in law ib To the Plaintiff ib To one mean ib To the defendant ib Poss. determined ib Poss. defeated ib Feoff. Release ib Fine recover ib Diss. Reentry ib Property ib Upon a bar ib By a mean ib Writ. ib Justify as servant 54 Poss. in Law ib Commission 54 Made Knight after the Commission ib Where one commission shall determine another ib Et e contra ib Diversity betwixt commission of Goal delivery, and Oyer and Termyner 55 Justice of the common bench, made Justice of the King's bench ib King's bench error 56 Justice of the common bench, chief Baron of the Exchequer or of Oyer and Termyner, or Goal delivery ib Voydence by creation a Bish▪ ib Quere ib Oyer ib Oyer and Termyner ib Peace ib Goal delivery ib Error in pleas 57 Process or out law. ib Justice of Peace made Knight of every commission ib Grant, & commission, diversity ib Commission read or proclaimed ib Notice 58 No such in rerum natura ib Commission unica vice ib Commission determined in part ib Commission in Eyer ib King's bench 59 Diversity ib Justice for term of life ib Commission determined for want of adiournment. ib Where the Records shall remain. ib Conditions 59 Special showing of the performance of the condition contained in Indentures ib Limitation of payment, and not condition 60 Executors ib Ordinary ib Testament ib Tenure, & condition diversity ib Avowry ib Causa matrimony praelocut. ib Condition performed by reason of death, Et econtra 60 Ad intentionem, is no condition 61 He which will have advantage of a condition, must give attendance ib Condition shall not be apportioned ib Conditions performed 62 Where proviso shall make a condition, where not ib Quere 63 Infra terminum 10. an. & infra terminum predict. diversity, surrender. Foreiture ib Reading 64 Defeasans ib Arbitrators ib The reason seems because the submission is conditional ib Acquitted saved harmless, and discharged ib Diversity ib Non damnificatus est ib Payment at another place ib Pleading of a condition in the Negative, and in the affirmative, diversity 66 Condition that the estate shall cease ib Confess and avoid 66 Where a man confesses and avoids, there he shall not traverse ib Confirmation 67 Bishop charges with the assent of the Dean and Chapter ib Misnamer ib Sigillura ib Relation 68 Where a confirmation shall be 〈◊〉 by the Bishop, Dean, & Chap Et e cont ib Interest and judicial power, diversity ib Patron hath Fee ib Where the conformat. of the new King is necessary, where not 69 Franchise ib These words for him and his heirs in the grant of the King ib Et è contra ib Conscience 70 Subpena to execute an estate ibid. Vendee shall have see without words heirs ib Continuances ib Imparle to a day in the same term in a common recovery ibid. Contract 71 Contract cannot be divided ib Obligation determines contract ibid. Diversity ib Corone Crown 72 A man pleads not guilty, and after pleads pardon ib Felon after judgement, had the privilege of the Church ib Attainder by praemunire, and attainder of felony, diversity ibid. Woman with child shall not have the benefit of her belly but once ib Woman big judged to be burnt 73 Indictment ib Appeal ib Who shall be said principal ib A man killed at sword and buckler or at just 74 Indictment in the time of one King, shall serve in the time of another ib Certiorari ib Indictment, not discussed pending the commission of Oyer and Terminer ib Cerciorari mittimus ib Indictment before Justices of Oyer, etc. and before Just. of Gaol delivery, diversity ib Burglary 76 Burglary ib Clergy of the principal, shall not serve the accessary ib Acquit as accessary, and after arraigned as principal ib Woman abjured 76 Accusation in case of Treason, and misprision ib Trial of treason by the common Law ib Trial of petty treason 77 Civil Law ib Witnesses, and Accuser diversity. ib Challenge ib Abjure for treason ib Quere ib Trial of felony ib Removing of the prisoner out of the King's bench to the Country 78 A man takes the Church, and will not abjure ib Church serves for forty daye● 79 Abjuration, and day to do it ib Sanctuary pro vita hominis ib Grant, or prescription to have Sanctuary for debt, good, and where not 80 Church suspended ib Church, and Sanctuary ib Abjuration discharges felony ib Abjure for petty larceny ib Judgement of life and member is felony ib Corporations Fail of the name of corporat. ex parte quer. & ex parte def. diversity ib Quere 81 Abbey extinct ib Quere ib Creation and gift in one patent ib Patent to two intents ib Costs 71 Costs in a Quare impedit. 72 Penalty given by Statute ibid. Nonsuit ib Defendant shall have costs by Statute ib Covenant 72 Covenant without words of Covenant for him, his heirs and execut: ib Coverture. 73 Deed enrolled by a feme cover by the common Law, and by custom diversity 73 London ib Count 73 Count against the tenant, and prayee in aid 73 Court Baron 74 'tis no Manor, without Suitors ib Where Steward, or under Steward may let by copy, and ècontta ib Quere ib Customs. 74 Custom per tot. Angliam, and Custom in a City or County Diversity 74 Damages 76 Damages abridged and increased upon inquest of office ib Contra upon issue tried betwixt party's ib Costs ib Where attaint lies, where not. Default Default after réceit 76 Demurrer. 77 Demur upon office ib For what tenure, livery due to the King ib Misrecital of a Statute 77 Denizen. See Tit Alien 77 Denizen and Alien ib King cannot alter his Law by his Patent ib Escheat ib Deputy 78 Office assigned over 78 Detinu. Debt 78 Debt upon Indent. of Covenant, in which are words obligat. ib Where payment is a good plea in Debt, without acquittance, or writing, & ècont. Showing of deed ib Once barred upon an obligation, 'tis for ever ib Debt for release ib Devise 80 Testament by a feme covert by assent of the husband ib Countermandable after her death ib Devise by the husband to the wife ib Estate for life by intent, and devise good by implication ib Devise to a common person in London, and devise in Mort. in London Diversity 81 Where survivor shall not hold place in a devise ib In feodo simplici ib Where all the executors shall sell, and where one may ib Quere ib Devise that his executors shall sell post mortem I. S. 82 Devise that the Feoffees shall make an estate, where he hath no Feoffees ib Sale of Land by executors after disseism, recovery 82 Fine levied, or descent 83. Title of entry, and right of entry, diversity ib Where the property is devised, and where the occupation, diversity ib Devise the occupation ib Devise that every one shall be heir to the other ib Words to make a remainder 84 Devise to do at his pleasure ib Where the heir may waive a devise, and ècontra. Descent ib Diversity ib Devise tols a descent, and no remitter 85 waive devise ib Divorce 85 Acts executed before the divorce ib Diversity ib Cui ante divorcium ib Descent 86 Remainder to the right heirs ib None can be heir to a man attaint. ib Gavelkind ib Diversity. ib Casus Sir John Hussey 87 Ouster l' main ib Heirs males, name of purchase. ib Treason 88 Diversity where the ancestor hath some estate, where not ib Remainder 89 Remainder ib Remainder ib Remainder in abeyance 90 Remainder Heredibus Mascul. de corp. & rectis hered. Diversity ib Descent to an heir in ventre mirs ib Recovery against Tenant in tail, the reversion in the King ib The King tenant in tail cannot discontinue by grant by patent 91 So 'twas determined in the case of the Lord Barkley ib Discontinuance of process 92 Diversity betwixt discontinuance, and parol saus jour ib Dimes, Tithes 92 Lay man shall pay Tithes for spiritual land, otherwise of a man spiritual ib Disseisor. 93 Lease of land of another man ib Commander is a disseisor ib Distress Pound overt ib Pound breach: ib Done, Gift 94 What passes by words omnia terras & tenementa ib Gift of a Chattel by the King ib What passes by grant of omnia bona ib Dower 95 Dower of a rent reserved upon a lease for years, and for life ib Judgement, & cesset executio. ib What Jointure shall be a bar of Dower, and what not ib Devise by the husband to the wife ib Dum non fuit compos mentis 96 Fine levied before a Judge off none save memory, and a gift of an office by him diversity ib Ejectione Custod. 96 Ejectione custod. of a rent before seisin ib Contra of land ib Enquest 97 Where a Peer of the Realm is party, Knight shall be in the Jury ib Quere ib Enquest taken de bene esse ib Enquest recharged after Verdict ib Entre Congeable. Lawful Entry. 97 Land given habend to the grantee, and ●e●●dit●pro termino no vita ib Where he in reversion shall falsify recovery had against tenant for life, where not 98 Aid prayer of a stranger is cause of forfeiture ib Entry Lawful where not ib Recovery against Cestuy que use in tail ib Recovery against Cestuy que use in tail 99 And the entry of the feoffs tolled ib Use in tail ib Quere 100 Equity ib Exposition of a Statute ib Fine by ten in tail in use, or possession ib Casus Wimbish ib Recovery void 101 Averment ib Recovery upon a true title falsified ib Covin ib Entry or distrain upon the Patentee of the King, contras. upon the King ib Who shall trausere an office. ib Entry by a purchasor of a reversion, for condition ib Equity ib Error 103 Teste misordred in a writ ib Escape First Sheriff suffers the escape, and retakes, and the second Sheriff suffers him to escape again ib Escheat 104 Foundership escheated, or forfeited ib Heir ib Writ of escheat where the Tenant died not seized ib Right of entries escheat ib Acceptance ib Disseisor 10 Diversity ib Acceptance ib Alience ib Essoigne Essoign upon the ujew, or voucher ib Error ib Diversity ib Estates Casus Sir T. Lovel, heredib. mascul. by Patent of the King, and in grant of a common person, diversity 106 Estate in fee during the life of I. S. ib Grant or Feoffment, and devise diversity ib Diversity ib Tail executed by reason of an immediate remainder 107 Devisee shall have fee without words, heredibus, or imperpetuum ib Estoppel Prescription gone by acceptance of a grant ib Who shall plead a Record for estoppel ib Privity 108 Respite of homage by 2. ib Livery ib Partition ib Lease confessed and avoided ib A man makes a fine upon an indictment of extortion, or trespass, and after pleads not guilty 109 The entry in making a Fine ib Protestation ib Estoppel by pardon pleaded ib Quamdiu lease for years of his own land shall be an estoppel ib Stranger 110 Defeasance to a stranger, and where to the defendant ib Diversity ib Showing of deeds ib Estray 110 Who shall have property in an Estray ib Executions 111 Of a thing executory, a man shall have execution for ever, by Scire fac. ib Execution upon an obligation conjunctim & devisim, and satisfaction diversity ib Vinica executio 112 Capias ad satisfaciend, not returned ib Executors 112 Executors denied the deed of their testator ib Judgement thereon 113 Executor of executor ib Two executors, the one not to meddle by a certain time ib Executor hath a term and purchases the reversion in fee 114 Assets ib Exposition Extinguishment Corporation ib Restitution by Parliament revives a signory or tenure which was extinct by attainder of Treason by Parliament 115 Extinguishment and suspension Diversity ib Seignory ib Executor hath a term and purchases the reversion in fee 116 Assets ib Devastavit ib Diversity ib The first lessee for years purchases the fee simple ib Faits, Deeds 117 Deed bears date beyond sea ib Place traversable ib Verba post in cujus rei, etc. ib Faits enrol; Deeds enrolled 117 Deed enrolled by a feme covert, by the common Law, and by custom, diversity ib London 118 Examination ib Fine levied ib Livery of seisin ib Feoffment to the King ib Relation of an inrolment ib Fauxefier, Falsifying 120 Who shall have attaint▪ or error ib Faux imprisonment, False imprisonment Authority of a Constable, or a Justice of Peace ib In nullo est erratum ib Trial in false judgement, and in writ of error, diversity ib Fealty 121 A man shall not do 2 homage for 2 tenors to a man; nor to the King ib King ib Homage ib Corporation ib Feoffements 122 Feoffement of a house cum pertinen. ib Feoffement for maintenance ib Exposition of a Statute ib Remitter 123 Feoffement to four, and livery to the Attorney of the one for all ib Second Lessee suffers Livery ibid. Feoffement of a moiety ib Feoffement and delivery of the Deed upon the Land 124 Acre in possession and another in use ib Plead Feoffement infra visum Feoffement infra visum terre 124 Feoffement to many, and livery to one in the name of all. Diversity 125 Feoffement void by Statute ib Feoffements to uses 125 Fitz. seized to the use of the Father ib Tenant in Taile shall not be seized to another's use 126 1. ibid. Use express. ibid. 2. ibid. Who shall be seized to another's use, who not ibid. Corporation cannot be seized to a use. ib In the post 127 Mortmain ibid. Escheat ib Perquisite ib Recovery ibid. Dower ib 3. ibid. Courtesy ib Use in Taile ibid. 4. ibid. Tenure is consideration in Law ibid. Termor shall do fealty ibid. Rend reserved a good consideration ib Use changed by buying ib Use at common Law 128 Tenure ibid. To whose use the Feoffee shall be seized before Statute of Tenors, and to whose after, diversity ib Feoffee by collusion shall be seized to a use. Warde ib Feoffee causa matrimonii prelocut. seized to a use. Quere 129 Deceit ib Cestuy que use in ●remainder or reversion may sell, but not make a Feoffement ib Recovery against Feoffees to a seizin Taile ib Notice of the use ib Statute expounded 130 Notice of the use material ib Et è contra ib When a man may change a use, when not ib Use in tail determined ib To make a use to commence expectant by covenant 131 Mesne to bind Lands with a use, to whose hands soever they shall come ib Notice of the use ib Recovery against Cestuy que use in Tail. And the entry of the Feoffees taken away ib Use in tail 132 Quere ib Equity ib Exposition of a Statute ib Fine by Tenant in Tail in use, or possession ib Recovery to the use of Covenants and agreements in Indent. etc. 133 Where a Covenant shall change a use ib A woman seized to the use of her husband 134 Where these words (shall take the profits) makes a use, and where è contra 135 Use cannot be contrary to the consideration ib What is sufficient covenant to change a use ib Recovery against Cestuy que use in tail by sufferance 136 Vendee shall have fee though he hath notice of the use ib Use to alter the free hold from one to another by Statute ib Entry ib Quere ib Ex post facto 137 Recovery to bind the Tail in use ib Use vests in the heir as heir of his father, where the father was dead before the use came ib Relation 138 Quere ib Warde ib Gift of Chattels to a use ib Statute expounded ib Fines levies, Fines levied 139 Covenant for assurance of a Jointure by fine 139 Infant shall not levy a fine ib Who shall take the first estate by fine, who the remainder ib Fine sur conusance de droitame ceo by A. to I. and I renders to A. the remainder to the wife of A. who was not party to the Writ ib Fine levid by Cestuy que use for life 140 Use forfeit ib quaere ib Fine levied by cestuy que use in Tail ib Use in tail. Quere ib quaere ib London 141 Deeds enrolled ib Another of the same name levies the Fine ib Error ib Dedimus potestat. 142 Conventio ib Lease for years by Fine to bind the tenant in tail ib Estoppel ib Infancy ib Coverture ib Reservation to a stranger ib Distress ib Lease for years made by Fine 143 Who may take a fine by the Statute de finibus & attornatis ib Quere 144 Fine in Hamlet ib Fine in Hamlet, or ville decayed ib Writ of dower ib Forcible Entry Where a man may hold with force, where not ib Remitter 145 Quaere ib Forfeiture of marriage ib Tender not traversable ib Forfeiture de terre, etc. ferfeiture of Land, etc. 146 Forfeiture in an attaint and praemunire, diversity ib Attainter by Parliament 146 Clerk convict shall forfeit his goods ib Formedon 147 Diversity 147 Formedonupon tail which commenced in use and is executed upon the Stat. 27. H. 8. ib General writ and special declation ib Formodon upon a use, general writ and special declaration 148 Diversity ib Form 149 Wood before pasture in plaint of Assize ib Frankmarriage. 150 Frankmarriage with a man ib Frankmarriage, the rem. in Fee ib GARDE, WARDE Where the heir within age shall be in ward, where not ib Woman out of ward by marriage ibid. Livery at fourteen years ib Remainder to the right heirs 152 Reversion and remainder diversity ib Livery of Soccage Land 151 Lord in Knight's service shall not ouste the termor, etc. ib Where one person shall be twice in ward, where not ib Grant of a ward 15● King shall not ouste a term of his tenant, because he hath his heir in ward 155 Knight in ward ib Viscount Montague ib Diversity where an heir is made Knight within age in the like of the anncestor, and where Knight within age after the ancestors death. ib Writ of ward without seizin infra tempus memoriae Tenure traversable 156 No seizin and yet ward 157 Assent and descent to marriage ib Divorce ib Ordinary ib Warde and marriage 158 Tenure ib Two joint-tenants and the heir of the one in ward living the other ib guarantees; Warranties. 159 Collateral warranty ib Coverture shall not avoid a collateral warranty upon a discontinuance ib Warranty without heirs 160 Warranty to rebut, but not to vouch ib General writ. 161 General issue. ib Things to be pleaded and not given in evidence ib Command ib Common ib Rent 162 Licence ib Lease for years and at will diversity ib Manumission in deed, and in Law, diversity. ib Not escaped pleaded, and not arrested given in evidence 163 Grants 164 Office of charge and of profit, diversity ib Ousting the officers ib Quere 166 Grant void for incertainty 137 Diversity betwixt grant and devise ib Quere ib Lease for life and four years over ib What shall pass by grant of lands and tenements, or omnes firmas ib Ejectione Firm by HARIOTS 138 HAriot custom and service diversity ib Detinue ib Heresy 138 Where a writ de haeret. comburend. shall issue, where not ib Abjuration 139 Diversity ib Homage, see Tit-Fealty 139 IDIOT 1●0 Idiot and unthrift diversiverty ib Imprisonment 140 Incident 140 Court Baron incident to a manor, Pipowders to a Fair ib Grants 141 Recovery of a rend service, good titie to homage and fealty ib Indictments 141 Indictment of death and poisoning ib Justice indicted ib Diversity ib Alter trespass in felony ib Intrusion 142 Relation of an office, diversity ib Where pardon of Intrusion excuses, the issues, livery, etc. where not ib Diversity 143 joint-tenants 143 Where successive holds place, where not ib Habendum ib Reentry by two or against two where the one dies 144 Journeys accounts 144 Judggment 145 Nonage saves default ib Recovery against an infant by default, and by action tried, diversity ib Where a man shall be restored to his first action, and where he shall have error, etc. ib Recovery of land in one County which lies in another ib VJew 146 Intendment ib Assize in N. and recovery pleaded in H. ib Condition determined by judgement 147 Judgement given with original ib Issues joins; Issues joined 148 Action upon the case upon an assumpsit ib Special verdict where the issue is upon an absque hoc ib Americiament. ib Issue found in part, diversity ib Preignancy ib Issue in waist ib Americiament 149 Issues retornes; Issues returned. 159 See Tit. intrusion Debate of tithes betwixt lay persons ib Spiritual Court ib Trial of a thing ultra mare 150 Jurors 150 Jury took a scroll not delivered to them in Court ib LEET 150 PAin in the Leet for redressing anusance forfeited by presentment ib Where the Lord shall have debt upon a pain in a Leet, and where distrain for it 151 Leet of the torn of the Sheriff ib Exposition of a Statute Leases 151 Void lease ib Acceptance by the successor of a Parson upon a lease for years, & for life diversity ib Lease during a lease 152 House ib Averment ib Lease for life by a Parson, and lease for years' diversity Lease determined for a time and yet good after ib GardJan in Chivalry, nor Lord by escheat, shall not ouste the Lessee 153 Lease for life, and lease for years after ib Convenit ib Concessit ib Dimisit ib Locavit ib Acceptance of rent by the successor of a Parson 154 Parson shall not have a writ of right ib A man leases for twenty years, and after leases for forty years ib Lease of a Bishop ib Dean 155 Parson ib Prebend ib Confirmation ib Habend, after such a lease ended where there is no such lease ib Lease of a Prebend. Equity ib Lease for years before livery sued 156 Relation of office ib Where the wife shall lose her Dower ib Lease till a hundred pound be paid ib Diversity ib Lease by a Bishop not sacred, and by a Bishop deprived diversity ib Confirmation 157 Lease till he hath levied 20. pound ib Where the one Feast is put before another in a Lease ib Ley gager, Law wager ibid. Law in detinue of an Indent. of Lease ib Law lies not in a Q●o minus ib Licences. ibid. Contra formam collationis 158 Lieu place ibid. Scire facias upon a recognizance ib Limitations ib Copyhold 159 Livery ib Where ward, because of ward, shall not sue livery, but ouster l' main. Seiginory revived by suing livery ib Where livery shallbe of Duchy land, where not 160 General Livery and special, diversity. ib Manor purchased by the King shall be in him as in the grantor ib Livery, Primer seisin ib Guard 161 Ouster l'main ib Where a man shall hold of the King as of his person, and yet not in Capite. Et ècontra ib Extent of Livery, and of intrusion, diversity ib Attainder of Cestui que use by Parliament, and of attainder of a sole Tenant by the Common-law, diversity ibid. Exposition of a Stat. 162 Livery by the heir during a leas or devise for years ib Where a man shall sue Livery? where not ib What is Livery? what Ouster l' main 163 Livery of Soccage land ib Tenure of the King in Knight's Service, and in Capite, diversity. ib Soccage in capite, and Knight's service in capite, diversity 164 What Livery is ib What Primer seisin ib Livery in Wales, and County Palatine ib Primer seisin of cestui que use 165 Will not performed ib MAINPRIZE. SVrety upon arrest in London ib Privilege ib Procedendo ib Revivings. ib Where surety upon a Bill in Banco regis is discharged, where not ib Repleader ib Power of the Justices of the Gaol delivery 166 Maintenance. ib Maintenance by him in remainder or reversion ib Sale, where he hath not been seized by a year ib Statute expounded. Manor. 167 Making of a Manor ib Court Baron ib Suitors ib Misnosmer, misnamer. 168 Statute avoided by misnamer ib Monstrans de faits, Showing of Deeds. ib Showing of Deeds, and Records ib Mortdauneester. ib feoffment to two, and the heir of the one ib Mortdauncester ib Descent of reversion, Dower ib Forfeiture, Feoffment, Right ib Mortmain. ib When a remainder is granted in Mortmain, and when a reversion, diversity ib Claim ib Remainder waived, Use ib Appropriation without licence, is Mortmain ib Lease for 300 or 400 years is Mortmain ib Otherwise of a covenant for so many years ib 99 or 100 is not Mortmain years ib Mortmain ib Deseisin and descent takes not away the entry of the Lord for Mortmain ib nonability. ib Obligation for usury ib Conclusion ib Non suit. King nonsuite ib Nonsuit upon demur ib Nontenure a good plea in an attaint for a stranger; contra for a privy ib Where non Tenure shall be a good plea in attaint, where not ib Entry in attaint after the last continuance ib Nonse name 214 Where a woman shall lose her name of dignity by marriage ib Notice. ib Notice of resignation shall be given by the Ordinary ib Office de Vant. 215 Where the King shall not seize without Office ib Tenant for life, the reversion to the King dies ib Full age shall be expressed, when 216 Office ought to be certain ib Office finds dying seized, but tenuram ignorant. ib Where an Office entitles the K. to the Seignory, and tenancy ib Servitia ignorant. ib Melius inquirend. ib Foundation not observed 217 Land which is a chattel shall be by office ib Where the King shall seize without office, & where econtra ib Fees granted to him, who after is made Justice ib Steward and after made Justice ib The same man made Bailey and Steward ib Justice of the Forest, and keeper of the Forest ib Parson created a Bishop 〈◊〉 Forfeiture of office i● Steward of a Forest and Justice ib Authority of the Justice of Forrest 219 Sheriff and Escheater ib Obligation. ib A man bound to B. ad usum ●. who releases; and good ib Oyer of Records, etc. See Tit. ib Monstrans de Faits. ib Oyer and Terminer ib Commission of Oyer and Terminer ib King's Bench, always Justices of Oyer & Terminer 220 PAIN. Pain for striking a man in the presence of the King ib Panel. 221 Part of Aliens; and part of Denizens ib Tales. Error ib Parliament ib The King shall hold of no man ib What words in acts will revive Signories extinct before, what not 222 Office for the King ib Remitter shall not be where land is assured by parliament in case of a common person, nor in case of the King 223 Lease or charge by Tenant in tail ib Of relation of an act of parliament, diversity 218 Pleading of a stat. 224 Amendment of the count of the King in another term, Contrary of a common person ib Elect new Burgesses ib Parnour, taker of the profits. ib Recovery against parnour of the profits, who is in ward of th● King 225 Travers by Feoffees in use ib Pernour ib Patents ib Licence of the K. not pursued ib K. grants by general words ib Tail extinct by surrender of the Letters Patents ●26 Formedon without showing the Patent ib Assurance ib Constat. Surrender 217 Patentee leases or gives, & after surrenders his Patent. ib Constat. Quaere 228 Bailywick or Sheriffwick granted, absque compot. ib Tol. Fair. Market ib Assize of freshforce ib Borough English, etc. ib Diversity betwixt false suggestion, and false consideration Quoere 229 Of what Lease recital shall be in the King's patent, of what not ib Recital in a Patent 230 King shall take notice ib Constat & inspeximus, diversity ib Peace ib Breach of the peace ib Peremptory 231 The first Nihil in a Scire Facias per emptory ib Petition. ib Where a man shall have Petition where Travers ib Petition and Travers 233 Pledgee. ib Gage delivered for debt ib Distress it as a Gage ib Plead. ib Averment of his Title ib Recovery by default, and action tried; diversiry ib Non tenure no plea in waste Entry to avoid a warranty. Seisin during the coverture in Dower ib Averre the like of tenant for life, or in Taile ib Where a man shall show the commencement of a use, where not 234 Fee Simple. Fee Tail ib Plenartie ib Where Plenarty is no plea ib Mortmain. Parson inpersonee ib Praemunire 235 Where a Prohibition lies, and where Praemunire ib Praemunire lies for a thing which never appertained to the spiritual Court ib Preregative ib Priority and Posteriority ib Land in use 236 Where the King may waive issue, where not ib Gift of goods by the King ib Precipe quod red. for the King Escheat 237 Information ib Mine. Quere. Prescription 238 Custom shall serve, where a prescription will not serve ib Presentation ib Two grants de prox, presentatione. ib Grant de prox. presentatione ib The King shall present to another's benefit by his prerogative, for that the ineumbent is made a Bishop 239 Privilege. ib Privilege shall dismiss the Plaintiff. Bill of Middlesex ib Procedendo. 240 Where Sureties in London shall remain after the action removed, and econtra ib Proclamation, ib Pena for making Proclamation without authority Prohibition 241 Surmise to obtain a prohition ib Admiralty ib Property. 242 Alien inhabiting before, and coming after war proclaimed: diversity ib Quare Impedit 243 Presentment of the one joint-tenant puts the other out of possession ib Quare● Impedit against the presentee of the King sole ib Executors shall not have a writ by Journeys by the death of the Testator, Diversity 244 Writ and count special ib Writ to the Bishop ib Que estate, Whose estate, etc. 245 Que estate pleaded by the recoveror or disseisor ib Que estate to a mean ib Que tstate of a particular Estate ibid. Quinzisme. 246 Burrough and Upland ib Tenth and fifteen, who pays them, and whereof levied. ib Quo minus 247 Wager of Law lies not in a Quo minus ib Rationabili paerte, etc. ib Rationabilisi parte is by the Common law ib Recognisance. ib Cognisee purchases, and cognisor repurchases ib Recognisance to be recorded by Justices out of term. Place ib The King cannot take a Recognisance ib Who may take a Recognisance ib Constable. ib Record 249 Exemplification, & sub quo sigillo ib Court baron, & Court of Record, diversity Where the Record itself shall be removed by writ of error Mittimus. Recovery in value 250 This assurance was made by the advices of Brudnel and others Justices ib Recovery in value to bind the tail ib Recovery to bind him, reversion by aid, prayer, and voucher ib Ancient demesne ib Quere ib Warranty ib Recovery in value shall not go to him in reversion 251 Assurance for to bind the tail Vouch 252 Recovery to bind him in remainder ib Diversity where the remainder only is warranted, and where the estate for life 253 Formedon ib Recovery to bind him in rem. etc. ibid. joinder in aid ib Relation 254 Relation of forfeiture by act of Parliament ib Relation of forfeiture of felony by verdict, and by outlawry diversity ib Releases 255 Release no continuance ib Release of all demands, bars, entry, and seizure ib Relief, see Tit. Debt 256 Remainder, see Tit. Descent Remitter The Statute of uses 27. H. 8. doth not make remitter ib Diversity ib Title of entry doth not make ●remitter, contrary of a right of entry ib quere 257 Repleder Jury discharged by Jeofail ib Rescous; see Tit Distress Reservations 258 Soil excepted, by excepting of the wood ib Restitution Restitution by Parliament ib Restore all primer action Restored to the first action Remitter to the first action, & è contra ib Where an action shall be restored after a feoffment; where not ib return de avers Return of beasts 259 Discontinuance, or nonsuit in second deliverance ib Reviving: see Tit. Extinguishment Rit, Rout, & unlawful assembly Difference betwixt Riot, Rout, and Assembly ib Sanctuory. See Tit Corone saving default. See Tit. Judgement Scire fac ias. Second deliverance. See Tit. return de aeverse Seisin 262 Seisin by the hands of an intrudor ib Livery ib Distress suspended, not Seignory 262 Seisin of the King loses not the arrearages ib Several praecipe Debt and detinue in the same Writ ib Several tenancy 263 Uncertain demand in an assize Statute Merchant Part of the land extended in the name of all; no reextent. ib process in another County upon a nihil returned upon a testatum est ib Deiberate ib Surrender ib When a man may hold the land beyond his term upon a Statute 264 Judgement ib Reversion not extendable ib Diversity betwixt a purchase after the Statute, and before execution, and where 'tis purchased after execut' had 265 Execution by Executors in the name of the Conusee who is dead ib Execution for the Executors of the Conusee 267 Conusor returned dead ib return of extendi facias, liberate ib Supercedias 268 Attaint ib Sureties Death of the King id Surrender 268 Surrender extra terram ib Trespass ib The King cannot record a surrender ib Surrender by the first termor ib Termor makes the Lessor his Executor 279 He in remainder surrenders where there is a Lease for years in possession ib Suitor▪ Two suitor onel Coyurt Baron ib Tail. 270 Single voucher and double voucher, diversity. ib Where the assets aliened shall be a bar in a Formedon, where not. 271 Two sons by divers ventures ib Collateral warranty by release ib Quere ib Taile extinct ib Surrender ib Tenant at will. 272 Tenant by sufferance, and at will ib Disseisor ib Tenant by Copy. ib Formedon in discender by a copyholder ib Intendment ib Where Tenant at will, or a termor of a Manor may grant copyhold for life 273 Demise rendering the ancient rent or more ib Tenant by sufferance, See Tit. Tenant at will. ib Tender. ib What shall be the attendance in a condition ib Diversity 274 Condition of reentry for non payments ib At what time the lessee ought to make tender ib Tender upon the land ●e contra ib Tenors. 275 Tenant makes a Feoffment of a moiety, this is not pro praticula. The like matter in the Cheq. 5. H. 6. Ro. 4. ex parte ib Remember Thesaurarij 276 Tenure in capite ib Et de honore diversity ib Ouster I' main ib Socage in capite ib Diversity ib To hold by suit of court ib Court. Manor 277 Testament. 277 Where a man shall have for life and where see simplely devise ib Payment by the Heir, Executor or Assignee ib Quere ib Will of 3 Manor by the stat. 32. H. 8. 278 Testament cannot be without Execut. ib Where a legacy or devises shall be good, though the devisor names no Executors ib Feoffment of all after the Stat. of 32 H. 8. ib Ward 279 Primer Seisin ib Explanation of Wills, by Stat. 34 and 35 H. 8. ib. Testmoignes, Witnesses. 279 Age of Witnesses in Etate proband. ib Titles. 280 See Tit. Plead ib Travers of Office. 280 Title made upon traverse tendered ib Traverse dying seized, found by Office ib Termor cannot traverse 281. Monstrance de droit ib Traverse against the King ib Where the King shall have Prerogative, where not ib. Nonsuit in Traverse and Petition, diversity ib. Judgement in Traverse ib. Travers by, etc. 282 Action upon the Case for making of false clothes ib. Seisin in Fee Traversed in Assize ib. The King shall waive his issues. contra of an Informer ib. Without that that he had any thing 283 The mean conveyance in the Title shall not be traversed, where the Plaintiff in his Title binds the Defendant ib. Remitter ib. Seisin in Fee traversed 284 Treason. Misprision of Treason ib. Where Trial shall be per pares 285 Forfeiture for misprision of Treason 286 Compass or imagine ib. What shall be said Treason ib. Deprive ib. Quaere ib. Fine for misprision of Treason ib. Alien commits Treason 287 Diversity ib. Trespass. 287 Quare vi & armis of taking in another's soil ib. Trial. 288 Trial of a Peer of the Realm arraigned upon an Indictment and appeal, diversity ib. Trial in Court Baron, by wager of Law. ib. Trial of the Law shall be by the Justices, and of a particular custom per patriam ib. Trial of a Bishop 289 Variance. 289 Quare imped. and the Writ and the Deed vary ib. Verdict. 289 Verdict at large in a Writ of entry ib. Villeinage. 290 Asserts in their hands ib. Diversity ib. Where the King shall have the Villeine of another in Ward, or Idiot ib. Quaere ib. Vourcher. 291 See B. Tit. Vourcher ib. Usury. 291 Diversity, where the day is certain, and where incertain to make usury ib. Defeasance ib. Usury, and where not 292 Waife. 292 Waives his proper goods for Felony ib. Waste 29● Waste by a Termor, who dies before action brought ib. Cutting of Beech of 20. 0● under 20. years of age shall be Waste 293 Locus vastat. waste in hedg-rows ib. Where the Termor may take all the under-wood, & e● contra ib. Silva cedua 294 Waste for not covering of a new frame and house ib. Waste by the Heir ib. A man shall be named Heir or Executor in the Premises, and not in the alias dictus ib. Conclusion to the Writ 295 Abridgement. HOlden by the Prothonatories of the Common Bench in Trespass of Battery; 3 H. 4. 4. by Reed. That of such matters which lie in Conusance of the Justices; they may increase damages 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, rendering rend, and dies, the Lease is void; and acceptance by the Heir of 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, rendering rend, and dies, and the Lessee leases to another for ten years, 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 pays it as Bailiff 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 pays 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 Rend, and dies without issue, he in the Remainder accepts the rent: this shall not bind him because that when the tail is determined, 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 Bishopric for years, rendering Rend, and dies; the Successor accepts the Rent; this shall bind him; for the Bishop hath a Fee-simple, 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, etc. See Tit. Escheat. Action popular. Note, 7 H. 8. c. 3. By the Statute the party which sues an Action Popular, aught 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 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 damage, etc. 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 Star-chamber in such a matter, etc. 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, etc. for which he called him false perjured 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, etc. 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. etc. The Defendant may plead that for the same sum 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 sum. 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 sum 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 etc. Or without that that he did ow● to the Plaintiff 10. l. for a Horse and a Cow, as etc. 33. H. 8. B. Action 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, etc. 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 says that they came not to his hands, etc. 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 possessed of certain wine and other stuff (and shows in certain) in such a ship, to the value, etc. and doth not show the place certain where he was thereof possessed, and yet good. And alleged 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 satisfy 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, which is not local, 2 Mar. 1. 451. Time, H: 8. 366. Petty Br. the place is not material (no more than in debt) for he alleged that the said goods in the parish of S. Dunston's in the East London, before they were set to land, or &c. were carried away by persons unknown, etc. 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. etc. 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. 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 Seasons 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 lawful for him, without that that he converted them to his own use, as etc. 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. 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 Covenant. 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 Trespass upon 5. R. 2, Vbi ingressus non datur ●er legem, Non ingressus est contra for●am statuti, is a good plea: but his freehold 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, etc. is the freehold of I. N. ●nd he by his commandment entered, is no plea,: for the action is given by the Statute, and therefore aught to have a special answer, and not as in a general Writ of Trespass. 24. H. 8. 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 Manor of B. is his freehold. For the Defendant ought to entitle him to a Lawful entry: for a Disseisor hath a freehold, 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 descents 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 claims to his own use, there the plea is true; neither his Receiver, nor his Bailie, to render account: 2 Mar. 1. B. Account 89. Adjournment. The Justices of Assize may adjourn the Assizes upon every demurrer, and upon every dubious plea or Verdict; and upon every foreign plea, and to what place they will; and adjournment may be upon Certificate of the Assizes, as well as upon the assize. 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 shall 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 Archbishopric, or Bishopric, 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, 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 Venture, and daughter by another Venture, and devised goods to the son, and dies, and after the son dies intestate, without Wife and Issue; and the mother of the son who was of the second Venture (for the daughter was of the first Venture) took the administration by the Statute; which is, That the administration shall be committed to the next of kin of the intestate. And upon great argument in the Spiritual 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, to Sir H. Brown, who married 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 died, he married the daughter of the Lord Willoughby, and had issue by her one Henry, and died; and after Henry died without issue, and without Wife, and the mother of the Heir took the Administration; and after the said Frances Wife of the Marquis of Dorset sued, and reversed the administration, and obtained the administration to herself, though she were but sister of the half blood to the said Henry, because that she is next of kin to the said Henry, for that Henry had not any Children; for the mother is not next of kin to her own son in this respect of this matter; for it ought to go by descent, and not by ascension, by the Law of England, nor by the Law civil. And the children are the sanguine patris & matris, sed frater & mater non sunt de sanguine puerorum. And 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 entitled 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 Seignory and Freehold in the King, 5 E. 6. B. Office before, etc. 55. Age. A man recovers Rend and arrearages by assize, Or if he recovers an annuity and arrearages of it in a Writ of annuity, the Defendant dies, the Plaintiff brings a Scire facias against the heir, he shall not have his age of the arrearages, for they are real, and parcel of the rent or annuity. But if the Judgement be of arrearages and damages, there he shall have his age (B. age 50.) And where he recovers in a Writ of annuity, or assize, 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 Debt of that, but a Scire facias, for 'tis real. But where he hath Judgement of it, with costs and damages which go together, so that that 'tis mixed with the personality, then lies a Writ of Debt against the Heir, of the arrearages and damages (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 Duchy of Lancaster within age, there he may avoid it for Nonage 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 Nonage, as a common person shall (B. Prerogative. 132.) Yet by the Statute of 1. E. 4. (which is a private act not printed, but enrolled in the Duchy Chamber, by which King H. 6. was attainted of Treason, How separated, See Com: 219: & 220. See this Act, Com. 214, and that all the Lands of the said Duchy should be forfeited, and should be a Duchy separated and incorporated, etc.) 'tis annexed to the 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 bind him: for where he is admitted by the Law of holy Church to take it within age, so the Common Law enables 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 descended 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. Guard 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 Tenant dies, and his Heir enters upon an office found for the King, of the dying seized 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 Manor 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 Meadow, 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 joint-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 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 Joint 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, etc. 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 altars the Freehold. 45 E: 3. 6. Time H. 8. B. alienations 22. the end. Note, That for Burgages 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 King's 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 mixed.) and he may have a property, See Dyer the beginning. and buy and sell. 38. H. 8. B. Denizen 10. Nonability 40. 'twas said in the King's 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. '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 King's 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 King's 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 King's 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 King's learned Council, That the King may amend his Declaration in another Term, 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 Jury is bound to take notice of it; and if they find it, he shall go acquitted in form aforesaid. 1 M. 1 Come 101. Nor he shall not have this for plea with a traverse of the murder: for the matter of the plea is murder. Nor murder 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 ought to find 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 Murder. 2. E. 6. B. Appeal 124. Note, M. 2. M. ● by the Justice's 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 she 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. days, she loses her Quarentine. 1. Mar. 1. B. Appeal, 109. Dower, 101: Appeal of death may be commenced before the Coroner, Time H. 7. and Process awarded to the Exigent: but the plea shall 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 King's 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 Rend Charge: because the Statute is only for the loss of the chief Lord. But of a Rend service upon recovery of parcel, or of a descent 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 rend service, as 'tis at this day of a Rend 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 says, 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 show in certain in what) hath broken: for he must show the breach in some point certain: otherwise the action lies not: 31. H. 8. B. Arbitrement 42. Assets inter manes. 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 administered 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 manes 10. Where a perquisite of a Villain shall be Assets: See Tit. Villeinage. Assets per descent. Assets by descent. 34 H. 6. 22. contra by Wangf: 40 E: 3: 15: by Belch: In an action of Debt against an Heir upon an obligation of his ancestor, who pleaded nothing by descent; and 'twas found that Land descended 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 descended: and B. seems the reason to be for his false plea. 3. Mar. 1. B. Assets per descent 5. in the end. Assignee. A man Leases a house and Land for years; and the Lessee Covenants that he and his Assigns 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. Assize. Assize: the Tenant pleads not attached by fifteen days; the Bailiff 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: 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 Dudley and Leveson, for the Manor of Parton, in the County of Stafford. 31. H. 8. B. Assize 480. Note, by the Justices in the Common Bench, That in an assize 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 choose 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. Assize 384. Assurances. Note, that Tenant in Tail who levies a Fine with Proclamation, shall be bound, and his Heirs of his body also after the Proclamation made, and not before: so that if the Tenant in Tail die before all the Proclamations made, this shall not bind 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, shall 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 barrable by the Fine, the Tail is by this bound for ever: (Quaere) And the Statute says, That it shall bind 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, may be confessed and avoided; and than it shall not bind: for the Statute is intended De finibus ritè levatis. And therefore he may say, that the parties to the Fine had nothing tempore finis, etc. 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 bind 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 bind 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. wills that after Proclamation made, it shall be a final end, and shall conclude as well privies, as strangers, except infants, Fem Coverts, and the like, &c: And the issue in Tail is privy. Yet B. thinks that the intent of the Statute was not that the issue in Tail, See Coke 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 bind 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 bind 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 bind, 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 bind the issue in Tail, but that he may enter after the Death of Tenant in Tail. 30. H. 8. B. Bar 97. the end. Assurances 6. Note, That for assurance of land, that the heir should not sell, '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 waist, 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 encumber it, and after immediately 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, etc. and by such assent and conclusion by the Statute of uses. Anno, 27. H. 8. c. 10. the other shall be in possession, etc. 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 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 find 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 find him guilty in trespass or the like, of more trespasses than he did, or of excessive damage, 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. Assize is brought against Tenant by Statute Merchant, 43 Ass: 41: and against the Conusor Tenant of the freehold, and the Assize acquits the Tenant by Statute Merchant, and attaints the other of disseisen: the Tenant by Statute Merchant shall not have an Attaint, nor the Lord where Land is recovered against him, and the heir, where he hath the heir in Ward; nor the Termor, where land is recovered against him, and the Lessor, because they lose not any freehold: and because that they are acquitted by W. Whorewood the King's 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 than in Trespass upon the case, upon a promise; and these may be continued. (B. Traverse, etc. 283.) And in those cases, the Jury of another 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 King's 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. Damages. And Tit. Fanxifier. Attornment. Note; That Attornment may be made by Tenants, See my Lord Coke. 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 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 Seizin of their several Rents, is a good attornment: for a servant may receive Rend for his Master. Quaere. If no Rent then is due, nor the rend 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 enrolled 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 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 King's 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, rendering Rend, and after grants the Reversion of the Term, and Rent to a stranger, this shall not pass without attornment, by reason of the attendancy 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 attendancy to be made, nor action of Waste, 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 Montague, Lit. 125. & D. ●. 35: & 9 E. 4. 33. contra. chief Justice, and Townsend, That by a Feoffment of a Manor, the services pass without attornment of the Freeholders'. 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 prox-post mortem vel determinationem interest 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 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 judgement 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 red. 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 red. Nor in an assize; Register 9 nor in an attachment. Nec contra finem levat: nor in any case where the Defendant shall be imprisoned. Audita querela. A man seized of 20. acres, 45 E. 3. 17 13 H. 7. 22 by Reed. 16 H. 7. 6. by Keble. 5 E. 6. Come 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 Coke Rep: is bound in a Statute Merchant; 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 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. Plead. Note, Where a man pleads a recovery by a strange name of the thing demanded (B. Averments 42.) as if a Precipe quod red. be brought of the Manor of B. or the like, the Tenant pleads a Fine, Recovery, or the like, of the Manor of G. he ought to aver that the one and the other, 21 E: 4: 52 are one and the same Manor, 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. Plead▪ 143.) And where a man pleads a Recovery by a strange name of the parties, he 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 Rend, the Lord dies, his wife is endowed of the Seignory; she may distrain for 1 penny, & 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 than before. The same Law where the Lordship is divided by partition, between Heirs Females, and the like. 24. H. 8. B. Distress 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, enrolled within the half year according to the 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, etc. without notice, no more then upon a Fine. Yet B. doubts of of a Conusans de Droit come. Ceo. etc. but if a man recover against the Tenant, or if the Tenant is deseised, the disseisor dies seized, and his heir is in by descent, 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 descended 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, etc. 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 seized by the hands of B. then Tenant, etc. 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 showing how, but he cannot convey to himself of the said A. in the Seignory by a que estate, without showing how; for the Seignory 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 Seignory, by the Statute shall allege a seizin, as in other avowry; and then shall conclude his avowry upon the land, as within his Fee and Seignory: 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 Seizin, 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, etc. is 4. acres, which is, and was the time of the caption his Freehold, for which he distrained, and took the beasts for damage Feasent, was a good avowry. 4. E. 6. B. avowry 122. 'Twas holden by the Justices of both Benches, That where a man holds by Rent and Knight's service, and the Lord and his ancestors have been always seized 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 seizin of the rent suffices to be seized of the Tenure, as to this purpose. yet otherwise B. seems to make avowry. 7. E. 6. B. avowry. 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, than the Plaintiff in bar of the avowry may allege it, and traverse the seisin after the limitation (B. avowry 107.) Also where a man brings an action real, or mixed; 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. Averment is not necessary in an Avowry. See Tit. Averment. Bar. 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. Bastardy. Note, That 'twas taken by the Commons house of Parliament, if a man marry his Cousin 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 shall not make the issue a bastard; for the espousals are determined by death before, 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. bastardy. 44. D'arraignement 11. Battle. 'tis said that if an appeal of Murder be brought in the King's Bench, the Defendant joins battle, it shall be before the Justices of the King's Bench, and not before the Constable, and Marshal. 5. M. 1. B. battle. the end 16. Bill. 'Twas said, 27 H. 6. 5. econt●a. That a Praemunire shall be maintainable by Bill in the King's 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. Praemunire 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 immediately, 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 Country by Cerciorari to the Chancery, 44 E: 3. 28 accord: and may be sent to the Justices of the King's 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 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 trials of Treason shall be according to the order of the Common Law, and not otherwise. And therefore it seems that he may have a challenge peremptory, as at Common Law. S. 35. Jurors. 4. M. 1. B. Challenge 217. Trials 151. the end. Where a Grant of the Bishop, or charge by him, with the assent of the Dean and Chapter, shall bind 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 murder, or Felony by Outlawry or otherwise, and the King pardons him all Felonies, Murders, and Executions eorundem, and Outlawries, and Waiving; 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 entitled to them by the Outlawry, without Office: but the King is not entitled 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 seized by the Office, and there a release or pardon cannot give it; but there ought to be a Gift or Grant. 29. H. 8. B. Charters of Pardon 52. Note, if alienation without licence be pardoned by Act of Parliament, the party may enter without Ouster l'main; or amoveas manum. Otherwise by another pardon, by letters Patents. 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 Patents, 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. & Coke 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 sells the Chattel, and dies, there he in Remainder shall have it: but if the first Devisee had aliened, given, or sold it, there he in the Remainder had been without remedy 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 Abbeys, See 32 H. 8 after, & Coke Rep 4 M. 1. Com. 173: and all rights of Entries, Actions, Conditions, and the like, which the Abbeys 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 mixed, as debt ward, and the like, by some. And some è contra, by reason of these words, That the King shall be in possession. Yet by B. this seems, that he shall be in such possession as the Abbot was. S. of a thing of which the Abbot had possession, the King hath of this actual possession: & of such of which the Abbot had but a cause of entry, or right in action; of these the King shall be vested of a Title of entry, and Title of action. But the thing to which he hath such cause of entry, or of action, is not for this in him in possession: and therefore cannot pass from the King by general words; but B. seems, if the King recites the diseisen, and how the right and action thereof is given to him by the Statute, and grants it specially that '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 Coke Rep That the King may grant a thing in action, which is personal; as debt, and damages, and the like, or a thing mixed; 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 Abbeys. 31. H. 8.) These things in action the King cannot grant. Yet by B. see if there be not words in this Statute, to put the King in possession, though the Abbot were put to his action. 33. H. 8. B. Patents 98. Clergy. No man shall have his Clergy but where his life is in jeopardy: 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 Heresy 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 country comes. (B. Clergy 20.) And if a man who is captus oculis prays his Clergy, he shall have it if he can speak latin congruously. Quaere, for he cannot be a Priest, nor he cannot Minister. Casus B. clergy 21. A Bastard shall have his Clergy; for he may be a Priest by licence. Casus B. clergy 22. Colour. Note, See Coke 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 enfeoffed 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 binds the right of the Plaintiff by Feoffment with Warranty, Release, Fine, Recovery, Disseisin, and Reentry, 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 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 Sergeant 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 Gaol Delivery is not determined; for the one stands with the other. 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 Gaol Delivery, is only to deliver the Gaol. 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 King's Bench, though that it be intended but Pro illa vice: as 'twas of Sir James Dier this year; yet this shall determine his patent of the Common Bench, though he surrenders the Patent of the King's Bench the next day: for the King's Bench is the highest Court: and if the Common Bench err, this shall be controlled by the King's 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 King's 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 Sovereignty, cannot have the office of inferior, 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 Terminer, or in their Process, 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 King's 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 Sergeant 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. 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, etc. 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 King's Bench comes there, this shall not determine the Commission of the Peace: contrary, if they make Proclamation of the coming of the King's Bench (B. commission 9) Commission of the peace 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 King's 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 Clergy, 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 cannot plead the condition, and rehearse the covenants, and say generally that he hath performed all the covenants, without showing 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 Tenors 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 virgin 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 body denied. 24. H. 8. B. condition 188. tenors 53. If a man Mortgage his land to W. N. upon condition that if the Mortgager, and I. S. repay 100 l. by such a day, that he shall re-enter, and he dies before the day, but I. S. pays 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. aught to be ready at the place, etc. 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 Coke Rep Knights case: Lillingstons. c Damport● c: or Leases it for life, or for years, rendering rend, with a condition of reentry 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 rend arrear after; for the condition is wholly 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 show in certain in every point how he hath performed them, (B. condition 198. covenant 35.) And where in a Covenant the Defendant says, 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 show 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 Less upon the words of Habendum, See Coke 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, That the Lessor shall find 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 scour 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 immediately 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 pays 100 l. infra terminum dict. 10 annorum, that then the sale shall be void, etc. 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 surrendered or forfeited. Otherwise, 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 seized to the use of B. in Fee, and B. surrenders his term to A. and after pays him 100 l. within the ten years, there B. shall have Fee; for the years are certain: otherwise, where 'tis covenanted, That if he pays 100 l. infra terminum predict. and he surrenders, and after pays 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 King's 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 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 find the other by the day, this shall not bind 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 King's Bench: in Debt upon an obligation to keep without damage, S. harmless, where the Defend. pleads that he hath saved him harmless, 'tis no plea without showing how; for he which pleads a discharge, or saving harmless, aught 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 to acquit & save without damage, quod non damnificatus est, is a good plea, for 'tis in the negative, and therefore good without showing how, but where he pleads, that he hath kept him without damage in the affirmative, he shall show 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 seized 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 pheasant, the plaintiff said that the same E. 28. H. 8. granted his interest to him, he shall not traverse the Grant. 38. for he hath 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 Dean and Chapter, and dies, 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 Seal (B. Charge 58. Confirmation. 30) And also the Deed was Quod sigillum nostrum apposuimus, which may be referred to the Bishop only, 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. Charge 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 confirms, this suffices without the dean and chapter, for in the first case, the Bishop patron hath an interest in inheritance to the Bishopric. But in the other case, he hath but a judicial power, therefore it suffices that he who hath the power at the time, etc. confirms, for 'tis a judicial act. But in the other case, it binds 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, and this juri proprio, because of the dean and chapter, to be joined with the Bishop, where he is patron. B. Charge 40. Note, that if the King for him and his heirs 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 Coke 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 heirs; 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 heirs, 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 heirs. 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 term, and then the Tenant is demandant, and retracts, and judgement is given for the demand: against him, and after the Tenant over in value upon the vouchee, etc. 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 cloth for 10 l. the contract is entire, and if the one of these were by defeasible Title, yet the vendor shall have the entire sum, though the one part were devested from the vendee, See 33. H▪ 8. 'tis 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 parcel of the contract, which is entire. 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 Needle. if a fellow 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 privilege 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 Praemunire, 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 kill 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 child, Execution is respited until she be delivered, 12. Ass. 11. and now she is with child 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 altars 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 unlawful act are principals. See 33. H. 8. Tit. Trial. The same Law in the case of Fines Lord Dacres, one of his company killed a man in hunting in a Forest, and the Lord Dacres, and the other hunters, as mantle, 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, etc. but not guilty in an appeal, and give it in evidence, and murder cannot be justified. See Tit. Appeal. Note, 11. H. 7. 20. accord. by Fineux. by the Justices, that 'tis felony to kill a man in just, or where men play at sword and buckler, and the one kills the other, and the like notwithstanding the commandment 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 ancient 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 King's Bench to arraign the parties there. 44 E. 3. 43. accord. S. by Cerciorari out of the Chancery, which shall be to commissioners of Oyer and Terminer, and after shall be sent into the King's Bench by Mittimus (B. Corone. 178. Oyer and Terminer. 2.) But indictments taken before Justices of Gaol delivery, and not determined, shall be delivered to the Clerk of the peace, See Tit. Commission the end. or shall remain with the custos rotulorum of the County, where, etc. 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 parcel of the house, and a man breaks it by night, See Coke 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 principal and accessary are arraigned, St. 30. B. 3. H. 7. 12. by Justices. and the principal hath his Clergy, this shall not serve the accessary, but he shall be arraigned and hanged, See St. 47. H. & Coke 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 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 Kingdom. 6. E. 6. B▪ Corone. 213. Note, 5. &. 6. E. 6 cap. 11. that 'twas agreed by all the Justices at Sergeants Inn in Chancery Lane 25 Octob. 1556. as to the Trial of Treason, and misprision 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, shall be by the order of the common Law only, & non aliter. And the common trial by common Law, is by Jury, and by witness, and by no accusers. And the same Law of Treason of coining, that accusers need not at the arraignment, but at the indictment ut supra only. 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. Marry, 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, were Sir William Portman chief Justice, Mr. Hare Master of the Rolls, Sir Robert Brook, Sir David Brook, Sir Humphrey Brown, Sir John Whiddon, Sir Edward Saunders, Sir William Stampforde, and Master Dalyson, Justices, Dyer Sergeant, and Griffine, and Cordell Attorney and Solicitor. And 'twas agreed, that Counsellors who give evidence against Traitors, are not accusers. And by the Civil 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 King's Bench, and there they were arraigned, and pleaded not guilty to the country, and were tried. But after a writ was sent with the body into the country with Nisi prius to try them in the county of Bedford. And this is a common course, so to remove the body and the Record out of the King's Bench to the country 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 certain day to do it. (B. Corone supra.) None shall take privilege of the church, except that he be in danger of his life (B. Corone. 181.) Nor none shall have the privilege 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 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 days (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 suit by a name known, is 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 sell all the lands and the Abbey, 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 choose 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. Costs. Note, 9 H. 6. 32 by Newton. 27. H. 6. 1●. by Spilman Justice, that at common Law, a man shall recover costs in a Quare impedit: but otherwise, after the Statute of Westm. 2. cap. 5. because the Statute gives great damages in a Quare impedit. 22. H. 8. B. costs. 25. Note, T. 4. M. 1 accord. where an action penal is given by Statute, to recover a great sum by action of Debt for engrossing, or the like, there the Plaintiff shall not recover costs nor damages in this action of Debt 35. H. 8. B. Damages 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 rendering rend, 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 showing 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. 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 Marry Portingtoes' case. that a Statute Staple, nor Deed enroled, shall not be accepted of a Fem Covert, by the Common Law: contrary, by the custom in London of a Deed enroled; for this shall bind in London as a Fine at Common law, ●9 H. 8. See 30. H. 8. 'tis Fines. (B. coverture 59 76. the end.) Nor a Fine, Statute, nor Deed enroled, 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 joins 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 Manor cannot hold Court, See 33. H 8. Tit. Manor. nor do justice without two Suitors: and if they die, or if that there be but one suitor, the manor is determined; for 'tis not a Manor 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 copy, 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, which I. S. had granted his authority thereof to the Defendant & quod habetur consuetudo inter mercatores per totam Angliam: that one may assign such a licence over to another, and that the assignee shall enjoy it, etc. 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 gavelkind, Borrow-English, Glocest. Fee, and the like, 35. H. 8. B. Customs 59 Damages. NOte in Trespass local, 19 H. 6. 10. 27. H 8. 2. contra. 3. M 1. See tit. Abridgement. That upon an inquest of Office to inquire of Damages, the Court may abridge, or increase them. But otherwise upon the Principal, S. upon issue tried betwixt party and party, 34 H. 6. 12. by Moyle. (but there it may increase costs.) For the party is at his attaint: but upon an inquest of Office he cannot have an attaint, 34. H. 8. B. damages 144. See Tit. costs. Default. If a woman be received in default of her Husband, 22 H. 6. 14. per. ●ur. and after she makes default, judgement shall be given upon default of the husband; and no mention shall be made of the receipt. Time H. 8. B. default 85. Demurrer. Inquisition found that I. S. held certain land of the King, See Tit. Livery. ut de honour suo Gloucester, which is not in Capite, upon which process issued against W. S. who had intruded, etc. 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 beginning. and is an Alien as his Father is, there the King by his Letters patents cannot make the son Heir to his Father, nor to any other: for he cannot alter his law by his letters Patents, 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 is English, and not an Alien, 36. H. 8. B. Denizen 9 Deputy. 'tis said that a Deputation of an Office which lies in grant, aught 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 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 show 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: in the Common Bench. 32. H. 8. B. debt 193. Relief 11. the ends. Devise. Not, The same case 34 H. 8. at S. Albon 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, than 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. come. 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, though the Testament be not enroled. 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 enroled 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 entire by Survivor, but only a moiety; 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 jointly 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. 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 sell, for the time is not come till 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, etc. 38. H. 8. B. Devise 48. the end. If a man devices 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 or levies a Fine. And the same law by some, where a man disseises the heir, & dies seized, 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 itself 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, sell, 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. shall have the occupation of his plate for term of his life, and if he dies, that it shall remain to I. S. this is a good remainder: For the first hath but the occupation, & the other after him shall have the property, 2. E. 6. B. Devise 13. the end. Note if a man hath issue 3. sons, and devises his Lands: S. one part to the two of his Sons in Tail, and another part to the third son in Tail, and that none of them sell any part, but that every one shall 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 shall 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 descent, 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 seized is good also to toll the entry, B. devise 41. And B. seems where the Father devices to his son and heir in Fee, that the heir may waive the Devise, and take himself to the descent, (●. Descent 4.) Contrary, where the Father Devises to his son in Tail, the remainder to a stranger in Fee, there the Heir shall not claim in Fee, nor waive the Devise, for the loss and prejudice of him in remainder in Fee. 2. M. 1. B. Devise 41. Tenant in Tail of Land Devisable, discontinues in Fee, and retakes in Fee, and Devises to a stranger in Fee, and dies, the issue in Tail is remitted; for nothing is descended to him by reason of the Devise, which Tolls the descent, except that the Devisee waives it. 4. M. 1. B. Devise 49. Remitter 52. Divorce. What divorce may Bastardise the issue? what not? See Title Bastardy. Note, for Law, That where the husband and wife are divorced where she is an Inheritrix; yet mean acts executed shall not be reversed by the divorce; as waste, receipt of Rents, taking of Ward, presentment to a Benefice, gift of goods of the wife, otherwise of inheritance, as if the husband had discontinued, or charged the land of his wife, cui ante Divorcium lies. The same of a release of the husband, or Manumission of villains, See Coke upon Lit. or the like. And if the husband and wife purchase jointly, and are disseised, the husband releases, and after are divorced, the wife shall have the Moiety, though there were not Moyties before the divorce; for the divorce converts it into Moyties. 32. H. 8. B. Deraignment 18. Descent. If Land be given for Term of life, 38. H. 8. B. Descents 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. Descent 59 Done 42.) And where Land in gavelkind 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 shall have the land, for he is right heir at Common Law, & this is a name of purchase, which shall be ordered by the Common Law. But otherwise of descents to heirs in Gavil kind, See 26. H 8. 4. for than it shall go to all the sons. 37. H. 8. B. Descent, & 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 term 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 heirs males of the body of Sir William Hussey his father, and for default of such issue, to the use of his right heirs, 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 King's Attorney he shall have it, for this name heirs 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. Descent. 1.) As if land is given to a man and his heirs 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 shall have the land, and yet he is not heir to his father. And the same Law where 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 only 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 heirs 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 heirs 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 shall not have the land, for she is not heir: for by Hare Master of the Rolls an ancient apprentice, there is a difference betwixt a gift in possession to a man and his heirs females, etc. 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 voided for ever. (B. Done. 61.) for though that the case holds place in the two cases put by Whorewood, this is because that the gift was once vested which was in the father, and therefore good law there, otherwise in the principal 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 heirs 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 heirs males of the body of the said W. N. who hath 2 sons, the eldest hath issue a daughter and dies, W. N. and I. S. die, the younger son shall have the land as heir male, yet he is not heir indeed, See before. B. Nosme 1. Whorwood. 35 H. 8. but his Niece 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, etc. ut supra. But otherwise of a remainder to the right heirs, 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 heirs of Sir John Hussey was forfeited by the attainder. 37. H. 8. B Nosme. If land descends 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 shall avoid the descent, for he claims not as heir to his sister, nor was he in esse at the time of the descent. Lecture. B. Descent 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 bind the Tenant in tail, and the issue in tail, but not the King. But now by the Statute it shall not bind the issue in tail, but that he may enter. 32. H. 8. B. Discontinuance of possession. 32. 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 bind 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 than the donor will depart with to him. 38. H. 8. B. Tail. 39 Release no Discontinuance. See Tit. Releases. Discontinuance of Process. Note, that a Discontinuance puts the party to a new original, but where the Parol is without day, this may be revived by a re-summons or re-attachment, for the original remains. Regulae. B. Discontinuance of process. 43. Dimes, Tithes. 'twas said that if a Parson demise his Glebe to a lay man, there he shall pay Tithes; contrary of the Parson himself, that reserves them in his proper hands. And that land first discharged of Tithes, shall be ever discharged of them. Yet if he which hath purchased a Manor and Rectory, which is discharged of Tithes, Leases part of his demeanes, the lessor shall have Tithes of that, because that he hath the Parsonage. 32. H. 8. B Dimes 17. Disseisor. 'twas said for Law, if A. leases the land of I. N. to me for years, T. 25. H. 8. accord Fitz. 179 G. rendering rend, the lessee enters, and pays 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 Montague, 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 cannot justify 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 Chattel, the remainder over, See Tit. Grants. he for life gives the Chattel, whether this shall bar the remainder. See Tit. Chattels. '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. Descent. '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 Chattel 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 Chattel, & non bona, for bona are goods movable, 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 seized in fee, leases for years rendering rend, 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, etc. and she cannot be endowed 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 joint purchaser with him after the coverture, 27. H. 8. c. 10. See Vernons c. Coke. l. of any estate of freehold, except it be to him and his wife, and their heirs in see simple, this is bar of Dower, if she agree to the jointure post mortem viri, otherwise of fee simple, for such jointure is not spoken in the Statute. Nor a devise of land by the husband to the wife by testament, is no bar to Dower, for this is a benevolence, and not a jointure. 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, shallbe 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 custody 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 rend day. Yet otherwise of land, for there he may enter▪ 23▪ H▪ 8▪ B. Quare ejecit infra terminum. 5. Enquest. Note, See Tit. Trial. 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: lawful Entry Tenant for term of life aliens to B. to have to him and his heirs 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 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 term of life suffers a recovery, he in reversion cannot enter, but is put to his Writ of Entry, ad terminum qui preteriit, or Writ of Right, and shall falsify 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 joins in aid, and both vouch over, than well upon recovery had, etc. as betwixt Corbet and Clifford in the County of Buck ' this year.) But if Tenant for life be impleaded, and prays 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, than he cannot enter, but is put to his writ of Entry, ad terminum qui preteriit, vel ingres. ad communem legem, and shall falsify 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 falsify it in an assize by way of entry, but shall have a writ of entry, ad terminum qui preteriit, or a writ of right, and shall falsify it by this action. B. Entre congeable. 123. Fauxifier. 49.) And if he Levies 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 bind the heir in tail. But by Hales Just. by such recovery the entry of the Feoffees seized to the use of the estate tail 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 entry, 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 therefore 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 heirs, claiming only as heir, and against all others, claiming only to the use of the vendor and his heirs, 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 bind those Tenants of those tails and their heir 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 seized in tail to him and the heirs males of his body, discontinues, and retakes to him and E. his wife, and to the heirs of their two bodies, and had issue, T. and W. and died, The like case betwixt Villiers and Beaumont was adjudged in the Common bench. T 4. M. 1. 4 E. 6. Come 42▪ 11. H. 7. 20. Rast Discontinuance of process. 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 jointure, 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 lawful 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 shall never be executed. And E. the heir averred that he is the same person to whom the reversion appertained, and showed not how heir to it, and yet good by Molineux, and Hales Justices, contra Brown and Montague 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 show 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 years, or charged with a rend 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 distrain. 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 Sergeants case, that where a common person leases lands for years, rendering rend 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 heirs to King H. 8. by the equity 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 King's Bench, where a writ of Error bears teste before the first Judgement, and the Record is certified in the Bench, that 'tis good; and yet the Writ saith, quod si judicium reddit. fit, tunc Record. & process. habeatis, etc. 5 E: 6. B: Error. Escape. Debt upon an Escape, against the Sheriff, 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 Sheriff, who suffered him to Escape, and after retook and imprisoned him, and was removed, and this Defendant was made Sheriff, 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 Cook lib. 3. Ridgways Case. for he hath confessed and avoided the Plaint; for when the Prisoner first Escaped, and the first Sheriff retook and imprisoned him: This second Imprisonment is no Execution for the party, but the Party is put to his Action, for the Escape against the first Sheriff, 5 E: 6. B: Escape 45. Escheat. Foundership cannot Escheat by death without Heir, nor be 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 & Cook, Justices; if there be 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 he may enter for the Escheat, or have a Writ of Escheat, and the receipt of the Rent no bar; 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 Cook upon Lit. or had taken corporal service, as Homage, etc. So of acceptance of Rent by the hands of the Heir of the Disseisor, or of his Feoffee, which are in by Title, 7 E: 6. B: Escheat 18. Essoign, If the Tenant in a Praecipe quod red: prays the ujew by Attorney; his Attorney shall be Essoyned upon the ujew: But if he himself prays the ujew in proper person; than per plures, none shall be Essoyned upon the ujew but the Tenant himself; for after Process upon a Voucher, he himself shall be Essoyned, and by consequence in like manner shall be upon the ujew. So of aid prayer, 5 H. 7, 8, & 9 And note, That granting of an Essoyn, whereon Essoyn lies not, is not error. Contrary of denying of Essoyn where it lies, 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; 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 be made to W: N: during the life of I: S: these words (during the life of I: S:) etc. shall be void; for they are contrary to a Fee. Contrary of a Feoffment in Fee so long as Paul's 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 Come▪ 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 be referred. But if there were but one in the Deed, than 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 be taken by intendment, the other not, 31 H: 8. B: Estates 4. A man gives land to a Husband and Wife for term of their Lives, & diutius eorum vivent. the remainder to the Heirs of their bodies, this is a tail executed, by reason of the immediate remainder, 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 king's 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 etc. & 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 Deed, this determines his prescription by 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 Cook upon Lit. Estoppell. shall not plead it for Estoppell; contra, If he 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 than he is privy in the Per: 36 H: 8. B: Estoppell 216. the end. If two joint-tenants are which hold of the King in chief, and the one releases to the other in Fee, and after both respite Homage in the Exchequer; 33 H 6 7. by Laken D. 8. 33. by this, he which released hath gained the moiety by conclusion, as it shall be where two join in suit 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 Deed poll for years, or by Parol, may avoid this Lease to say, That he had nothing in the Land, tempore dimissionis: Contrary, Upon a Lease by 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 Trespass, 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 pleads Not Guilty, he 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 confess it precisely, and therefore no Estoppell: Yet B seems to make the Fine by protestation that he is not guilty, and then 'tis all clear, See ●8 H. 8. before. Time: H: 8. Estoppell 82. A man pleads a Pardon of the King, in the Exchequer, for alienation, without Licence, 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: pays 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 show it: as in Trespass against two, a release to one shall serve the other, if he can show 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 year, 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 he had kept them a year and a day, and Proclamation passed in the two next Market Towns, and two Market days, the one in the one Town, and the other in the other; for the possession of the second Seizor is good against him who hath no property, 33 H: 8. B: Estray 11. Executions. Note, 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 year, 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 year, 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, he 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 he may take the other also. But if the one satisfy the Plaintiff, he 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 original, by several Precipes, etc. 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, etc. And there 'tis said, That a Capias ad satisfaciend. is not of Record before the return of it; therefore no Plea: Yet B: seems the Plea good by the taking of the Body, though no Writ be 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 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 he 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 commanded by them to mend the Book; for 'tis contrary to the Record, and so misreported, 23 H: 8. B: Executors 22. A man makes two Executors, Moil and Ashton ●ccord. 39 H. 6. 45. and dies; the one Executor makes an Executor, and the other survives, and dies 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; for he doth not restrain his entire 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 years 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 be extinct, B: seems to be a devastavit ad ultim: 4 E: 6. B: Extinguishment 57 the end. Exposition. The several 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. Lord and Tenant; See 27 H. 8. 'tis 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 Seignory 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. Tenors 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 Seignory 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 years, there the Seignory is suspended in the whole, during the term; for the Seignory may be extinct in part, but not suspended in part, but for the entire, 32 H: 8. B: Extinguishment 48. Where a Condition shall not be apportioned, but extinct, See Tit: Conditions. A man hath a Lease for years 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 Surrender. 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 he 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: all 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, etc. That the Plaintiff 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 Cook 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 bears date at large, and at no place certain: But if it be (that: apud Cane in Normandy, etc.) quaere If the Action lies, etc. Time: H: 8. Note, That 'twas agreed by the Justices, that this clause which comes after these words, In cujus rei, etc. Sigillum apposui, etc. is not any part of the Deed, though 'twere written before the sealing and delivery, 1 M: 1. B: Faits 72. Faits enrol: Deeds enrolled. Note, that a Deed of Husband and Wife shall not be enrolled 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 enrolled of Land in London, and acknowledge it before the Recorder and an Alderman, and the Wife examined; See Tit. Fines, Levies. this shall bind as a Fine at common-Law, by their custom, and not only as a Deed, and it sufficeth without Livery of Seisin, 29 H: 8. B: Faits enrol: 14. & 15. A man infeoffs the King by Deed, 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 enrol the Deed, then 'tis good to the King without Livery, for the King takes not by Livery, 29 H: 8. B. Faits enrol: 16. Feoffments 69. Note, 27 H. 8. ca 16. by the Justices, That where two joint-tenants are, the one aliens all his Lands and Tenements in D: after the Statute of inrolments, and before the enrolment the other joyntenant dies, so that his moiety survives to the Vendor, and after the Vendor, within the half year, enrolls the Deed; yet nothing passes but the Moiety, for the enrolment hath relation to the making and delivery of the Deed, so that it shall give nothing but that which was sold by it at the time of delivery of the Deed: And by more Justices, Where a man sells his Land by Deed Indented to one, and after he sells it by another Indenture to another, and the last Deed is first Enrolled, and after the first Deed is Enrolled, within the half year, there the first Vendee shall have the Land, for it hath relation to make it the Deed of the Vendor, and to pass the Land ab deliberatione facti; for the Statute is, That a freehold, nor use of it shall not pass, nor change from one to another by bargain and sale only, except it be by Deed Indented and Enrolled within the half year; Ergo, if it be by Deed Indented and Enrolled within the half year it shall pass as the use might pass at common Law, See Tit. Conscience. by sale of the Land which was presently upon the sale, 6 E: 6. B: Faits Enrol: 9 Fauxifier, falsifying. Where he in reversion shall falsify a recovery had against Tenant for term of life, where not, See Tit. Entre Congeable. Where the Feoffees may falsify a recovery suffered by Cesty que use in tail; where not, See Tit: Entre Congeable. 'Twas holden that an attaint shall go 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 etc. 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 clear Law, That in a Writ of false Judgement in nullo est erratum is no Plea; for they join issue upon some matter in fait certain alleged by the party, and shall be tried by the Country; for 'tis no Record, contra, in Error, 23 H: 8. B: Faux Judgement 17. Fealty. Note, in the Chequer, That if Land descend to me, which is holden of I: S: by homage, and I do to him homage; and after other Land descends to me by another Ancestor, holden of him by homage, I shall do 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 respite 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 politic, shall not do homage; for this shall be done in person: And a 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 come pertin: but the Garden, the Curtilage, and Close adjoining 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 Vourcher 3. because the Feoffment was void. And B: 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 moiety, is good, 31 H: 8. B: Feoffments to uses 19 If a man makes a feoffment of a house, ac omnia terras, tenemeta et hereditamenta eidem messuag: pertinen: aut cum eodem occupat: locat: aut dimiss: existen: by this the Land used with the house shall pass, 32 H: 8. B: Feoffments 53. the end. See 31 H. 8. Tit. Leases. A man makes a Deed of Feoffment 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 be 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 he 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: says that his feoffment shall be good, but 'tis no Feoffment except he 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 ujew, when this is pleaded; 'tis said that express mention shall be made in the pleading, that the Land was within the ujew, Time H: 8. B: Feoffments 57 the end. Feoffment is good of the Land by Deed, by Livery of the Deed within the ujew, so that the Feoffee enters accordingly: But if the Feoffor dies before the Feoffee enters, than the Land is descended 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 he Infeoffs twenty without Deed, and delivers Seisin to one in the name of all, this is no feoffment 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 he takes the profits during his life, and so see that uses were in ancient 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 tail without consideration, to a stranger, who had not conusance of the first use, habend: in tail, to the use of cestuy que use, and his Heirs; the tenant in tail shall not be Seized 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 Law, and not the Law to his Will: Also none can be Seized to the use of another, but he which may execute an Estate to cestuy que use, which shall be perfect in Law, which tenant in tail cannot do; for if he executes an Estate, his Issue shall have a Formedon; And the best opinion that an Abbot, Mayor and Commonalty, nor other Corporations shall not be seized to a use, for their capacity 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 ●ost, Of the Escheat, 14. H 8 8. by Pollard: of the Recovery, 4 E. 6. Come 54. by Halles. 1 R. 3. ca 5. as by Escheat, Mortmain, Perquisite of Villeine, Recovery, Dower by the courtesy, and the like, are seized 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, etc. saving to all persons their rights and interests in tail, as if this Stat: had not been made; and therefore Tenant in tail shall not be 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 tail, etc. is taken Tenant in tail in possession; and not Tenant in tail in use: for cestuy que use in tail 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 tail shall be seized to his own use: And the same Law of Tenant for term of years, 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 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 be 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 Feoffment 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 money paid, or other especial 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 Feoffment by the father, Tenant in chivalry, made to his son by covin, shall not toll the Lords Ward, etc. In these Cases the Feoffor after such Feoffment takes the profits of the Land all his life. See Cook lib. And the same Law by Shelley of a Feoffment made by a Woman to a Man to marry her, the Woman takes ●he profits after the esponsalls: Quaere ●nde; for this is an express consideration in itself. And by Norwich, If a man deliver money to I: S: to buy land for him, and he buys 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 money; and there is no other remedy but an action of deceit, 14 H: 8. B: Feofments to uses 40. Note, if a Feoffment 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 remainder or reversion, may sell the remain or reversion in the life of W N, 10 El. Com. 350. but he cannot make a Feoffment till after his ●eath, 25 H: 8. B: Froffments to uses 44. 'Tis holden that if the Feoffees seized to the use of an Estate tail, See before Time. H. 8 & after 30 H. 8. or other use, are impleaded, and suffer the common recovery against them upon bargain, 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 bind, though they had notice of the use; for the Feoffees have the Feesimple: Et per plures, if cestuy que use in tails 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 tail, which is intended tenant i● tail in possession, and not cestuy que use in tail, for cestuy que use in tai●● is not tenant in tail, 29 H: 8. B▪ Recovery in value, 20. Feoffments to uses, 56. Feoffees in use make a lease for years rendering rend, See before to another who hath notice of the first use, yet the Lease shall be only to the use of the Lessee himself: 19 H. 8. 1. accord. And the same Law per plures though no rent be reserved: And if a man makes a Feoffment, and annexes a Schedule to the Deed containing the use, he cannot change the use after; and so if he expresses the use in the Deed of Feoffment, but otherwise where he declares the use by words of his Will s: See 20 H. 7. 11. I will that my Feoffees shall be seized to such a use, there he may change this use, because by Will, etc. And that if a Feoffment be made to the use of the Feoffor in tail, & after he execute an estate to him in ●ee, the use of the Estate tail 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 seized to the use of the said B: and his Heirs, there if A: makes a Feoffment of his Land in S: and after B: Enfeofs A: of the said three acres in D: there the Feoffees of A: shall be seized 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 Feoff 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 Feoffment 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 tail, See 29 H. 8. before. shall bind the Heir in tail; But by Hales Just: By such Recovery the entry of the Feoffees seized to the use of the Estate tail 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 tail, but 'tis a fee-simple conditional at common Law, as 'twas of the tail before the Stat: of W: 2. And this Stat: makes no mention but of gifts in tail, which is tail in possession; and therefore quaere, if the tail 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 be good against the Vendor and his Heirs, claiming only as Heir, and against all others claiming 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 tail claimeth as Heir in tail 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, levied or to be levied by tenant in tail in possession, Reversion, Remainder, or in Use, after Proclamation had, shall bind ●hose tenants of those tails 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 contained 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 recovery 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 contained 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 go 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 mantle Esq: of the County of North: who was attainted with the Lord Dacres of the South, for the death of a man (which see Tit: Corone.) that where he at his marriage 31 H: 8. after the Stat: of uses made, 27 H: 8. Covenanted, That for a 100 l. and in consideration of marriage, that he and his Heirs, and all persons seized of his Lands and Tenements in H: shall be thereof seized to the use of his wife for term of her life, and after to the Heirs of his body by her engendered, 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 be made to him and his wife, and to three others in Fee, this shall be taken to the use of the husband only; and not to the use of the wife without special 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 Feoffment was, 3 H: 7. and intended as aforesaid, 34 H: 8. B: Feoffments to uses 51. A man makes a Feoffment in Fee to his use for term of life; & that after his decease I N shall take the profits; this makes a use in I N, contrary if he says, 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 rendering rend, habend: to the use of the Lessor, for this is contrary to Law and Reason, for he hath recompense for it: And by Hales, a man cannot change a use by a covenant which is executed before, as to covenant to be seized to the use of W S, because that W S is his Cousin; 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 be paid at a future day, or for to marry his daughter, or the like, 36 H: 8. B: Feoffments to uses, 54. Note, a Recovery was suffered by Graseley of the County of Stafford, by advice of Fitz Serjeant and others, and he was only cestuy que use in tail, and after he died without issue, and his brother recovered the Land in the Chancery, See 30 H. 8. before. for at this time 'twas taken that a Recovery against cestuy que use in tail, 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 tail, sell the Land to him that hath notice of the first use, yet the buyer shall not be seized to the first use, but to his own use, by reason of the bargain 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 Feoffment in Fee before the Stat: of uses, or after this Stat: to the use of W: and his Heirs, till A: pay forty 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 pays to W the 40. l. there A is seized in Fee, if he enters; yet by some A shall not be seized in Fee by the said payment, except that the Feoffees enter: B doubts thereof, and therefore it seems to him best to enter in the name of the Feoffees, and in his name, and then the one way or the other the entry shall be good, and shall make A to be seized 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 be had, in which cestuy que use in tail is vouched, and the demandant recovers, than this shall bind the issue, Time E: 6. B: Feofments to uses 56. the end. If a Covenant be by Indenture, that the son 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 be seized of a hundred and fifty acres in D, to the use of C and his Heirs, quo usque A his Heirs or Executors repaies the hundred pound, and after C hath issue within age and dies, and after the 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 refusal 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 bind the Land with the use, which Indentures were in the life of C: But by B: quaere if the Heir of C shall be in Ward to the Lord, for he is Heir, and yet a Purchasor, as it seems, 3 M: 1. B: Feofments to uses. 59 Gift of Land for years, 8 H 7 ca 4 Rast. uses 6. or of a Lease for years to a use, is good; notwithstanding the Statute; for the Statute is intended to avoid gifts of Chattels to uses for to defraud 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 between W. Roch. and Radm. That 'twas Covenanted that A shall make to B his wife, daughter of I K, a jointure by Fine, and the Writ was brought by I K against A and B his wife, Latharne, etc. See Tit Coverture. and they offered to acknowledge to I, to the intent that I should render to them, for life of B, and because B, the wife, was within age, therefore she was drawn 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 between I and A, only by which A acknowledged the Tenements to be the right of ay, ut illa que, etc. and I granted and rendered it to the said A for term of his life, without impeachment of Waste, the remainder to the said B, his wife, for term of her life, the remainder to the said A and his Heirs, 30 H: 8. B: Fines, Levies, 108. Fine with proclamation to bind Tenant in tail and his issue, the time for to make proclamation, etc. 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 lawful, and no forfeiture; for he hath nothing in the Land; nor he cannot make a forfeiture of the use. 10 H 7. 20. by Keble. The same Law of a Fine levied by Tenant for life in possession: Yet B doubts thereof and thinks otherwise if he levy it in Fee (B: Feoffments to uses 48. Fines levies 107.) Et per plures, 27 H. 8. 20 Fitz. accord. if it be levied 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 claiming only to the same, which is not so here, Quaere inde; for B seems by the same Statute, that tail in possession is remedied by this Statute; but not tail in use: for this seems to him to remain at Common-Law, as a Fee-simple in use conditional; for 'tis not a Gift of the Land; yet quaere, for by him, by the equity of the Statute of W: 2. of tails, W. 2. ca 1 devises in tail 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 tail, 32 H. 8. ca 36. shall bind the tail after Proclamation, 30 H: 8. B: Fines levied 107. the end. Note, See Tit. faits enrol That a Deed enrolled 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 custom 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 be 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 levy a Fine doth not bear teste after the writ of Covenant, 'tis Error; for the Dedimus potestatem says, cum Breve nostrum de conventione pendet betwixt A B and C D, etc. 35 H: 8. B: Pines, Levies, 116. Note, that 'twas devised to have a Lease for years to bind Tenant in tail, that the tenant in tail and the Lessee should acknowledge the tenements to be the right of one A, a stranger, and that A should grant and render by the same Fine to the Lessee for sixty years, the remainder to the Lessor and his Heirs, and 'twas with Proclamation, which shall bind the tail after proclamation made (And so see that the Devise after will not serve for tail, but for Fee simple, for he which takes by Fine, See Time. H. 8 after. shall not be concluded if he be an Infant, or Feme covert, or the issue in tail of the Conusor:) And in this case no rent can be 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 distress during the years or term aforesaid to the Lessor, 36 H: 8. B. Fines, Levies, 118. See 36 H. 8. before. Lease may be made by Fine for term of years rendering rend, and first the lessee to acknowledge the tenements to be the right of the Lessor come ceo, etc. and then the other grant and render to him for term of sixty years, rendering therefore yearly ten pound per annum, etc. And with Clause of Distress, Time, H: 8. B: Fines, Levies, 106. Note, Fitz 97. A. by Fitz Just: That a Fine levied by A and B his wife, where the name of the wife is M, shall bind her by estoppel, and the tenant may plead that she by the name of B: levied the Fine, and so 'twas in ure by him, and 'twas pleaded according, Time H: 8. B: Fines, Levies, 117. Note, by Bromeley chief Justice, and others, That a Writ of Error was brought in the King's bench, because a Fine was acknowledged by Dedimus potestatem, before one who was not a Judge, Abbot, Knight nor Sergeant: 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, be not taken as a Justice by the equity of the Statute, Time H: 8. B: Fines, Levies, 120. 'Twas granted that a Fine may be levied in a Hamlet; for if a Scire fac: lies upon a Fine in a Hamlet (as it appears 8 E: 4. that it doth) therefore a Fine is well levied 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 levied 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 decayed; 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. He which hath been seized peaceably by three years, 27 H. 6. 2. may retain with force: But if a Disseizor hath continued possession three years peaceably, 22 H. 6. 18. and after the Disseisee reenters (as he may lawfully) and after the Disseisor reenters, he cannot detain 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 been seized by good and just Title by three years, and after is disseised by wrong, and after he reenters, he may retain with force; for he is remitted▪ and in by his first Title, by which he first continued peaceably by three years, per quosdam: for it seems to them, by the Proviso in the end of the Statute, 8 H. 6. ca 9 that this is good Law 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 he refused, etc. that the tender is not traversable, Time H: 8. B: Forfeiture of Marriage 7. Intrusion 23. in finibus. Forfeiture de Terre, etc. Forfeiture of Land, etc. 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 Praemunire, 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 Towns. If a man be 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 Escheat, nor be forfeited by attaindor of Felony or Treason, See Tit: Escheat. Note, by Hales Justice clearly, that ● Clerk 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 tail be ●arred by Judgement, See 24 H. 8. Tit. Tayl. by reason of warranty and assets descended, and af●er he 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 be 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 enfeoffed ●o the use of the Feoffor, for term of ●ife, and after to the use of A in tail, 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 tail enters, and discon●inues and dies, and the issue brings a Formedon, See 7 E. 6. after. upon this matter he shall suppose the Feoffor to be Donor, and ●ot the Feoffees, See 1 M. 1. after, & 7 E. 6. and the Writ shall ●ee general quod dedit, etc. but the Declaration shall be special and declare the whole matter, That the Feoffor was seized in fee, and enfeoffed th● Feoffees to uses ut supra, and show the Execution of the Estates by th● Statute of uses made 27 H: 8. briefly and not at large, and the seisin etc. and the death of tenant for life and tenant in tail & quod post mortem, etc. descend: jus, etc. 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, etc. for it cannot be suppose● that the Feoffor gave to cestuy que us● which was himself; for a man cannot give to himself: and he sha● make a special Declaration upon th● Feoffment to the use of the tail: But where A makes a Feoffment in Fee, to three, to the use of a Stranger and the Heirs of his body, which is exempted by the Statute aforesaid, and after who was cestuy que use aliens in fee● and dies; 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 special Declaration, 7 E: 6. B. Formedon 46. General Brief 14. Note by Bromeley chief Justice, That the Demandant (in the case 2 E: 6. before) may declare general if he will; and if the Tenant pleads ne dona pas, the Demandant may reply and show the special matter, as appears there, and conclude, & so he gave, etc. and good, 1 M: 1. B: Formedon 49. the end. Form. 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 & Form 66. Frankemarriage. Note, 7 E. 4. 12. cont. by Moil and Fitz. 172. H. Litt. 4. accord. that 'twas said for Law, that Land cannot be given in Frankmarriage with a man who is Cousin to the Donor; but it ought to be with a woman who is Cousin 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 acquittal. See Cook upon Litt. 'tis said for Law, that a Gift in Frankmarriage, the remainder to I N in Fee, is not Frankmarriage; for warranty and acquittal is incident to Frankmarriage, 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: Frankmarriage 11. Garde, Warde. IF the King's Tenant, Alien in Fee, without licence, and dies, his Heir within age, the King shall not have the Ward, because that nothing is descended to him; and that the alienation is good, save the Trespass to the King, See Tit. Intrusion. which is but a Fine by Seizure: 26 H. 8. B: Alienations 29. Guard 85. If the King hath an heir in Ward, which is a Woman, and marries her before the age of Fourteen years; there she shall be out of Ward at Fourteen years, and then may sue Livery, for the Two years to make Sixteen years are not given, but to tender to her marriage, therefore when she is married sooner, she shall be out of custody at Fourteen years, 28. H. 8. B. Garde 86. Livery 54. A man makes a Feoffment before the Statute of execution of Uses, 27. H. 8. c. 10. See Dyer H. 8. Bockinghams'. c. to the use of himself for term of his life, the remainder to W. in Taile, the Remainder to the right Heirs of the Feoffor, the Feoffor dyes, and W. dies without issue, the right Heir of the Feoffor within Age, he shall be in Ward for the Fee descended; for the use of the Fee-simple, was never out of the Feoffor. And the same Law where a man gives in Tail, the Remainder to the right Heirs of the Donor, the Fee is not out of him. Otherwise, where a man makes a Feoffment in Fee upon condition to re-infeoffe him, and the Feoffee gives to the Feoffor for life, the Remainder over in Tail, the Remainder to the right Heirs of the Feoffor, for there the Fee, and the use of it was out of the Feoffor; & therefore he hath there a remainder and not a reversion, 32. H. 8. B. Garde 93. Where a man holds certain land of the King in Soccage in Capite, Fitz. 25● c. See 38. H▪ 8. Tit. Livery Stp. 10. 13 the King shall not have livery of more than the Soccage land. The same where he holds of the King in Knight's service, and not in Capite, the King shall not have more in ward, but only that which is holden of him immediately, 32. H. 8. B. Garde 97. Note by all the Justices of England, 5. H. 7 37 See 36. H 8. Tit. Leases. that a Lord in Knight's service, by nonage of the Heir, shall not ouste the grantee of Wreck, See Time H. 8. after 5. H. 7. 37. by all. or de proxima presentatione; nor the termors which are in by the father of the Heirs B, Grants. 85. Guard 66. Lease 31. in finibus: So of a Lease for term of life. 35. H. 8. B. Garde 61: the end: A man dies seized of lands holden in Knight's service, his brother and Heir within age, the Lords seizes the ward, the wife of the Tenant privily with child with a son, and after the wife is delivered, the brother is out of ward. But if the Infant die, the brother yet within age, there the brother shall be in ward again. And the same Law where a daughter is heir, and after a son is born, the daughter is out of ward: And if the son dies without issue, the daughter within age, she shall be in ward again; so see that one and the same person may be twice in ward by two several ancestors. But where the Lord seizes the son for ward for land to him descended from his Father, and grants the marriage of him to another, and after other land holden in Knight's service, holden of the same Lord descends to the same son from his mother, there B. seems that the Lord shall not have the ward again, because he had him, and granted his marriage before, and the body is an entire thing▪ 35. H. 8. B. Garde 119. 'Tis granted by all the Justices that the King shall not ouste the termor of his tenant, See 35. H. 8. before. because he hath the heir of his tenant in ward by office found for him; 11. H. 6, 7. by Babing. nor execution upon a Statute Merchant made against his tenant; nor a rent charge granted by his tenant, nor a grant de prox. presentatione of an Advouson. Time H. 8. B. Garde 44. If the son and heir of the King's tenant, See 15. E 4. 10. 6. El. Com. 268. contra. And see Cokes Books. or of another Lord be made a Knight in the life of his Father, and after the Father dies, the heir shall be in ward; for otherwise the Ancestor may procure his son within age to be made a Knight by collusion, to the intent to defraud the Lord of Ward, which shall not be suffered. And so it fell out of the Lord Anth. Brown of Surrey, who was made Knight in the time of his Father, who died, the son within age, and 'twas holden he should be in ward, notwithstanding he was a Knight; wherefore he agreed with the King for his marriage: 6. El. Con. 268. Otherwise B. seems where he is in ward, and is made Knight in ward, Magna Cart. ca 3. Rast. ca 1. this shall put him out of ward, and by him the Stat. which is, Postquam haeres fuerit in custodiam cum ad aetatem pervenerit S. 21, annorum, habeat hereditat. suam sine relevio, & sine Fine: Ita tamen quod si ipse, dum infra aetatem fuerit, fiat miles, nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradict. is intended where he is made Knight within age being in ward after the death of the Ancestor, and not where he is made Knight in the life of the Ancestor. 2. E. 6. B. Garde 42. & 72. 'Twas agreed for Law in the Common Bench, See Coke Books, & 7. E 6. after. that if the Lord hath not been seized of homage within time of memory; but hath been seized of rent, it suffices to have a Writ of Ward, and to count that he died in his homage; for there is seisin of something, though it be not of the entire services: And for this cause, and also for that the seizin is not traversable, but the Tenure; therefore the action lies without Seisin of the Homage, 6. E. 6. B. Garde 122. the end. 'twas holden by the Justices of both benches, See 6 E. 6. before. See Coks Books. That where a man holds by Rent and Knight's Service, and the Lord and his ancestors have been always seized of the Rent, but not of the homage, escuage, nor of Ward: yet if a Ward fall, he shall have the ward of the heir, for the seisin of the Rent suffices to be seized of the Tenure, as to this purpose. Yet otherwise B. seems to make avowry, 7. E. 6. B. Avowry 96. the end. Guard 69. Where a use vests in the heir, as heir of his Father, where the Father was dead before? Whether the heir shall be in ward, or not: Quaere, See Tit. Feoffments to uses. 3. M. 1. Note that 'twas declared by the Doctors of the Civil Law, That where an heir or other is married infra annos nubiles, and after disassents at the age of discretion, or after, before assent to the Marriage, that this suffices: and the party may marry to another without divorce, or witnessing of it before the Ordinary: but the Ordinary may punish it per arbitrium judicis; but the second espousals is good, as well by the Law of the Kingdom, as by the Law of the Church, 5. M. 1. B. Garde 124. Ward and marriage is by the Common Law: Frowike Lect. upon the stat. de Praeroga tiva Reg. 55. 33 H. 6. and the Father shall have the Ward of his son or daughter, and heir apparent, before the King or other Lord; and Soccage Tenure by 20 years, and Knight service after, B. Garde 120. the end. If an estate be made to many and the heirs of one of them, and he which hath the Fee dies, his heir within age, he shall be in Ward by the Statute of Wills, notwithstanding the others survive which are Tenants by the Common Law, 32 H. 8. ca 1 Rast Wills 1. Casus B. Garde. 100 guarantees, 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 than 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. guarantees 79. Note if the husband discontinues the right of his wife, and an ancestor collateral 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 discontinuance; for Coverture cannot avoid Warranty, but where the entry of the wife is lawful, which is not upon discontinuance. 33. H. 8. B. guarantees 84. If a man says in his Warranty, Et ego tenement a predict. See Coke upon Lit cum pertinent. prefato A. B. the Donee Warrantizabo, and doth not say, eg● & heredes mei, he himself 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. Where upon a Formedon upon use, there shall be a General Writ, and special Declaration? See Tit. Formedon. General issue. In an Assize 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 Rend Service, Of the Licence 4 E. 6. come. 14. by Harris Rend Charge, Licence, and the like, these aught 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 (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 Villain 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 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 letting 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 says 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 Bailiff, Steward, Receiver, Parker, and the like; and a Fee certain for his labour only, there the Grantor may expulse such Officers. But they shall have their Fee, for 'tis but an Office of Charge. But where the Steward, & Parker have profits of Courts, Windfalls, Dear●kinnes, and the like casual profits, 'tis said that they cannot be expulsed, and that of such Offices they may have an Assize. 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. 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 Bailiff, 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 Assize lies of such Ousters, 34. H. 8. B. Grants 93. the end. What shall pass by a Grant of omnia ●ona sua. See Tit. Done. A man possessed of a Lease for term of forty years, 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 behind at the time of his death: for the Granter may live all the 40 years, 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 years over: this is certain, that his Executors shall have four years after his death. (B. Leases 66.) And also, if a man leases his Land to have from his death for four years, '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 years 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 Firm lies, and by this he shall recover the Term; and therefore 'tis a good word of Grant. 7 E. 6. B. Grants 155. Hariots. 'tIs said that for Hariot-custom a man shall always seize; D. S. 76. 8 H. 7. 10. 7 E. 6. Com. 96. and if it be esloigned, he may have detinue▪ And for Hariot-service esloigned, he may distrain● but not for Hariot-custom. Time. H. 8▪ B. Hariots. 6. the end. Heresy. 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. Heresy, 1. learned in the Law, and Maste● of the Rolls, That by the Statute of Heretics and Lollards, that if a Heretic 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 Heretic 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 〈◊〉 Officer who shall make execution. And ●e said Statute in the end wills, that the sheriff shall be present at the convicti●●, if the Bishop requires him. And herefore the use is that the Ordinary shall ●ll the Sheriff to be present at the conation. And so in the Writ de haeret. ●mburend. F. N. B. 269. in the Nat. Brin. that the archbishop and his Province in their Conflation might and used to convict Heretics 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 Diocese may convict a heretic, and after abjura●●n upon relapse, put him to lay hands be burnt. And B. seems that if the heretic 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 than he shall 〈◊〉 be burnt the first time, but upon re●●se he shall be burnt. 2. M. 1. B. heresy. Homage. See Tit. Fealty. Idiot. BRent of the County of S●●merset, who was presen●●ed for an Idiot, cou●● write Letters and Acqui●tances, and the like; an● therefore was adjudge● an Unthrift, but no Idiot. Time. E. Idiot 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. Manor. DS. 11 8 H. 7. 5. by Vautour. 12 H. 7. 16. by Yaxley. & 17. by Tremaile. 12 E. 4. 9 by Genny. 22 E. 4. 33. by Suliard. Ske Coke books. 2 M. 1. B. Imp●●sonment 100 the end. Incident. Courtbaron is incident to a Man●● and Court of Pipowders to a Fair; a● 'twas said arguendo, that therefore Lord of the Manor or Fair cannot gr●● over the Courtbaron, nor the Court Pipowders: or if they grant the M●● ●●or with the Fair, they cannot reserve ●●ch Courts, for they are incident, etc. 9 H. 8. B. Incidents 34. 'Twas said, 39 H. 6. 25 by Moil, & 44 E. 3. 19 p. Cur. & Perk. 24 cont. See Coke books. that if a Seignory rests in ●omage, Fealty, and Rent, and a man recovers the Rent; by this is the Homage ●●covered: for a Praecipe lies not of it. ●ime. H. 8. B. Incidents 24. the ●●id. Indictments. An Indictment of Death ought to comprehend the day of the stroke, St. 21. D. and day of 〈◊〉 death; and the same Law of Poisoning; 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 falsifying or defeating of the Record, as 〈◊〉 say that he altered the Record from trespass into Felony, and the like, which falsifies the Record. Casus B. Indictment 50. the end. Intrusion. Tenant in tail 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 licence, 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 seized the ancestor; there the heir shall answer 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 entry 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 pardoned. And there though the Office comes after which finds 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 entitled 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 King's tenant and as to intrusion. (B. Relation 18. the end.) Otherwise, as to alienation made by the King's tenant without Licence: 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. etc. 33. H. 8. B. Intrusion 19 joint-tenants. 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 years habendum successiuè, yet this is a ●oynt estate, and they shall hold in Jointure, and successiuè 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. joint-tenants 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 rendering rend, 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, etc. 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. joint-tenants 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 infant's, 2 M. 1. accord B. Judgement 147. the end. and the Infant brings a Writ of ●●rour, and reverses it for his nonage. otherwise, if he had appeared, and lost 〈◊〉 plea, or by voucher, he shall not re●●rse it for nonage. B. 6 H. 8. Saviour de fault 50. If I have Title by Formedon, See after Tit. Restore all 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. Assize in Com. B. the tenant pleads in ●●ar a recovery by Assize by him against 〈◊〉 Plaintiff of the same Tenements in ●om. O. and this now Plaintiff then ●●nant pleaded in Bar by release of the ancestor of the Plaintiff with Warran●●, which was void by nonage: and ●his found for the Plaintiff▪ by which he ●ecovered, against this Plaintiff judgement si, where he accepts the Land to be 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 〈◊〉 ujew, 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 assize of the same Land in H. against the sam● Plaintiff, and these Lands put in ujew▪ 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, etc. an● recovered by Action tried, and the esta●● of the Plaintiff mean betwixt the title 〈◊〉 and his recovery, judgement si of such an estate assize, etc. 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●● than Plaintiff should recover. And because that he hath recovered these sain● Lands against the Plaintiff himself in H. judgement si assize. 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 assize of Land in N. and therefore the assize 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. reenters 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 assize 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 joins, Issues joined. Trespass upon the case, quod def. assumpsit deliberate. 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 damages, for the 2, and was barred and amercied for the rest. But otherwise 'tis if the issue be; If A. and B. enfeoffed the tenant in a Precipe quod reddat, necne, and 'tis found that A. enfeoffed 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 joins. 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. propped. etc. 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, etc. 33. H. 8. B. Issues joins. 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 find ten and not the rest, the Plaintiff shall recover for the ten, and shall be amercied for the rest. 2 M. 1. B. Issues joins 80. the middle. Issues returns; Issues returned. See Tit. Intrusion. Jurisdiction. If the Lord of a Manor claim the Tithes of such Lands in D. to find 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 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 Nuisance by a day sub poena 10 l. and after 'tis presented that he did it not, and shall forfeit the 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 afeard. 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 Turn 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 ●ust, and many others, if tenant for life ●ases Land for years, rendering rend, and ●●es, the Lease is void, and then the rent is determined. 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●●● rendering rend and the successor accepts 〈◊〉 rend, this affirms the Lease for life. 24 〈◊〉. 8. B. Leases 19 A man leases for ten years, See 37 H. 8. Tit. Attornment. and the ne● day leases the same Land to another fo● twenty years: this is a good Lease for th● last ten years 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 come 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 the tempor● etc. 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 years made 〈◊〉 him; this shall not bind 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; 〈◊〉 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 Rent-charge granted out of it: for the husband had thee Fee-simple tempore, etc. and might well charge it. And note by all the Justices, that the GuardJan in Knight's 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 years, 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 freehold is more worthy and perdurable than a Lease for years. Yet if the Lessee for life dies within the term, See 36 H. 8 before. the Lease for years is good for the rest of the years 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 years, that this was a good Lease: for this word concessit is as strong as dimisit vel l●●avit. 37 H. 8. B. Leases 60. King tenant in tail makes a Lease for years, or life, his issue may avoid it. See Tit. Discontinuance in possession. If a Parson lets Land for term of years rendering rend, 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 years, and the next day leases for 40 years, the second Lease shall take effect for 40 years, s. after the twenty years 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 years 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 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 acceptance by the successor of a Parson who ●ade such Lease: See before, and Tit. Acceptance. for this Lease is void presently. But if a Chantry Priest makes ● Lease, his successor shall avoid it, notwithstanding the predecessor had a Fee, because that 'tis donative, or presentative, ●nd then such Lease is not perdurable, except it be confirmed by the Patron in the 〈◊〉 case, and by the Patron and Ordinary in the other case. 2 E. 6. B. Leases ●3. the end. A man leases for years, See Coke upon Lit. habendum post ●imissionem in factam to I. N. finitan, 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 ●ust. and many others. And by him if ● Prebend makes a Lease for 21 years by indenture rendering 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 Prebend, yet it shall 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. Tenant of the King in Capite dies, 1 H. 7. 17. See Tit. Intrusion. and the heir before Livery sued, makes a Lease for years, 'tis good, if no intrusion be found by Office, and an Office found after, which finds 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● freehold 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 behind 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 incertainty 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 〈◊〉 years by such, and confirmed by the 〈◊〉 and Chapter, shall not bind the success●●● 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 20ls, 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 Sergeant's case, Com. 70. 4 M. 1. Com. 171 172. that if a man let Land 4 jan. 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 Licence 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 engrossed, a Scire facias shal● be brought there directed to the Sheriff 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 clear, that the new Limitation, 32 H. 8. ca 2. Limitation 3. and also the ancient Limitation extends to Copie-hold, as well as to freehold: for the Statute is, that he shall not make prescription, title, nor claim, etc. And those who claim by Copy, make prescription, title, and claim, etc. And also the plaints are in natura & forma Brevis Domini Regis ad communem Legem, etc. And those Writs which now are brought at Common Law, are ruled by the new Limitation, and therefore the plaints of Copie-hold shall be of the same nature and form. 6 E. 6. B. Limitations 2. Livery. Note, 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 main; for now the Seignory of his Land is revived by the Livery, so that he holds not of the King as afore, but of his immediate Lord. But if the Ward because of Ward had been of full age before the first Ward, 28 H. 6. 11 Stp. 18. he should sue Liveries 25 H. 8. B. Livery 47. Where a woman out of Ward by Marriage shall sue Livery at fourteen years. 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▪ etc. 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 Manor 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 main at full age. ●nd 'tis said, See 33. H. 8. Tit. Tenors. and 3. E●. Com. 241. if the King after grant the manor 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 Tenors 61. Extent of livery is the value of the ●and by half a year. See 30. H. 8. Tit. Office devant. etc. 3 El. Come 243. by Carus. But if he intrudes ●nd enters without livery, he shall pay the ●early value by experience of the Exchequer. 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 attainted, 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 seized, and ●ad been attainted by the Common Law, ●or there the King hath the Land as King, and there those who held, & ● shall sue livery. Magna Charta. cap. 31. Rat. Tenors. And yet the Statute ● Si quis temerit de nobis de aliqua 〈◊〉 chaeta, ut de honore Wallingford▪ Bose● etc. 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 King's tenant leases for years' an● dies, Stp. 13. the heir shall sue livery notwith●standing the Lease endures. And th● same where the Father declares his wi● of the Land for years 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. descent 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 tails the rem' to his right heirs. Otherwise B. 2. seems where a man makes a Feoffment in fee in possession, and dismisses ●●mself of all, and retakes for term of 〈◊〉, the rem' in tail, the rem' to his ●●ght heirs, and dies, and after the tenant in tail dies without issue, there the ●●eir, who is right heir is a purchaser. ●nd if the King seizes, he shall sue ●ister le main, and shall not be compelled to sue livery; But if the tenant 〈◊〉 tail had died 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 than 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 full age at the time of the death of his ancestor, Stp. 13. See 32. H. 8. Tit. Demurrer in Law. than he shall render relief to the King and go 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 only 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 seizing 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, the King shall not have primer seisin, 27 H. 8. 4. Montague accord 4 H. 7. c. 17 Rast. Wards 20. for 'tis not given by the Stat. but only 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 go quite by experience in the Exchequer. Casus B. Livery 77. the middle. Mainprize. 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 privilege, and after a Procedendo comes in the same suit to the court of London, this shall not revive the first mainprize, or suretyship, for once dismissed, and always dismissed. And 'tis said that after a man hath found mainprize to a Bill in the King's Bench, and after is at issue or demurrer, and after is awarded to replead, and to make a new declaration, the Mainprize is by this discharged. Contrary, where they manuceperunt usque ad finem pliti, and where the original remains. 32 H. 8. B. Mainprize 96. If a man be convicted of Felony, and remains in prison, and after the King pardons him, there the Justices of Goal-delivery may bail him till the next Session's o● Goal-delivery, so that he may then com● with his Pardon, and plead it. 2 E. 6. B▪ Mainprize 94. Maintenance. Note, 19 E. 4. 3. Ascue & Markham accord. 21 H. 6. 16. 14▪ H. 7. 2. by Reed. See H. 6 & 7. E. 6. 33. by all, where Tenant in tail, 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. etc. by a year before, 'twas agreed by Montague chief Justice, and by all of Sergeants Inn in Fleetstreet, that if a man mortgages his Land, and redeems it, he may sell his Land infra unum annum prox. etc. 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 ●an may maintain his Cousin, and so of ●e like: for 'tis not intended, but of unawful maintenance; and so of a preten●d Title, and not of that which is clear ●itle. 6 E. 6. B. Maintenance 38. Manor. A man cannot make a Manor at this ●ay, See 35 H. 8 Tit. Tenors. notwithstanding that he gives Land 〈◊〉 many severally in tail, 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. Courtbaron, & Time. H. 8 Tit. Suitor. And 'tis said for Law, that if a manor be, and all the Free-tenures es●eat to the Lord, but one, or if he purchases all but one, there after this the Manor is extinct: for there cannot be a Manor, except there be a Courtbaron 〈◊〉 it. And a Courtbaron cannot be ●olden but before Suitors, and not before 〈◊〉 Suitor: therefore one Freeholder ●●ely cannot make a Manor. 33 H. 8. ●. Comprise 31. Manor 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 avoidance of the Statute 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, Showing of Deeds. See that he which pleads a Deed Record, See Coke books. or which declares upon a Deed Record, it behoves him to show it: Oyer of those is always to be had by 〈◊〉 which is charged by it. Regulae Monstrans 165. Oyer de Records 1● the end. Mortdauncestor. By the best opinion in the Comm●● Bench, if two purchase jointly to them ● to the heirs of one, See Coke 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 descent 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 join the Mice 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 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, until 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, etc. 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 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 seized, his heir is in by descent, yet the Lord may enter within the year, for he hath but only 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 joins. Non-ability. Where, and in what Case a●● Alien is disabled from bringing of an Action, what not? See Tit Alien. Non est factum. Note, See Coke 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 nonsuited, as well as at a day given after issue joined. 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 ●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. Nontenure is no plea in Waste. See Tit. 14. H. 6. 2. See Coke Rep. the Countess of Rutland's Case: noble: by marriage loses her dignity: in such case not noble by descent. Waste. Nosme. Name. What shall be a good name of Purchase. See Tit. Descent. Note, if a Duchess, or other such state marries with a Gentleman or an Esquire, she by this shall lose her dignity and name by which she was called before as in the case of the Lady Powes, and Duchess of Suffolk, the one espoused R. Haward, and the other S. the Duchess, 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 avoidance of an Advowson, except resignation, and of this the ordinary shall give him notice. Lecture Frowick. B. Notice 27. Office devant, etc. Office before, etc. 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 seizure 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 office shall be void. 29. H. 8. B. Office devant ●6. If an Office find the death of the King's 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 ancient course in the Exchequer, See 13. H. 7. 11. that if it be found by Office that I▪ S. was seized in Fee and died, sed de quo vel de quibus tenementa tenentur, ignorant; that a Commission shall issue to inquire of it certainly, de quo etc. 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▪ Land was given by the King pro erectione Collegii Cardinalis Eborum, 3. E. Com. 229. See after. and the College was not erected, and upon office found thereof, the King seized. Time. H. 8. B. Office. 4. the end. 'twas agreed by the Justices, See 5. E. 6. before. that the King is not entitled to the land of his ward without office, though he hath in it but a Chattel, yet it comes ratione tenure, which is a signory and free hold in the King. 5. E. 6. B. Office devant. 55. Note, that of a Chattel 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 signory 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 Bailie of a Manor by patent, 39 H. 6. 5. by Prisot. See. 5 M. 1. Tit. Commission. and after is made Steward of the same Manor by another patent, both patents are good; For the Suitors are Judges, and not the Bailie. But per plures if a man be a Forester by patent, and after is made Justice of the same Forest, 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 Forest, and Justice of the Forest, for the kill of the Deer by the Keeper, and the like, is a forfeiture of his office, which shall be adjudged by the Justices of the Forest, and he cannot judge him ● self. But a man may be a Steward of a Forest by patent, and Justice of the same Forest by another patent, and both good, for both are judicial, And Justices of the Forest may make a Steward of the Forest. 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. 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, etc. 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 King's Bench, and there 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 King's 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 returned, 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 prays 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 entitled 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 tenors 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 all others all their Rights, Interests, Titles, Rent-service, and the like, as if no such Act had been, there the Signories and the like shall not be revived, for no Signiory 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, etc. But such Proviso in the first Act would serve; for this comes with the Act which Entitles the King. And where the King is Entitled to Land by Office for Escheat, and after 'tis enacted by Parliament that the King shall enjoy it, saving to all others their Signories, 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 Seignory) But there ought to be words affirmative, that the Lords shall have their Signories. 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 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 expressly to any person by name, by Act of Parliament, he, nor his Heirs shall not have other Estate than is gi●en by the Act, but that that only ●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 binds 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. Come 79. per Justiciarios. and the signs 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 which the King signs the Bills, H. 6. & 7. E. 6. Come 79 by Hales Just. is a da● by itself, and a Parliament by itself 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 alleges a Statute, and mis-recite it in matter, or in year, day, or place the other may demur generally, fo● there is no such Statute, and then ther● is no such Law, for every one that med●dles with it, aught to show the La● truly. 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 King's 〈◊〉 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 Cestuy que use that he died seized, 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 bind 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 Manor of D: See Stp. 31. and he aliens it except one acre, the licence shall not serve it, for the King is not ascertained of his Tenant of all. And if I have a Licence to impark 200 acres, and do it according, and after increase by other 10 acres, there this is not a Park. 23. H. 8. B. Patents. 76. If the King grants omnia terras & tenementa sua in D. this is a good grant these general words. 30. H. 8: B. Patents 95. The King gave to the Earl of Rutland in Tail, and after intended to give to him in Fee simple, and to extinct the Tail, and 'twas doubted that the surrender of the Letters. Patents of the Tail, and the cancelling of them, and of the enrolment and Bill assigned, will not extinct the Tail, for the Tail executed may be averred without showing the Patent. 4. E 6. Com. 5. ècontra. And a Formedon lies after the Tail executep, without showing 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 well 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 rendering such Rent, and by this the King shall have the new Tenur presently, and the Grantee shall 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 canceled (B. Patents 97) And 'twas agreed by Whorewood the King's 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 shall 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 bar 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 canceled, this shall not prejudice the third person, that he shall lose his interest by it: for he may have a Constat out of the enrolment which shall serve him. Quaere inde, because a Statute is made of it. 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. Patents 79. the end. Surrender 51. What thing in action the King may grant, what not? See Tit. Choice 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. patents 99 If Conusance of plea be granted by the King, he ought to show where; as in Guildhall, or the like; and before whom, as before his Steward, etc. And the King may grant Toll, Fair, Market, and the like: but not to have Assize 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 gavelkind, nor the like: for these are by Custom, which cannot commence at this day by grant: for the King cannot make a Law by his grant: 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 assize, nor of a certificate of assize. 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 shall 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 falsify 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 term of years, See 38 H 8. Tit. Discontinuance de possession. & Coke Rep. of one who was attainted, or of an Abbey, and the like, that the grant is good without recital of the Lease of him who was attainted, or of the Abbey: 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 King Receipts, 38. H. 6. 37. by Danby. quod oum A. B. tenet manerium de B. protermino vitae suae de concessione nostra, etc. Sciatis nos concessisse C. S. reversionem manerii predict, etc. Habendum, etc. that this is a good Grant. therefore B. seems that if the King misrecites 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 is a forfeiture of his Bond, as 'twas said Time. H. 8. B. Peace 20. Peremptory. 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. Peremptory. 63. Where a man brings an Action real or mixed, 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. Peremptory. 78. Petition. 'tis held for Law, 3. H 7. 3. by Keble 3. E. 4. 25. & 4. E 4. 25 See Coke Rep. Communality of Saddler's Case & Tit. Traverss etc. 10. H. 6. 15. 4. E 4. 25. if the King be Entitled by double matter of Record, as 'tis enacted by Parliament, that I. S. shall 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. 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 gauges 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. Plead. Note that it is said for Law, 22 E. 4. 32. by Brian. That he which pleads a Recovery by default, aught to aver his Title of his Writ. And also that the Defendant in the Recovery was Tenant of the freehold 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 default, need not aver the party tenant of the Freehold tempore brevis sui, for 'tis proved that he was Tenant tempore, etc. 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. Plead 6. He which pleads an entry for to defeat a Collateral Warranty, 3 H. 7. 2. 4 E. 6. Com. 46 aught to aver that he entered 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 enfeoffed the Tenant, and after disseised him, she shall 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, aught to aver the life of the Tenant for life, or in Tail, 26. H. 8. B. plead 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 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 seized in Dominico pro ut de Feodo ad usum T. P. and his Heirs, without showing the Commencement of the use● as to say, that A. was seized in Fee, and enfeoffed I N. and W: N. ad usum T. P. etc. But a man cannot plead that A. B. was seized in Tail without showing the gift; for the one is a particular estate, and not the other, 36, H. 8. B. Bleading 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 Benefice himself. 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. plenarty 10. Praemunire. Praemunire by Bill in the King's bench, See Cand. 44 E. 3. 32. & D. S. 57 104. See Tit. Bill. A Prohibition lies often where a Praemunire lies not; as of great Trees, vel pro decimis, de ceptima parte, prohibition lies, and not a Praemunire; 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 Praemunire ●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. Praemunire 16. Where a man attainted in a Praemunire shall forfeit his Lands in Fee imperpetuum, See Tit. Forfeiture de ●erre, etc. Prerogative: A man hath land in use; See 3 El. come 240 of which, part is holden of A. by priority, and the rest of the King by Posterity in Knight's service, and dies, the King shall have the ward of the body by his prorogative, 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 died no● seized, 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 King's 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. come 85. & 3. El. come. 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 entitled 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● moiety 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● ●nd the like 35: H. 8. B. Praerogat: 60. ●nd 71. the ends. Note by some, the King shall not ●ave a Precipe quod red. (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 etc. è contra. Br. Traverse per 207. the King may traverse 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. Prerogative 65. the end. The Prerogative of the King is a treatise 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 Bishop, the King shall present by his Prerogative. 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 customs may be alleged where there is no person that can prescribe: as inhabitants cannot prescribe: but they may allege 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 granshed over by the Grantor before: and 〈◊〉 shall not have the second presentation 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 Dowry th● third, 33. H. 8. B. Presentation 55. 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 Benefice pro illa vice, which was of another patronage, by these words, ratione prerogative sue, which Benefice voided by reason that the King had made the incumbent of it a Bishop, who was consecrated: so that when a Benefice becomes ●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. Privilege. Note, when a Record is removed out of a Court of Record, as London, etc. ●●to the King's Bench, or into Common ●ench, there they shall not proceed up●n the Original which was in London: ●ut in the King's Bench the party may ●d himself by Bill of Midd. brought ●ere against the party upon his appearance: and in the Common Bench to ●●ing an Original retornable the same ●ay. 36. H. 8. B. privilege 48. Procedendo. If a man arrested in a Franchise, sue● a Writ of Privilege and removes the body and the cause, and after come● not to prove his cause of Privilege, 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 privilege, 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 than it seems tha● the privilege being allowed, the sure●ties are discharged. Otherwise whe●● the privilege is not allowed; for the● the Prisoner and the cause was always remaining in the custody of those of th● Franchise. 31. H. 8. B. Procedendo 1ST Sureties 28. Proclamation. Note, that none can make Proclama●tion but by authority of the King, 〈◊〉 Majors and the like, who have priv●●ledge 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, etc. 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 Tithes of seasonable wood, the party grieved may make a suggestion in Chancery, or in the King's Bench, that he is sued in the Spiritual Court for Tithes 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 yields, and renders himself, or stands to his defence, every one may arrest him, and take his goods: and by this he hath a property 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 estrays See Tit. Estray, Quare Impedit. BY Whorewood the King's Attorney, Contra P 36 H. 8. B. Quare imped. 2. the end. by Bromley and Hales Sergeants See Coke upon Lit. clearly; If two joint Tenants are, the one presents sole, and his Clerk enacted, 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 solely: and pending the Writ of ●●are imped. the Plaintiff died 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 journeys. And 〈◊〉 the Justices of the Common Bench, ●here the Plaintiff dies, the Executors ●all not have a Writ by journey's accounts. (and B. seems that where the plaintiff dies, See Coke Rep case of Journeys accounts. none can have another writ by journey's accounts. But contra in some cases where the Defendant dies having the writ. (B. Journeys 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 months 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 died, and that they brought this Writ, and for that reason pertiner ad ipsos presentare, and the Defendant ipsos impedit, and then this imports tha● this is of a disturbance made to themselves after the 6 months past, & the nth●● Writ lies not; for all aught to hav● been comprised in the Writ, and cou●● specially and demand a writ to the Bishop 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● bed 160. Que estate, whose estate etc. 'tis said for Law, 39 H. 6. 24. by Nedham That if a man recovers land against ay: 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 showing how, not so in Seignory. 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 seized in Fee, and Feoffed ●. whose estate C. hath, who Enfeoffed the Defendant; for the que estate shall be allowed only 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 showing 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 Fifteen, 34. H. 8. B. quinzisme, etc. 8. Note by Exposition of those of the Exchequer, That Tax and Tallage is not other but Tenth, Fifteen, or other Subsidy granted by Parliament. And the Fifteen is of the Laiety, and the Tenth is of the Clergy, and is to be Levied of● their Land. And the Tenth and the Fifteen of the Laity, is of their goods: S. decimam partem bonorum in Civitatibus & Burg. Et quinsesimam partem● bonorum of the Laity in patria, which was Levied in ancient time upon their goods: S. of the beasts upon their lands, which was very troublesome. But now 'tis levied Secundum rat. terrarum suarum by verges of Land, & other quantities; so that now all know their certainty in every Town and Country throughout the Realm. But 'tis yet Levied 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, etc. '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. merchant. if a man acknowledge a Statute staple, and after infeoffs the Recognisee, & he makes a Feoffment over, now 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 aught 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 showing 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 bar of an Assize before the Justice of Assize, he ought to show it exemplified sub sigillo cancel. 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 King's bench they have divers precedents, 1. H. 7. 20. Contra. Com. 265. that in a writ of error upon a fine, the Record itself shall be certified, so that no plures 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. than the Record shall be sent into the common-bench by Mittimus to be proclaimed and engrossed 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 tail, 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 bind the tail 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 term of life to bind the fee simple, See 24. H. 8. Tit. Entre congeable. he ought to pray in aid o● him in reversion, and then they to vouch upon the joinder, etc. And such recovery with voucher is used for to doc● the tail 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 warranted, Ideo quaere. 23. H. 8. B. Recovery in value 27. the middle. Note, that 'twas 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 bar 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 tail, and they vouch overe and so the demandant recovers against the husband and wife, and they over in value; if the wife tenant in tail dies, and the husband survives, this shall not bind the issue in tail, for the recompense shall go to the survivor, and then it shall not bind the issue in tail. Yet B. seems that this opinion is not law, for the recompense shall go, See 25 H. 8. before. as the first land which was recovered should go. And voucher by husband and wife shall be intended for the interest of the wife. 25. H. 8. B. Recovery in value. 27. the end. Tenant for life, See 25. H. 8. before. the remainder over, or tenant in tail 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 recompense 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 recompense 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 seized to use in tails. 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 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 recompense 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 term 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 aid of him in remainder, and they to join and vouch him who hath title of Formedon, and so to pass the recovery, for there the recompense shall go to both. 30. H. 8. B. Recovery in value. 30. 'Twas agreed that if tenant in tail 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 special 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 demands, and after the said I. S. gave the said Indenture to the said I. T. Judgement if action. And 'twas agreed in the common Bench, the case being of land demanded ibidem, that this is a good bar, and that the release of all demands shall exclude the party of seizure of the thing and of his entry into the land, 6. H. 7. 15 and of the property of the chattel which he had before. And it was moved in the King's bench, and they were of the same opinion, and said that the reason is, because that entry in land, and seizure of goods are demands in Law. 34. H. 8. B. Releases. 90. Relief, See Tit. Debt. Remainder: See Tit. Descent: 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 dies before the said Statute, 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 descent after the Statute for this shall be a remitter. 34. H. 8. B. Remitter: 49: If a man hath a Tittle of entry, See cock upon Lit. and not a right of entry, as by escheat mortmain, 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● 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 decays 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 descent, and will not remit: See Tit: Devise. Repleder. 'twas in use in the King's 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 manor except the wood, 46. E. 3. 22. and underwood, by this the soil of the wood▪ Fank. accord. is excepted by Baldwine, wine Chief Justice of the Common-Bench: See 14 H 8. by Brudnel. Fitz. Justice, and Knightly, and Mart Sergeants: 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 all 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 herself 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 restored to their first action of Formedon, or, Cui in vita Yet, if such who enters where his entry is not lawful, makes a Feoffment, and the other upon whom 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, reenters before that he upon whom he entered hath recovered: and then he recovers after the reentry 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 all primer action 5. Return de avers. return of beasts. Note by the opinion of the Court, 19 H. 8. 11. 6. & 7 E. 6. come. 82. That if a man be nonsuited in a Replevin, and a return is awarded: and the Plaintiff brings a Writ of second deliverance, and suffers it to be discontinued, return irreplegible shall be awarded, as well as if the Plaintiff had been none suited in the Writ of second deliverance, 17. H. 8. B. Return 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 unlawful act in Deed, and execute it, as to beat a man, enter upon possession, or the like: unlawful Assembly 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. Saviour 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. return 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 Seignory was not suspended by the possession of the King, but only 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 praecipe. 'twas agreed that a man may have Debt and Detinue by one and the same Writ by several Praecipe, ●1. H. 6. the one shall be Debet, the other Detinet, Tim. H. 8. B. several praecipe 5. the end. Several tenancy. In an Assize, 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 returned according, and the party accepts it, he shall never have an Extent, nor reextent of the rest. And that upon a Nihil returned upon a Testatum est, 26 H. 8. 7 by Fitz. see 33 H. 8. after. he may have Process in another County: for there the judgement shall be quod habeat exeontionem de terris quousque summa Levitur. Yet B. seems otherwise of such return 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 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 40ls. this may incur 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 shall 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 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. come. 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, etc. 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 satisfy him who was dead before. Liber intrac. fo. Nor the Sheriff cannot deliver the land nor goods ●o him who is dead, juxta formam brews. And by B. in the book of Envies, the executors of the Conusee shall have execution upon a Statute Merchant, without Scire Facias, and this upon surmise as it seems to him. And if the Conusor be returned dead, yet execution shall proceed of his Lands and Tenements without Scire Fac ' against his heir: And the exten● and Liberate shall be served immediately. 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 returned, 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 disturb execution; 5 H 7. 22 4 E. 6. Com. 49 4. E. 6. Com. 49. for the verdict shall be intended true ●ntill 'tis reversed, etc. 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, etc. 33. H. B. Supercedias. 24. Sureties. Where Sureties in London wall ●●all remain after the action removed? & è contra. See Tit. ●●ocedendo. Affirmatur pro lege, 1. H. 7. 1. & 1. E 3 3. that surety of the Peace is discharged by the death 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 praecipe quoth 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 re-cord, or receive a surrender of land 〈◊〉 Letters Patents, made to him extr● curiam, but this aught 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 〈◊〉 〈◊〉 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 reserving the reversion, there he in remainder for term of life, may surrender 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 surrendered. 3. M. 1. B. Surrender. 55. Suitor. 'twas said for Law in the Star-Chamber, See Tit. Court Baron, & Manor. betwixt Brown Justice, and ●ion Grocer of London, that a Court 〈◊〉 may be holden before two suitors, for the plural number suffices▪ ●ime. H. 8. B. Suit. 17. Tail. REcovery upon voucher against Tenant in tail, is a bar by reason of the recompense 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 than 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 tenant in tail, and he shall vouch over, and so shall lose; and this shall bind 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 Towns. 10. H. 7. 8. Vavi. sor accord. 2. M. 1. come 110. and leaves assets & dies, the issue cannot recover by Formedon; for the warranty and assets is a bar. 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 shall have a Formedon, because that the assets is not descended to him. Yet is said that if the issue upon whom the warranty and assets descended 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 ventures, 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 descent of the Collateral warranty extincts the tail, But if the eldest had been barred by judgement, then clearly the younger is gone also. 24. H. 8. B. Tail 33. Formedon 18. Tenant in tail, the reversion to the King, suffers a recovery operatur●y ●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. 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 another's 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 Duchy Chamber. Lit. 16. 4. El. come. 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 and it shall be intended that this hath been a custom there de tempore, etc. and the Demandant shall recover by advice 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 Manor for years, in which are Copy-holds, and after a Copyholder dies, the termer of the Manor grants the land by Copy for three lives, this is good; for the custom through all England is, that the Lord, for the time being, may demise by Copy, etc. and this notwithstanding that he is but durante bene placit. or at Will. And 'tis held that such Tenant of a Manor cannot demise, reserving less rent than 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 years, See 4 M. 1. contra. after. rendering rend with reentry the Lessee ought to be ready all the day and make attendance to offer it; Cook 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 entire day, quaere inde 36 H: 8. B: Conditions, 192. the end, Entre Congeable, 2. the end. Note that 'twas agreed in the Sergeants Case, 4. M. 1. Come ●72. 36 H. 8. before cont. 6 H 7. 3 see Cooks 10 book, Cluns' case that where a man leases Land for years, rendering rend, and for default of payment a reentry, it suffices for the Lessee to tender the rent upon the Land, the last hour of the last day of the Month, if the money may be told in that time: And so it sufficeth for the Lessor to demand it the same hour, 4 M: 1. B: Tender, 41. If a man Leases for years rendering rend at Michaelmas, and other Covenants, if he be bound in an obligation to pay the rent precisely, there he shall seek the Lessor, but if he be bound to perform the Covenants, etc. 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. Tenors. What shall be a Tenure, and what a Condition, see Tit. Conditions. What shall be a Tenure in Capite of the King, what not, see Tit. Livery. A man makes a Feoffment of the moiety of his Land, Perk. 129 D. the Lessee shall hold of the Lord by the entire services which the entire 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 moiety is not particula: the same Law of a third part, and the like, which goes by the half 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 hawk, and makes a Feoffment in Fee of one acre; the Feoffee shall hold it by a hawk, and the Feoffor shall hold the acre by another hawk, 29 H: 8. B: Tenors 64. Restitution by Parliament revives a Seignory 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. '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 Reed. 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: Tenors 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 Manor before; for there the services should be holden of his person (B: Tenors 34.) And a man cannot make a Manor at this day, See 33 H. 8 Tit. Manor. though that he gives Land in tail 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 Manor nor Court; for a Manor 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 devices 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 several Manors of three several Lords in Knight service, and every of them of equal value; he cannot make his will of two of the Manors, leaving the third Manor to the Heir; See Cook upon Lit. but of two parts of every Manor; 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 civil-law, and Sergeants 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 dies; yet the King shall have the third part in Ward, and shall have the Heir in Ward if he be within age: And if of full age, he shall have primer sesin of the third part, by virtue 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 died 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 umpton 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 explained shall be so taken ab initio: So that the Wills of umpton, 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 explained, 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. Plead. that I N was seized in Fee to the use of T P, which T P enfeoffed the Plaintiff, who was seized and disseized, etc. without showing 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 premises, or close of his traverse, 22 H: 8. B: Traverse d' Office 48. 'Twas found that I S died seized, by which W S his son comes, and saith that the said I S in his life was seized in Fee, and enfeoffed A B in Fee, to the use of the said I S and his Heirs, and died; and after by the Stat: of uses 27 H: 8. he was seized in possession without that that I S his father died seized pro ut, etc. and a good traverse: And a Termor cannot traverse 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 helped 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 lancaster, 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 than he hath a prerogative, and as Duke none, 1 E: 6. B: Travers d' Office 53. Nonsuit 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 restituatur to him that traversed, Lecture B: Travorse d' Office 54. Travers by, etc. What thing shall be traversable, what not, See Tit: Issues joins. Action for making false clothes in Bartholomew-Fair, contrary to the Stat: The other saith, that he made them well and truly at D in the County of F without that that he made them in Bartholomew-Fair in L, pro ut, etc. and a good Plea, 35 H: 8. B: Travers by, etc. 368. If in Assize the Tenant Pleads that his Father was seized in Fee, See 4 E. 6. after. and died by Protestation seized: 'Tis said that the Plaintiff may make title by a stranger, without that that the father of the Tenant was seized in Fee, etc. 38 H: 8. B: Travers by, etc. 26. the end. Information in the Chequer: See Tit. Prerogative. the Defendant Pleads a Plea, and traverses a material point in the information, upon which they are at issue; there the King cannot waive this issue, as he may in other cases where the King alone is party without an Informor ut supra, by the King's Attorney and others learned in the Law, 38 H: 8. B: Travers by, etc. 369. Tender not traversable in a Writ of ●ntrusion, maritagio non satisfac: for the single value, See Tit: Forfeiture of marriage. Trespass: The Defendant said, that I N was seized in Fee, and leased to him for twenty one years, and gave colour; the Plaintiff said, that his father was seized and died seized, etc. and ●he entered and was seized until the Trespass, absque hoc quod dictus I N aliquid habuit tempore dimissionis, and a bad traverse; See 38. H. 8. before: And Time E. 6. after. but he shall say without that that I N was seized in Fee modo & forma pro ut, etc. in Communebanco, 4 E: 6. B: Travers per 372. Assize. Casus Cooks and Green. The Tenant makes a bar by a Stranger and gives colour: the Plaintiff makes title by the same person by which the Defendant made his bar, s: that I S was seized and gave in tail to his father, who enfeoffed W N who enfeoffed the Tenant, upon whom A B entered and enfeoffed the grandfather of the Plaintiff, whose Heir he is in Fee, who died seized, and the Land descended to the Plaintiff, & so he was in in his Remitter, until by the Defendant disseized: And in truth A B never entered, nor never enfeoffed the Grandfather; and yet 'twas held clearly, that the Tenant in his bar to the title, cannot traverse the Feoffment of A B, but aught to traverse the dying seized of the grandfather of the Plaintiff which remitted him, for this binds the entry of the Tenant, and is the most notable thing in the title, 4 E: 6. B: Travers per 154. Trespass. See 4 E. 6. before. The Defendant said that I was seized, and enfeoffed him, and gave colour; The Plaintiff may say, that H was seized and leased to I at will who gave to the Defendant, and R re-entered and enfeoffed the Plaintiff; he ought to say, without that that I was seized in Fee modo & forma pro ut, etc. Time: E: 6. B: Travers per 217. the end. Place not traversable, See Tit: Attaint, Treason. A Chaplain had affixed an ancient seal to a Patent of non-residenee, See St. 3. B. made by himself, of the part of the King, and was imprisoned in the Fleet for it: And 'twas holden misprision, and no Treason, by the Justices, and he escaped and was not put to death; for 'twas said, That because he did not counterfeit the King's seal, but took an ancient seal, this is not Treason, 37 H: 8. B: Treason, 3. the end, 5. Note, that in January this year, H: Howard Earl of Surrey, son and Heir apparent of Thomas Duke of Norfolk, was attainted of high Treason, for joining the Arms of England before the Conquest, and other Arms after to his own Arms; and other pretences against the Prince; and he was tried by Knights and Gentlemen, and not by Lords; nec per pares regni, because that he was not Earl by creation, but by Nativity as Heir apparent of a Duke, See 33 H. 8 Tit. Trial. which is no dignity in Law, for if he had been of dignity by creation, and Lord of Parliament, he should be tried by his Peers, 38 H: 8. B. Treason, 2. See 2 M 1 after; and so 'twas adjudged, M. 4. M. 1. 'Twas agreed that for misprision of Treason, or if a man knowing counterfeit money, and imports it out of Ireland into England, and utters it in payment or the like, a man shall lose his goods for ever, and the profits of his Land, for his life, and shall be imprisoned for term of life, St. 38. B. 6 E: 6. B: Treason 19 the end. Note that it appears by divers Records and Precedents that these words (compass or imagine the death of the King) are large words, See St. fo. 1. E. fo. 2. H. and fo. 6. A. for he that maliciously devices how the King shall come to death, by words or otherwise, and doth an act to explain it or the like, this is Treason: And he who intends to deprive the King, in this is intended the death of the King; quaere of the depriving, for by B: a man may deprive and yet intent no death: And for this cause a Statute was thereof made, 1 E. 6. 12. Rast. Treason 18. Time H: 8. & E: 6. And the detainer of a Castle, Fortress or the like, against the King, is levying of war against him, all which words (levying of war, and the others afore) are in the Statute of 25 E: 3. And adhering to the Enemies of the King, ibm: aiding and strengthening them, See 6 E. 6. before. 1 M: 1 B: Treason, 24. 'Twas agreed in Parliament that for misprision of Treason, the Fine used to be the forfeiture of all his goods, and the profits of all his Land for his life, and his body imprisoned ad voluntatem Regis, for misprision is finable, 2 M: 1. B: Treason, 25. the end. Note, that if an alien borne of a Country which is in amity and peace with this Realm, comes into the Realm with English Traitors, and levies war, this is Treason in all; contrary, if the Country of the alien were in war against England, for then the alien may be killed by Marshal Law, 4 M: 1. B: Treason, 32. Trespass. Note, that in the Register amongst the Writs of Trespass, there are many Writs of Trespass, quare vi & armis equum suum apud D inventum cepit & effugavit, 34 H. 6. 28. 12 H. 8. 2. by Brook. etc. And so see that if they be taken in a Common, or other land which is not to the owner of the beasts, yet he shall have Trespass vi et armis, but not quare clausum fregit, 3 M: 1. B: Tenants, 421. Trial. Peer of the Realm shall be tried by his Peers, if he be arraigned upon an Indictment; 10 E. 4 6. by Lit. St. 152. A. See Tit. Corone, and Treason. contrary, if he be arraigned upon an Appeal, for at the suit of parties he shall not be tried by his Peers: and so was Fines Lord Dacres of the South this year, and hanged for Felony, for the death of a man who was found in his company at a hunting in Sussex, 33 H: 8. B: Jurors, 48. the end, Trials, 142. Note that in a Court Baron the trial is by wager of Law, 12 H 7▪ 18 Fineux accord. but they may be by Jury ex assensu partium: D. S. 14, 15 6 and 7 E. 6. Com. 82 D. S. 20. And the Maxims and general Customs of the Realm, which is the common-Law, shall be tried by the Justices: And the same Law of expositions of Statutes; And by the civil-law, the Judges have the construction of Statutes likewise: But particular Customs shall not be tried but per Patriam, 33 H: 8. B: Trials, 143. See 2 M. 1. Com. 117. & 27 H 8 Tit. Enquest. Note that a Bishop is a Peer of the Realm, and shall be tried per pares suos upon an arraignment of a Crime, and so put in use; therefore Knights shall be of the Jury, and if not the Panel shall be quashed; yet see 27 H. 8. that the Bishop of Rochester was not tried by his Peers, 2 M. 1. B. Trials 142. the end. Variance Quare Impedit upon a grant de proximum presentatione granted to I: N. Gentleman, and in the writ brought by I. N. this word [Gentleman] is omitted, and the Defend '. demanded Oyer of the Deed, and had it, and the variance no matter; for the Action of quare Impedit is founded upon the disturbance, 4 E. 3. 23 by Finc● and not upon the Deed, as an action of Debt is founded upon the Obligation. 2 E. 6. B. Variance 109. Verdict. Note, Contra in a Formedon. 16. E. 3. That the Court of Common Bench would not permit a Verdict at large in a writ of entry in nature of an assize: Fitz. Verdict. 21. because 'twas a Precipe quod reddat, at which B. admires: for it seemeth to him that upon every general issue a Verdict at large may be given, 3. M. 1. Com. 92. 93 See Coke Rep. 23 H. 8. B. Verdict. 85. Special Verdict, where the issue is upon an absque hoc. See Tit. Issues, join. Villeinage. If a Villain comes to an Executor, D. S. 92. 7. El. come. 292 See Coke upon Lit. 3 El. come 235. or to a Bishop, Parson or the like, in jure Ecclesiae, and he purchases Land, the executor enters, he shall not have it j●re proprio, but as Executor, and it shall be Assets. And if the Bishop, or the Parson enters, he shall not have it but in jure Eccesiae, because that they had not the villain in jure proprio, but in another right: contrary, if they had had the villain jure proprio, 33. H. 8. B. Villeinage 46. The King shall not have the villain of another in ward: and yet if there be an Idiot, he shall have the villain of the other who is so Idiot. Quaere. And the King shall have the perquisite of a villain of another if he hath him as Idiot. Lecture B. Villeinage 71. Vourcher, See B: Tit. Vourcher. 84. Usury. Note that where a man for 100l. sells his Land upon condition, That if the Vendor or his heirs repaies the sum citra festum Pasche, or the like, tunc prox. futur. that then he may re-enter, this is not usury: for he may repay the day before, or any time before Easter, and therefore he hath not any gain certain to receive any profits of the Land: and the same Law where a defeisance, or Statute is made for the repayment citra tale festum: E contra, if the condition be that if the said vendor repays such a day, a year, or two years after, this is usury: for he is sure to have the Lands and the Rents, or Profits this year, or these two years. And so where a Defeisance, or Statute is made for the repayment ad tale festum, which is a year or two after, 29. H. 8. B. Usury 1. If a man Mortgages his land upon defeasance of repayment to re-enter, See 29 H 8. before by which Indenture the Vendee Leases the same land to the Vendor for years, rendering rend: there if there be a conditition in the lease, that if the Vendor repaies the sum before such a day, that then the Lease shall be void: this is not usury. Otherwise if it be to repay such a day certain, a year, or more after. 31. H. 8. B. Usury 2. Waife. 'twas agreed, ●. 186. A if a man be pursued as a Felon, and he flees, and waives his own goods, they are forfeited, as if they had been goods stolen, 37. H. 8. B. Estray 9 Waste. 'twas said for Law, 46. E. 3. 31. B. Waste 48 That if a Termot commits Waste, and makes Executors, and dies, the action of waste is gone: for it doth not lie against his Executors 〈◊〉 for waste done by themselves, & not 〈◊〉 the waste of the Testator: N. B. 38. Lit. accord. 10. E. 4. 1 See 4. E. 6. after. for 'tis a ammon Trespass, which is an action personal, and dies with the Person. 23. ●. 8. B. Waste 138. Nontenure no plea in waste, See tit. leadings. 'twas agreed that Beech of the age 〈◊〉 20 years, nor under 20 years, cannot 〈◊〉 cut by Tenant for term of years, or ●erm of life: for they are of the nature 〈◊〉 Timber, and may be Timber, and by ●is way they shall never grow to be ●imber, Time H. 8. B. Waste 134. Note by Bromley Chief Justice: See Coke upon Lit See Time H. 8. before. & 13. H. 7. 21. by Brian. If a ●an doth waste in Hedge-rows that ●●viron a pasture, nothing shall be reco●red but locum vastatum, S. the circuit ●f the Root, and not the whole pasture; ●nd by him and Hales, Justice: the cutting of Beech of the age of ten or eight ears is waste, 48. E. 3. 25 Finch accord. 10 H. 7. 215. for they may be timber ●fter. And that where there is a wood, in which grows nothing but underwood ●he Termor cannot cut all. Contra, of ●nderwood, where Beech, Ash, and o●her principal Trees grow amongst them; for there he may cut all the underwood. And a Termor may take Beech, A● es, and the like, which are well seasen able, which have been used to be fel● every 20, or 16, 14, or 12. year And by some at 26, 27, or 30: years it be seisonable wood, which is calle● Silvae cedua, 4. E. 6. B. Waste 136. 'twas holden by the Chief Justice That the racing of a new Frame, See coke upon Lit whic● was never covered, is not waste: bu● 'twas agreed, That if a house be ruino● for default of any covering at the time of the death of the Lessor, and after th● Tenant suffers it to be more ruinon that of this new Ruin the heir sha● have an action of Waste: for this waste which continues: for of the decay which came in the time of the hei● the heir shall have an action of Waste è contra, of that which was in the life of his Father, 2. M. 1. B. Waste 117 the end. Writ. 'twas in ure in debt against I. N. o● C. Yeoman, 30. H. 6. 5. see Dier. alias dictus I. N. of C. for and heir of W. N. and charged him as heir, that the Writ abated, because that he charges him as heir, and he ●t named heir in the premises, but in ●e alias dictus. So in Debt against I. N. of C. Yeoan, alias dictus I. N. of C. Executor of the Testament of W. P. and declares against him as Executor, 24. H. 8. B. Brief 418. Note by Fitz: and Shelley Justices, ●hat if a man pleads a plea which goes ●o the action of the Writ, Prot. accord. 21. H. 6. 49. 34. H. 6. 8. by Prisot cont. he may choose ●o conclude to the Writ, or to the Action. 26. H. 8. B. Brief 405. 492. Where a writ brought in such a ●ame of Dignity, which was lost by intermarriage, shall abate. See Tit. Nosme. FINIS.