Skip to main content

Full text of "A general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole"

See other formats






ill; ": 



m% 



30hn ^iramB 




IN THE CUSTODY Or TliE 

b'oston public library. 



SJiELF N° 







^ 




•\ 






1 




'E allow of the Printing and Publiftiing of the 
Book Intituled, ^ General Abridgment of Law 
and Equity, Alphabetically digefted under proper 
Titles, ^c. By Charles Finer, Efq; 




W. Fortefcue. 




d 



E. Probyn. 

F. Page. 
Law. Carter. 
J. Fortefcue A 
W. Chappie. 
T. Parker. 




. Wright. 
Ja. Reynolds. 
The. Abney. 
T. Burnett. 



f/^2.^A^y^^ 



General Abridgment 



O F 



LAW and EQUITY 



Alphabetically digefted under proper TITLES 



WITH 



NOTES and REFERENCES 
to the WHOLE. 



By CHARLES VINER, m-. 



Fa'vente Deo. 



ALDERSHOT in Hampfhire near Farnham /;; Surry : 
PRINTED for the Author, by Agreement with the Law-Patentees. 



AOAMS 



TABLE 



OF THE 



Several TITLES, with their Divifions and Subdivifions. 



D. a 
a D. a 

E. a 

F. a 

G. a 



i V JLOdus Dccimsndi. 
Good. Q 

Extends to what. 
Mills. 

Foi- a Collateral Refpeft. 
In what Cafes fuch Prefcription may be ; 

And how. B j 

What is ; And Remedy for it ; And Plead- 

X^Jon Decimando. 

Who fhall prefcribe therein. H. a 

Advantage thereof. By whom. I. a 

Compofitions Real and Agreements. 
Parol Agreement. Good. In what Cafes 

H. a. 3 

Payable by whom. Leffee &c. ofParfon. 

_ ^ K.a La 

J- o whom. Executors or Succeflbrs &c. K. a. 2 

Where to the Parfon, and where to the 

Vicar. K b 

Perfonal Tithes. What iliall be faid fuch M a 



Due. In what Cafes ; And of what. 
Extra-parochial. Who may have them 

Belong to whom de Jure. 
Payable. 

At what Place. 

At what Time. 

Though there is no Produft. 
Capable of them. W^ho 
Barren Lands. And what are fuch. 
Difcharged. By Common Law. 

By Statute. 

Unity of Poffeffion, Prefcription 
Order. ^ 

Payment of other Thing. 
Revived. 
Trefpafs juftifiable in order to the fctt;ng 

them out. And Pleadings. £. h 

Remedy for recovering them. F b 

By Aft of Parliament. G b 

Count and Pleadings H. b 

Suits in Spiritual Coart I^ b 



N. a 
O. a 
P. a 



R.a 
S.a 
T. a 

U.a 

X.a 
Y.a 

Z a 
A. b 

B. b 
D. b 



What Words pafs or extinguiliv Tithes. 
Cafes in Equity. 

DtfleiOiu 

Of a Rent ; And by whom it Ihall be faid 

to be. 

By a Stranger. 
Of what Eltate or things it may be. 

Particular Eftate. 
What Pofleffion is an Impediment. 
What Aft fhall be faid a DilTeifin. 

Ard what nn Abatement and Pleadings. 

Art in Law. 

Wit!i Force. 
Diffeifor. 

What Perfon may or fhall be faid to be. 

By Agreement. 

By Command. 

By Failure of Record pleaded. 

To whom. 

To the Vfe of another. 

Who. at the Elcftion of the Tenant. 
By one where it fhall be faid to be by 

others. 
By Officers. 

Of Part, where it is of the Whole. 
Purged. How ; And in what Cafes 



L.b 
M.b 



A 

S 
A. 5 

A. a. 

A 5 

C 

A. 4 
C.z 

C.5 

D.J 
E 
K 

K 2 
F 
G 
H 



F. 2 
L 
M 



Diffeifee. Aftions by him :igainft Strangers O 



Bound by Charge of DiiTcifor. 
Power of him or DifTeilor as to Strangers, 
Writ and Pleading.s. 
What Piei is a Confedion. 
Enii-y m the Per Sec. 
Traverfe ; In what Cafes. 

Diarer0» 

Damage feafant; Of what Things. 

The Goods of whom 

By whom. In refpect of Eftate. 

In what Cafes. 
For Kent In refpeft of his Eftare. 

Ofthe Eftate or Perfon in Poifeffion. The 
King &c. D 5 

Of Cntle taken in Eyecurion. O. ' 

Of Common Right by Common Perfon E 

Agaiiirt 



P 

iJ 

S 
T 
V 

A 
JS 

c 

D 

. 2 



A TABLE of the feveral TITLES, 




Agaiaft Common Right. 


G AtTi^nment. NecefTa y In wh.u Cjfe.s 


S 


Taken- Kow ■, And where. 


£2! Bv whom of common Right. 


T 


.Sold In what Cafes it may be. 


E. 5 ; Of what Things it miy be. 


U 


Impounded. Where. 


E. 4! In lieu ot Dower. 


B.a 


Koran Aniercemenr. 


K 1 How to be mid e 


X 


In » hat Place it maybe taken. 


L' Election. In what Cafes flie has. 


U. 2 


Pie idings in Replevins, and Avowries | Aj^ainft common Right in lied of Dow 


er, Y 


tor it- 


F. 2 Bv what Perfon. 


Z 


or wJKir Thiiit; it may be. 


H Of common Right. How. 


A. a 


The Goods ot wliom. 


H. 2 Twice endowed Eviftion. 


C a 


And tn what Place 


I Chai <;es by Baron &c, avoided bv the Feme. D.a 


(Vittle el.ap.ng into Land. 


Attendancy. 


Ea 


Grant ot Rent out of one Manor 


with i Ex /ilTcnfu Patris &c. 


F.a 


Claufe ot Diftrel'sin another Manor. I. z\ De la pluis beale. 


G. a 


In v.'hat Place By the King. 


IC . Writ. Againit whom it lies, 


K. a 


By Common Perfon. 


M ■ AbatcniL'nt ot Writ. 


La 


For acoll ireral Canfc. Frefli Snit 


N Proceedings and Pleadings. 


M a 


Pound. V\'liat. And Demeanor as to the i Protert, or Monftrans of Deeds. 


N a 


DiftreO;. 


P. Judgment and Executions. 


a 


Rell-ous What 


P. 2! Error 


P. a 


Who may make it; And Diftrainor's | Admeafurement. In what Cafes. 


Q a 


Remedy. 


0' Defeated. In what Cafes 


R:a 


Writ and Pleadings. 


Q. 2 K. Ijef in Equity. 


S. a 


Found Krca-h. Whar is And how puiiifh'd (V 5 S^fiJIt JC JitCitO* 




Efcape. AA'hdC Renjody lijs 


<-i4 Who fhall have It. 


A 


Dssth of Bcalbs in tiie Pt-uni At 


w hofe 


j Whit fhall be faid Writs of Right. 
Lies againft whom. 


A. 2 


Lois it fhal 1 be. 


a-i 


B 


Aftinns and Pleadings. 


^■:, 


' Of what Things and Eftatcs ; and when 




E.xcelTive. What is. 


B 


and of what Seifin. 


r 


Remedy tlicreof, and of caufeiefs 
ncfles. 


Dif- 
R. 2 


Proceedings, and joining the Mile, and by 
whom. r\ 


AfTite of Sonvenr Diftrels. 


R.5 


Pleadings. 


p 


Several DifirclTes for the fame Thing. 


Lavv- 


Necellary. In what Cafes. 


.1^ 
F 


ful or not 


R- 4' Judgment final. 


G 


Notice. For what taken. 

Donative, 


^ Durcfs or^mprifanmatt* 

1 Avoidable by Durei;, What is. 


A 


Orifrinal. 


A 


What is fu;h, tho' made on another Perfon. R 


Confidered. How. 


B 


^fade by a Stranger. 


c 


Patron His Power. 


C 


Pleadings. 


D 


Ord:narv Hi.s Power. 

Double pieas. 


D 


ejcammt 

Coniidcrtd. How. 


A 


What is a L/ouble Plea. • 


A 


On Iter. What is. 


B 


Allowed In wh^t Cafe.s. 

Where there are feveral Defendantt^ 


B 

and 


Ot bringing Ejeftment by way of Leafe. 

Rules. 


C 


one pleads one Plea, and the other 


au- 


A.sto the Delivery. 


E 


other. 


C 


As to the Term expiring. 
Second Ejeftment. 


F 


Where one fhall be faid to go the Whole. D 


G 


Dotuer, 




Altering the Defendant or Plaintiff. 


H 


What. And t!ie feveral Sorts and Incidents. 


Ejeftor. Who. 


I 


What Woman fhall be endowed. 


A 


Lies ; of what. 


K 


Of what Things. 


D 


By what Name or Defcription. 


L 


Ad Oftium E •clefi.s. Of what. And How. £ 


For whom. 


M 


Of what Eltate. 


F. G 


Againff whom. 


N 


>eihn 


G. 2 


In what Cafes. 





Out oP Dower. 


G.5 


Title lufficient ; What is. 


P 


For a collateral Refped. 


H 


Pleadings. Declaration. 


? 


For collateral Quaiiiies. 


I 


Replication. 


At what Time. 


K 


B,ir. 


S 


Delay of Dower. What fhall be. 




Abatement. 


T 


Detinue of Charters or Heir. 


L. M 


V'erdirt ; How the Jury may find. 


U 


Pleadable. Ey whom. And How. 


M.N 


judgment 


W 


Barred. By what Aft ot the Baron. 





Recovered. What ; And the Effeft thereof. X 


Recoveries &c. by him. 


Q. 


Stay of Judgment. 


Y 


(^)f the Feme. Elopement. 


> 


Writ of Error, 


z 


Art of After-Husband. 


P. 1 


Confefri.ig Leafe, Entrv andOufter. 


A. a 


liv Acts of rjaron and Feme. 


Q.2 


election. 




!>v wh.it Eltate, Cjrant &c. 


0:5 


Given ; In what Cafes. 


A 


tJy what Sarisfaftion or Acceptance. 


fi4 


Rules and Notes as to Eleftions, 


A 2 


iiy what Offence ot the Baro.i. 


0.5 


Who (lull hiveic. 


B 


Of the Feme. 


(lb 


Anil when. 


c 


By Divorce. 


R 


Wh it fh ill be faid an Eleftion. 


D 






Perpetual. Where it ihall be. 


E 



Cmble= 



With their Divifions and Subdivifions. 



A 

A. 2 

D. E 
R5 
B.4 

B. 5 

. G. 1 

z. F 

G 

G.5 

G.4 

H 

H. 2 



emblements. 

Who fhall have t!iem. 

Cnfi"int0. 

Wlicre, in refpcft of theii- Office Sec. or 

for other CoUdtc-ral Refpcdt, they cannor 

avoid their own Acts. 
Favoured. 
VVhatActs are vrid or voidable. B. 

Avoiucd; Wheti 
By whom. 
ReUevable after Age; And how. 
Bound ; By what. C. 

At\ ; Contraa:.s. B. 

By Judicial Adb, 

By Forfeiture. 

By Agreement of him and his Guardian. 
Judicial Piivileges ; What hefliall have. 
Art ions ; To what they are liable. 

WhatKeal Aftions Infant.-, may have. 

What Actions on his own Contraft. 

When he muft (ue. Limitations. 

■' ncd ; How they muft be. 

Dum full infra j^tatem ; Lies ; In what 
Cales. H. 

En Ventre fa mere ; How confidered &c. H. 
Capable ; Of w hat Things Infants are. 
Several Ages for feveral Purpoles. I. 

Cafes wherein an Infant and Feme Covert 

differ. \. ; 

What fhall bind by Agreement at full Age. K 
Cheating and impofing on Infants ; How 

punifhed. L 

Ple-idings .M 

Eijiiity ; Cafes as to Lifants. N 

Where an Ir.fint is Trullee. O 

Allow arces in ref( eft of Infants. P 

Parol demur ; In Equity ; In what Cafes. QJ 

Cnterpicaner* 

Garnii'hment 
Of the Plaintiff and Garnifliee 



Pleaded; How. 

Counterplea thereof ; Good. 

Picas by Garnifliee. 

Writ, Procefs &c. Againft whom. 

Judgment. 
In what A(;;tions. 
For what Caufes. 
Upon what Delivery. 
At what Time. 
In what Cafes 

For a Collateral Refpeft. 

Privity upon Adtions. 
At what Time. 
Upon what Writ. 

Who Ihall keep the Thing demanded. 
Pleader by Defendant after Enterpleader. 
Judgment. 

Damages. What given. 
How ; And how much. 

Remedy after Recovery againft him that 
has the Thing. 

Cntrp. 

Corigeable ; In what Cafes ; And how. 

By whom. 
Barred ; By what Aft. 
Kevived. 

.Scire Facia-; ; Neceflary ; In what Cafes. 
V\'hat is, to reduce an Eltate. 

Into Part. 



A 

B 

C 

D. E 

E. 2 

F 

G 

H 

I 

K 
L 
M 
N 
O 
P 

Q 
II 
s 

S. 2 

T 
LI 



A. 2 

A 5 
A 4 
A s 



To the Ufe of another. 

Where it fliall lerve for another without 
Agreement. 

Agreement ; Good ; What is. 
Of one where it fliall be tor another. 

Special Entry. 
NecefTary ; In what Cafes 

To veil or develf an Ellate. 

To bring Tr^-fj-afs. 
When to be made. 
Excufed ; By what Aft or Fear 



C 

D 

F 

G 

G s 

G. 5 

G.4 
G.J 



Writ ; Abated by Entry. 

Of a Stranger. 
Pleadings in Writs of Entry. 
BarofAftion : In what Cafes. 



of the Part/ 
G.6 

G-7 

G.8 

G9 

G. lo 



In Narurc of AfFife ; Writ and Pleadings G. ir 
Sur Dilfeilln ; Writ and Pleadings. G. iz 

On what Plea Demandant m.iv enter with- . 



out praying Seilin. 

Avoided without Writ of Error 
By Plea. 
By Entry. 
In w hat Court. 
For what Caufe. 
At what Time. 
Lies. In what Cafes in general. 
Upon what Judgment 
In refpcft of the Court where given 
In what Court it lies. 
Same Court, 
flxchcquer Chamber 
Parliament. 
For what Perfbns. 
Againft whom. 
At wh.uTime 
Brought. How. 
Record removed thereby. 
What removed as Part. 
So as quod coram refidet HeS. 
Affigned. By whom. 
Vouchee. 
By him that has Benefit thereby. 

By whole Default it came. 
In what Judgment. 
What Thing 

Stile 8cc. of the King. 
Want of entering Pledges, Bail &C 
A Thing for his Advantage, 
In what Thing. 
Upon theWrit. 
AlTigned. 
How it may be. Jointly. 

In Faft and in Law. 
At whatTime, It may be. 
It ought to be. 
Bar of Execution. In what Cafes. 
Several Writs by feveral Perfbns. 
Scire Facias ad audicndum. 
In what Cafes. 
Againft whom. Tertenants. 
Examination. After Execution awarded 



G. I- 



A 
B 
C 
D 
£ 
A. 2 
F 
G 
H 
I 

1.2 

SeeCP}3ndD c 
K 
L 
M 
N 
O 
P 



R 
Y 
Z 
S. T 
U 

U. 2 

U.; 

X 

A. a 

C.a. 



B.a. 



D.a 
E.a 
F.a 
G.a 
G. a. 2 
G.a.? 



I. 



Joining in Demurrer or Rejoinder to the 

Error afligned. 
Diminution alleged. How. 

Certiorari. 
Pleadings. By Party, or Privy, orTertc- 

nint. 

At what Time. 
In Verdifts or Proceedings after the Jury 

returned, and before Verdift. 



Ha 
la 

a. 2 



Na 

O.a 

Pa 

1« 



A TABLE of the feveral TITLES, &c. 



In Verdias. What fliall be. 
In Judgments. What. 

AndExecutions. 
Judgment on Reverfal. What. 

How. 

Of all or of Part only. 
Reverfal of one Judgment, where it fhall be 

«f others. F. b 



Q. a. M. c 

A. b. B.b 

K.b 

C. b 

D. b. O. c 



As to collateral Things. 
Keftitution to what. 

To collateral Things executed. 
Aided by what. Appearance. 

By Pleading. M. 

Where it appears on Record. 



G.b 
H.b 
lb 
L.b 
P. b 
N. b 



t? 



Difmes, [or Tithes]. 



(B. a) Modus Decimandl. \n what Cafes a Man maydmi^r 
prelcribe in Modo Dechmndi : And How. ^Sn''"' ^'"'^'» 

* ' ■' 1 enements, 

and Hercdi-. 
tamcnts have 

I. A Dtnittinn; tljat Citfjes of ©rafs tic Jure mM to be uiatiebe.n gvcr, 

u~\ into t:)aj) lip tlje parifljioncr, pet it iccuiis a lariih may pre- to thr Parfon 
fcribe, tDitljout aiij) CuiuroEtatioiujitoi to tlje parfoii topav tljc'^Jj;.^' o^' 

Tubes OftfjiSl in Gralb-C, cks, btiorc any Tedding tDcrCOt COUll-a, :.n annud 
BarhamM^Goofe. M\\. 14 3a. 15. E pet Ctltiam, prsteC 5P0IH\13= «ic.-.in Sum, 

ton, iDbo fccmeo e contta tijem, uecauic tljisi i^tcfcctytioii is iI3on °j °'^^'" , 
Decimaiioo tot tijisi J^att. ^ays'-nL 

out of I^'ind, 
totVic Parfon and his Succeflbi-s, in fulI'Jatisfaftion and Difcharj^e of al' rhe Tithes in kind in fucli 
a Place. 13 Rep. 40. Trin. 7 Jac. in the Cafe of Mcdus fJecimandi. Sce(Y_) pi. i. z. S. C. 

2. So it feeni£i a P-irifhloner may make fuch. Prefcription, COlltta, 

|). 14 3. 'B. E. -e«^^^/7/ and Gocfe, pct totaiu Cuf iaui. tccaufc 
it (0 in Bon Decimanoo fot iW I3art. 

3. So a Parifii may prefctite tuitljout txw Confioetatton, to pap 
Cttl)esi of (Srafd^Cocfeis after tedder auo mahtng tycrenf ui ilDcckeg 

anO |©ainrOU)S, and putting into Grals-Cccks, tljCH mt OftijE (JPulf^^ 
<2DOC^0 to fet cue the Tithes, and not to make it into p.ricft 1-lay. 

4- COntta, 15 la. 16. E. bettnceit Poppingcr and Johnfin, a^'^'^CY)?^' 

Proljtbition tienieti. Taut nota, -^Ctjat onlp fi)oiia;i)ton nioUrD it nsi ^- ^- ^• 
£)ciit)t to l)tm, toujijict) no anfuiet uia^ givien, but t!)c ISJioljiuiiiuu 
iiemcD notUJitljftantimg. 

5. -Jf a ♦©an prefcribes, that if he hath under lo Fleeces of Wool, Hob. 107. 
tijat he (hall pay one Penny tO tljC PaifOU tor each in lieu of Tithes, ^-^^■^S: 
and that if he hath more, (*) that he Diall deliver tO tlJC PiirlCU the *y<C6^^ 
tenth Part Of Ijigl liaoal, upon his Confcience, tUItOOUt JFuaUD iintl ^.x-v^nJ 

Coum, line A/ifu vei taau oftljc patfou i tljli5 is Hot a gooij 9300110, 
occaitfe it iis unreafonabie. a^. 12 jia. 15. pecCuaau', iitiajcen 
Wtip^n antJ tlje Xidjop of Carhjh. iDiQe tijc fame Cafe, i^obcit s 
3aepott0, 149- 

6. 3if a 9©an prefcribes to pay tO tfjC l^atfOn for the Tithes of rhe 
tenth Sheep, asit talis out, and the tenth Swarth, tf)(S 10 UCt aiiy S«3i3= 

iJU0, liccatifel)etioc0notptcrcttbeto pai» otDetCljitmd tijnir luijat 
Jna0 Hue, but a futl Ccntij. cp. 13 3 a. 06. bctiuctn Barker and 
Eofweii, per Curiam. 

7- 3 Q3an UTap prefcribe to pay the tenth Acre of \A^ood iTanding, Hob. 250. ; 
anU fo to pap tlje tenth Acre of Grafs Handing fOU tljC CitljC Of ^ap. f' V° "'"•- 

J;obett'0 Eeport0, Cafe 328. Atl^c: 

■ in Cafe of 
Hide V. Ellis, S. P. obiter. 

8. A Man cannot prefcribe in the Negati'je to he quit cj 'Tithes^ hut in 
tke Negative ivith an Affirmative^ viz. 'Ibat he and all t^c. have tifcd to 
he quit of Tithes. Br. Prelcription, pi, 17. cites 7 H, 6. 32. and 
8 H. 6. 3. 

!fe 9. Wodus's 



2 Difmes, [or Tithes]. 

Gibb. lie. p Modus's were real Compoiitions by Parfon, Patron, and Ordinary, 
1 21 Monton j.]^g vvTuten Evidence of which is loll ; but the Law prefumes by the 
S C^&T'p ^ciri"" interrupted Ufuage that there wasfuch; Agreed unanimoully by 
accordingly. Ld. Chancellor and Reynolds and Fortefcue, Judges Alliltants. Bar- 
nard. Rep. in B. R. 292, 293. Hill. 3 Geo. 2. in Cane. Munfon's 
Cafe. 

10. If Tenants Time out of Mind have ufed to pay a certain Price for 
a Tithe Lamb, fo that the Cufom is fully fettled^ though the Parfon m- 
croach v.ore^ or the Tenant pay the Lamb in Specie this does not 
break the Cuftom i But if one has paid i d. for a Lamb for 50 Years, 
and after fays 7'ithe in Specie before the Cuftom is fettled, though he 
pay his i d. again for 20 Years, he can't prefcribe in Modo Deci- 
mandi. Savil. 13. pi. 34. Hill. 23 Eliz. in Scacc. Fleming v. the 
Tenants of Dudly, and there faid to be fo refolved Mich. 25 Eli z. ia 
Cam. Scacc. Beake v. Maine. 

1 1. Parfon libel'd againft A. for Tithes, A. for a Prohibition fhevv'd. 
That w ithin the faid Pariih of D. there is a Hamlet in which A. inha- 
bited, that the faid Inhabitants within the faid Hamlet had had Time 
out of Mind 9. Chapel of Kafe within the faid Hamlet, becaufe the faid 
Hamlet was dillant Irom the Church ot the faid Pariih ; and with Part 
of their 7'ithes have found a Clerk to do divine Service within the faid 
Chapel i and alfo had paid a certain Sum to the faid Parfon and his Pre- 
deceffjrs for all manner of tithes^ and it was held a good Prejcnptton, and 
a Prohil^ition was granted. 4 Le. 24. pi. 77. Trin. 26 Eliz. B. R. 
Saer v. Bland. 

12. Where a Man prefcribes i s.for the Tithes of all Willows cut down 
by him in the Parip of D. it is not good. For thereby if he cuts all the 

■ \VilIov\s ot other Men alfo, he Ihould pay but i s. for all. But he 
Ihould have prefcribed tor all Willows cut down by him on his owa 
Land^ and then it had been good. But as it is laid, it is unreafonable. 
Godb. 60. pi. 73. Mich. 28 & 29 Eliz. B. R. Anon. 

13. A Modus was luggefted in this Manner, viz. That the Proprietors 
and Occupiers uf fuch a Manor, or any Parcel thereof, jhould pay a Groat to 
the Parfvn for Heritage Tithes; Adjudged an ill A4odus, becaule if a 
MaH had but two or three Feet ot Ground in the Manor, he was to 
pay a Groat ; But it Ihould have been laid, that the Proprietors and 
Occupiers of fuch a Manor for themfelves and their Farmers had us'd 
to pay /^d. I Vent. 3. Mich. 20 Car. 2. B. R. Anon. 

But if the 14. A Prefcription to pay 5 s. to the Pari/h Clerk in lieu of the 

Pai-ronbe Tithes of certain Land is not good, becaufe he is dative and removable i 

tied to find (^ £ 1 26. Mich. 20 & 30 Eliz. B. R. Savell v. Wood, 

fuch a ' '^ y ^ 

fuch a'Sum has been ufcd to be paid to the Parifh Clerk in Difchai-t^e of tlie Parfon, it had been a 

rood Prefcription, and fo by way of Compofition. Le.94.pl. izz. S. C. Mo. yoS. pi. 1274. 

SJ.C&S. P. accordingly. 

15. Libel for Tithe of Corn, Hay &c. the Defendant fuggefted a 
Prefcription to pay a third Part of the loth in one Part of the L.ind, and 
in another Part, a Moiety of the ivth for all manner of Tithes ; The Court 
inclined that it was a good Prefcription, and a Prohibition was 
granted. Godb. 120. pi. 139. Hill. 29 Eliz. Rooke's Cafe. 

16. The Parfon of North-Lynn libelled for Tithes, the Defendant 
fuggeffed, that he is an Inhabitant of South-Lynn, and prefcrited in the 
Inhabitants there, having Paffures in North- Lynn, to pay Tithes in kind 
to the Vicar of South- Lynn, where he is not rej'ident ; and that the Vicar 
hath paid to the Parfon of North-Lynn &c. two Pence for every Acre. 
The whole Court was againft the Prohibition i For Modus Decimandi 
ftiaU never come in Debate upon this Matter; But who Ihail have the 

Tithes, 



Dilmes, [or Tithes]. 



vr 



Tithes, whether the Vicar of Souch-Lynne, or the Parfon of North- 
'L\une? Belides, the Prefcription is not reafonabJc. Le. 128. pi. 175. 
Trin. 30 Eiiz, B. R. Gatefield v. Penn. 

17. The Detcndant alleged a Cullom, that the Parfon fhoidd have for ^^° 9'?- 
his Tiihe Corn the tenth Laud fown with any manner of Corn ^ and ^^''^^ tlia' the s > 
he fljoidd begin al'ways at the firft Land next the Church ^c. The Par fun by the Par- 
fljew'd. That the Defendant by Fraud and Covin fowed every tench Land fon in the 
which belonged to the Parfon very ill, and with fnull Q^iantities of ^,P"'^u3l 
Corn, and dVd not dung or manure it as he did the other nine Parts, fo°."fi,i^'"- 
fo that it produced not half in proportion of what the other nine Lands ;„ Kind, 
did. And the Opinion ot W'ray J. was, That the Cuftom was againll vh. of every 
common Reufun, and io void. But if it be a good Cultom, then the [^'"'i Gock 
Parfon Ihall have an Aftion on the Cafe. Le. 99^ loo. Pafch. 3° |'4''£'j°;'^''^ 
Elii. B. K. Stebbs v. Goodlack. a Prohibit'i- 

on wasgrunt- 
ed norwithftaiiding the Covin, hecaufe the Fraud is to be remedied in an Aftion on the Cafe at the 
Common Law. .S. C cited Arg. aid there it is faid, that tlie Defendant at firlt got a Prohi- 
bition on account of the Cuftom, but the Parfon afterwards had a Confultation, Wray Ch. J faying, 

thattl)i Cullom was ..gainft common Reafon. 2 Wms's Rep 569. cites 1 Le. py. [But I do 

not obferve this Mat.er there.] 



18. The Defendant furmifed that he was an Inhabitant of S and that S C cited 
Time out ot Mind every Inhabitant there, who had Pajfiires in N. had y^rf^^.^ j^^p 
paid 7ithes Jor them to the Vicar of S. and that the Vicar of 6'. had paid to 5 -,.';„ Caii' 
the Parjcn oj N. zd for every Acre; and the Court held, that Prohibi- ot Chapman 
tion lay, and that Plaintift'lhould declare, and the Defendant (in the v. Monfon. 
Prohibition) might demur if he will i For it is as it he prefcribcd to 
pay 2d. for e>ery Acre. Cro. E. 136. Tnn. 31 Eliz. B. R. Cote- 
iord V Peace. 

19 In a Prohibition the Plaintiff prefrihed to pay the loth Sheaf of Roll Pop. 
Grain growing on 60 y^cres after it was reaped^ in fall Satisfatiion of all '73- ''^- "• 
Grain being upon the faid 60 Acres, and v\ hich hath been accepted &c. 
1 he Court held this Prefcription not good, for it is no more than to 
pay fo much for the loth Part when the Owner plcafeth; becaufe he 
n.ay chufe whether he will make the Corn into Shea\es or not, or as 
n^.uch ii.tu Sheaves as he will, and fo for the loth Part he may not 
have the 3d Part, which is not reafonable. And. 199. pi. 234. Trin. 
31 Eliz Adams's Cafe. 

20. Libel f >r Tithe of Calves &c. the Defendant fuggefted a Ctijiom _ 
in the Parifh ot B. to pay for the Milk of every Cow 2d. in fatisfaflion of 
Calves. The Proof was. That there was Jiich a Ctijloin in the P.uiih /oi- 
all the Land except Jive Farms, and for this Caule it was held that he 
had tailed in his Piefcription ; For it may be thefe Lands were Parcel 
ot the five Farms ; But had it been proved that the Lands were not 
Parcel, it had been otherw ife , and therefore a Confultation was granted. 
Cro. E. 206. pi. 41. Mich. 32 & 33 Eiiz. B. R. Bennet v. Sliort- 
wright. 

21. Prefcription to be difcharged of Locks of Wool ought to be fiiewn 
of Locks cajiiady lyj}. Mo. 911. pi. 1283. Mich. 37 and 38 LUz. 
B. R. in a Nnta there. 

22. A Prohibition was pray'd on a Suit in the Spiritual Court f()r Ibid Coke 
Tithes in Kind of a Parknoiu converted into Tillage, upon a Surmile Ch. J.^ci- 
De mode Deciiiiandi, to pay a Buck and a Doe tor all Tithes, ^I'lf^ s^hipd'^n's 
allow'd per Cur. andagreed, ill. Though they are Fera^ Nature, yet c,,fe, thtt 
they may be given tor Tithes. So to pay Phcalanrs &c. 2dly, Though Ai.!i a .Mo- 
they are not lithable of thcmfelves, yet they may be given lor Modus ^^'^'^^'^';'; 
Deciinandi, as a great Tree may be given lor Tithe cl Trees tithable. ^^".'gi'/'Jor- 

3<^ly,t'.ie Park ife' 



/^ Difmes, [or Tithes]. 



not gofiH, 3dly, That that is a Difcharge to the very Soil, and the Park is only 
ifitbedif- J, Liberty, and the Owner may turnifli it with Game when he pleafes, 
irS'b?' Noy. 148. Sharp v. Sharp. 

partkii'arly 

for all the Acres contained in the Park. 

22. V\'hether a Modus Declmandi may accrue after Endowment of a 
Vicarage? Qusere, But Prohibition deny 'd on prodacmg En'o vmenc 
by Vicar by which ic Teems it cannot. See LruUb. i8o pi. 254. Trin. 
8 Jac. C. B. Anon. 

23 In a Prohibition the Plaintiff declared, 'That he for ten Tears laft 

'baft held and occupied 1 00 Acres of Land m the Pari^ of S. lytvg •within, 

and being Part of a Park thcre^ called Ungar-Park, and that he, and all 

the Occnpiers of the faid Park^ Time out of Mind, have tiCed to piy to the 

Parfou of S. 4 /. yearly, tn full Satis fiB ion and Difcharge of all Tithes of 

the faid Grounds, which 4 /. the Parfon had fo accepted. After Verdiff for 

the Plaintiff, it was moved m arrefl of Judgment, that the Park was not 

ailedged to be Anttqtins Parens, and fo to bear Prelcription, and thac 

The Prefcription was laid in the Occupiers, when it Ihould have been in 

the Owners of the Park, nor by Way of Cuftom in the Place ; but re- 

iblv'd, that this was nu Matter of Interelt and Inheritance, but only in 

Pare ot Difcharge ; for every Mocius is a Difcharge ot the natural 

Tithes, and fo works by Way of Dilcharge. Hob. 118. pi. 148. Hill. 

13 Jac. Shelton v. Mountague. 

Roll Rep. 24. If a Modus be for Hay in Bl. Acre, and the Party /oa'j it with 

121. in pi Corn feven Years together that does notdellroy the Modus, but when- 

^'I'^lf f' foever it Ihall be made into Hay the Modus Ihall revive ; and when ic 

Hav'bciong- is Town with Corn the Parfon Ihail have Tithe in Kind. Godb. 194. 

ed'tothe Trin. 10 Jac. C. B. Brown's Cafe. 

Cor'ri to the Parfon. -S. C. cited 2 Show 4(^2. Arg. S. C. cited Equ. Ab. 1568 . When 

no one Year can pafs without fome certain Dnxy, xW\ih^ permanent Modus, though it be that the 
Jame piece ot Ground beinj!; fown fhall pa^' the great Tithes to the Parfon, and being converted into 
Meadow finU pay the fmall fithes to the Vicar. Arg. Gibb. 120. cites Godb. 194. [pi. 27S. Trin. 10 
Jac. C. B.J Brown's Cafe, and Cro.E 156. 

2?. A Libel was for SubftraStion of Tithes upon the Statute of 2 E. 
6. the Defendant luggefted. That as to that Farm, whence the Tithes 
in quellion arofe, there was a Ctiflom to take back thirty Sheaves of the 
Tithe-Corn growing on fuch a Farm ; Per Cur. It ought to be averr'd 
to be a great Farm, and it there were but thirty Tithe-Sheaves in all, 
the Owner Ihan't have them ; becaufe that would be an unreafonable 
Cuitom, and Day given to the other Side to Ihew Caufe why the Prohibi- 
tion fhould not be awarded. Godb. 234. pi. 324. Mich. iiJac.C. B. 
Jucks V. Cavendifh. 
If the Pre- 26. If there was a Prefcription, Timeout of Mind, for a Modus 
fcriberlets Dccirtiandi, if this Modus be not paid for a certain Time, yet this alters 
the Land to ^^^ ^j^^ Prefcription for this Modus, but he may pay it when he will. 
theFiirn?.'.- Per Coke Ch. J. 2 Bulll 240. Trin. 12 Jac. Price v. Mafcall. 

*«y/ lithes \ rr 

in Kind, this does not dcftroy the Prefcription as to the LelTor. Roll Rep. 1-6. per Coke Ch. J. 

in S. G. 

Roll Rep. 27. Prefcription, Time out of Mind, for Modus Decim and i for Land 
176^ pl. 14. -when it was a Park, it lliall continue lor Payment ol this Modus only 
h Id d ^^^^^ "^hat fuch a Park be dilparked and converted to another more pro- 
inV^y^i^"' 'fi'^^'^l^ Ufe J Per tot Cur. 2 Built. 240. Trin. 12 Jac. Price v, 
Co'-e Ch J. Malcall. 

the Pre- . , , , , . . • • 

Jcription being to pay fo much Money. The Difference is, when the Prefcription \s to pay iMi- 

wy forail the flthci ot fuch a Park, and ic be dilparjjied, there peradvcntUre Tithes fliall not be 

paid ; 



Difmes, [or Tithes]. f 



paid ; But where it is to pay the Shoulder of a Buck or a Doc at Chriftmas for all Tithes of the Park, 
there', if dilparkcd. Tithes ihM be paid as of other Land ; perPopham Ch. J. Cro. E. 467. (bis) 

pi. 25 Pafch 58 Elii. B. R. in dCeoi Bcdingfisld v. Freak. Mo. 909. pi. 1277. S. C. and fame 

Diverfity.— — Ow 74. S, P. by Popham. 

28. If an Orchard, for which there is a Modus, be /)/otwWand after- RoH Rep- 
wards it be made an Orchard again, the Modus fliall be paid Arg. 2 '^|,- j^'^J^^^* 
Show. 462 in Cafe of Hill and Harris, cites it as agi-eed i Roll 121. ^f Hooper v: 
Cooper V. Andrews. Andrews. 

29. Prefcription that the Parfcn had two Acres of MeadcJU given in 
Difchargcof allTithes of H.iy Ground, viz,, of all the Meadow in the Pa- 
rilh, if any arai^k Land be con'-jcrted into Meadow, it extends not to dif- 
charge that. Hutt. 58. cites 14 Jac. Conyer's Cafe, 

30 A Cullom in the Parilh oi B. that all Lambs engendered, fallen, 
and bred upon any one Tenement or Living in the [aid Partjh, tho" they be~ 
longid lo/cueralPerfons, were reckoned together, as il they were one M,»n's, 
that the tenth, or Tithe-Lamb of them fo counted together, hath been 
p,.id lorTiche; The Court held. That all Cuitonis againft Common 
Right are triable at cominoa Law i and that this Cuflom is unreafona- 
ble, becaule it may happen, that one Man may havi. but one Lamb, and 
that mav be taken lor Tithe, and they that have more fhall pay nothing. 
Hob. 329. pi 405. Mich. 18 Jac, Barker v. Cocker. 

31, The King's Z^ej Ihall liold dilcharg'd^ the' his Feoffee iliall 
not. He 1. 60. Mich. 3 Car. C. B. Comins's Cale. 

32. Libd toiTkhiB of Wlk and Calvssi the Defendant fuggefted a Litt. Rep. 
Modus, that every Inhabitant, ^c. jha/l pay ^d.for every Cow, and 2d. ^^^^^^ ^°^:.^^ 
for every Calf ■ Iliue was taken upon the Modus, and at the Trial the i^fr, S. C.in 
Proof was, that the Tithes were never paid in Kind, kit that every Inhabi- toti'dem Ver- 
tant^ ijic. fl. oil Id pay 6d. and lonte 7 d. lo that this was not the Proof of bis. 

the Suggeftior., and a CjnfLltacion was granted ; but if a Modus had 
b^en fu<:,gelted to pay 20 s. and the Proof had been that 40 j. was ufualty 
paia, tnathad been good, it being to intitle the Court to Jurildiftionj 
bur in the principal Cafe no Modus is proved i fo, it is merely uncer- 
lam. Het.f 100. Trin. 4 Car. Goddard v. Tiler. 

3 3. A Cuitom to pay the 20th Fijh, in Satisfaction of the Tithe of all By the Com- 
F///. taken in the Sea, is good, for the Tithe thereof is payable only by "V^'p^^^^ 
Cullom, it may by that Cuftom be lefs than a Tenth 3 adjudged. Lev. cannoTha^c 
179. Pafch. 18 Car. 2 Sheppard v. Primrole, the Titlu-s 

of Pipes 
taken in the Sea, becaufc it h not within any Parifli, and then, when the Farfon, by the Cuitom 
oug"!! to have the Tithes of them, he ought to take them according to Cuitom, and that the tenth of 
the Moiety may be a good Diicharge of the whole ; and the Parties went to Illue upon the Cuflom 
in Cornwall. Noy loS.Hill. 1 JaC. Holland v. Heale. 

36. But a Cuftom to pay the Tiijelfth Sheaf, in Satisfaiiion of the Tithe Sid. 27S. pi. 
of all Sheaf Corn, is not good, bccaufe the Tenth of the Cora is due *• ^'"-'t'P^'''^ 

J 1 /-• rk- J o ' V. PcnroHs, 

de J ure ; per Cur. Jbid. ^ C. & s. p. 

agreed, but _ 
adds a Quxre if it had been that he ftou'ld pay fhe 12th part after Jlitching Szc. and it Iccms that i^ 
had been good. 

37. A Modus was alleged in this Manner; !that the Proprietors and 
Occupiers of fuch a Manor, or Parcel therecj, Ihall pay a Groat to the ParfoH 
?;:• Herbage-Tithes. The Court held mac this could not be, for if a 

Ian had but two or three Feet ot Ground in the Manor he ihould pay 
.1 Groat i but it ought to have been laid ; That the Proprietors and Occu- 
piers of fuch a Manor ^ for themfclves and their farmers, bad paid 4 d. 
Vent. 3. Mich. 20 Car. 2, B. R. Anon. 

e aS.-Parfon' 



6 Difmcs, [or Tithes.] 



The die 38. A Parlbn libell'd againfl J. S. tor Tithes, who in a Declaration for 

■ivas\ that ^ Prohibition fuggeiied a Com'po/ttkn ty Deed made in 1125, which was 
^^. .11°/ excepted to, lor beine before R. IPs Time, was before Time of "Me- 

OCC WrtS l ? Ti- 111 1 IJ'L *J M-11 

feiiedofa mory, and fo no Illue could be taken, or could it be tried, 2. That 
Portion of ii they did veft by the Grant, yet that they revelled in the Parfoa 
Itthes mSx.c. j^y ^^^ CouHcil cf Latcran m 1215, or elfe by the Dilfolution of Mo- 
^J'tfo'of &c- "ii^leries. 3. Becaufe 'twas not fhewn thct the BiP:.'op was Party ; 'Twas 
f>r.tir& fe- anfwer'd, that the Concurrence of the Bilhop was not necelfary ; for 
mel, anii as this Cafe was he had nothing to do with it, it being a Priory, which 
tliarinrhe j^^j an abfolute Eftate, which a P/??ro« hath not. And, per Cur. The 
h'^Mic foleObjeOiion againll this Prefcription is, becaufe it Ihews the Reafon 
granted the of the Prefcriptio//, if they had relied on the Deed it might be otherwife. 
J/<|M.- to VV. The Court of Lateran can afte6l nothing in this Matter «&c. and Judg- 
F in theiei ^^ ^^^ affirmed. 2 Show. 439. pi. 403. Mieh. i Tac. 2. B, R; James 

Words, V17, ^ ,, ^'■' t T J J J 

Dcdit W. F. V. Trollop. 

^Norburiam 

in feoiis, and afcerwavds pro Becimii Dominii'Qp duahtis C ante Mis 'Terre, hepouldpayto the Prior 5X.' 
per Jnn. and the Family of the F's had ever fince held the Lordfliip difcharged of Tithes, paying 
5s. a Year to the Prior and his Succeflbrs Until the Diflblution, and fince to the King. It was ob- 
jetted, th;it the Land whereof the Tithes were demanded was Parcel of the Demefnes of the Ma- 
ncr ; But per Cur. the Lord at that time mij^ht have enfeofFed another to hold of himfclf, and fo it 
might have been Part of the Demefiie ivhen the Prior granted it, and he ajterwardi gn.nfed andheldof 
the Ahiior, and as to an Objeftion that the Modus was not good becaufe not paid to the Par/on, the 
Court faid it might well enough be paid as a Modus to one who has a Portion ofl^ithes, and that then 
h« has Quid pro Quo. Skin. 5 1 . S, C. 

39. Whenever a Modus runs high it is a llrong Prefumption that k 
is no Modus ; per Holt Ch. J. And the Court retufed a Prohibition be- 
caufe it appeared (as the Modus was pretended to be) that it was of nigh 
the ftdl Value. 11 Mod. 60. pi. 37. Trin. 4 Ann. B. R, Startup v. Do- 
deridge. 
Gibb 121 4°- A Modus was fet forth to pay on or about ftich a Day fo much &c. 

cites 2 Roil it is ill, for the Day muft be alleged certain. And the Bill further was, 
265. that the Parifhioners of &c. confiantly paid, or ought to pay, {o much 

which fliould have been conftantly paid, and ought to pay. 8 Mod. 
375. Trin. 11 Geo. and cites it as lately refolved in the Cafe of Harri- 
fon V. Clerk. 

41. Though every Modus muft be fuppofed to have a reafonable Com- 
mencement, which the Court admitted ; yet as to the Necelficy of fl]e-w~ 
tng now that the Modus is reafonable^ that feemed not to be lb clear i for 
th"efe Modus's having been /ro;« T/wze i;«7«««or/i«/, none can know but 
that there were fuch Circumftances in thofe ancient Times as mighc 
have made fuch a Compolition reafonable tho' not difcoverable no.Vi 
And that it was fufficient to fatisfy us now that Parfon, Patron and Or- 
dinary might then bind the Revenues of the Parfon, but tho' fuch In- 
llrument be loft, yet the Modus is not. Per Ld. C. King affifted by 
Reynolds and Fortefcue J. 2 VV^ms's Rep. 572. Hill 1729, in Cafe of 
Chapman v. Monfon. 

42. But if an Injirument had been made by Patron, Parfon or Ordina- 
ry, to a Layman to difcharge his Farm of all 'tithes, (tho' it would be 
good fo long as the Inftrument could be fliewn) and the fame lliould 
once be loft this being a Privilege in Non Deeimando, the Privilege 
would be loji by Lofs of the Deed ; fo far the Law went in favour 
of the Church ; Per Ld. C. King, affifted by Reynolds and For- 
tefcue J. 9 Wms's Rep. 573. Hill. 1729. in Cafe of Chapman v. 
JMonfon. 

43. A Bill was brought to eftablifl: a Modus, which was, That in 
Conftderation the Paripioners, at their own Espence^ made T'lthe-Grafs into 
Hay, the Inhabitants were to pay no Tithes for dry and unprojitable Cattle. 
It was proved, that the Parilhoners had not paid fuch Tithe Tims cue 

of 



Difmes, [or Tithes]. 



ol Mind, but not that fuch Non-payment was in Confideration asafore- 
faid. On the other Side it Has proved, That Foreigners living out of the 
Parilh mnde the Tithe-Grafs into Hay, as well as the Inhabitants, and 
yet paid Tithe-Herbage, which Ld. C. King thought a material Ob- 
je6^ion againft the Cultoni, and made it feem to be the Ufage of the 
Parifh tor the Parilh to make their Grafs into Hay of Courfe ; And 
likewife that the Parilhioners did not divide the Grafs into ten Parts, 
when cut down, nor till made into Hay, fo that the Parfon could noc 
have any Opportunity of making the Tithe-Grafs into Hay himfelf; 
and dilmiiled the Bill with Colts, but without Prejudice as to any Liti- 
gation at Law. 2 Wms's Rep. 521. Pafch. 1729. Fox v. Ayde. 

44. A Modus, that the Parifhioners making Tithe-Grafs into Ha^ 
Jhotild exciife not ouly the Herbage of the fame Ground, but alfo all Tithe- 
Herbage for all other Land depajiured by him -within the Parifh, tho' ic 
might be a great Parcel of Palturc Land, and tho' the fame might be 
fed all the Year, is fuch a Modus as would be too much tor a Court of 
Equity to eftablifh. 2 Wms's Rep. 523. Pafch. 1729. per Ld. C. King. 
Fox V. Ayde. 

4 J. A Modus was laid to be that en)ery P erf on not inhabiting withi» 
the Parip^ B. occupying any Meadow or Pajiare Land within the Parifb 
of B. had Time &c. paid ^d. an Acre yearly, and fo proportionably tor 
any greater or lefTer Quantity. And this was held by Ld. C. King, 
affifted by Reynolds and Fortefcue J. to be a good Modus and cer- 
tain enough. 2 Wms's Rep. 565. 572. Hill. 1729. Chapman v. Mon-^ 
fon. 

46. Every Modus mtift be certain, otherwife no Length of Time will 
make it good. Admitted by Ld. C. King, affilted by Reynolds 
and Fortefcue J. 2 Wms's Rep. 572. Hill. 1729. in Cafe of Chapman 
V. Monfon. 



(C. a) Modus Decimandi. 
\GQod. J-Fhat /'/.] 

v. T '(IC fjj a SOOtI $^OtmiS £)CCimanUf, tijat, in confideratiott the 
\ Parilhioners hath Time out of Mind &c. paid Tithe- Wool of 
all his Sheep which he hath ihorn, as well of thofe as he bought two 
Days before the Shearing, as of others that he had kept through the 
whole Year, he hath ufed Time &c. to be difcharged of Tithe- \Yool 
ot fuch Sheep that he fold two Days before the Shearing j fot UP tljC 

Spiritual lam tljcu fliouin l)a\)E' Citljcgi of ijim, aun Dc Ecfltiiia 
pro Rata telnet) !)e tola before €>!}carinnf, ann tficreforc, nt coiifiDcr^ 
ation tijat Ijc {}£rc pap3 'fibitljed of tljofc uiljictj ijc tsougljt fo finatl a 
%mz before tbc ^ijearing tor tije ioliolc ^car, iuljiclj is not mie bj) 
t&e S)ptritual law, it \$ therefore toooD* $p» 14 ja, "B* aojuoffcri, 

2. Jt 13 a 0000 $?50tm!5 for the Tithes of Calves to pay a Calf for 
the Tithe if he hath leven in one Year, and if he have Under feven, 
to pay aai HaKpenny for every Calf for tlje CttljC, and if he fells any 
Call, that he thall pay the Tenth of that for which he fells it. 

^. 14 ja* 05. E» bctujcen Lee and Cviims rcfollien, ann a l^roljlln^ 
tion grantco. 

3.B 



8 Difmes, [or Tithes]. 



S. C. cited 3. Jt 10 ii goOD S^ODUSS foe ^^Itlje of Eggs, to pay in Lent 30 Eggs 

per Cur. for allTiche otEt^gs S^* 14 J.it. 'B. E» UetUJCeU Lee and Collins^ 

pi^rMich. a I^roDibttiou grantcn tOereupon. 

B R in'Cife of Hill v Vaux, that he is bound to pay if he has Hens or not, and he irud pay them 

at a certain Tim. Ld. Raym. Rep -^60 S.C. cited by Holt Ch. j. accordingly ; but it the Cultom 

^vas that he iliould jay 50 Eggi ef his own fiens, the Cullom would be ill. 

4- Sit t^ not a 5005 ^ODU0 to pay every tenth Pound of Wool 
for the Tithes of Wool, if l)C DOtlj llOt Ihew that he hath paid fome- 
thinc;;, if his Wool does not amount to ten Pound, fOC OtijCCUJlfC It 10 

in i?3on Decimautio if it be lumt tm ISaiinn. ^» 7 Ja. 05, b£ 

tmtil Delman and Barton, pet CUtUim, tOC tljC tCUtlj Part Of tljljS 

15 Hue* 

5. Notej by the Serjeants that in the Spiritual Court ^ they will not 
admit any Plea in Difcharge againft Tithes, quod nota. Br. Difmes, 
pi. II. cites 8 E. 4. 14. 

6. In prefcribing to bedifcharged of Locks ofWooly it ought to be fhewn 
of Locks cafually loji ^ 'Nota. Mo. 911. in pi. 1283. Mich. 37 & 38 
Eliz. B.R. 

7. Prohibition was fued upon a Cuftom to pay ait Halfpenny for the 
Wool of Sheep fold after jhearmg, and before Mich, and adjudg'd a good 
Cuftom. Mo. 911.pl. 1283. Mich. 37&38Eliz. B. R. Anon. 

Mo 910. 8. A Cuftom was alleged to pay lithe-Wool at Lammas Day, and faySj 

pl. iz8o S. that he fet it out at that Day ; It was objeSled that this is not good; 
C. & s. P. f-Qj. ji^j,. ^j^jg Js not Modus Decimandi, but tor the Time only which 
'^d^'d"°d^^ is to be tried in the Spiritual Court i But the Court held it good ; For 
^ ^" ^^ ' it is de Jure when it is clipp'd, but by Prelcripcion in may be let ouc 

altogether at another Day, and that is good i Per Cur. Cro. £. 702. 

pl. 21. Mich. 41 & 42 Eliz. B. R. Green v. Hun. 

9. Libel &c. by the Vicar of D. for Tithes, the Defendant fug- 
gefted a Modus to pay fo much to the Parfon of D. in difcharge of his 
Tithes. The whole Court agreed, that a Modus to pay fo much to ths 
Parfon ivill not difcharge htm from paying Tithes to the Vtcar ; And there- 
fore a Confultation was granted. 3 Bulft. 220, 221. Mich. 14 jac. 
Wintell V. Child. 

10. A Cuftom was fuggefted, That if one has Lambs under the 
Number of feven, he ought to pay an Halfpenny for every Lamb in Lieu 
ot all Tithes of Lambs, // he has but feven the Parfon to have the fe- 
venth, and fhould pay 3 d. if he had eight he Ihould pay 2 d. if he had 
ten the Parlbn iliould have the tench, without paying ar.y Thing. A- 
greed that this being a Cuftom which they retuied to allow of in the 
Spiritual Court, that a Prohibition iliould be awarded. Cro. C. pi. 2. 
Pafch. 10 Car. B. R. Anon. 

1 1 . (.urtom to pay Tithes in Kind for Sheep if they continue in the Parijh 
all the Tear ; but tf they ^xe fold before fijeartng 'time, then to pay but ait 
Halfpenny for every one \o fold j This was held an unreafonable Cullom, 
Mar.79.pl. 128. Pafch. 17 Car. C. B. VV^eeden v. Harding. 

12. A Vtcar libelled for Tithes of Willow Faggots. The Defendant fug- 

gefied for a Prohibition a Modus of paying 2 d. per Ann. to the Retfor 

for all Tithes ofWUlu-ws. The Court held, that a xModus to the Re£ior 

is a good Difcharge againft the Vicar. Mod. 216. pl. 3. Trln. 28 Car. 

2. C. B. Anon. 

Keb 6(n. 1 3. Prohibition was pray'd upon a Cuftom alleged, 7hat all Perfons 

pl. 76. Bau- "jjIjq ijad Lands in fuch a Village, but lived out of the Village fhould pay ^d. 
p'"ru u P^ ■^"*'' ^"^yy '" Satisfaifton of Tithes. But this was held an unreafon- 
S c held ^^^^ Cuftom, that Foreigners Ihould have grearer Privilege than thofe 

wh® 



Difmes, [or Tithes]. 



who dwelt in the Village, and are at greater Charge in relpe6t oi their accordingly; 

Relianc}', and fo the Prohibition was denied. Lev. ii6 Mich i^ and Keeling 

Car. 2. B. R. Bawdry v. Bulhell. " \"^' '!"' 

■' . thei-e IS no 

Precedent 

of any Modus fo variable and dancing. Modus for Foreigners to pay i^d. per Jcre yearly for fJerbage 

ariHTilU Hay hdd good, per King C. and two Judges. Gibb, 120 Hill. 5 Geo in Cine. Monloii 

V. Chapman, But ihefe two Cafes ivere exploded, ajid the Court held it a good A/odiis, and laid, thar all 

Wodiij's wercat firft upon an Agreement between the Parfon, Patron, and Ordinary, and by fome 
Deed or Inftrument in Writing, in the Nature ot a Contract or Agreement, wliich thoui^li nos'r 
loft, yet being run out inio a Prefcription continues good; thit here is no Uncertainty in tiie Mo- 
dus, for the Parfon is always Aire to hive the 4d. per Acre,' or ellb the Tithes in Kind, nor is there 
any Burthen on the reft of the Parifliioners by one or two going out of the Pdrifii, and a leaping or 
danciMg JJoduj is where the Modus itieif varies, and is lomenmes more, or lomctimcs Ids, which Is 
not the prefcnt Cafe, and decreed accordingly by the Lord Chancellor, aflilkd by Mr. f, Reynolds, 
and J.Fortefcue. Ld. Chancellor f'aid, the Cafe in Keble might perhaps be the Occafion of iliis 

Suit. Abr Equ. Cafes ;<>9. Trin. 1750. Chapman v. Bp. of Lincoln. ■ Ld. C. King difapproved 

ot the Rcafon in Lev. 116. that the inhabitants ought to be more fa-.oured in a Moda^ than Foreign- 
ers, becaule liable to Rep.^irs and Vellments of the Church ;where3s by the Refolution in JjCfifffP'S 
Cafe. 5 J^ep. 66. b. a Foreigner occupying Lands within the Parifli, though living out of the I arifh, 
IS liable to P.ef airs, and even Ornaments, and laid it was a fudden Opinion upon a Motion. 2 Wms's 

Rep. 565 10567 Hill. 1729. S.C. by Name of Chapman v. Monfon, and e contra Ibid 574. 

Ld. C. King, affifted by Reynold.s and Fortefcue J',s diflifced that Cafe in Lev. 116. and it was 
thenfiid, that in the fame Parifh in which the Modus was infilfed upon in Lev. ik; the very Mo- 
dus, notwithftanding that Opinion, had been obferved, and Tithes paid in Kind, which fhewed 

that no regard was had to that Opinion, and the Parfon not advifcd to rely upon it. Gibb 121. 

in Cafe of Monfon v. Chapman, that Cafe in Lev. 116. was denied to be Law. 

14. A Cnltom was alleged. That all Perfons in the Parifi who had 
Sheep on their Grounds on Candlemas-Day, (hoiild timi full Payment of fall 
Tithes jorfuch Sheep whxch were there on thut'Oay, be difchar'^ed of 
Tithes (f all Sheep that afterwards ihould be upon their Ground in that 
J'ear ; But this was held an unreafonable Cultom. xMod "20 pi iS 
Trin. 28 Car. 2. C. B. Moor v. Field. ' ' 

. 15. A Prohibition was pray'd upon a Suggeflion of a Modus to pay 
fcrall Tenants and Occupiers oj the Land in Di [charge of Tithes ; but up- 
on the lirit Motion of the Prefcription in theOccupieis was doubted by 
the Court i tho' at Length, inalinuch as it goes only in Difcharge, and 
rot in cluniiing of an Intereft ; the Prohibition was granted upon Con- 
fideraticn of the Cafe of Cowper v. Andrews Hob. ['39J & Ibid 188 
[118 148J Shelton v. Montague, and i Cro. Baker v. Bie:emin* 
3 Lev. 386. Hill, s VV. &M. in C. B. Stopp v. Peacock. 

16. wS izW.i. cap. id. S.\. Enatls^ That every Perfoninho pall 
fo-zv Hemp or Flaxjhallpay to the Parfon^ Vicar or Impropriator of fiich Pa- 
rip or Place, yearly 5 s. Jor every Acre of Hemp and Flax,- before the fame 
be carried off the Ground i for the Recovery whereof the Parfon i^c. (hall 
have the iiftial Remedy. ' 

S. 2. This Aitfhall not extend to charge any Lands difcharg'd by any 
Modus Dccimandi., Ancient Compofition, or otherwife. 

Made perpetual by vGeo. i. cap. z6. 

17. A Modus to pay 2 s. m the Pound out of the Rent referv'd from 
Time to Time is no Modus. Ld. Ravm. Rep. 696. 697. Mich 13 vV 3 
Byne V. Doderidgc. ' • i ■ i- 

18. Bill was brought toeftablifli a Modus which was laid thus ; For 
Payment of fuch a Sum of Money, [while the Lands are in the Hands of 
the Proprietors] but if in the Hands of any other Per fan, to pay Tithes in. 
Kind, or the Money, at the Ekaion oj the Parfon. Ld. Chancellor faid 
that he would never eltablilh a Modus againlt a Parfon, without a Trial 
at Law, \t hedelires it; but this Modus is clearly ill, for a Modus can- 
not be delultory. Sel. Cales in Cane, in Ld. King's Time ?2 <? 
Mich. II Geo. Webber v. Taylor. ■ ^ ■ ii- 

^ 19. Note i 



lo JJifmes, [or Tithes]. 

19. Note; The Court unanimoufly agreed. That the fame Land may 

at one lime pay Tithe in Kind, and at another Time a Modus , ivhere there 

are different Circnuijiances j the only Thing eflential to a Modus is, that 

the fame Land fhould not pay Tithe in Kind and a Modus both, where 

there are the fame Circumftances. Barnard. Rep. in B. R. 293. Hill. 

3 Geo. 2. in Munfon's Cafe. 

bibb. Tip. 20. Bill let forth that there was a Cuftom in the Parifh of B. that all 

Monfon V. Perfons occupying Pajiure and Meadow there^ /hould be difcharged of Tithes 

Chapman, ^^ Kind by paying 4 d. an Acre, unlefs they were Inhabitants of that Parijb 

accordingly. °^ ^/ the Parifh of' . The Plaintiffs were Occupiers of Pafture and 

Meadow Ground in this Parifh, but Inhabitants in the Parilh of W. 
And whether this Modus was good or not, was the Quellion. Rey- 
nolds and Fortefcue J. affifted the Chancellor in determining this Qjaef- 
tion. They all unanimoufly agreed. That Modus's were real Compo- 
fitions by Parfon, Patron and Ordinary, the written Evidence of which 
is loft i but the Law prefumes there was fuch by the long uninterrupted 
"Ufage. Undoubtedly, they faid, there would have been no Dilpute 
about this Modus if it had been without ReftriSions ; and as the Re- 
Jhiif ion is for the Benefit of the Parfon, they thought the Reftri£tion 
could make no Difference. They all allowed however that fomething 
mult be due from the Modus, and that too every Year ; for as no Pre- 
fcription can be in a Non Decimando generally and at all Times, fo neither 
can it beforfo long a Time as a liar together. They feemed to allow too, 
that a Modus would not be good where it depends upon the Will of the Oc- 
cupiers, whether itjhould be more or lefs. But here they faid. The Rule 
for the Payment ot this Modus is as uncertain as the Rule ior the Pay- 
ment of any other Modus poffibly can be ; the only Variation is as to the 
Perfons paying the Modus, and that they faid was never in Objection. 
Accordingly the Chancellor was going to decree for the Modus, but 
tho' the Proof was very clear to fupport it, he gave the Defendant's 
Counfel a Day to talk with their Client whether they would have the 
Modus tried or not, as it did concern the Inheritance. Barnard. Rep. 
B. R, 292, 293. Hill. 3 Geo. 2. in Chancery. M union's Cafe. 



(D. a) Modus Decimandi. 
What fhall be a good Modus Decimandi. 

* Cio E. 1. T "2^ 10 a KOOt CO^OtlUS DCCimanHf, if, in confideratlon that he 

660. pi. 7. J^ hath uled $C» to make the Tithes of the firft Moath into Hay 

■^d^"d a' ^'^^ ^^^ Parfon, at his Labour and Coil, he hath been dilbharged of 

goodPr\- Tithes of the After-Moath. 'El. ^6 €115. Wi> ^fohnfon and Keble- 

fcription, thwayte, 37 (£U * Johnfon and Jic berry ; ill tljCfe tWO CilfCS It lUilg 

that they fy rEftil^eD, aiiti a puoljibitiou t cranten, ia» 41- €1 15. R. B, 
ScethV" " ear, 'Banco Ecgt^, Langjord's cafe rcfolijcii, ano a ptoljtot-- 
Hay of the tloii stanteo, 

firft Moaths 

into Cocks, and to fet forth the tenth Cock for the Vicar. Mo. 910 pi. iiSo. Awberic's Cafe, 

S. C. but mentions the making the firft Moath into Hay, and adjudged good. S. C. cited per 

Cur. by the Name of Awbrey v. John as adjudged. Cro. J. 4a. pi. 7. 

I Cro. C. 403, 404. pi. 2. Anon. S. P. and fccms to be S. 0. and a Prohibition granted. 

2. 3it 



Difmes, [or Tithes]. 1 1 



z. ilt ilj a gOatl {1)9ODU0 DCCimanOi, tijat, in conlideration of the Seep!, i. 
cuctinc: ot the Grals, and Iprcading and putting it into Wenrews,arKi the 
IClUCCt, tEOOilUi;, and alter making the Tithes ot" the Parfon of the ^J^i^^^j^^|^ 
fine Moath into Grafs-Cocks at his own (*) Cofts auB Cljai'gCd, l)C V poi. 649, 
Ijfitij been d'.fcharged of Tithes of the Alter-Grafs. $^tCO. 42 & 43 ^l» U-^^Tx^ 
Johnfon and Pcppiuirer ; i 3aC. Ecks and Vachin ; ^ JaC. ^-t'/t-f ^'^'^ 7T~?' '■'' 

mnerboit; [ju ali tijcfc Cafcjs |?rol)ibitton$s tocce ijrantcu in 'B* K-rccolditw 
Quo 99ic!j. 14 3ac* 3oi)nrcn nioucn foe a Canfuitatiou upon tijCHob 250. 
(am J^roljibition t^raittcD III tlje 43 €1. a-jamCt Ipoppinscc, but itpi. 55oHiii. 
tta^ nenieu* pafcij. 4i[ CU 15» in* betujccn ^w/'^t ^'"^ J^h»fo'> -, ^'^uc.n^Ao 
qpafcl). ii<Zwc.lD,lS^. Langford's Cafe, a proljibitiou PiintcU ;,fj";^i~ 
upon fuel) ®utmU"c for tljc !aftcr=95oatt), JcJatcl). i4€ai\ 15, EHaysthe iike 
tetwcen Mamnng aud ciapbam, a IScoijibitiau gcauteD fat* lijc tatttas fu.ignienc 
of^Ocepupon tljc aftei;=pafture, TlnlT ■ 

like Cuftom Pafch i Jac. B. R. Rot. 102. of 292. Hall v. Simmonds. Cro, I- 42. ?'• 7. 

Mich. 2 Jac. B. R. Hall v. Fettyplacc. S. P. adjudged a t;ood Cauic of Difcliai-<^e of Tithes of the 
latter Mowih, and Prohibition ordered to (land. Mo. 75S. pi. 104S S. C. but tikes a Differ- 
ence between making it into little Cocks and into great Cocks, thit the l.i(f is a good Prcfcriptlori 
but not the firft ; and that a Prefcription to carry it into his Barn for the Parfon is good, and for this 

cites JohnionV .Cafe. A Prefcription was laid for the Aftcr-grafs in Confideration that every 

one fli'all preferVe Primam Tonfuram, by which the Parfon fhall have the better Tithe, and there- 
fore to be difcharged of the After Crop for the Tithe of it, and this is c.iUed (.rewine) is good ; for 
by this the Parfon has the greater Benefit 2 Bulft. 238,259, Trin. 1 2 Jac. 239. the 4th .Point la 
Cafe of Price and Mafcall. Roll Rep. 9S, 59. S. C. Sc S. P. adjornatur. 

3. It iiJ a ffoou i^onuiS Dccimaatii, tijat, ill confiDcrattan of 

the making the Tithe-Grafs ot the Kirlon ot certain Land iato perfect 
Hav at his Gofls, \}Z Ijatlj bCCU difcharged of Tithe of the Palture of 
thc'faid Land for the whole Year after. PafCl)» 16 3|nC. 15, bCtUJCCU 
Nichols and Hooper^ rCfOl^JCD, ailD a PUOljIbltlCn SiaUtCn. 

4. Jit 10 a St^oBus Dcdiuantii, taat, m coufiDccation that they 

who low the Land ought to reap it, and bind and lever the tenth Pare 
from the nine, and fet it up in Hillocks Ot ipcap0, tljat t!)C pacfOH 
fljall not: have any Tithe of this Land the next Year rol low- 
ing i the Land lying ley, aUB UOt ttUc5 mi COlt^CrtCD IHtO (i3a> 

tsotn, foe of Commcii UigDt tljc l^aruljionci; 15 not bouiiD to m 
tl)a; aiiQ fct up tljc Citije \\\ Ipmockg ?c, but it ig a good C^anuec 
of dtljino; to tljtoiu tije SijocU^out. MU 6 %z^%. pU 13- pec 
Curiam* ^, , ^. 

5. 31 10 a soon S^OtJU^, tijat, m COnfltietatiOn that he hath Time Cro, j. 5^ J, 
$C» wound up the ten^h Fleece ot'his Wool at his Shearing for the Par- pi- %■ Joncc 
Ibn, at his Coll anti CljaCgC^, and paid it to the Parfon, {JC \)dX\) bCCU l ^"'^^r* 
difcharged of Tithes of the Necks of his Sheep UlijCU IjC tljOCC tljCUl s. P. does 
about tiieii: BeCfelS foe tijeir prCfGtBattOn two weeks beiore Mich- not appc ir 
aelmas, and two Weeks after ei9lCljadma0* 9^\t^, 14 3 ^^'C* X^. iv — 5 '^^'jil- 
tlCtUiCen Joys and Parker paVfOH Of A^^'-r^^o/ro;; \\\ Devon ^ ItfOl^CO, "\^ f""-" 

iiuti a i^ro!nbttlon erantcb, bccaufc tl)c l^aiidu fuca fat tljc Citijc s c' Cu' 
of tl}i0 ji5ccluniji for it appcacsj, tbat t\)z fljcanng at tlji.a Ciiuc ofs. p. docs 
tljC licac cannot be fct tije Qoencfit of t(jc iBooL "°f ^pp"'- 

-* "-^ — 2 Brow 111. 

52. Arg. cites S. P. adjudged, Pafch. 36 Eiiz Jeffop's Cafe. 

6. 3!t 10 a Kooti S^otJU0, tljat, fin ConfiDeration the Parront:'o.j.^5oi. 

and his Predecellbrs Time out ot Memc^ry &c. have been fei fed in F^'c .^V-J.^^-j'^;,'." 

of certain Meadow within the Vill ofD. and taken the Profits thereof, cordingly 

in tull farislaftion and difcharge of all Tithes of Hay within the fame Libel &c. 
Town, Time out of Memory $C* fOC It fiiaH bE mtCntietl tljat tU^l'p^^ 

93cai50to toao ixtiicn at tljc 'Begtnmnn:, in full latisfactton of all tlje w^od'.-n a 
Jpap uiitijin tlje fame 'QbOUJn. ^icij. i6 2ac. 03. E» betuiccn a/oo>- the Dcfen- 
cwd Bullock, anjuTJscD upon a iPtaijibition, tiji0 C^attec bcms niob-'dant fug. 
ctiin Strreftofaucsmcnt* cutiom^n 

the Parifh, that all the Parfons of the faid Clurch, 'Time out of AJind habuerunt Sc rawfi fueruiit, 
fuch Land Panel of tke Maiicr of F. iti rec'omfengi bf all lithe of IViod in the faid Parif,j iiiu. But did 

flit 



12 Difmes, [or Tithes]. 



vot aier that the Lands luhcreof the Titles /ire demanded were Parcel of the Mavor ;■ but adjudged, that 
the Pi-elcription wai g"od, for it might be, that at the tie<;inning all the Land withii the Parifh was 
Parcel of the Manor, and the Land ol- the Allotter, and that I'uch a Part was allotted to the Parfon 
in lieu of Titiie- Wood. Cro. E. 5S7. pi. 19. I\lich. 59 6c 40 Eliz,, B. R. Somenon v. Cotton. 
. S. C. cited Arg. Co. E. 7S5. ' 

\n the principal Ca(e of Moor v Hullu:k it was moved in arreft of Jud|;nient that the Surinifc was 
not "-cod ; for he ftewi^g that he was leiled in Fee, that is as, parcel ot hi.'. Glebe, it cannot be n\ 
recompence of the Tithes; or Ihewn ihat he and his PredccelTors time whereof &c have had the 
Occupation of that Clofe, and t!ie Profits thereof in lieu ot Tithes ; and not to fay that he was fei(ed, 
■which fhall be intended ds Parcel of the Glebe ; Scd non allocarur, tor it is a better Form to lav that 
he was (ei''cd in Fee; for it is fo antient that it c.mnot be Hiewecl when, or by whom it was given; 
Put having had it always in lieu of Tithes, it is good enough, and fliall be intended to be given be- 
fore Time whe.'cot &c. in recompence of the Tithes. Cro. J. 501. pi. 10. Mich. 16 Jac. B. R. 
Iilonre V Bullock. 

The SupgflHun for a Prohibition wa.s. That the Parfon had 20 ./iivj of Pit ft tire, and a Clofe of 10 
yJiresof Wood, in fttisfaclion of alt the Tithes demaniicd; The VVitiielles cxammed accordirg to the 
Statute 2 Ed. 6. cap. I 3. ■pro'ved that the Parfon had the 20 --icres of Pa/iiire, hut not the 10 of [f^ood, and 
vet the Prohibitioii uas granted, bccaufe it appears that the Libel was unjuft ; for though the Pa- 
rifhioner had failed ot his full Proof, yet there was enough to bar the Parlbn of his Tithes in kind, 
and he need not fhew how, or by what Title the Paribn had the Land; For if it "was not in Satis- 
\aHion of Tithes, the Parfon ouglt to f:eiv that himfelf. Mo. 9II. pi. 12S4. Hill. 42 Eliz. R.R. Auftin 

V Piggot. Cro. E. 756. pi. 4 S, C. the Subltance u proved that he held Land in fatisfaftion. 

. Cro. J. 501. in pi. 10. S. C. cited chat the Prefcription was held good. 

7. 3it 10 a coon Q9Otltl0 DCCimantli, that he hath paid the Tenth 
of the Wool ol: all Sheep that he had betoie Lady-day, and Iheered or 
fold, or put in any other Parifh, or hath paid the Value of the Tenth 
thereof, to be in full latisfaftion as well ol all the Wool of fuch Sheep, 
as of all other Sheep brought within the Parifli after Lady-day, ftll* It 

Id nat rcafonablc tijat tljc Cttljcs ijc Jjatlj patB fljoulD be a DtfcSjargc 
foi: aU tijc otljci- jS)ann)ionci*3 ; luit t!)i9 iua0 mteimcD to be a Dtl' 
cliurae of ail tljc ^ijccp of tIjc l^artp ijhnfclf brouaUt toitljin tljc 
liDantij afcec latip^naj) -, but tijis U3a$ not fa ccprefico, ann t\m Uaa 
bccii a tjnot! Ciiltouu C^icij* 9 Car* 05. K. betinccit Mai-ket and 
Kntgbt, aamtigen tipan Demttrtcc, anD fo ruleQ in aiiotijcc Cafe 
tlje fame Ccnn upon a ^rial at Q5at. 

InaProhi- 8. B 10 nOt fl IJOOB £i30tiUS« that he ought to be difcharged of 
bition Plain- Tithes, in conlideracion that he hath ufed Time out of Memory fC* 
tiilfuggclkd jy employ the whclc Profits of the Land in the Keparation of the Body 
''tu\7Mind o*^ "^'^^ Church, and to find all Neceliaries lor the Church, fot tljiSS tSi 

th" Owner uot 3 Eccoaipcncc to tlje jaacfon. Pafcf). svCIt?* "B* betujcen 

of the Land LongUy and Mwcdinc^ aOjllDgeQ. 

had found • 

Straw for the Body of the Church, in difcharge of all Tithes of Hay. Coke moved, that it is no Caufe 
of Difcharge, for the Parlbn was not chargeable with it, nor had any Benefit by it, but if he had 
allced that he give the Straw to the P<.r(bn^ and he bellowed it in the Body of the Church, or that 
the Piirfon had a Seat in the Body of the Chui-ch it h.id been otherwile ; and thereupon Confultation 
■was "-ranted. Cro E, 276. pi. 7. Pafcii. 34 Eliz,. B. R. Scory v. Barber. 

9. But it ijS a soon %tm^ to be tilfdjargcn, becaufe he hath 
ufed $C» to employ the Profits f )r the Reparation of the Chancel ; 

for tlje parfon IjatD a ISenefit bp tljt^. I^afclj. 37 <£li?. Od* faia to 
be aB)uiiQ;en in 05. K. 
* Noy.15. 10 Jit 10 not a soon £i9anujs, tljat, m connneration that th? 

Parry v. Parilhiouer having arable Land hath ploughed it, and hath had Head- 

Chauncey. Lands, green Slips, or Doles, parcel or appurtenant to their Huf- 

±*C- C bandry-Houfes or Lands, that in conlideration the Parilhioner would 

^Q-. pi' 4.' plough and fow his Land with i'ome Kind of Grain, and mow it, and 

JMe.ide V. make it up into Shocks, Pooks, and fever it from the ninth Part, and 

Thurman. prepare it lor carriage lor tlie Parfon, the Parilhioner hath ufed to be 

S C. the^ difcharged of the Payment of any Tithe fowed, growing upon the 
cd"a'pfohu" Headlands $C. of fuch arable Land, and then fowed, applied, and 

bition. . converted for the Nutriment of his Cattle of Husbandry employed in 

.Jo- 357- the Tillage of thefaid arable Land, tljilt 10 HOt a ffOOO 99OtlU0, bf= 

hit H,?t is fii»f«^ of common Emijt tlje JS5annjioner ougljt to cut anu prepare 
of a Libel tlje (Jprain, ani) let out tbe '(ITitije. Q3icb* 3 31a. X^. R. betiuecn 
tor green * Perry and ChaiDiciy, aHjunseo upCH 2)cniurrer5 ann a Conriilra= 

tiaii 




Difmes, [or Tithes]. i o 

tion grantctJ* 'But l)i\l lo Car* 05* E» hzmtm t Mead and Tares, cut 
Thuriand, a 125rol)ibitioii srantclJ pec Curiam, tuljcrc tlje ^uit iuas f°' ^'^.'^*"s 
tiar Citljr0 of Dnp, groinino; upon fiicU ©eaO'lanog, tuljere ftp Cur= Horrri^ 
torn not iifco to be patD* Prohibitioa 

was ground- 
ed not upon this general Suggeftion, but upon the Cuftom of the Parifh, that no Tithe was paid iti 

li, is Cafe . — zLe. 2". pi, 50. Mich. ;o Eliz. B. R. Perry v. Somes. S. P. and held by the 

whole Court, that it was a good Prefcription as to the green Tares. 

. II. 3!t 10 not a n;oori 09011110, tijat in confiticratfoii that the Pa- 

riiliioner having Barky, the greatelt Pare vvhcreot he hath cue down 
and tied into Sheafs, and fet in Cocks, of which the Parfon had the 
tenth Cock, that he hath ufed to leave a fmall Parcel of the Barley to 
lland, to the Intent to cut it down after lor Bands for the Rakings vo- 
luntarily fcattered, and to be difcharged of the Tithes of this fmall 
Parcel of Barley when he cuts it. fpilU 8 Car* IS* K» bettPCClI 
Saunders and Paramour^ per CUriam a l^rOljlbltlOll DeiUeO* 

12. 3ifaPannjlOner prefcribes, tIjat whereas the greatell Part of See pi. lo. 
the Land within the Parilh, and within the Parifnes next adjoining ^•^•^"'^ 
thereto, is arable Land, fo that for want of Grafs they ought to pro- [hg^e °'" 
vide other Sullenance for their Plough-Cattle, and becaufe he hath 
ufed to cut and tie into Sheafs the Grain fowed there^ and to put them 
into Shocks, of which the Parfon had the tehth Shock, by which the 
Parfon hath the Benefit of the Labour of the Plough-Cattle, and in con- 
fideration thereof the Parilhioner hath Time out of Ivlemory, $C* ufed 
to be difcharged oi the Tithes of green Tares before they come to 
Perfeftion, [and] in fmall Parcels in the Time of Harveft, or before, 
;ind given to his Plough-Cattle for their Subliftiuice ; tljlSl (0 ttOt il 

gcoo £^omi0, becaufe if Ijecut0 tbem tioiuit, ije nwlipai) Citljetj 
for tljem, a0 ioell m if tljep IjaQ come to tOclr perfcctioiu \m. 

8 Car. "B. iR» bettUeen Sannders and Paramour, per ClirtaU], 3 

l^roljibition Denieti, fciUcet, l)\\l lo car. 15. R. betuiccn ^^^^^ 

dnd Thnrhuid, a Prohibition granted pet CliriaUl ill filClj Cafe, t!)l.£> 

being alledged by way of Cultom. 

13- 3it i0 not a soon $^05110, tljat, in confincration that he* c,o. j. 

hath expended his Hay for his Husbandrv-Curtle, tO be dilchart'ed of*7- p'- ''- 
Tithes of Hay. ^* 3 Ja. "B* R* ailO tfjCrC ClteD. mi ^ h^r'^u ^KU 

* JVarner's (JCafe, atljUtrgCO* v. Warner 

jud<T'd. —Mo. 685. pi 941. Pafch. 44EIiz. B, R Anon. S. P. A Suggeftion wasof .i Cuf- 

tom, that if any Pari jhioner fed bis Sheep "with his Gr^tfs till June or Augull, that then he might mow 
t.he coarfe Grtifs with which they fed the Sheep in the U^'Diter, v/lKr^by the Parfon had Uberiores Deci- 
mas of the Sheep &c. It was itififted that this was a plain non Decimando, and cited the principal Cale 
lr«re in Roll Abr. 650. pi. 15. and the Court held it a void Cullotn, and fo a Prohibition was de- 
sixd. Ld. Raym. Rep. 677. Trin. 13 W. 3 Selby v. Clerk. 

14. 3!t 10 a gOCrJ $19O5U0 for an inn-keeper, tljat, m confideratiori 
that he and all ^C, have paid Tithe-Hay and Gram growing upon the 
Land belonging to the faid Inn, and have paid Tithe for all. their own 
Cattle feeding upon the Land, t!)at tljCJ? Ijulie bCCU €;imC $C. dif- 
charged of the Tithes of the Horfes of their Giieits agiited in the faid 
Land when they travel by the faid Inn ; for fomc Ijalje faiO, tljat tDi0 

toa0 but a perfonal ^itlie, ann otljer0 Ijane faiD, tljat no €:itljc0 
itjoulD be paio for fuclj AgiUment up tlje Common ILaiu, tuniiout 
anp$^oriu9, bctmccu GabeUnd Ruhardfon kMwq-, auo a l^roljibi- 
tion grantcD. 

15 Jt 10 (t Boon $^OtJU0 to be difcharged of the tenth Swarm of Cro. C. 40^ 
Bees for 'Citlje, in conlideration of the Payment of the Wax and Hb- P'- ^ ^"°"- 
ney to maintain them in Winter, and find Caps tor them, inafUUlClj b^^S^c""** 

a0 tijep are if ers il^aturse Of tijcnifeJ^e0, nno requite sccat Care adjudged. 

£ ano 



Difmes, [or Tithes]. 



fluti labcur td Isecp tljeut tnljeii tijc)? fuiarnn Dubitatut, Dili. 
loCar. 'B. K* '^'"'^/i^^'^'-f Cafc» parol)* " Cat. m tW Cafe 
moiicti agaui, antJ ttjeira Pcoljtbition grantco. "But fonic of tljc 
Ii!tiac0 fain, tljC ajatius uias not goon- fciiicet, but onlp tljc Diiti) 

tuljtcl) tlje laiU pUC, a^Ut tljep IjelO, Cljat no Tlches were due ot 
the tenth Swann, becaule tl)CP ai'C Fers Naturae. 
Prerci-ipHon 16. Jt 10 ItOt a pOO S^ODUjS t^i prefcribe to pay one Tithe ^or 

that all the another' 

of L have ufed ro pay to the Parfon, Proprietor of the Tithe's /r// /Se/r Hay in Shocks which hath 
been in lieu of till Brcom, and other Benefit s of the 'Tenement was held an unreafbnable Suggeftion; For 
a Modus of one Kind will not ferve for another. 2 Keb. 212. pi. 48. Pafch. 19 Car. 2. &. R. 
Brown V. Hay wood. 

Cro. E.475- 17. As it ijS ItOt a goon $^011110 to prefCUibe to pap for every 
pi. 5. S. p. Milch-Cow 2 d. and tor every Calt i d. in latistaftion lor all Tithes of 
M^^"~ all manner ot Cattle, fot tW AjilH "Ot HlfCbarffC Dt? Cattle, fOi: 

T'S tl)i0 is but one ^itlje fot auotljcr. i^iclj* 3 :^!ac. '^. U. is citcD bp 
s. c & s p. coliE to be fo iiQiurig^li, betiueen * shemngtoa 

-Gouidsb. a„^i Fleetwood, uiijicl) Cafe taa0 Ctim 38 Cli?, 15. K^ 

147. pi. 66 

5. C, & S. P S.C. cited 2 Bulft. 238. 2Salk. 657.pl. 5. Mich. 5 Ann. in the Exche- 
quer in Cafe of the A. Bp. of York v the Duke of Newcaftle; the Court admitted the Payment of 
Tithe of one Species or payment of a Modus for one Species of Tithe could not he a Difcharge as to 

another Species But if he had prefcrlbed that he had paid 1 d. for all Cows and Beafts agided, 

that peradveniuie had been good ; and fays this Diverfity was fo rul'd in Dr. Lewis's Cafe, and of 
that Opbion were all the Court here. See Ld. Raym. Rep. 242. ill Cafe of Norton v. Brigg?. 

iMo. 454. 18. So if a S^an ptefCtibeS to pay one Heifer for all Tithes, tljid 

fV ^^'•<- flrall nottiifcijarge ti)c mwyz^ of otbcc Cattle, but ije Iljall pap tljcm 

Sice^s'^'p.itt laiiin. Cniu 38 €115, 05. E* per Curiam. 

and feems 

to be Jj. G. 4nd the Court held accordingly. 

Wo 909. pi 19. 3!t ijS a gOOH S^OUUS in confideration of the Payment of the 
J 279 S. C. jet^th Cheefe made from the firft of May, until the lad ot Auguft, tljat 
^ ^J- 1 be batll been difcharged of the Tithe of Milk, fOt tlji0 10 llOt 3 Citlje 

beca^e"fhe' ill biuH Of patcel III Cifcbarsc of tljc J©ljole, for no Tithe in kind 
Cheefe is is due of checie, but oiiip Of 9^\\% aiin fo a 0000 CoiifiOetatiotu 

made by La- jpjifcJj^ 40 Cli?^ bettOCeil Jtijien and Lticas, atlJUOpD* 

(2|.a,.(re . Cro. E. 609 pi. 15. S. C. held accordingly ; but to pay the tenth Qnart of Milk is 

not good ; becaufe that is only for what is due. But Popham faid that to pay the loth Quart of Milk 

at the Parfonage Houfe.or at any other Place is good enough. S. C, & S P. cired Marg. Raym. 

j.g S C. cited, 2 Salk. 554. pi. 20. Trin. 4 Ann. B. R. in Cafe of ;Jpop t). i<Li«tCr, 

>vhich was on a Modus fuggeffed to pay every loth Day's Milk jrom April till November fkimm'd and 
made into Cheefe in lieu of all Tithes of Afilk, a ProhMnon was granted to try the Modus and fettle 

the Matter.- -6 Mod, 261 ?Lcircffer b. ^tip. S.C. The Court did not like the Modus as 

feemin"- very fevere on the Vicar, but to fettle the Point which they thought ot great Confequence, 
they glinted a Prohibition, direcfting them to declare forthwith. 

Savil 100. 20. One can't make a Prefcription to pay Parts of the Tithes in Kind 
s. C. by the y^,. ^// tithes oj the fame Nature ; as to pay an Apple for the Tithe of all 
"Name of Sa- j^jg Apples, and fo of the like, Per fome of the Judges. And. 199. 
t'^Ma pi. 234 Trin. 31 Eliz. Adams's Cafe. 

2;8 pi. 4^3. 

J, c S. C. cited in the Cafe of Monday v. Lovice, Mo, 454. 

21. A Cuftom to pay an Halfpenny j or the Wool of Sheep fold after jhear- 
ing and before Michaelmas, was adjudged a good Cultom. And Ovis, 
or Sheep, is nomen aquivocum, and extends to VV^eathcrs as well as 
to Ewes. Mo. 911. pi. 1203. Mich. 37 &: 38 Eliz,, B. ^. Anon. 

iE2. A 



Difmes, [or Tithes]. 15 



22. A Prefcription for a Modus Decimandi that in Regard he paid for 
Milch Kine i d. he frefcrib'd to be difcharged of the Tithe of Milch Ktne 
and alfo of all the Dry Cattle ; but this Was held to be contrary in idelf; 
for a Modus of one Kind to be difcharged ot anocherKind, and the Court 
held that good. 2 Bulfl. 231. Trin. 2 Jac. Arg. cites Mich. 37 Eliz. 
Lewis V. Gilbourn. 

23. It is not a good Prefcription to pay 'Tithe-Corn in Sattsja&ionof all 
Ttthes of the Land. Mo. 454 pi. 623. Trin. 38 Eliz. cites it as ad- 
judg'd in C.B. in Ridiard'sCafe. 

24. The Lord of the Manor of B. in the Pariih of B. prefcrihed. That Mo 48". pi. 
he and his Anceltors, and all thofe whofe Ellate &c. had ufed .from 6S5 S C Sc 
Time to Time whereof &c. to pay the Parfon of D. the now Plaintiff', ^ ^- ag'ced 
and his Predece/Jors 6 I. per Jnu. for all Manner of Tithes growing '■jonhiii ^j^^" ','"^ 
thefaidParip, and that by Reafon thereof he and all whoCe E/tdtes t?*^. s."c"^cited 
Lords of the faid Manor had ufed Time whereoj i^c. to have Dccimam Mo. 5b9. — 
garbam or Decimtim cmntilum G art arum feu Granorum of all of his Tenants ^^- <^"'='' 
-within the faid Manor. Reiolved, That it was a good Prefcription, ^ ?^P- 45- 
and that a Modus Decimandi by che Lord for himl'eif and aii the Te- by "he Rem- 
nants of his Manor, to bar the Parfon from demanding Tithes in Specie porter. 

is good, for it might have a lawful Beginning, viz. That belbre it was ^S^""''- '4*- 
a Manor all the Lands were in the Lord's Hands, and that was paid lor "^^'' ^' ^* 
the Tithe thereof; and then when he conveys Parcel thereof to others 

it fliaJl be difcharg'd as it was in the Lord's Hands. And as to the Dc- 
cimam Garbam &c. he has it as a Profit Apprender as Parcel or Appur- 
tenant to his Manor not as Titnes. Cro. E. 599. pi. 5. Hill. 40 Eliz. 
B. R. Pigott V. Hearn. 

25. It is a good Prefcription that he has ufed to pay i d. called a Cro. E 702. 
Hearth-Penny.^ in Satisfa£lion vj Tithes of all combuflible tf'ood. Mo. 910. P'- -'• 

pi. 1280. cites 41 & 42 Eliz. B. R. Green v. Hundle. nlmVc 

adjudged to 
be a good Prefciiption. 

26. Surmife that he ufed to pay the tenth Sheaf of Corn, the tenth Cock 
of Hay, the tenth Fleece oj Wool, the fe'-.enth Calf Sc and that it was /// 
Satisfa^ion of all Tithes of all dry Cattle, and for all other Tithes of Corn^ 
Hay and Cattle. The Court held this Surmife not fufficienti tor that 
which he ufed to pay is but Tithes in Kind, and therefore cannot be in 
Satisfaftion tor the Tithes ot other Things than themielves. Cro. E. 
716. pi. 26. Mich. 42 & 43 Eliz. C. B. Ingoldsby v. Johnfon. 

27. Parilhoner fuggefted that he had all the Tares &c. that he fowed 
and cut green to give to hisHorfeSy Tithe-free ; and a Prohibition was 
granted, Nili. Freem. Rep. 72. pi. 87. Hill. 1672. Scone v. Pea- 
cock. 

28. Libel &c. for Tithes of rough Hay growing on the Fenny Lands ofKio.tfsV y« 
M. the H^iendmx. fuggejled that there were 2200 Acres oj Fenny Land 941 Pa(ch. 
within the Parijh, and 600 Acres of Meadow, and that~the Partjhoners paid ^^f^'^- ^ 
Tithe of Hay and Corn growing upon the Meadow and Arable Lands, and jo p ajj;"dped' 
much for every Cow and Calf^ and becaufe they had not fufficient Grafs 10 kap accordingly, 
iheir Cattle m Winter r^ they ufed to gather this Hay, called Fenny Fodder.^ and feems to 
jor the Safienance of their Cattle for the better bicreaje of Husbandry, and jor ^^ ^- ^• 
that Reafon had been always freed from Ttthes ; Adjudged that this Sur- 
mife is not fulHcienti For one may not prefcribe in Non Decimando, 

and they alleging that they beftow'd it upon their Cattle is not any Caule 
of Dilcharge. Cro. J. 47. pi. 17. Mich. 2 Jac. B. R. Webb v. VS^arner. 

29. Payment of Tithes to the Parfon is fufficient Difcharge againfi the 
Vicar y becaufe of Common Right all Tithes belong to the Parfon 
and the Vicarage is deriv'd out of the Parfonage, fo as no Tithes De 
Jure belonging to the Vicar but only upon Endowmen: or Prefcription, 

which 



l6 Difmes, [or Tithes]. 



which ought to be flievvh Ex Parte the Vicar and the Court cannot in- 
tend it; lor the Vicarage is a Diminution and an Impairing to the Par- 
fonage, whereof the Court will not take Notice without Monltrance of 
the Parties ; Refolved. Yelv. 86. Pafch. 4 Jac, B. R. Grene v. 
Aultin. 
Cro. J. ii(S. 30. Where the Owner of the Land pays 7'ithes of Hay he is thereby 
P'-4;S*3. (iifcharged of Common Rights as to Tithe of Jgifiment of the fame Land in 
does notap- ^^^ A'"^ -^^^^ » becaufe the fame Land fhail not anfwer the fame Year 
pear. but only one Tithe, and the Agiflment is only Profit by the Mouch of 

the Beaits of the fame Land whereof the Parfon before had Tithes of 
Hay; Refolved. Yelv. 86, 87. Pafch. 4. Jac B. R. Grene v. 
Auiten. 

31. Whether a Modus Decimandi may accrue after Endowment of a. 
Vicarage i The Reporter thinks it may. Godb. 180. pi. 254. Trin. 
8 Jac. C. B. Anon. 
Win I. 32. If a Man prefcribes to pay a Buck and a Dot yearly out of a Park in 

Pafch 19 Dtfcharge of all Tithes of the Park, and the Park is difparked the Modus 
jaa Rey- jg gone ; Agreed per Cur. and that w hich is by Name of Park is for the 
Poolers C. Land, and is annexed to the Land by the Name of a Park. Hutt. 57, 
aajornitur. 58. Mich. ID Jac. P00.I V, Reynolds. 

J bid. 44. ^ 

Mich 20 Jac. C. B. Pope v. Reynolds S. C. a Prohibition was granted, and adjudged that the Prohi- 
bition ftand. 

$3. Bat if a Man prefcribes to pay a Buck and a Doe out of the Park 
it would alter the Cafe j but it is general and had been paid alter ths 
difparking viz.. the 10 Eliz. Huct. 57, 58. Mich. 10 Jac. Pool v. 
Reynolds. 
See 2 Bulft. 34. A Libel was for Tithes of Broom, the Defendant prefcribed that 
^n'?. S C. for the rooting of the Broom and fowl ng the Land the following Year 
^^' with Corn, ^hich is of greater Benefit to the Parfon, and alfo becaufe the 

Broom is of little Value and good to cover Houfes, they have ufed to 
be difcharged of Tithes of Broom, which it was urged was in Efll'6t 
Non Decimando and confequently not good ; but it was anfvvercd, that 
the rooting it is a great Charge to the Party and the fowing the Land 
with Corn is more Benefit to the Parfou, and therefore the Prefcriptioii 
not good i Coke Ch. J. faid he thought the Land which has Broom is 
not within the Statute of ^ £. 6. for it is not barren Land, and therelbre 
if converted into arable is tithable; for the Statute fpeaks of barren 
Heath or waft Land. Roll Rep. 39. pi. 6. Trin. 12 Jac. B. R. in Cafe 
of Mafcall v. Price. 

35. Lord of a Manor prefcribed to have the Tithes within the Manor, for 
that he and all thofe whofe Ejlates he has, have ufed to maintain a Chaplain 
in the Church of Dinn. Exception was taken becaufe Ire (V/,;/ not allege 
that the Church of Dinn was within the lame Parilh with the Manor 
and fo no Conlideration, nor does he allege the Maintainance of the 
Chaplain for fo long Tune as he claims the Tithes, viz. Time out of Mind, 
nor did he prove the Maintainance of the Chaplain within the lafi fix 
Months as he had fuggefted, but only the Refidue, whereas this is the 
principal Matter which makes his Prcfcription good ; and upon thislaft 
Point a Confultation was granted per Curiam , And Coke Ch. J. faid it 
Jhould be granted for all the other Exceptions alfo, but as to them the 
other Juftices faid nothing. Roll Rep. 2. pi. 3. Pafch. 12 Jac. B. R. 
Eoocher v. Rogers. 

36. A Libel was for Tithe-Hay ; TheDefendant fuggefted aC///?ow/o 
pay a Load of Hay for allTithes of Hay growing and rcmwing on the Land 
where ^c. It was argued that this Prelcription was good and that it 
was not Tithes in Kind, becaufe it is alleged that Defendant ufed to makt 
the (jyafs into Hay by his Labour, and that it leems the Parlon de Jure 
ought to do this himfell, lor that the Tithes are to be let out for the 

Parfoa 



Difmes, [or Tithes]. 17 



Parfon when it is cue and is only Grafs, and confequently this is a good 
Modus Decimandi ; Buc Curia e contra, and Prohibition was denied. 
Roll Rep. 172, 173. pi. 3- Pafch. 13 Jac. B, R. Cumberland's 
Cafe. 

36. Libel &c. for Tithe-Wood &c. The Defendandant fuggcfted 
for a Prohibition that the Libel was for Tithes of Beeches above 80 
Years old, and that the Parfon had a Conftdcr atton for Tithe-Wood^ viz. 
Cenaiit Wood in the Lord's Wood, Time oat of Miiid, and fn-ver bad any 
Tithe-Wood; per Cur. This lliail be intended a Compolition for Tithe- 
Wood i and a Prohibition was granted. Roll Rep. 355. pi. 6. Pafch, 
14 Jac. B. R. Lapthorn's Cafe. 

37. Cuftom to make the Titlie up in Cocks ^ upon Parifliioners Refu- Rm not iil 
fill the Parfon may fue in Court Chriitian for not rrtaking it into Cocks, f'^^^ Cafe. 
Lat. 125. Pafch. 2 Car. Lay ton's Cafe. 'Z^l^^ 

Lat. 125. in Jj. C. 

38. The Earl of Devonfliire had a Manor in the Parifh cfC. in Buck- Litr. Rep. 
inghamlhire, which extends to Latmos where there is a Chapel oj Eafe, and*^'.^ ■^"■.^ 
the Vtcar of C. libels for Tithes againft one of the Tenants ot the Manor ;(°^ 

And Henden moved for a Prohibition, tor the Earl prtfcnUd that 
he and all his Tenants fhould be acquitted of all the Tithes of Land 
within Latmos, paying 10 1, per jinn, to the Chaplain ct Latmos; and he 
faid that fuch a Prclcription is good as it was adjudged in Bowles's 
Cafe; and a Prohibition was granted. Hetl. 52. Mich. 3 Car. C. B. 
The Vicar of Chelham's Cafe. 

39. A Libel was for odd Sheaves, to which it was fuggefted. That the 
Parilhioners for the better dividing the Corn have ufed to be at the Charge 
cf making it up in Shocks, and when made into Snocks they fet out a 
Stack jor Tithes; and becaufe they have been at this Pains they 
have been difcharged for Tithes of odd Sheaves as will not m.ike a Stack. 
This was held a good Cuftom and a Prohibition granted, becaufe they 
do more than of common Right they ought to do. Lat. 226. Mich. 

3 Car. Anon. 

40. Confideration of making Hay to be difcharged of Payment for 
GreenJIips, Headlands Sc good, becaufe it is more than they are bound 
to do. Hetl. 147. xMich. 5 Car. C. B. W^ood and Carverner v. Sim- 
monds. 

41. The Court refufed to grant a Prohibition on Suggeftion of a Mo- 
dus to pay 4 s. for every Dafs Plc:ving of Wheat, and 2 s. for every Day's 
Flowing of Barley, for the Uncertainty i But it the Modus had been fo 
much Jor every Day's Work with Averment that it is certainly known, and 
how much tt'contains, it might be. But by Hyde, Wheat could fcarcelv 
be fo much worth Time out ot Mind. Keb. 612. pi. 86. Mich, 15 Cur. 
2. B. R. Took v. Ledgierd. 

42. A Prohibition was granted to a Suit for Tithes of Cows, Calves, ; X^zw. 
Herbage and Pajl tire, upon Suggeflion of a Cujfom that every J'an/l:icnn- i'<i^,,^c^-:. 
from Time whereot &:c. had uicd to pay i d.for tvery Cow having a Calf, g|°"""s ^ 
and for every Cow not having a Calf 1 d. halfpenny as jar as Jive Cows, /i5^- accordingly,' 
five Cows IS. 3 r/. Jor fix Cows zs. b d. and jor ten Cows 2.s. 8d. in plena and a Con- 
Satisfaflione omnium Decitnarum Faccarmn et Vitulorum, et Herbagii, et Paf- I'ultation 
tnra. ThePlaintilf declared in Attachment upon this Prohibition, and ^^^* ***''"''* 
uponTraverfe ot the Cuilom aVerdict was tound for the Plaintilf in the^ " 

Prohibition ; Upon which Lutwych Serjeant mov'd in Arreft ot Judg- 
ment in EafterTerm lall pall. i. That this Cuftom was void, for it is laid 
to bea Dilcharge of Tithe of all Cows which it is not ; for nothing is 
laid for the Tithe of the leventh, eighth and ninth Cous, and 
Payment for the lixth cannot be Payment tor the fevcnth &c. 2. Tliis 
• caiinot be a Diicharge of the Tithes ot Herbage and Agiftmenti for 
Tithes of one Thing cannot be a Difcharge of Tithes of another, and 

F Tithes 



i8 Difmes, [or Tithes.] 



Tithes are payable of both J then lince the Cuftom Is laid intire it is 

void in the whole ; and cites 3 Cro. 446. 475. and of this Opinion was 

the whole Court^ and therefore Judgment was arreited and a Conlultaci- 

on granted, unlefs Caufe lliould be iTiewn this Trinity Term. Ld. 

Raym. Rep. 242. Trin. 9 W. 3. Norton v. Briggs 

Carth 461. 43. Modus to pay a whole Meat's Milk fucb a Day, and every ninth 

S.C the and tenth Night and Morning after y till a young Lamb yean'd be heard to 

Court was of ^^^^j^^ in Lieu of Tithe of Milk is ill ; for by this Modus the Parfon 

'^harthe* "i^y have nothing ; as fuppofe a Lamb be heard to bleat before the 9th 

(urtom was of May. 2 Salk 656. pi. 2. Mich. 10 W. 3. B. R. Hill v. Vaux. 

void 

liMod. 2c(5. S.C but S P does not fully appear. Ld. Raym. Rep. ;58. S.C. andpertot 

Cur. the Cuftom is ill, and it is a plain Non Decimando ; For fuppofe a Limb bleats at the End of 
December, or at the Beginning of January, the Parfon fhall lole his Tithes for four Months ana 
more ; and the Rule for Prohibition wasdifchargcd. 

44. A Mndus was laid to be ten Fleeced of Wool and two L^mbs for all 

^ythe^ the Court was divided whether good or not. 2 Salk. 656. Mich. 

3 Ann. in Scacc. Arch-Bp. of York v. the Duke of Newcaftle. 

Cro /E. 446. ^j Payment of Tithe of one Species or Payment of a Modus for one 

Gnfnunjf. gp^^-^g^ qj 'q'tthc cannot be aDifcharge as to another Species. 2 Salk. 657. 

Laire^i7. pi- 3- Mich. 3 Ann. in Scacc. Archbp. of York v. the Du.ke ol New- 

Skelton v. -caMc. 
Airie. S. P. 

46. Modus to pay 2 s. in the Pound of the improved Rent is ill, for 
Per Holt Ch.-thac isto rife and fall as the Land is let and the Parfon cannot know it, 
J- \ 'y'o'^us jjj^j ^ Modus ftould be as certain as the Duty that is dellrov'd by it i 
fometh'ng Holt dubitante. 2 Salk. 657. pi. 4. Pafch. 4 Ann. B. R. Surtiip v. 

certain that Doderidge. 
may be de- 
manded in the Spiritual Court, and here fuppofe the Land be let out at a Fine ami 5/. Rent, what be- 
comes of the Modus or of the Parfon, and a Cultom cannot be laid jw <? R.ent which 11 altei-ahte at 
Pleafure of Parties, and befides, the Culfom would amount to a plain Non Decimando ; hee the j^reat 
Cafe in Roll's Abridg 578. to pay 2s for all Tithes Hob. 192. and he fiid if the Cafe ot I'er- 
kins and Perkins came in (^uelHon again, h-,- would defire to hear it argued, for he was not fatiifieJ 
with th; Judgment of it. 12 Mod 565, 564. Mich. 15 VV. 5. Vines v, Doderidge. 

47. Objection was to a Mndus that it was too great and too near the 
Value of tithes in Kind , Preicriptions had their Beginning b.'fore R. i. 
when it is probable that 12 d. or 8 d. might have bsen thi Yaliie ot the 
Inheritance, iheretoredecieed in the Exchequer to be aCompolition aad 
not a Modus, but reverfed ; fur Churches might have been endowed with 
7mre than the Value of the 7'ithes. MS. Tab. March jth, 1707. Pole v. 
Gardener. 

49. Parfon leafed his Tithes by Parol for a Year to A. B. and C at 
2 s. 6 d. per Acre, who lett every Land- holder his Tithes at •^ s. per Acre. 
The Money which the LelTee receives of the Land-O-vners ihill be ac- 
counted a Modus. 8 Mod. 63. Mich. 8 Geo. The King v. Fair- 
clough. 

50. A Modus 'that the Inhabitants of fiich a 'Tenement ivith the Lipids 
ufually enjoyed there-ivith had been accujtomedtopay fucb a Ahdus for Tithe- 
Corn, was held by the Matter of the Rolls to be quite uncertain^ for ch^i 
iioule may fall, or be uninhabited, and then no Modus will be payable, 
and nothing can be more uncertain than Lands ufually enj )yed uith tne 
Tenement, lince Lands lett with a Farm-houfe may prob.ibly b- afccr 
fhifted. 2 VVms's Rep. 462. Trin 1728. Ciiarlron v. Bnglitwell. 

51. Modu.s ro be dilcharged of Herb age-Til he s in Confideration of mik- 
ing Grafs into Huy and letting it up in Shocks Ibrche Purlon is not good. 
Gibb. $2. Pafch. 2 Geo. 2, in Cauc, Foxv. Ayde, 

(E. a) 



Difmes, [or Tithes]. 19 



tes 



(E. a) To ^u^hat Thing the Modus fhall extejjd. 

i. T JF il S^art prcfcribes to pay tO tl)C piUfOlt a certain Thing as a 
J^ a xModus H^CCinianUi lor all the iJemelnes of his Manor of D. 
and after erefts a Windmill upon part Of tljC fatO DEmCfneS, IjC fljilll 
not pap ahp €^itIjCSl fOt tljilS fl5tll> bnt the Modus viraln for the De- 
mefnes fliall go in Difcharge of this alio which is built upon the Land 
difchargcd. CtilT. 39 €lt|» CB* E. IJCtUJCeU -R#^ rt«^/ M.cr^, peC 

Curiam, aim a l^roljibttion grantcti. 

2. 2f a Span prefcnbes in St^ODO DeCimantii for Hay and Grafs in Nov 148. irt 
40 Acres of Lanil, anD tljC Tenant converts it into a Hop- Yard, orcafeof 

into Tillage, tlje a3omt£i is pnc, for tuljcn tljc a3omiGi isJ fpccial *:harp v. 
focJpap ano (Jpuafs oiilp, bp €on\)crfion of tljis to otijcu rac0, tijc^'^rp>/| 

$0omiSS iSJ gone. I). 6 Ja* "B* bCtlUCCn sharp and CouU, pet CU= c B the 

tianU Vicar of 

Clare's Cafe 
in Suffolk, who fued for Tithe of Hops, and that tHei-e i Prohibition was granted, and feems to 
be S. C. 

3- 3if a ^an prefcrlbes to pay 6s. 8 d, for all manner of Tithes of if rhere was 
a Park, flUfi aftCt tljC Park is dilparked, and converted into Tillage a PrelLrip- 

and Pafture lanO, tlje ^oouss 10 iTone bp tljc alteration aforeiaia. """ t''™ 

Spurdam's Cife, aOUlOgeD aUD CltCD bU Coke Tor ^M^A^ 

Ipill. 6 3^ac, anil tljete agrcen per Curianu dch^ '„d; 

for La id 
whenit was a Park, this Prefcription fhall have Conlinujiice clearly for tiie P.ivment of this Modus 
only, after that ("uch a Park be difp^Jrked, and converted to another more picfit^ible Ule ; Per Coke 
'>. 1. The whole Court agreed vvitti him herein, z Bulft. 240. Trin. 12 J^c in Cale of Price v 
Mafcoll. 

4. [But] if a S^an prcfCribeg to pap 6 0. S D» for all manner of Noy 143. in 
Tithes arihng Irom lo many Acres Of LanD which contain the Park,^^'= °^ 

tljOHgl) tlje Park be diiparked, anti tlic lanD con^jetteD nito ^^iliagestL'^^ '• 

$C. pet t&e $1905110 fljuU continue, beCaUfC the Prefcript.on is in theCokeCh. J. 
Soilj and not in tlie Park, Sniirdcuns C^,/^ cited one 

abjuegcHi citcrs per Cofce, Ipill. 6 ja^'B. anO tijcre agrecoper^'^'p'^^"'* 
Curiam, V?*^' 'n'" 

JMoQus De- 
„ , . _. ,, .- cimandi to 

pay a Buck and a Doe generally for the Park is rot^ocd if it be difpaiksd , but it ihali be nanicu- 
larly for all Acres contained in the Park ' 

5- 3ifa99anprCfCribe0to pay yearly 2s. for every Acre of 140 Roll Re;,. 
Acres, which were once a Park, and aPo the ShoUlder'of e^ery third lio. pi 4. 




per It fCeni0 the 2s. tor every Acre Ihall dilcharge the /.and. DUblta= * F"l-652 

tur. ipiil. 12 3ac. IS. bcnuccn Hoop,r and ji^d-.ews, nuoo iiioe mp Irr^'^^'"^^ 

15, bCtUJ.Cn ^taw and Siarp. v_ Andrevv^^ 

,,....._, S. C. the 

Court divu.ed Godb. 137. pi. 5:9. S C. adjornatur. Hob. 39 pi. 47. S C with 3 

lona Arf;ument by the Ch J Win. 46 Art; cites Mich. 10 Jac. Rot. 1 22;. &. P that the fiilJ 

O^'iuio* of the Court was, that the Defendant ^.v^Ut to plead in certain how that was dif^arked ; and 

adli'i 



20 Difmes, [or Tithes]. 



2 dly, it was doubted whcihei- the Modus, as to the 2s was gone, in regard that the Shoulder of 
the Deer is gone by the 'difparking. • — S. C. cited Hurt. 58. and lays tliit it never was adjudged. 

'6. Inhabitants oF A. a Hamlet within the Parifli of B. had a Chapel 

'of Eafe within the faid Hamlet, becaufe the faid Hamlet was diltant 

Jrom the Church of the faid Parilhj and prefcribe that ivith pari of their 

ftithes they have found a Clerk to doDivine Service within the laid Chapel, 

and alfo had paid a certain Sum of Money to the Parfon of B. and his Pre- 

decefors for all Manner of J'lthei^ and held a good Prefcription. 4 

Le. 25. pi. 77. Trin. 26 Eliz. B. R. Saer v. Bland. 

^oy 148. 7. R. was feifed ot Hadley Park^ and of all the Tithes thereof, 

Sharpe v. ^^^ payed for the Tithes but one Buck in the Summer^ and a Doe in the 

^^^P^^\„ Winter for 30 Tears paji. The Park was difparked, and turned into 

g"ftion al"" arable Land. Carus and Catlin faid, that he need not pay other Tithes 

lowed per but a Buck and Doe, for although they be not titheable, yet may they 

Cur. and a- Repaid by Gompoficion, and he may not take them, but they are to 

preed firft, ^^ delivered to him ; and in like Manner Partridges and Pheafants in 

Ihey Vre^Fe- a Garden are not tithable, yet may they be paid in Lieu ot Tithes, and 

r^Maturx, ihall be brought dead to the Parfon, and altho' there be no Park yet 

yet they j^^y j^g gjve a Buck out of another Park, and perhaps it may be made 

Snfor^'" a Park again. Ow. 34, 35. Trin. 31 El'^- Ld. Rich's Cafe. 

fo pay Pheafants &c. adly. Although they are not tithahle of themfelves, yet they may be jriveti 
*or a Modus Decimandi ; As a great Tree may be given for Tithe of Trees tithable. gdiy. That 
that is a Difcharge to the very Soil, and the Park is not but a Liberty, and the Owner may turniflv 

it with Game when he pleafes. The Court much doubted, whether one that had s Park, and ufed 

to pay one Shoulder ot a Deer for all manner of Tithes^ and the Park is difparked, fliould pay 
Tithes in kind or not. Brownl. 51. Pafch. 10 Jac. Anon 

8. In the Cafe of a Park in Norfolk the Parfon prefcribed Pro' Modo 
Decimandi to be paid 3 s 4d. for all Tithes arifing out of the fiid 
Park, and tho' the Park was afterwards converted into arable yet no 
other Tithes lliall be paid ; Per Coke Arg. But Popham faid, it had been 
adjudg'd otherwife in JlDCOtlj'SS Ctlft in the Exchequer i but that the 
Law is clearly as has been faid, and thuttheDifferencs is ivhenthePrefcrip- 
tion is to pay fo much (or all 1'ithss^ or when it is to pay a Shoulder oj every 
Buck or hoe at Chrijimas ; for there if the Park be difparked. Tithes 
fliallbepaid; for Tithes are not due for Vcnifon and therefore they 
are not Tithes in Specie. Ow. 74. Pafch. 38 Eliz. B. R. in the Dean 
and Chapter of Norwich's Cafe. 

9. Where the Cuftom is to pay a Sum for all Grounds of fuch a Farm 
and voocdy Ground is converted into Meado-7ji\ the Cuftom fhall not extend 
to the Meadow i Per Montague Ch. J. 2 Roll Rep. 162. Pafch. 18 
Jac. B. R. cites the Cafe of Coney v. Larke in C. B. 

HeH. 94. 10. Where the Cuftom is for every Houfe to pay a. Garden- Penny 

Pafch. 4 jjjjg Y^\\\ extend to Beans or Hops if they do not grow in Ground new- 
^'t?" ^' Iv added to the Garden. Litt. Rep. 151. Trin. 4 Car. C. B. Alfrey 

per Mutton - ».-it 
J. if a Man V. Mills. 

has an an- , , . . , ,_,.,._• , . ■ ,• 

cient Garden for which he paid a Penny, and that is inlarged, Tithes in Specie ought to be paid of 

that Lilargement. 

Per Cur. the 1 1. Modus fof a Corn Mill, two new Mtll-flones are added ; Per Holt 
Modus is notch T. itfeems reafonable the Parfon fliould have the tenth Toll-Difh ; 
Se Additionadjornaiur. Show. 281. Mich. 3 W^ & M. Gumley v. Falking- 

of the new ham. 

Pair of ^ 

Stones. Carth. :i 5. S. C. 4 Mod. 45, Grimly v. Fawlkingham, S. C. and a Prohibition was 

granted. 

E2. A 



Difmes, [or Tithes]. 21 



12. A Modus was, that the whole Crop of tiuo Acres was given in Dif- 
charge of all 'tithes of Hay within the Parilh; it was lately determined 
in the Exchequer that it was extended only to the old Meadow 
Ground j Arg. Gibb. 53. Pafch. 2 Geo. 2. B. R.. 

13. A Modus paid to the Parfm may bar the Vicar cf fmall Tithes 
churned by him i tor originally, and of common Right all the Tithes, as 
well fmall as great, were the Parfon's, and the Modus, it' good, mutt 
have been Time out ot Mind, and have commenced when the Parfon 
wasfeifed of all, and the after Endowment of a Vicarage thtll not de- 
prive the PariOiioners of a Modus they were enritlcd to belorc. z 
Wms's R.ep. 522. Pafch. 1729. by Ld. C, King. Fox v. Ayde. 



(F. a) To what Thing it [the Modus] iliall 
extend. Mills. 



I. TiF n £0illt &C difcharged of two ancient Grifl ^^'ater-^^lI fot See (R^pl 
1 one $?30miSi, fClllCCt, lor 6 s, 8d vearlv paid tO tIjC l^nifon, ' and the ' 
and after, bp COUtUUtaUCC Of CiniC, fap tijt 3Ct Of CSOD, the Water- ^o'« th^'^* 
Courfe which uied to run to the IViiJls is diverted, and runs in another 
Place a little Dillance off from the ancient Mills, ijnll thClTtipOU the 
Owner Of tije Sl^tU^ puHs down one Of tlje ailClCllt 0^U!g, and re- 
builds it upon the Stream in the new Courfe, fjC HjillI l)C DUl'OiltlJCD Of 

dtljcjjOftljisneiuC^iUfortljcratn 6 s. 8d. foutOiSis nltercD bp 

tljCAttofGod. 03(CU. iiQCtU- 15. U. iJCtUJCCU Johnfon and Dand- 

ridge, pec Curiam rcfolDcQ, nnn n ir'^roijiLutioii n;cantcD accoi;5= 
uigip. 
2. But mtljEliiiti Cafe, ittljc ancient l^atcfCoutfc li^ djanpn 

by the Aft ot the Party himfellUJlja Id ti)C ©iUllCC Of tljC Sl^Ui, l)C Vi]{\\\ 

pay Cttl}c0 tljcrcof ad for a nciu C^til, auu tijc faio ancient {©05110 
fljall not oifcOartre it, ii5iclj, 1 1 Car. 05. H. in tljc faiij Cafe of 

Johiijon and Dandridge, pet CUriaUl rcfOlUeD. 

3. Jflor «^wo ancient Meliuages, and tlUO anClCllt Water-Grain- 
Mills, Cane out Of i^emorp ac. tijcue hathuied to be paid to tlje 

li^arfOn 20 s. per Annum in lieu of all Tithes ilfuing out of the iaid 
MelFuages^and Mills, anU. after the Owner Of tljC ^ptlTa.lSCS ant? 
Skills erects two new Grain-Mills within the laid Melluagc^, H fcCUTS 

ti)e ^OBU0 iDiU not Qlfcljargc tljcfe neui sptllsi from tIjc \$cim\znt 

Of'^ltljCS, beCaUfc tl3C Titties of a Mill is not meerly predial, but 
mix'd with the Perlonalty, and is more of the Pertonaltv thin ol the 
Predialty. SpiCl). 13 Cat. 15. i\. Goodwin and Smith', COnceinintj; 

tcrrington 99UIS lu tljc CountP Of Dc\30n, upou a Demurrer. 
Suffice OBerttlD ann Curia feemco to incline, tljnttlie 93oi3U3nj0UiQ 
not crtenti to tijefe neio 93UiG -, Init tiiep mu not rcfoliie it, becaufc 
tlje 3'iruc luas taken upon tlje Q3otius as to tlie tiuo s^effuaacG anii 
ancient ^3\\\^i anD at tlje i!3ili ^-Jruis tl;C |3lauuiff \\\ tljc fi)roi3ib!= 
tion luas nonfuit, bp uiijiclj Ijc luas nonfuit ass to tbe S?enntrr?K 
alfo, anB for tijis Caufe a Coufultation uia0 arantco for tIjc 
IIBljole. 

4. Jfa S^anbe Tefed ofeight Acres of Pafture, and of Afeadow, 
for the Tithes ot which there has been p.iid Timeout of Mcmorv ^f. 
5 s. 6 d. antl after tlje Owner thereof erccl:s thereupon a Corn-Mill, \% 

fDali pai' no -Sitlie for tlje ConvCS^iil, becaufc tl)c Lant) uuis Oif 
tijaviTctJ pec $^oouin Decimai«!t» Co. ransna Cljarta 490. 



22 Difmes, [or Tithes]. 



Show. 281. 5. In a Prohibition to a Libel for Tithes of a Corn-Mill, the Plaintiff 
Gumiey v. fuggefted a Modus &c. the Defendant conjeffed the Modus, bat al- 
s'c 'ador' ^'^''&«^ '^^^ '^ "^"'^ ^^'^ "/ Mill-fiones were added to the old Mill, andfo 
Tiacur ^°'"' frayed that the Prohibition might go only to the 1'tthes of the ancient Mill i 
Carth 215. £ut it was faid e contra, that the Modus extends as well to the new 
Gumblev. JVJill-ftones as to the old, for if thefe break, the Modus goes to the New, 
Falkingham, ^^ ^^^^ if they are laid down elfewhere under the fame Roof the Pre- 
per Cur. the fcription will extend to all, becaufe the Mill is the Subftance to which 
J^lodus is it chiefly relates ; the Prefcription is to the Mill in general, and it is but 
rot deftioy'd accidental whether there are one or two Pair of Mill-Stones therein, 'tis 
by the Ad- ^juj^^ unum Molcndinum, and mull be fo demanded in a Praecipe, and 
new Pair of a Prohibition was granted. 4 Mod. 45. Trin. 3 W & M. in B. R. Grim- 
Stones. ley V. Falkingham. 

Brownl. 52. 

Anon, is, that if you have but one Pair of Stones, and pay a Rate-Tithe for the Mills, and then 

you add another Pair of Stones, new Tithes Ihall be paid in Kind. 



(G. a) [Modus.] 
% niohat Thing it fhall extend for a collateral Refpeoi* 

Fraud. 

i. Tif U ^nit prefcribes to pay an Halfpenny for every Lamb which 
\_ he Ihall fell before the firll Day of May without other Tithe of 

them, ann aftct bp iFcaim to nccciije tlje l^arfon, Ije feiis the Lambs 

but a Day before May, tljlS tjS ItOt fl DtfCljargC IJP tljC CUftOm Of 

'^\X\m. S^icl> 17 :jac* l?* pec Curiam* 

M0.915.pl. 2. Libel &c. for Tithes, the Defendant fuggefled a Cuftom in the 
'*9o. S 9-_ Parifh of Leccombe, that the Parfonjhould haiie for his T'tthes, the loth 
on was' '"' Land [owed with any Manner of Grain, to he reckoned at the Jirji Land 
granted not- next the Church, the Parfon replied, that the Defendant by Fraud fc-^ved 
withftanding gi^ery loth Land which belonged to the Parfon as above very til, and with 
the Covin, f„jall j^uantitfi of Com, and did not' Dung and Manure tt as he did the 
Fraud Vto^ Other time Parts, by Means whereof the other nine each ofchem yield- 
be remedied ed eight Cocks, but the tenth yielded but three Cocks. W'ray Ch, J. 
in an Aftion held, that this Cuftom was againft common Reafon, and therefore void j 
ontheCafe j^^^ j^-j^ ^ ^ gQQ^ Cuftom, then the Parfon ihall have an Action on the 
^on Law"" Cafe. Le. 99. pi. 127. Pafch. 30 Eliz. B. R. Stebbs v. Good^ 
lack. 

3. A Cuftom was for the Vicar to have Tithes/or all Peas and Beans 
fety drilled, or fozved in Rows in Gardens or like Manner, alterwards 
a new hnprovement "ivas feund cat to tifs a Plow in/lead oj a Spade, yet 
fuch Peafc and Beans fhall pay Tithes. MS Tab. January 23, 1717. 
Aultin V, Nicholas. 



(H.a) 



Difmes, [or Tithes]. 23 



(H. a) ff^ho ihzW prefcribe m Non Declmandd. •F01.655. 

I. A Layman cannot prercribC ill JOOIl DCCtmautia without fpecial Mo 425. pi. 

X\ Matter, tljouci) Ijc Oe Capable Of ii Difcljanjc of Citl)cj3 m5^3-Hiius 
fatioucoftljeCljiirdj, uccaurcit fljall not lofc its Rtgljt uutijouc vv^is 
an attuai Kccompencc* cto* 2. tijc oainjop of iiBnicijcftcc 44- cafefs, c 
refoiiico* '^"=''^' 'h« 

. . i temporal 

Perftins cannot prefcribe in Non Decimando, but in Mode Decimandi they may. 

2. g Spiritual Perfon may ptefCtilie generally in i|5on DcCimnntJO, Cro e 2o(J- 

bccaufc Ije is mote faUout'D tf)an a lapman, fot tijis ie» aliuaj'ss in pi. 42 Anch- 
a Stpifituai pctfon, anO fo not taUen ftomtlje Cljntclj, foi:rucf);i&r>E- 
@)pitituaipctronu)a0 capable of a (g^tantofCitOc^ at tijc Com- 1^'^;^^;^ 
won Lauj m ipetnancp. Co* 2. t&c oaifljop of i©nicijcftcc 44. uns heiJ 

tefOlDClr* that'afpiri- 

tualPerlbn 
may pi-efcribe in Non Decimando, and by the 51 H. S. he fliall hold ir difcharged as the Prior held 
it ; and if he held it difcharged Non refert by what Means. Le. 240. pi. 325. S. C. held ac- 
cordingly. 

A Spiritual Perron may /xf/n-iJe in Non Decimando. Roll Rep. 264. pi jiJ. Mich. 15 Jac. B. R. 
the Bifhop of Hereford's Cafe. 

A Dean and Chapter may, though it was objeftedi that a Dean may be a Layman, as the Dean of 
Durham was by fpecial Licence and Difpenfation of the King ; yet it was anfwered, that this is a 
rare and fpecial Cafe, and therefore not to be brought for an Example. Win 65. Palch, 21 Tac. 
C. B. Briggs's Cafe. 

3. AsaBifhopmav ptefctibc in ji3on ©ccimanno, ajs to le 5if=*c.roE. 

CljatgCD OfCttljClStor himl'elf, his Farmers, and Tenants at will, lor ^VJ P' '• 
certam Land in the Parilli of another. CO. 2. tljC * 'BifljOp Of J^ln^ ' 5 Wrieht 

c|)cfter 44- atJjittiBcn ; ann e^itl), 15 Ja* 'B, E. fame Cafe came v. wrighr, 
in diiettion, anD aDjntigeu, anoa ptoljibition gtantco accoto^s.c.ad.adg. 
infflp. mclh 4243 Cli?. Id^K* between 11 Crowther and Fmr, ao=;t77Ti 
niDBeu- C^» 13 3!a. 05. E. in tlje X^ifljop of |)eccfotn'9i Cafe, ve= „- 1 c 
folijeo, anD a l^roljtbition gtantcD accotningl^ adjudged 

— s. c. 

cited Mo. 551. |! Mo. 618. pi. 844. Crowehcr v. Fryar, S C. 

4. [And] tDbcn certain lann ijs fo nifcljatirct! bv l^refcription in mo, 42? pi. 
Bonl:)ecmiaurio intlje ipanD.s of a stpititual l^erion, it he Jeaies 59^ Hin. 

it for Years to a Layman, he may now prdcribc in il^On JDCttmnnOa '^ ^"^■ 

alfo, tiecaufe tlje JLann i0 nircbarcctJ in Jacto* Co. 2. tlje X^idjop wrieht-s 
of i©incljeacr 45- aniuDgcn i aim il9ici}. 15 la. 15, E. in tijc fame caicrs. p. 
Cafe it teas aninogen aifOi ano a l^toijibitton stantco. adpriged, 

and IceiTij W 
be S. C. Cvo. E. 4:5. pi. i. 511.pl. 96. S. C. adjudged. S. C. cited Mo. 5-1. 

5. 3 Parfon Of a j[3atifl) having Land in another Parifh, parcel of 
his Glebe, may prCfCtlbC in Boh DCCimnntlO for him, hisFannero-, 
and Tenants. $59lC|}. 13 Cat. 15. E. \iimZZ\\ Dr. IVard and Taylor, 

pet Cntiam. 

6. Cijechuich-Wardenscf a patidj, atmiittinQ; tljci? map iiaDt 
LanH bp ptcfcription, yet cannot prcfctibc generally ni JOon iDcci- 

llianOO, for this Land which they have for the Reparation or the 

Church for the Pariihioners, fOt tfjcp ^Xt nOt SpitttliallPetfon.di P. 

37 CU "Id. hlVmiW Lcngcley and Mcndim, aBjllCClD. 

7. Copy# 



24- iJifmes, [or Tithes]. 



do E -S' "■ Copyholders of Inheritance tijtU hold of a Billiop as of his Marior, 
pi. 23 ' "^ may prcfCri'jC, That the Bilhop and his Predeceliors leifed of the iaid 
rrouch v.^ Wanor lor chenifelves, their Tenants tor Lile, \^ears, and Tenants by 
Fryer, S. C. Copy (<f Court- Roll of the faid Manor Time out of iVlemory &c. have 
thanhePre been dilchaiged of the PaynTent ot Tithes lor their Lands pared of 

fc-iptionis thf faid Manor; fou tW t^ ^ iTOOU prercnption, niiu t!)c Copu^ 
„Pod — ijcincrg fljiitl ijc mfcbargcD of 'tir'.tijcs tijcixLip, tat tljcir Ccncnicutss 
f^^'f.p'- aicpnrt cftije Desntines of tljc i^anoi:, aiiQ tins miffljt com= 
^d udc'cd T- Kiruce upon n rrnl Campoatian for tlje laDoic Q5anoi% 03. 4:, 43 

covdir-lyby€L 15. 11. tlCtlyeCll Crcwcbt;r mid FrUr, aOjUOSCO* 
% Indexes 

Pop'^iimcnnti-a. Yelv. 2. S. C. adjudged bjf 5 Juftice?. And adds a Nots of the Reafon ; bc- 

cau'e Prefcription in tlie Lord ous^ht of >icccllity iri common Intendment to precede the Prefcriptioti 
in the Eftate of the Copyholdtrj and the Difcharge of Tithes in the Lands, which in this Cafe 
may well he, (becaufe he is a Spiritual Per(bn) (liall trencli fo to tiie Benefit of the: Tenant who is 
the Copyholder ; for by tlii'.' Means it is to be prefumed that the Lord has greater Fines and Rents ; 
And adds anoiher Nora, that Popham wasagainft this Judgmerit becaufe the Plaintiff, who is a Copy- 
holder, will have in Suo Generean Eltate of Inheritance diftind: from the Eftate of the Lord, who 

is the Bifhop. — : Nov i;s. S P. and cites S. C. 

A Ccp)hoI(ler may prefcribc to be difcharged of Tithes, by flensing that he was always 'Tenant hy Co- 
fy to a Spiritual Corporation. Lane 17. Ai-g. cites it as fo refolved 40 Eliz. 

Mar2<?. 8 a Parifli cannot prcfcribe \\\ Boii Decimaittio* Id ill 14 aa* 

pl.59.Pafch.rj5^ ja» Barham and Goofe, pCC CUrinUU 
Anon. S. P. 

asaik. 655. 9. a County may ptefcvtljc lit jOoit Dccimantia i Contra, p- 

^'v^r""'- 12:111.05. K. pcr'CoUc. 

B R.'the S. P. as to a Thing that is in its Nature de Jure tithablc ; for as no (ingle Perfon, or his 
tftatc can no more by the lame Reafon can the Hundred, [or County] which coniifts but of many 
fingle Perfon 's Eflates. In the Cafe of Hicks v. VVoodilbn. 

Though it be generally put in Di-. and J>tud. 166. that a County may prefcribe to be difcharged of 
any Tithe, yet I find no Inftance of it in any other Cafe than Tithe Wood, (except one in Roll 654. 
which I aiTi not fa'isfied with). Now Tithe- Wood does not Teem to be due of common Right, be- 
caufe it does not renovarc Annuatim, but the Church had got PolTcffion of it, and the Statute de 
Silva C^edua 4.5 E 5. cap. ;. is but an Affimiance of the Common Law, and where they have ob- 
tained \x\ it 'is to be paid as a Cuftomary Titlie, and yet in the Cafe of Wood the Parfon need not 
lay a Cullom in his Libel ; but if the Country b.- dilcharged by Culfom, it mull come on the other 
Side (Contra I" Co. i;). The Cafe of Tithe Wood is fomewhat like the Cafe ot Tithe of Mills; 
The' <■ hurch claimed Tithes tor Mills, and by the Statute of Aniculi Cleri, cap. 5. de molendino 
de novo erefto a Prt>b.ibition lies not, but yet of an old Mill a Man rniy now prefcribe generally in 
Non Decimand'o. Per Holt Ch. J. Comb. 404. Hill. 9 W. 9. B. R. in Cafe of Hicks v. VVoodilon. 

Libel for 10. So 'a Wild may prCfcri'JC \\\ BOUDCCtmantlO, As the Wild of 

Tithes of suifex ; mt% 1 3 3ia- 05. K. a 'Serial inajs at tl;: OSar upon a 
DeSdant Propition upoiifiid) a l^rcfcnption to Ue tiifclwiijctJ ofCitljc^ of 
lu-reifed for !©ooo, lictUitcu i-'ortcr end Tike, aiitJ tljc i^rcfcnpnoii foiiuti, aiiH 
'^^Ov.^o jungnient gi\)cn accortiimjl)?. \)\\\, 14. C*) 3]a. 05. E. per ^w 
* Foi 654. j.jjj,^i^ fticjj a }j5rc(criptton 1.13 goon m Earham and Goofcs cafc. {19lC|}. 

^<Xbin^ 17 3a. 05. \\\ fJr- Andrews and , aDjUDiiCll \V^ 

on. a Pre. OH a Ccial at 05ar, tip luljic!) tljc larcfcriptioit ijs fotmn. 

icription to 

be difcharged of the Tithes of WooA •^•ithin the Wild of Kent. The Plaintiff traverfcd the Pre'crip- 
tion and lilue' found for the Plaintiff in the Prohibition and allowed, and the Plaintiff was dif- 
charged ; And there is a Nota, that the Wild ot Kent lias twenty Pariflies in it; And Henden Arg. 
faid, that Tithe of Wood was not originally given to the Clergy before John Stratford, Arch. 
Bifhop ot Canterbury, Anno 17 Ed. 3. made a Conftitution, that Tithes of Silva Ca-dua fliould be 
paid within his Province, and ihat in the next Parliament, iS,E 5. and fo in every Parliament to 
the 16 R. 2. the Commons complained ct this as a Grievance and Opprcflion, and fjicwed two 
Parliament Rolls, where it was concluded, that Tithes in them fhall be paid a.s the Ufage was be- 
fore, and not otherwife ; and that upon the lame Iflue the //";W of S:ijfex was difcharged the Year be- 
fore 'in B.R. and foihc U'thi of Surry was in two Trials in C. B. and in B.R. Palm. 3;, 3S. 
Midi. 1; ]ac B. R. Clamick-irdCEarl of} v. Dinton (Lady ) z Roll Rep. 122. S. C. 

Th-"re 



Difmes, [or Tithes]. 25 



There is not any Cafe of a Ciiftom in Non Decim.wdo exceptinj; for Wood in the Wilds of Kent and 
S'jfTex, which is no Aurhority tor allowing fuch a Cullom as to any other thing which is tithable of 
common Right, for per Cur. ffmti is not tithable of common Right being part ot the Freehold, but it 
is tithable by Cullom only ; Quod Nora. Cirth. 592. Hill. 8 W. 5. B. R. Hicks v. Woodfon. 

But ^i£re, for if Wood is tithable only by Ciiftom, then all the Libels for Tithe l^'ood ought to be 
fi-inded upon the Cuflcm alleged ; and if fo, then tkn-e could be no Sufgejiien of a Modus (or Tithe-Mood ; 
fjr it would be abfurd to fugged one Qijiom ttg.iinfi another tor one and the fame Thing ; for if the 
Duty arifes by Cuflom only, it cannot be difcharged by another contrary ('uftom, and yet many 
Modus's have been allowed againft Libels for Tube- Wood. Carth. 593. Hill. 8 W. 5. Cfcems to 
be a Note ot the Reporter.) 

II. SotljeilBiUJof Kentma^ prcfcribe m Bon Decimantio of 

mOOiO. 'WU 15 3la. ^» llCtUlCClt Be/i and Tarde, a PrOljlblttOtt 

sranteD, ^icl). 1 7 31a* 15. E. between 
notiticen upon a Crinl at X^ar, in uiljfc!) tOc l^rcfcilptton uiits 
foiuili. S^iclj. 21 3a» 15. jK* betioccn Loan ana Dixfon, a '2Cr(al 
iba0 at tlje QSar upon a prohibition, in tuljicl) tfte Ifllie mas, w\)z- 
tljcc rpiinen 'BorouBlJ l©arn U)a0 uiitljin tljc itBilD of Ecnt oc not f 
atmiittiim; aiiQ awccino; tijat it uiajs Difcbargcu of Citlje^ of naooti 
If It uiai5 uiitljin ttjc UBito, ann founo bp iDeL-oict tIjat it lu.isi luitijin 

tlje !©illS. "^r* 17 3|a. 15* betlUeCn Fawkener and Andrews, peC 

Curiam* 

12. (S Man may pjefcribe, that by the Cuftom of the Country U)')erP 
I)ei0fUellfOrti)eCltl)eSiOf€l5il!iOf(EUJe!5, no Tithes Time out of 
Memory have been paid for Milk of Ewes. i^JCf). 14 Cat. 13. R. 

betii'een St-jcei and Bichur, pcr Curiam, a Proijibition sranteo upon 
fuel) a ^urmtfc to tljc Confiftorp of namton. 

13 ^ JBan map prefCClbC that there is a Cullom within the Hun- 
dred of ©faiiion m tlje Countp of ^^iQOlcfej:, aim 

Uttlje Counts of ^tirreP, that Ifany common Bilcer of Bread inhabit- The Cafe ot 
ing within any olthofe Hundreds eretls any Water-Mill, Wind-Mill, ^l^j^j,^* 
or Hand-Mill, within any ofthofe two Hundreds, to grind his Grain, Roll '154. * 
to be employed in making of Bread for himfelf, in his Trade of a com- cannot be 
mon Baker, for the making of Bread for the Maintainance of his Fa- 'in'.if' 'V'^ 
miiy, and to fell to his Cultomers inhabiting- there, or near the faid ^?.""'^ '^|^ 
Hundreds, for their Sullentation, by the Support of whom the Parfons Aniculi 
-within the faid Hundred have more ample Tithes, videlicet, of thofe Cleri; 
who have Lands or Tenements, and others, as of Handvcratt Trades- I'crHoItCh/ 
men. Offerings, and fuch like, no Tithes bath ufed to be paid from f '^■"J:^.^; 
tlie Time $C* from the grinding of this Grain fo employed aS iS '^^■> " ' 
aiOtefaiO in fits CtaUC; for two Hundreds may prelcribe in Non '' 
Decimando. P» 15 Car. 15* E. bCtlbCCn Ktdden and Edwards^ a 

ptoJjtbition grantetj upon tijis €^ugge(iion, inljerc tbe 'Baker is 
mliabit^ in one of tlje faiD ^unDreDg, auD crecten a ^ill in tljc otijcc 
rpunOteO. 

14. It an Abbot or Prior had been feifed of Lands difcharged of Tithes, 
he who is now Farmer of fuch Lands ihall be admitted to prefcribe in 
Non Decimando by the Statute 2 E. 6. which wills that none fhall pay 
Tithes otherwifethan they did for 40 Years before, but in no other Cafe 
Ihall a Man prefcribe in Non Decimando, but only in Modo J^eciman- 
di. Mo. 219. pi. 356. Mich. 27 & 28 Eliz. in Branche's Cafe. 

i^. A whole Country may prefcribe to be difcharged from Payment ot A Country 
Tithes hut this at the firlt of Necefftty ought to have a lawful Commence- I'^V pie- 
inrnt by Way of Compojition or ^c. Per Doderide J. cites Linwood and ''^y'^ [° ''* 
Dr. and Student, to which Coke Ch. J. agreed. 2 JBullh 285. Mich. Ti'thwof 

12 Jac. Wood, or 

any otiier 
Tithe, fo that there is fufficient Maintenance and Suffentation for the Parfon befides; but a Town 

cannot fo prefcribe' 2 Inft. 645. cites Dr. and Stud 147. b. and Br. Difmes, pi, 14. i« R(.p 

13. Mich. 6 Jac. Arg. cites Dr. and Stud. lib. z. cap. 558. P. KoH Rep 3z. pi. 51. Pafch. la 

H TiC 



26 Difmes, [or Tithes]. 



Jac. B. K. in Cafe of ^orttT i). JTifeC, it was faid by CokeCli. J. that Wray Ch. J. held, that a 
Country may prefcribe in Non Decimando, if the Incumbent has fufficient for his Livelihood, but 
Coke faid that it feemed to him e contra. 

S. C, cited 16. A Enndred may prefcribe in Non Decimando and it is good ; for 

Ld. Raym. jj. jg jj^g Cuftom ot the Country, which is the bell Law that everwasi buc 
Rep. 157, n particular 1'oivn cannot prelcribe in Non Decimando ; and thereupon 
a Prohibition was granted. Mar. 25, 26. pi. 59. Pafch. 15 Car. Anon. 
4 Mod. 551?. 1-7. In Prohibition upon aSuggeltion that the Hundred oi Unnshyion 
S. c. and the j^^ j]^g County of Somerfen is an ancient Hundred, that there has been a 
*'o"^<TMd^^*'^ Cuftom, Time out of Mind, that the hihabitauts of that Hundred have 
andConful- ieeu difchargcd oj the I'll hes of barren Cattle, lifue was taken upon the 
tation grant Cultom, aiid VerdiH for the Plaintiffs but Judgment was Jiaid. t. Tithe 

ed. — ; is due for Agiftment of barren Cattle of common Right^ and at the 

*"!""■ 5*^^ common Law it is 2 s. per Pound, but the Cuftom governs it as to the 
adprnatur. Sum. Comb. 403. Mich. 9 W. 3. B. R. Hicks v. VVoodifon. 

Comb. 

404. fays a Confultation was granted, and the Court direfted that it fliould be fpecially entered, 

bccaufe it appears that the Cullom is void and againll Law. Carth. 592. S. G. the Cuftom was 

held void, ahd a Confultation granted. 2 Salk. 655. pf I. S. C. held accordingly, and a Con- 
fultation granted. \z Mod. 1 11. S. C. held accordingly and Confultation granted; For no Coun- 
try or Hundred can prefcribe in Non Decimando for any Thing that is tithable of common Right. 

_! Ld. Raym Rep. 157. S. C. ruled accordingly, and the Judgment was arrefted, and the Court 

direfted the Entry to be nude as is mentioned above out of Comb. 

, 18. Cuftom -to pay no Tithe of Hay itnployed in fotherifig Cattle is 
ill, for Hay is a predial 'Tithe, and though you feed your Cattle with 
it, yet you ought to pay Tithes Per Holt Ch. J. 12 Mod. 496. Pafch. 
13 \V. 3. Selby v. Bank. 

19. B. moved for a Prohibition to the Spiritual Court, the Libel be- 
ing tor Tithe Hay and Lambs, Cuftom to pay the loth Lamb yeaned 
there, in Conlideration whereof to be Tythe-jree of Lambs which were 
not yeaned there is ill ; Per Holt Ch. J. oi common Bight Tithe Lamb is 
payable where they fall, but by Canon Law there is a Regard to be had 
to the Place where they were engendered and bred i And alter Confide- 
ration the Court declared at another Day that no Prohibition fhould go 
in either Part, for as to the Lambs it is a dangerous Cujiom, becaule ea- 
lily converted into Fraud by taking the Sheep away in yeaning Time. 
12 Mod. 496, 497, 498. Pafch. 13 W. 3. Selby v. Bank. 

20. Of Wood [pent in an ancient Mejfuage for Husbandry one may pre- 
fcribe in Non Decimando, for that formerly Tithe was not paid for 
Wood ; Per Holt Ch. J. 12 ^od. 497. Pafch. 13 W", 3. in Cafe of Selby 
V. Banks. 



(H. a. 2.) Modus Decimandi ; What is j And Remedy 
for it ; And Pleadings. 

I, Tr)Rohibition for fuing for Tithes of 15 Acres of Land, 10 Acre* 
X^ of Meadow and feven Acres ot Pafture, and furmifed, that he and 
all thofe &c. Time out of Mind &c. had ufed to pay 4 d. yearly in Satis- 
faiiion of ail Ttthes of Hay cut there ; The Juryjind the Prefcription, but 
that Part of the Land was never mowedy but ihew not certainly what 
Parti It was adjudged for the Plaintifi'; for both Parties agreed that 
all the Land had been mo\ved, and the fiading contrary is void i 

and 



Difmes, [or Tithes]. 27 

and che Verdi£t is certain enough. Cro. E. 333. pi, 13, Trin. 3 j: Eliz 
B. R. Folcot V. Ridge. 

2. Every Modus Decimandi is a Difcharge of the natural Tithe, and Modus's ar; 
fo works by Way of Difcharge. Hob. 118. pi. 148. Hill. 13 Jac. in l^?' ^^on^po- 
Cafe of Shekon V. Montague cites D. Parfon of Pyekirk's Cafe. ' iunnw p" 

fcri prion; 

Per King C. Gibb. 120. A Modus is nothing but a real Comfcfttion for, or in lieu ofTithe;;, 

cT an annual Profit certain and permanent ; Per Ward Ch. B. and Smith B. i Sulk. 6^6. Mich, s Anti. 
in Scacc. in Cafe ot the Arch-Bp. of York v. D. of NewcalUe. 

3. One Modus fued for in the Spiritual Court, arid another Modus fng- 
gefted is no Caufe of Prohibition unlefs for other Caufe ; Per Doderidge 
J. but perzjuftices contra. 3 Bulll. 241, 242. Mich. 14 Jac. Har- 
ding V. Gofling. 

4. Bill in Chancery to maintain the Prefcription of a Modus Deci- 
mandi, to which the Delendant demurred, and fays, It is proper for the 
common Law or EccleJiallical Courts and the Court allowed the De- 
murrer and difm'tjjed the Bill. Ch. Rep. 27. 4 Car. i. Bfown v. Thec- 
foid. 

5. In Aftions for Tithes and a Prohibition brought upon this Prefcrip^ 
tiou. That Time out of Mind &c. the Sum of 2 j. gd. had been paid Jar 
II Doles of Meadow at 3 d. the Dole, and the Cale was that this was a 
fmall Piece of Meadow taken olf and inclofed from a great Meadow of 
which it was Parcel, and the Witnelfes did prove that 3 d. theDolehad 
ufed to be paid for the whole Meadow, and that the 11 Doles inquelli- 
on was Parcel of it, and the Judge did direct the Law to be againlt the 
Plaintiff, becaufe he had laid his Prefcription intire 2s. 6 d. [2s 9 d. ] 
for the Whole, and not 3 d. the Dole, which does amount juft to lo 
much, and upon this Direftion the Plaintiff was Nonfuit. Clayt. 56, 
57. pi. 97. AJfizes in Lent, by Vernon J. Ann. 1637. Seton's Cale, 
And fays. Vide if it is not all one in Mountjoy's Cafe. 5 Rep, 

6. In a Prohibition and the Prtfcription fuggelted was to pay a Rato- 
itithe of 1$ s. 4^. for all Land &c\ a/idjor Profits of aMill^ and in Evi- 
dence the Wttnefjes proved fever al fmall Sums paid^ as $ s. 2 s. &c. 
•which in the Whole came to th^ jtiji Sum laid in the Prefcription^ and it 
was holden no good Proof by the Owner of the Inheritance ; otherwile 
it had been it thefe feveralSums had been paid by the fcveral Tenants 
offeveral Parcels of the Land in quellion ; and in this Cafe it was held 
a iuch. a. Prefcription IS laid for an 100 Acres , and th.e Plaintiff jails tit . 
the Number^ it is doubtful whether it be not a Failure in Proof; The 
beft Way is to lay it that it has been paid for fuch Clofes &c. by 
Name ; and in this Cafe it was held clearly that no Proot being to ex- 
tend this Sum paid for the Mill, the Plaintiff didfail in his Prelcription 
in all. Clayt. 81, 82. pi. 135. Affifa 15 Car. before Henden Baron ui 
the Exchequer. Sir Arthur Robinfon's Cafe. 

7. There was a Compofetion between the Prebendary of A. lyid the Ab- 
bot and Convent of B. that the Prebendary of A. and his Succejjors, ior all 
Time to come, pould have their Eleif ion yearly, either to receive T'lthes in 
Kind of Corn or Grain arifmg laithin certain Lands of the Abbey, or clfe to 
receive Jive Marks, to be paid by the faid Abbot and Convent /« Z/V/r 
t hereof i fo as fuch Eleflion -juas notified to the Abbot or any of the Monks ^ 
or Porter of the Abbey &c. The Lands came tu the King by the 31 f/. 8, 
and from him to the Defendant^ and the Prebend came to the King by thi 
I £. 6, of Chanteries Sc and Jrom him to the Plamtijff. Admitting the 
Compofition good, it was adjudged that the Power of Election was 
gone, becaule it cannot now be made according to the Compolicion ; 
but in this Cafe it was faid by Hale Ch. B. that in one ^OlllilUJCU'lS 
CflfC in 44 Eliz. wiiere an Abbot had a Quantity of Wood to be taken 

yearly 



28 Difmes, [or Tithes]. 



yearly in fuch a Wood, or a Sum of Money at his Eleftionj ic was held 

the Eleftion was transferred to the King by the Statute otDlirolution 

of Monafteries, Hardr. 381. Mich. 16 Car. 2. Sir William Ingolby v. 

Wivel &:al.' 

But an un- 8. If the Jury on an Iffue joined in a Prohibition upon a Modus De- 

certain Mo- ciniaudi find a different Modus, yet the Defendant Hiall not have a Con- 

cTaufeTf fttltation ; for it appears he ought not to fue for Tithes in Specie there 

Prohibition being a Modus found. Vent. 32, Pafch. 21 Car. 2. B. R. Anon. 

Hetl. 100. 

Trin. 4 Cir Goddard v. Tyler. Litt. Rep. 151. Toddard v. Tiler, S. C. 11 Mod.5o; 

S. P. argued, Startup v Doderidge. 

9. Chancery deny'd to decree Rate 'Tithe ^ though it might ht after 
two Verdids, and thougb it was urged that it was frequently done in 
the Exchequer. Ch. Cales 187. Mich. 22 Car. 2. Bulh v. Richley, 

10. There is no Remedy tor a. Modus Decimandi but i» the Spiritual 
Court. 12 Mod. 416. Per Cur. Mich. 12 W. 3. in Cafe of Johnfon v. 
Ryfon. 

Ibid, cites 1 1. Where a Modus was let forth payable oh or about fuch a Day. this 

the Cafe of wasnotgood; for the Day mult be certain. 8 Mod. 375. Trin. 11 

K JRoatr^, ^^°- *• -Blackett v. Finny i and cites it as lately refolved in the Cafe of 

•where the ' Harrifon V. Clerke. 

Plaintiff fug- 

geffed a Mod-us, but did not lay it payable on any certain Day, neither did the Defendant in his An- 
Iwer confcfb any Day of P.iyment ; fo that no certain Day of P.iyment appearing, either in the Bill 
or Anfwcr, the Defendant, who was Plaintiff in a Crofs-Bill, havin? laid it to be payable on a cer» 
tain Day, it was held good. 



(II. a. 3) In what Cafes a Parol Agreemsnt is good, 
or where there muft be a Leafe. 



I 



N Trefpafs the Plaintiff counted that a Parfon Anno 18 H. 6. Sold 
to him all his Tithes of hisParilh of A. payable which did ormight 
arife in the faid Parilh during [even Tears next &c. and jultified tor 
Tithes Anno 18 and 19. Per Newton this cannot be good ; for in Anno 
18 the Tithes which came Anno 19 were not in Ede, and therefore it is 
not a good Contraft of a ?"l&/«^ «o? /« £^£i But per Palton contra, and 
therefore the Plaintiff recovered notwithllanding thefe Objections. 
Quod Nota pro Lege. Br. Contraft, pi. 13. cites 21 H. 6. 43. 

2. A Parfon may leafe his Tithes for Years without Deed i Per 
Chocke J. Quod non Negatur. Qucere Tamen. Br. Difmes, pi. 8. cites 
9E.4. 47. 
Tith«will 3. A. Parfon in Confideratton of 12 d. granted te one of his Paripioners . 
not pafsby fjj^f he Jhould hold his Lands dijcharged of Tithes ; It was holden by the 
^To^d ''' wh°^^ Court that the fame was no good Difcharge, being without Deed 
Lc. 2". pi as a Leafe of hie Tithes; But it was holden, if the Parlbn afterwards 
29. Trin. 26 fues the Parifhioner for Tithes againft the fame Grant and Promile, the 
Elii. B. R. Parifhioner may have an A£lion upon the Cafe againll the Parfon upon 
Withy V. jjjg Promife, although he cannot plead the Grant as a Le.ife. 2 Le. 73. 
maunders. ^j ^^ ^,^.^ ^^ ^j.^ ^ j^ Wellock's Cafe. 

4. Conlideration to pay to A. the Parfon 10 /. per Annum during fuch 
& Term Jor his Tithes., A. promifed that the PlaintitF Ihould hold his 
Lands without Tithes and without any Suit tor the fime ; PerGawdy ^ 
It is a gojd Difjharge tor the Time, and a good Compjlition to have a 

Proh^biciou 



Difmes, [or Tithes]. 29 

Prohibition upon, and is not like unco a Covenant. Le. 151. pi. 208. 
Trin. 31 Eliz,. li. R. Chapman v. Hurft. 

5. Libel for Tithes, the Defendant fuggefted for a Prohibition, that 2 Le. 29. pi. 
P. was feifed of the Lands out of which the Tithes were illuing, and in 3-- Wood- 
Conft deration of $1. paid by hint to the Parfoit^ it was covenanted aid ^^'^"-^ ^ 
agreed het-jueen theiiif 'that P. and his Affigm jhould hold the [aid Lands antfaCon-' 
(iifchar^d of Tithes during theParfon''sLife;K Prohibition was granted, but fuharion was 
atterwards it was held that they may ftill proceed in the Spiritual Court, S™"^'^ 
becaufe here is no exprefs Grant of the Tithes, but only a Covenant or ^j^J'^j^ [^'||'^j 
Agreement that P. fliould be difcharg'd of the Payment, for which he been tor 
hath a proper Remedy by an Aftion for not performing the Agreement, Years it liad 
and therefore no Prohibition fhall goi for this Agreement cannot be been good , 
without Deed, and the Affignee has no Colour to take Advantage there- j^^^t ^^ '"^ 
of Cro. E. i88. pi. 13. & 249. pi. io. Mich. 33 & 34 Eliz,. B. R. Connaft, 
Nelfon and Bugg v. Woodward. but only a 

Difchaige 
for Life, whicli cannot be during his Life without Deed ; and afterwards the Record was read, 
■which was Concordatum agreatum fuit between the two Parties pi o omnibus Decimis, during the 
Time that one fhould beParfon, and the other Occupier of the laid Lands, tiiat in Confideration of 
5I. thefaid Prettiman and his Afligns fliould hold the faid Lands difchargcd of Tithes, the fame is 
not a Contraft but a Promife, for he docs not grant any Tithes See. 3 Le. 257. pi 541. S. C. in to- 

tidem Verbis. Ow. 105. Woodward v, Nelfon S. C lays, that about this Time Wray Ch. J. 

died, and Popham fucceeded, and was fworn the fame D.iy, and the Court held that the Agreemeuc 
by Parol was not good, and a Confultation was awarded , But lays, that upon Search made no Judg- 
ment is entered upon the Pi.olI. 



6. If a MmfeU his Tithes for Years ^_y it^'ord it is good^ bt!t if the Noy 28. . 
Parfon agrees that one lliall have his Tithes for fe\en Years by Word it ^,ji,^7J^* 
is not good, becaufe it amounts to a Leafe ; -and Fleming Ch. J. held i,^ g,.anted 
ftrongiy that Tithes cannot be leafed for Vears wuhout Deed. Brownl. 98 tor.)?/!; icar 
Mich. 9 Tac. Anon. " without 

•' Deed, and 

for no longer ; Per Coke Ch J. Roll Rep. 1 74 Sorrell v. Grove. ■ Becaufe the P-irfon for that 

Year had, as it were, an Inteiefl ; Per Fenner J. Ow. lov in Cafe of Woodward v. Nelfon. 

By way of Agreement Tithes may pals for Years without Deed, but not by way of Leaje without a 

Deed ; But a Leafe for one Year may be of Tithes without Deed, Godb. 954 pi. 449. S. P. by 

Wray and Fenner. Cro. E. 249. pi. 10. in Cafeot Kelfou v. Woodward. 

7. An Jgreement to he difcharged from tithes may be /"or a 7'ear by Paroly 
and Ihall be good i but to have fuch an Agreement (/rtn>;^ /^e P«>"/o«'j 
Life orfrr tears cannot be without Deed ; And although it were objefted 
that this Agreement being in Way of Contratl by Retainer isnot any 
Leafe of them, but only a Contract which may be for many Years by 
Way of Difcharge to the Party himfelf who ought to pay them by re- 
taining them without Payment, as well many Years as- one Year ; yet 
the Court held that it could not be, becaufe the Law will permit it for 
a Year^ it being Quafi by Way ct Sale ; but for many Years (which 
found in Nature ot a Leafe) ir cannot be. And Tanfield faid, That 
fuch a Surmile was in a Cale betwixt .Jl^ClFOn ailtl Pretimatl to be dif- 
charged tor Years, and ruled to be void; a Multo Fortiori ro be dil- 
charged during the Parfon's Life ; and fuch a Cafe was ruled betwixt 
KOUjS nntl ilOlllS i Wheretore without furtherArgument it was adjudg'd 
lor the Defendant, and Confultation was awarded. Cro. J. 137- pf I3- 
Mich. 4 J ac. B.R. Hawkes v. Brayfield. 

8. Ifa Parfon contrafils with me by Word for keeping hack, my own "- Brownf 
tithes lor three or lour Years, this is a good Bargain by Way oi Re- \^\f^f^^ 
tniner, and if he fuc me in the Ecclefiallical Court, I Ihall have a Pro- ^q,.^ jf,^„ 
hibition on thisCompoiition ; But it he grants to me the Tithes ol an- one Year 
other, though it be but/or an Tear.^ it is not o;ood unlefs it be by Deed, and cites- 

2 Brownl. 11. in a Note there. Mich. 8 Jac. B. R. S'I°J^2 

adjudged ; but the laft Point of the Grant of the Tithes of another was agreed by all to be void ; I'd 

I of 



^o Difmes, [or Tithes]. 



of the Tithes of the Parifli without Deed. Godb. 57;. Bellamy v. Balthorp But agieemenr 

*or his own tithes for Lije is not pcod, and in the Cafe ot Years it is the better Way to plead it ai an 

Jereement and not as a Leafe. Moy. 121. Small's Cafe Agreement to retain them for Life of 

the Parfon adjudged good. Lev. 24 Bernard v Evans. Pleading it by way of Demife for a Year 

is void by Parol ; But difcharge of Tithes by Parol is good, or Leafe of the Reclory, confilhng of the 
Glebe and Tithes by Parol fpr Years is good. Lat. 176. Bellamy v. Balthorp. Notgood with- 
out Deed. 2 Le, 29. Woodward v. Buggs. ; Le 257. S. C. Per Hutton J. Het. 

jo„ , Cro. J. 157. Hawks v. Brayfield. ■ Grant ot Tithes by Deed for Life is not good 

if it be to commence at a future Day, and to enure by way of Interejl and not by way ot Dif charge, and 
though it be to the Owner ot the Land, yet to make it good there muft be Words of Difcharge in 

it Yelv. I" I. Edmonds v. Booth. ■ During the Life ot the Parfon the Contract is on foot, but 

though the Contraft was with the Parifhioner, his Executors and Aflignes, yet the Jjfignee cmnot 
fue the Parfon upon this Contraft, but he may have a Prohibition to ftay the Parfons Suit in the Spi- 
ritual Court for the Tithes in Kind, and may put the Parfon to his right Remedy, and that is to fue 
here. This Agreement is no Leafe, becaufc not by Deed, and the Parifliioner being dead, the Par- 
fon fhall have his Remedy againft the Executor, and not againft the Executors, Lelfee at Will. Pee 
Doderidge J. and a Prohibition was granted. Godb. 335. Snell v. Barret. S. C. 

Cro. J. 1 57. 9. Libel &c. the Defendant fuggefted. That there was an Agreement 
pi- 13- " between the Lord Chandos who was feiled ot the Manor of B. in the 
Hawkes County of Wilts, and the Plaintiii^ who was Parfon of B. that the faid. 
^' C^ltdt Lord Chandos and his tenants of the [aid Manor, Jboald pay unto the fatd 
Confuu"ation Farfon fo long as he Jhoiild continue Parfon there, fo much Money in Satis- 
awai-ded ; fatiion of all Tithes, and that in Confideration thereof they Jhould hold the 
Fortiidiigh 1'^^^ Manor dtfcharged Sc. and upon Demurrer it was adjudg'd lor this 
luch ^g'«^ i^jjjeijdant, and a Confultation awarded. Hob. 176. pi. 199. Hill. 
gTOdb^Pa-^ 13 J^'^- B- R- Hawks V. Bayfield. 

Year yit it cannot be during the Parfon's Life, or for Years, without Deed, and cites S. P. ruled be- 
tween Rolls and Rolls. — Yelv. 94. Hawkes v. Brothwith, S. G. takes a Diverfity where it is a 

ContratS to have Tithes by way of Retainer without Deed, and where by way ot Perception. 

to. A ParifMoner covenants with the Parfon by Deed to pay the Par- 
fon annually on Lammas- Day 1 1 s. and the Parfon in Confideration there- 
of and upon Receipt of the faid 1 1 s. covenants by the fame Deed to dif- 
charge and acquit him of the Payment of the T'lthes of B. Clofe as long as he 
Ihall be Parfon ; The Parilhioner being Tenanc for Life made a Leale lor 
a Year and alter at Will to another ^ The Parfon fued for Tithes in 
Kind in the Spiritual Court, about three Years afterwards a Prohibition 
was moved for but deny'd ; One Reafon was, That this was only a 
"Covenant and no Leafe. i. Bdcaufe it depcndt on a Condition Precedent. 
2. Becaufe of the Words, (^upon Receipt oj lis.) and a Leafe ought to 
have a certain Commencement and nor depend on a Condition ; (cites 
Pi. C. 271.) 3. Becaufe the Words are not that he fliall retain the 
Tithes, but that he will difcharge and acquit him of the Payment of 
Tithes which Words Ibundonly in Covenant. 2 Roll Rep. 121. Mich. 
17 Jac! B. R. Alders v. Wray. 
K f Co- II. In Confideration of Compofition promifed by the Pariiliioner for 
ven°ant. ' hls Tithes ; Parfon promifes that he imll not fue jor 'tithes ■■, after Parfon 
Poph. 140. fueg. the Tithes do not pafs in Intereft, for which the Parilhioner was 
Fuicher v. ^'^ j^jg Covenant being by Deed. Palm. 377. cites Alders v. Rayner. 

Grifnn. r 

So where 16 JaC. 

Confideration of 6 1. per Ann. covenanted and granted by Deed to difcharge thi Parifioner of 
Tithes on Condition to be void on Non-payment. The Parfon fued in the Spiritual Court ; But the 
Court would not grant a Prohibition, becaule the Original, viz. the Tithes, belong to the Spiritual Ju- 
rifdiftion; But it was faid he may have Covenant upon the Deed at Law. Godb. 272. Barnwell v. 
Pelfie. -i K^ol' R^P- 42 S. C. 

12. Tithes cannot pafs without Deed. Cro. J. 613. pi. 3. Pafch. 19 
Jac. B. R. Swodling v. Piers. 

13. The 



Difmes, [or Tithes]. c^i 

13. The Farlon made a Parol Agreement with A. a Pariihioner, That m ^ ^o\\ Rep. 
Conftdcration of 10 s. to he paid to hi7n every Tear by A. his Executors or '-^- ^,'^,"^% 
Ajftgns^ he and they Jhciild be quit of Payment of Tithes Jor fiich Lands and"by Do-' 
during the Life of the Par fen ; the lo s. was conltantly paid to the Par- deridgc the 
fon, which he accepted ; afterwards A. the Parilhoner made B. an In- Paribn has 
lant his Executor and died ; the Mother of the Infant took out Admi- "° .Remedy 
niftration Durante Minore vEtate, and made a Leafe at Will of thefe ^ejcJ \lt 
Lands, and the Parfon libelled againlt the Leffee for Tithes; Per Do- the Rent, 
deridge during the Life of the Parfon, the ContraSl is a Foot; but but he mud 
the Alfignee cannot fue the Parfon on this Contraft, though he m.iv have ""^^/I'l^' 

a Prohibition to Aay the Suit in the Spiritual Court, and put the Parfon hisExec'u"'' 
to fue here ; and a Prohibition was granted. Godb. 333 pi. 426. Trin. tors, but the 
21 Jac. B. R. Snell v. Bennet. LeiTee may 

have Aftion 

againft the Parfon if he fues him in the Spiritual Court ; and a Prohibition was granted. Palm. 

5 •57. S.C. and Prohibition was granted. 

14. Where the Defendant in Trover juflified by Leafe of the Tithes Sc Lat. I'jS. 
by the Impropriator for a 7 ear ; Per Cur. It is meerly void without Deed, ^ C. held 
otherwife if it be by Leafe of the Tithes of a Year by the Par/on htmfelf. ^"to'tte^fm- 
Noy 89. Mich. 2 Car. B. R, Bellamy v. Balthrop. propriator;' 

_ , • bat that the 

Parfon may difcharge the Parifhionef of Tithes by Parol, or leafe the Redtory, confifting ot Glebe 
and Tithes, by Parol for Years. 

15. If A. contra£fs with the Parfon for the Difcharge of Tithes for Tears Hetl.122. 
of his Lands, and demifes his Lands to another, yet he IhuU not pay '^^•ch. 4 Car. 
Tithes, but the Difcharge runs with the Land ; but if he takes a Leafe v w^f^'^i^- 
for his Tithes by Deed and makes a Deniife of his Land he has Tithes ham ^S P'' 
of the Leflee ; and the Direction was, That the Leffee of the Farm 

ought to fhcw exprefly to the Eccietiallical Court, that the Farmer 
(viz. A. the Leflbr of the Land) had not a Leafe of Deed. Het. 31. 
Mich. 3 Car. C. B. Booth v. Franklin. 

16. There was an ancient Compolition between the Prior and Con- 
vent of Bath and the Vicar of North-Stoke, that the Vscar and his 
Succejors fisould have five Mi^rks yoarly in Lieu of all Tithes of Sheep kept 
upon the Manor of North-Stoke, and that all the Tenants of the faid Ma- 
nor fhould he difcharg'd accordingly, but fuch Sheep weie only to be Hog- 
Sheep and not exceeding 500. The Manor came to the King by Difiblu- 
lucion, who gtanted it to Seymour. The Vicar notwithftanding this 
Compolition, and though only 500 Hog-Sheep were kept there, and 
though the five Marks were conltantly paid, libelled tor Tithes in 
Kind ; but the Defendant had a Prohibition upon fuggelling this Mat- 
ter, and upon hearing the Caufe on an Englith Bill in the Exchequer 
the Compolition was confirmed. Palm. 525. Pufijh. 4 Car. in Scacc. 
Lon V. Seymour. 

17. A Suggelh'on for a Prohibition was that the Parfon made fcveral 
Agreements with his Parifhionerfor the Payment of 6 s. S d. for his Tithes 
for four Tears, and thereupon a Prohibition was granted; And Harvey 
faid, That if an Agreement be proved for thofe four Years it is fnffi- 
cient. Het. 128. Mich. 4 Car. C. B. Stone v. Wallingham. 

18. The Vicar and Parijhioner Inter fe convener unt to pay fo much for 
Tithes, this was confirmed by the Bifhop; This is no real Compolition 
but ofily a perfonal Contra^, and fhall not bind the Succeflbr ; and a 
Prohibition was granted. Mar. 87. pi. 140. Pafcli. 17 Car. Hitch- 
cock v, Hitchcock. 

19. Agreement made ten Years before at 2 s. in the Pound for every 
Pound Rent of Land within theParifh as long as thty fhould live together and 
he continue Parfon, Payment to be made May ift and November ift- 

Per 



2 2 Difmes, [or Tithes.] 



Per Cur. This Agreement will not bind the Parfon being hy Parol;, but 
it will excufe the Parilhioners of the Penalties of 2 E. 6. and froni 
Cofts till Notice given of his Diflent, and Notice given after Payment 
due is too /ate, and fo if given after Lands are manured and fowtd. Hardr. 
203. Mich. 13 Car. 2. in Scacc. Breamer v. Thornton. 

20. In Debt on 2 E. 6. cap. 13. on Nil Debet, it is good Evidence to 
excufe the Defendant from the Penalties of the Statute to fhew a Parol 
Jgreement. Keb. 21. pi. 60. Pafch. 13 Car. 2. B. R. Barnard v. 
Ewen. 

21. In a fpecial Verdift in Trover for a Lamb and a Sheaf of 
Wheat, the Cafe was, That the Abbey of Fountaine being o[ the Cijler- 
iian Order, and exempted from Payment of 'Tithes of thofe Lands^ .Ghias 
proprtis matnbas excolerenty was fetfed of the Grange of Hemmingfurd ^c. 
within the Prebendary of Stodely^c. and Letween[the lear 1216 and 1261^ 
the Abbot and Convent and the Prebend made a Compsfition, confirmed by the 
Patron and Ordinary, that the faid Abbot and Convent flrndd be difcbarged 
of all 'Tithes of their Lands, ^nas propnis raanibus excokrent in Hem- 
ruingjord, but they Ihould pay Tithes there and elfewhere for their 
Lands out of Hemmingford ; and that they jloiild pay yearly to the faid ^ 
Prebendary and his Sitccefjors Jive Marks by equal Payments every e\-ety halt 
Year. That yf/;;?o ii^<) there was another Coinpofition made betiveen the 
then Abbot and Prebendary reciting the former Compofition, bat the Jury did 
not find that it was confirmed as the firji was by the Patron and Ordi- 
nary, and by their later Compofttion the Prebendary and his Succefj'orswereto 
ha^e the Tithes of Corn and Grain, as well of Lands in the Hands of the 
Abbot and Convent as in the Hands of Tenants arijing yearly in the faid 
Place, or el fe five Adarks at the Ele[iion oft he faid Prebendary ^c. of which 
Notice was to be given to the Abbot &c. or to the Porter ot the Abbey, 
on St. Thomas's Day, and that when no Eletlion was made then the 
Prebendary Sc. Ikould have the Jive Marks, faving the Right of Tithes of 
Lambs and Wool which was to be paid as formerly ^ alcerwards the Pof- 
feffions of this Abbey came to the Crown by the Statute 0/ 31 //. 8. and that 
at :he Time of the Trover, the Defendant was Proprietor of the Lands 
in Hemmingford, and that the Plaintiff was feifed in Fee of the faid Pre- 
bend, and that a Lamb and Sheaf of Wheat were renovam on the faid 
Lands ; and the Queftion was, Whether the Defendant jhould pay 
Tithes or not ? and this depended upon another Queltion, viz. Whe- 
ther the fecond Compoficion was good ? It was infilted for the PlaincitF 
that it was good, though not confirmed by the Patron and Ordmay 
becaufe it was for the Benefit of the Prebend and his Succeiiors, and 
an Enlargement of the firlt Compolicion ; for by that he was tied up 
to the firll five Marks, but by this he has his Choice either to take 
the five Marks or his Tithes in Kind ; therefore it needs no Contirmt- 
tion, for the Rule is that the Parfon without his Patron and Ordinary, 
Potell meliorare Statum Eccleli^e fuae i it is true the Abbey is now dif- 
folved^ and the Polielfions given to the Crown by the Statute 31 H. 8. 
and fo is the Prebendary by the Statute i E. 6. but yet the Tithes in 
Kind may be recovered ; for the Diffolation of the Abbey will not hmdef 
it, becaufe it wa.s }>y Surrender of the Abbot and Convent •■, for the Statute 
3 1 H, 8. vefls nothing in the Crown but what the Abbots themfclves far- 
rendered Jince 27 H. 8. and it is a Rule in Law that Res inter alios 
a£ta alteri nocere non debet ; it is likewife true that the Prebendary ca:i 
make no EleHion, becaufe his Pojfejfions are given to the Crown ; but where 
no EleOiion can be made, there the Party who was to have the Bene- 
fit of it ihall have the Thing itfelf without any EleQiion j but ad- 
judged, That the fecond Compojition was void, becaufe it was not con- 
Jirmed by the Patron and Ordinary, and becaufe there could be no El-.tl'V' 
according to the Compofttion, for that the Prebend was dijfolved ; cbcr ■ 



Difmes, [or Tithes]. c^c^ 



fore the Jirfl Coiiipo/ition (loall Jland ^noad terras in propriis vjambtis 
as thefe Lands were ; ana for the others^ that T'lthcs in Kind may he taken ^ 
fo the Defendant had Judgment. 3 Nelf, Abr. 298, 299. pi. s! 
cites Hardrcs 381. [pi. 10. Mich. i6 Car. 2. in the Exchequer.] In- 
goldsby V. Wivell. 

22. A Suggellion €^x a Prohibicion was of an Jlgncment for a Tear 
and though ^his Agreement ivas pleaded tn the Ecchj^a/fical Court by 
Way ofCoHtvatt, and not in Bar as an Agreement for Lile or for feveral 
Years; yet the Court held it all one, and that both are triable in tMe 
Spiritual Court if the Suit be for Tithes in Kind ; but otherwife //' it 
were lor the Money then aProhibition 'xoiild lie ; and fo Cro. J. 17. mult be 
intended. 2 Keb. 6. pi. 14. Pafch, 18 Car. 2. B. R. Buckley v 
Cheltcr (Bp.) 

23. In KjeUment of Tithes npon Gemife oj J. S. not fhying by Deed 
for which Caufe after Error brought here on Judgment in C. B. after 
Verdift, Rotheron prayed for the Plaintilfin the firft y//^/^;;/e/;; that 
it may be reverftd, which Twilden doubted ; but per Cur. reverfed. 
2 Keb. 376. pi. 33. Trin. 20 Car. 2, B. R» Angell v. Rolie. 

24 Indebitatus Jlfhrnp/it for 'Tithes fold. Baldwin moved in Arrelt 
of Judgment, that this founds in the Realty, and lb an Attion of the 
Caie will not lie; But per Cur. it is well enough lor this Ihall not be 
intended a Leafe of Tithes, but a Sale ot Tithes. Freem. Rep. 234. pi. 
242. Mich. 1677. Anon. 

25. A Leafe of Tithes cannot he for more than one Tear without Deed 
and it is not good by Way oi Leafe for one Year, but fo it enures 
by Way of Sale; Per North Ch. J. Freem. Rep. 234. pi. 242. Mich. 
1677. Anon. 

26. Cafe on a Special Promife for Tithes for fix Tears • on a Motion in Though no 
Arreft of Judgment it was held good^ though fuch Agreement be not a ^"^^'■'^'* 
good Leafe, nor does any Interelt pats by the fame in the Tithes, yet f^'h' ''^A 
it it is good to ground an Alfumfit and the Adion lies ; Judgment tor gteement," 
the Plaintiff. 2 Show. 307. pf 314. Trin. 35 Car. 2. Y>.)^. Eaton v. yethehav- 
Sherwin. jng accord- 
Agreement fnffered him to take the Tithes, an Aftion lies for the Money upon the other's Agree- 
ment. Skin. 115. pi. 4. S. C. » ' 

27. The Law for feveral Years paft hath been clearly taken that no 
Prohibition will lie on any Compolition whether for Life or Tears for 
any Tithes, and therefore the proper Remedy is to appeal to the Arches 
if "the Confillory Court Ihould retule a Plea of Compolition. Carth 70. 
Mich. I W, & M, in B R. Bradlhaw v. Swanton. 

28. Parol Agreement tor the Tithes oH Lands to be inclofed was^ That 
the Proprietors would be at the Charge of encloling, and that the 
Reftor and his Succelfors Ihould have every tenth yjcre in Satistattion 
of all Tithes, which Ihould be likewife inclos'd tor him. This Agree- 
ment was made with the Predeceffors of the prefent Re6lor ; the pre- 
fent Reftor traverfed the Agreement, and the Plaintitf took Kfue oft 
the Traverfe 5 the Jury lound the Agreement, and gave a Verditl 
againlt the Reftor, and after feveral Motions the Judgment was at- 
firm'd. s. Lutw. 1057. Hill. 13 \\. 3. C. B. Machin v. Moul- 
ton. 

29. Where an Agreement is made for Tithes they fhall pafs by JF^jj' Hctl ji-. 
cf Bargain ; lor otherwife they cannot pafs at all becaule they ly in l\iich. iriii*. 
Grant, and therefore cannot otherwife p.ils than by Deed ; tor a verbal ^- ^ ^'""^ 
Agreement for them is good only tor a Year. 8 Mod. 62. Mich 8 Geo ''■ '^'''"'"'^' 
Tne King v. Fairclough. ' ' '"'^' ^- ^'' 

K JO. Purfon 



54 Difmes, [or Tithes]. 



Ardfliall jq. Parfon leafes his Tithes for 2 s. 6 d. per Acre to A. B. and C. 

pay the Pwr-jjjgy j^^ ^^^^y Landholder his own Tithes at 3 s. per Acre ; The Mo- 

' • ney which the Lejfees receive of the Landholders for thofe Tithes fliall 

be accounted a Modiis^ and wherever there is a Modus he that receives 

it fhall be taken to be Occupier of the Tithes, 8 Mod, 63. Mich. 8 Geo. 

The King v. Fairclough. 



(I. a) H'^ho fhall have ^dvmitage of a Prefcrlption in 

Non Decimando. 

* Cro. C I. JiF a ^tWX pcCrCttfaCjS, that fuch an Abbot anU IjijS PrCtJCCClTorS! 
s"' ad. ''^' A Time oat of Memory $C, held certain Land dilcharged of 
iudg'd by 5 PapUlCHt Of Tithe, and that this came after bv DilFoIution Bl) tljC 
luftices'for cgtntlltC Of 27 I), 8. to the Crown, autlfO l!er(bC0 a 'CltiCtO It Vl'OUI 
the Defen- (j^j. (Sj^viJiyn, tljC Patentee iLall not have Advantage Of tiUlS i')rerCCilJ= 
ttaf Consul tlOn bp tljE Common LalU, without the helpolunyStuture, bCCaUfC 
tation ec' It lliall be intended tljat tl)t0 DlfCljarffe tua? bj? CCafOlt of IdUlC Per- 
awarded fbnal Privilege given the Abbot and his Predecellbrs, and ib is gone 

■ J°. ^^^ by Difl'olution of the Body Politick, ailtl not in relpeft of any real 

and 'held bv Compofition, \^, 7 Cat. tit giCaCCaUO, betlUCeU Clarke and JVard^ 

;9 Contra atiiuOffcH ttt tljc Cafc Of tljc jDicac Of Damtrc* (^icO. loCar* 'B* 

Crook, that ^, bCtUJeetl * Tiddownc and Holms pCt CUrUim, UpOU DeiiiUCl'eC, 

no Proiubi. jij^Q g^^^g jj peremptory Rule for laagnicnt accorbinsjlp, if Catifc 
and a Con '^^^ "Ot fljEiuu tljc itcxt -^crm to tlje coittcaup ; 15\\t after 3iurig= 
fuitation mciit uias ftap'D ttU {^» 1 1 Car. at uiljicfj m\\\t it uias folemjiip 
wasawarded arguEti bp tljc Coiut, aittJ tljea aQjiinicti bi> O^rampaoit, Joiies, 
_s ccucdjjj^j, Q5atfeclp E contra, tljc OpmionofCro'i-, tljat tljc pcefcrip^ 
Ts' pT" tionin Bon'DccimantiouitiiSpne bj) tlje Co;u:iian ILaio- t). n 
paich 12' Car, bttmcen Cock and Thorpe^ anD fo aUjUtiffcb tsijjn a Dcmurrcc 
Car. B R. itJifijoiit arsumcnt c contra tlje SDpimou of Ccofee. Jntrattir, 

iKeb. p „ f^^^^ j^uj^ 28, 

29. pi. 59. *^ 

Pafch. iS Car. 2. B. R. the S. C. cited per Cur. and faid thatit had been agreed for Law in all 
the Courts of Weftminfter.— Ibid. 175. pi. 61. cites S G. accordingly. 

rvjoo 2. 3!ll a PrOljibitiOn, if tlje Plaintiff prefcribes, that King Edw. 6. 
Fol. 655. yyas feifed de nuper de-atforeltata forelta de Savernack in Comitatu 
If^^^'T^rV Wilts of which 20 Acres of Wood, caHD J©tCWjam-plirOCk0, with- 
5. S.c' and Jn the Parilh of Pewfey, a Tempore fC. was Parcel, anS that King 
a Confulta- Edw. 6. and all his Progenitors anO PrCbCCClTOrS, Kings of England, 
tion was Foreltam praedictam, cum pertinentiis, unde f C» habuerunt &; gavifi 
^he'kinc's ^"^'^^"'^ exoneratam & acquietatam immunem & privilegiatani de 
LeiTee (Kail & * Solutione omnium & lingularum Decimarum quarumcum- 
holddii- que Reftori Eccleiiae parochialis de Pewfey pr^di&'i feu Firma- 
charf^ed, j-jq fyg^ pro Tempore exiftenti folubilium infra Foreltam prasdic- 
cffeefhall" ^^"^3 ^^" aiiquam inde parcellam crefcentium, renovantium, pro- 
not; Per venientium, & contingent! um, Re£lori Eccleliie de Pewfey pr^dida, 
Henden, feu ejus Fimiario, pro Tempore exiftenti folubilium anU that King 
Davenport Edw. $. by Deed enroU'd, convey'd the faid Foreft to the Duke of 
Serietnts "^ Somerfet in Fee, and fb it iUasS COnbCP'O irom him bp IllCan Cant)ep= 

Heti 60. ancero the Plaintiff, tl)C ncU) Carl of f^crtforb, in Fee, aiD djiit 
Mich. 5 tljc ^cfcnbant being li^arfon of tbc fain li)atillj, Ijats Uicti for STitljcsi 
P"^^.^-. oftl)c fain 20 acres of iPoab, to luljiclj Dcfcnnant pieabcn far a 
.ncominss (jj^onftutjition, tljat tlje faiu 20 acrcgiacrc not parcel of tijc fain 
jfotcft, upon UJijiclj an 3:fl"»c being loincb, a mt^u m^ grocn for 

tljc 



Difmes, [or Tithes]. 35* 



tljE ipiaintiff i 3nti after it was moved m arrcft of 3iutisment, that cro. c 94 
thisPrefcriptionmji5onD£chiiam30, ti)ljicl) lUiigi liiiD III tljc il%mQ; P' 'O J^'o- 
nm W 13toBcmtars l^(ns0 of Cnslaim, wis Pcrfonai, and did nut l^'i"'/^ °'?'- 

extend to theAlieneeot the Kingi aUO flftCC fCDCCal ^rffUmClltS at itwasdouk- 



cc 



tljelBar, it toass anjitugea pec totaiu Ciiuain, tljattljc I31aint(ffcd>.hethcr 
coulti not taKc SU^antnijc of tbis prcfcriptioii, luitoout anp argu- fheP.tcmc 
iiient bi? tljcm, anna Coufultiuion giantco accotonigjp, foe tt)at ""J/p',-^i. 

the Ground ot this Prefcription was either becaule ic was a Forelt, and lege, or that 
could not render Tithes ih long as ic was uled with wild Cattle, it be only a 
fCtliCCt SDeer, or becaufe the King was not within the Council ot'f ''^''''8'= 
Lateran, iUfjiCij OCGaUlSS tljC paCOCljial Rlgljt, or bccaufe the King is '"" ci-lJ,;; 

Perfona mixta, ano fo iwi&t pitfcribc nt £'2011 Dcciniantio as a during che 

©pitittial l^CCfOnj inall which Calcs u could not extend to the time that 
Alienee of the King, the laid Forelt being dilaiioreltedi nuti fO iiOU) It ^^"^ [^^'"'^ » 
map rennet dilje in t^inn; anti it fljall not be intended that any^.JJ^^. ^^^ 
real' Compofition Ot CanfiOeratiOn was given fOr tljlgi DUCljatlJC a Prohibition 
without Ihewing thereot fpecially, llO UlOre tljauni Cafr Oif ft ^pt- was granted 

ritual petfon or ats^ot tljat niafec0 fiictj pi-^icriptioiv }i). 1 1 car, Debeneeiie, 
15. R. bctiaeen tijc Carl ofHcrtforJ and Leech, aoiuosetr. Jntratut, ;;,„? ihew't 
|3ilK 8 Cat* Hot, 565. a^ioc bp atgumcnt \\\ im Cafe in ni}? to the con- 
']5ool\. "■^'■y '"'^'^ 

a Day. 

Lands in a For-eft not paving Tithes beiiif; in the Hands of the King, is but an Immunity for that 
Time only. Sty. 157. Mich. 24 Car. in Cafe of Baniftei- v. Wright. 

It was held upon Evidence by Hale Ch. B. and the whole Court, that the King is not by Virtue of 
his Prerogative difcharped of Tithes for the antient DemeTnes ot the Crown ; but that he is capable 
of a Difcharge De non Deciraando by Prefcription, (becaufe he is Pcrlona mixta) as well as a BilTiop. 
Sec a Rep. Bifhop ot Winchefter's Cafe. But if the King alien any of the Lands that he is fo dif- 
charged of Tithes for, liis P.itentee fliall pay Tithes, and not only lb,_ but the Prefcription is deftroy- 
ed for ever, though the fame Lands fhould afterwards come into the King's Hands again, by Efchea; 
or othcrwife. Hardr. 315. pi. 7. Mich- 14 Car a. in Scacc. Compoft v 

3. The Abhotof A, was feifed in Fee, and that he and his Predeccjfors Sid ^loj 
7'imeoHt of Mtiui, had held the fame difcharged of^ fithes, and he granted g Ji'j ^ 
the Land to All Sonls College in Oxfcrd &c. Keeling Ch. J. delivered the Atkins, s C 
Opinion of the Court, in which they all clearly agreed, that this could adjudged ac- 
not be intended of a Tiicharge by real Compolition, not being pleaded cordmgly. 
or found fo by the Jury, but a mere Prefcription, and Perional to, the 
Abbot, and ran not with the Land, i Lev. 185. Trin. 18 Car. 2. 
Bolls V. Atkinfon. 



(K. a) /no fhall pay Tithes. 

I. T Jf a Parfon fows his Glebe, and aftet leafes over the Land, anU 

1 after tfje Leiiie imi& tljc eniblcamcntjs, be fijall p.ij> Citbcei 
fot tbem to t&e ^mmu 1?. 40 €U Id. R. in himjre/s cafe, 
per jfenner* 

2 [So] 3f a parfon foio^ 10 <J5Iebe, anti aftet feiisover the Em- ♦ cro. y 
bieaments, reftrViuiQ; tbe Lan5, ano tije mw^cc fcber^ tlje Cmblea= sg^- pi- -5- 
n]ent0, tbe ligation njali ija\jc Citijcs of tbem. notiDitljftanDinn;.^,*^/'^; ^ 
bis ouin ©rant. 1.3. 43 €1 05. E. H:n4re/s Caic. Dubitar tir. iht^rou ^ 
JD. II 3a. 05. K. between * Mojk and E-iver, €iim,m\\i ixfinnio nud, thatif 

in a tPrit of CtrOt* any ore V. ill 

buy Corn 
(landing of the Proprietor of a Redory, if he has not fpecial Words to difcharge it lie ought to pay 
Tithes, and the carrying it away without fetting out the Tithes is an Orfcnce within the Statute, and 

Ihall pay treble Damages. 2 Bulft. 185.6. C. adjudged kir the Plaintiff ; States it that the 

Plaintiff 



0^6 Difmes, [or Tithes]. 



Plaintiff was poflTefsM of the Land Town with Corn, (but had not then the Parfonage) but that before 
Severance he became I'arfon. 

Hob. iS8. 3. 3if a Parfon fows his Glebe, Jllltl dies before Severance, anU ilftCC 
pI .^5i. a Succelior is induaed, attH aftCC tIjC Executor Or IjlS IDmOCC fevers 
JlcWlu tijC €mblCament,6, tlje Succelfor lliall have Tithes of tljCUl, fOl* 

V Cotton tljoucD tlje €jcecittoi; rcprcfents tlje pcifon of tlje Ccflator, pet Ije 
s p of an cannot rcprcfcnt Ijim as }ij)arfon, niafmiicl) a0 anotljct iis inuuctcti* 
Aftion ^ contra 13. 40 CK 05* H* Tpiuiifrcp'0 Cafe* 

bi'ouf'nt by *- • /^ • 1 - • 1 1 1 r 

the Parfon appropriate; but the Court would give no Opinion, becaule it hanged before Jthem in 

5jjit -Brownl. (?9 S. C £c S. P. in an Adion ot Debt brought upon the Statute 2 E. 6. and 

the Court feem'd to incline that it would lie. 

4. 3]f a Parfon fows his Glebe, anU aftCr l'0 depofed before Sever- 

6s<''- ance, anD anotljEt IS innucteti, it fcems Ije fljall Ijaiic CJtljcss of Oigs 
. p ^'^ prcricccffor. cCliisrc, * a^ljetljev tijcrcbc not a Ditofitp U3!}cre 
ifheTefignsl)e ntcd .bcfotc tlje annunciatton, or uiljctc after f) O. n 3ia» 

before Se- 13. K. pCt CUriaUU 
ve ranee; 

PcrCokeCli. J. 2 Bui ft. 184. Hill. II Jac. 
♦ This feems to belong to the former Plea. 

H ?. Paifon 5, If a Parfon demifes his Gkhe to a Layman there he (liall p;iyTithes ; 
learrs his Cofltra of the Parlbn himfeif who referves them in his proper Hands; 
yS the And that Land before difcharg'd of Tithes Ihall be yet difcharg'd of 
LcfTce fliall Tithes, yet if /?£ ivho has fitrchafed Manor and Re[fory v,'h'\ch \s dif- 
not piy chargd of 'Tithes leafes Part of his Demefnes, the Lelibr Ihall have Tithes 
Tithei; P'^rjhgreot becaufe he has the Parfonage. Br. Dihnes, pi. 17. cites 

Brown and _ u o 
Wcrton ; 32 H. 8. 

conctflum Mo. 47. pi. 140. P-iTch. 5 Eli/.. —Contra by Coke Ch. ]. 2 Bulft. 134. Hill. 11 Jac. 
If the Parfon of a Church which is not impropriate leales hi^- Gkbc the LefTee fhall pay- 
Tithes ■ but otheiwiTe if it h.ul bi;en an impropriate Church, becaule of the Statute ot 52 H. 'i. of 
Diflolutions ; cited "by Hutton Serjeant Noy. 152. as ruled in the Exchequer in Cafe of Brewer v. 

y^yfoy l_It the I'arfon demifes the Glebe, his LelTee fliall pay him Tithes. Per Eyre Ch. J. 

Gibb. 79. Trin. 2& 9 Geo 2 C B. 

Cro. E. t6i, 6. a Parfon makes a Leafe for Tears of parcel of his Glebe Land of the 
pl. 52. Value of I ■3,/. per Ann. rendering 13 s. Rent j Adjudged that the Lelfee 

H''^'d"^ S C ftiall pay the Tenths to the Leflbr, notwithltanding his own Leafe, 
and though and the Refervation of the Rent ; But there otherwtfe it had been, if it ' 
the Rent was had been a Rack-Rent to the value of the Land. Sed qusere of that Di- 
mentioned to y^j.j-j.y_ Koy. 1$. Mich. 3 1 & 32 Eliz. Perkins v. Wilde. 

Exaftions and Dema-ids, yet a Confultjition was granted by all the Juftice.s, For VVray Tiid, thnt the 
Words here ara no Difcharge ; For ihefe Titiies arife, and accrue after, and are not Things ifTuing 
out of the Land, but collateral and due Jurfc Divino; and therefore cannot be difchaiged but by 
fpecial Words • But if the Words had been as well for Tithes growing and arifing upon the Land, ' 
as for other De'mands, then peradventure it had been a good Difcharge. But as the Cafe is, it cannot 
be intended by any Words, that he referved the Rent for Tithes, and fo Gawdy J. did conceive, 
cfpecially as the Lafe here is, the Leafe being of 24 Acres of Land, and onfy 15 s. 4d. referved. 
— —— D. 4". Marg. pl 2. cites S. C that it was refolv'd the Tithes fliould not pafs by fuch general 

■\NmA?..— ^S. C cited 1 1 Rep. 1 5. b. by the Reporter in a Nota as relblv'd per tot. Cur. that the 

Tithes (hall not pafs by llich general Words. 

7. As long as the Vicar occupies his Glebe Lands in his own Hands, 
he pall pay no Tithes ; but ii' he demifes it to another, the LcJJee pall 
pay Tithes to the Parfon that is impropriate. Brownl. 69. 14 Jac. 
Harris v. Cotton. 

8. If Parfon be Tenant of the Land, and at this Time Land is diC> 
charged ot Tithe of VVood in his Hand, yet if he leaies or fells the 
Wood the Lf/Jee or Vendee /ball pay Tithes iinlefs he fells the Tithes alfo ; 

Per 



Difmes, [or Tithes]. 37 

Per Doderidge and Haughton. Palm 38. Mich. 17 Jac. B. R. in Cafe 
of the Earl of Clanrickard v. Denton. 

9. If a Layman Impropriator leafes the Gkhe the Leflee fhall pay 
Tithes. Av\<\\i\\& pure ha fe other Lands \n th.Q Parifh which are dif- 
charged of Tithes in his Hands, and he demifes them the Lefiee fliall 
pay him Tithes. Her. 31. Mich. 3 Can C. B. Booth v. Franklin, 
iaid that it was adjudged accordingly in the Cafe of Perkins v. Hmde. 

10. Tithes were claimed by the Defendant as his abfolute Inheritance ' 
under a Grant from the King, and the fime were decreed fo. Fin. Rep. 
309. Trin. 29 Car. 2, Roak and Collier v. Lee. 



(K. a. 2) Payable to whom. 
Executors or Succeflors &c» 

1. T N Trefpafs it wals admitted that where Pari/hioners fow the Land 
j|^ the loth Day of May, and after the Parfon makes his Executors 
and dies, and after another Parfon is injiittited and induced, and after 
the Parilhioners cut the Corn and fever the Tithes from the nine Parts, 
the Executors of the firft Parfon fhall have the Tithes, and not the new 
Parfon. Br. Difmes, pi. •j. cites 21 H. 6. 30. 

2. If a Man keeps Sheep in one Panjh until fheering 7'ime^ and then fells 
them into another Parifh ; in this Cafe the Vendee fhall pay the Tithe- 
Wool to the Parilh where they were depaflured in the greater Part of 
the Time of the growing of the Wool i Per Williams. Lane 16. Hill. 
4 Jac. in the Exchequer. Anon. 



(L. a) By 'whom they fhall be paid. 

!■ T ir a ^ait fells to me V^'ood, ClUll I burn it in my Houfe, tIjC 

X Vendor fljall bc cljacffcu fot ti)C ^itl3e0, nnD not tljc iDcnncc, 
fot no '^\t\m are 5uc for JJBooD burnt in inplpoiifei nno tW loag 

tefOlUCll, \p. 14 la. 15. betlDCen pnrfOn i///i of Devon and Jh-ake^ 

anti a l^^roljibtticn crantcn accoruinsxip ; altljouo;!) it tnas faio, bp 
tbe Civil Law tl)E patfon ijatb <£icaion to Cue citbcr of tljcni ; 3ut 

tbl0 CrOflC0 tl3C Common Law. 

2. 2fa. agifts the Cattle of a Stranger in W LanU, tljC PatfOn <^;° *^„2^7.- 
niap fue the Owner of the Land for ti)C^itljC0 Of tljC pnittlVCi fOtf^^p ' 

otljcrioirc it tuotilti be Dcrp inconl^auent for tljc l^arfon to fuc cberi) doe.no:np- 
^tunet of Cattle, ann it woulU be Ijcrp Ijarti to fenotu, anD infinite, p<;" 

^iC{> 7 Car. X. E. between Pacey and Lange, petCliriani. J ^54 ^1- 

feem'd to the Court in reafon that a Suit was -vvcll brought againft the Owner, but be that as it will ir 
belongs to the Court Chriftiati to derermitie which of them ought to be fued, and thei-efore for this 

Reafon as to this Point a Confultatioti \va< granted. S. C. cited Hardr. 55 pi. 2. by the Kamc 

of Fare v. Cmge, as field, that Tythes fhall be paid for Agifimcnt of Cattle by the Occupier of ibe 
Lands. 

3. Where Gr<i/i is cut and made into ^eeks or Cocks , and aftencards 
fold, the Parfon cannot fue the Vendee for the Tithes thereof^ but muil 
fue him who fever'd it. 2 Roll Rep. 78. Hill. 16 Jac. B. R. 
Cannon's Cafe. 

L 4. If 



38 Difmes, [or Tithes.] 

'-— ~ . ■ — ■ — — ■ . . 

4. If a Stranger takes Emblements before fever ance from the 7'ythes the 
Tskikn pall fue in the Spiritual Court for Tythes againll the Trefpa/Jor, 
and not againft the Tertenant ; Per Ley Ch. J. 2 Roll Rep. 440, 
Trin. 21 Jac. B. R. in Cafe of Gwyn v. Merryweather. 

J. In a Bill in Equity for the Tithes of a Ntirfery lold ; The Courc 
was of Opinion, that it the OoJa^r fells them and pulls than up himfelf^ 
he fliall pay the Tithes ^ but if he fell them particularly to another 
[after Severance] the Vendee fliall pay the Tithes ^ As in Cafe of Tithes 
of Corn; if Corn be fold l^anding, the Vendee Ihall pay the Tithes i 
But if he' fell it after feverance the Vendor mull. Hardr. 380, 381. pi. 
9. Mich. 16 Car. 2. in Scacc. Grant v. Hedding and Bull. 

6. Upon hearing the Caufe above divers Doubts and Queliions were 
made ; As ill. Whether Tithes Ihould be paid if they yielded no other 
Fruit ^ 2dly, Whether Tithes ihould be paid for the f Trees that yield 
Fruity which pay Tithes F Oi^ly^ It fome yield Fruit and others not. Whe- 
ther or no thofe that yield Fruit, privilege and exempt the other which 
yield none, when they are all iold together? 4ihly, Whether Tithes 
Ihall be paid tor them when fold and tranfplanted in another Pari/h? Ec 
adjornatur. But atterwards Tithes were decreed in all fuch Cafes. 
Hardr. 380, 381. Mich. 16 Car. 2. in Scacc. Grant v. Hedding and 
Ball. 

7. The Plaintiff being Re£lor of the Parifli of Hemyoke in Devon- 
fliire, brought a Bill for agiltment Tithes againft the Agiller, the Cafe 
appear'd to be thus. Defendant's Father lived in the Parifh and rented a. 
Farm there. Defendant lived with him, and he being a Butcher and rent- 
ing a Farm in an adjacent Partp, frequently brought Cattle and put thent 
in his Father's Ground for two or three Nights^ and fometimes ktU'd fom& 
of them off, but generally fent them to his own Fartn. The Quellion was. 
Whether the Owner ot the Land or the Owner of the Cattle Ihould pay 
agillment Tithes? Ch. Baron and other Barons agreed, that the De- 
mand ought to have been againft the Occupier ot the Land tor the 
agiftment Tithe if any had been due, but they thought in this Cafe 
nothing appear'd due. And Baron Page faid, that as to what had been 
faid that the Demand might be either againft Occupier or Agilfer, thac 
could not be ; for the fame Duty could not arife in two different Per- 
fons at the fame Time. MS. Rep. in Scacc. Fillier v. Lemen. 



(M. a) Tithes Perfonal. 
0^haf lliall be iaid Perjorml Tithes. 

t. \ PCtfOltill "^TttljC is the tenth Part of the clear Gain quse deben- 
f\ tur ex opere Perfonali, lji0 Cljatgeg anil Expences, aCCOrDtltffi 

to W Cftate, Contiitton, oc Degree, to be fictt deduaed. co* 
$^apa Cljatta 621. 657. 649. 

* See(C) 2. Citljegl of Filh taken at Ifland, Ot Of Herrings Ot Pilchards, Up'= 

6 sVVnd ontl)eg)eaatelS>etronalCitl)e!3» ^ii% i4 3ia* 15.-9.^* Go/im and 

the Notes Horden, pcc DoooetiOiye. I), 14 Cat. 015. E. fain bp juHice MW. 

there. tl)at til att ^ppcal out of Stelanli to tlje Dcleffiitcis Ijctc, in mi> 

lorn Defmond's Cafe, tt wasi afftceu bp all tljc Civilians!, -SCijat 

Citbcs Perfonal taUen in tbe ^ca out of aup jOarifl) arc nuc tic= 

nuctt^ ewnfi!3, ano not ^it|)e.0 lu ivain. ^0. ^mm CDatta 621. 

3- '^itlyz^ 



Difmes, [or Tithes]. qp 



3. CitljCSS of Fulling-S^US and Paper-Mills aCC lifJCrfOlWl ^itije0. Tithe of 

Co* cpiiffiia Cijiirta 621. m^u arc 

Tithes, per Coke Ch. J. Roll Rep. 405. pi. 15. Jake's Cafe See (C^) pi. 19 andlhe" Notes 

tliere. 

4. Cijc Cttljcd Of a Corn-Mill are iiot Pctfonal, but prcHial occmh. 2,^ 
inic'O, anti of tljis accomms to tije Cuftom of tljc Realm, ti)e"'" 5W. 
99tllai: ouffljt to pay the tenth Toii-Diih foc ^itlji^i. Contta* €o. r !^/ r 
ii^ngnaCijacta 621, Sev.?rr 

1*1 
S. p. the Court doubted what Tithes ought to be paid out of a tithablc Mill ; Wlicther only Perfon- 
al Tithes, vi?.. The loth of the clear Gain, or clfc Prediil Tithes, viz. The tenth of all the Income 
in General, and therefore a Prohibition was granted generally on Purpofe that the Point might come 
before them upon a Declaration and Demurrer to it, fo that the Matter might receive a folemn De- 
termination by the Court.- Show. 281. Gumley v. Faltanham. S. C. and by Holt Ch T 

The 10th Toll-Difh is the Tithe ; it is not the Owner of the Mill, nor the Owner of the Grairi 
that has the Profit, but the Miller ; and this is a Predial Tithe, becaufe piyable Redori Loci viz 
Where the Mill is, and not merely where the Parfon lives. It fccms realbnable, that the P^rfoii 

fliould have the I oth Toll-Difh. Adjornatur. . 4 Mod. 4^. Grimly v. Fawlkintrham SC 

but S. P. does not appear. The Defendant had libelled in the Spiritual Court for the 

Tithe of a Corn-Mill as Predial Tithe. The Plaintiff fet forth in his Anfwer, that he conceived the 
Tithe of a Corn-Mill to be a Perfonal Tithe ; and therefore prayed to be allowed all his necedary 
Charges in attending the Mill before the Tithe fhall be paid. The Judcje over-ruled this Plea and 
decreed that the Plaintilffhould pay thcfe Tithes without any fuch Deduftion Upon which Mr 
Dennilbn moved for a Prohibition, and cited the Cafe of (lEljambtrlain to. Cllfton, determined in 
the Houfe of Lords the 2oth of June 1706, wherein it was refolved. That the Tithe of a Corn-Mill 
-was Perfonal Tithe; accordingly a Rule was made to fhew Caufe, 2 Barnard. Rep. in B. R. -"-(J 
Mich. 7 Geo 2. Donalt v. Lo'wther. • 33 • 

5. Mr. Newte being Reftor of the Portions of Pitt and Tidcomb, It was de- 
of the Refkory and Parilh Church of Tiverton in Com' Devon and '^''"'^ ■" fhe 
an Horfe-MtUjor the grinding of Malt, being ereaed within the' faid p °"'^ °^ 
Portions by the Corporation of the faid Borough, who in 1699 had A^peaiTom 
leafed the fame to the Appellants for three Years at 30 1. per Annum, the Court ^ 
Newte preferr'd his Bill in the Exchequer Mich. 3 Ann. and on 20th °^ ^'fche- 
February 1705, the Caufe was heard and debated, and the Court took T^'^-'!'*'^ 
Time to deliver their Opinions until the next Term after, and on 22dofa mx^ 
April 1706, the Court of Exchequer were unanimoufly of Opinion, ^e./.^,,/ " 
That Tithes were due for this new erefted Mill, and that fuch Tithe Tithes-, a- 
was the tenth Toll-Difh, and decreed the Appellants to account with^-'''"'^ icveral 
the Refpondent accordingly, viz. from the 8th of May 1699 to the IhoTi't'ies^''' 
8th ot May 1701, and alio to payCoftsi from which Decree the Doubts b"^ 
Delendants in the Exchequer appealed to the Houfe of Lords, i. Be^ ^^^ Books ; 
caufe the Tithe of an Horfe Malt-Mill was a perfonal Tithe, for there ^ ^ '-"^^^ '" 
was no natural Increafe from it, but only a Profit ariling from the In- of°"hdrb"'^ 
vencion of a Machine and the Labour of a Man and Horfe, and if ing Perfonal 
it were perfonal the fame could only be for the Tenth oi the Neat Tubes, not 
Profit dedu6\irig all Charges. 2. If a perfonal Tithe was due for'J^'^.f ^^ 
fuch Mill it was only due where perfonal Tithes have been by Cuf- i." J, niff, 
torn paid for 40 Years betore the Statute of E. 6. 3 The Appellants of the Corn 
only took 2d. per Bufhel tor Grinding, and the Refpondent did no: ground be- 
prove any Cuftom, nor the Value of the tenth Toll-Dilli, nor any '™S^ f° '''« 
other Toll to be taken by the Appellants. 4. That the ten rh Toll- Jj^^^f"^"',^^'^ 
Difh would be more fometimes than the whole Proprietors Gains, con- ^Pai-t'lf'the 
fidering the Expence of erecting and maintaining this Mill. 5. That dear Prof rs, 
the Com will pay Tithe twice, for that moft of the Corn that was ^^■'^'■ ^'^'^ 
fo ground v\ as grown within the fame Parilh, and fo the Tench paid to ^^ll^"' °* 
the Refpondent in the Field ; and it any was ground that grew elfe- Mm,"'a^id'^ 
wheiethe fame did in like Manner pay the Tenth to the Incumbent the other 
where it grew. 6. This Decree will introduce a new Sort of Tithe Charges of 
•and will affeft a great many People in London where there are many '^^^|',-"'\ j| 
luch Mills, and lome Thoufands of them are in other Parrs oi the oth.r'' Ek-' 

Kingdom, 



are 



^o Difmes, [or Tithes], 



penccsde- Kingdom, and if this Decree be affirmed they inuft all pay Tithes, 
ducted. Q^ jj^^ Refpondent's Part it was infifted, i. That Tithes were due 
Cafes "6d both by the Canon and Statute Law for new ere£led Mills; that 
Mewc 'v. ' Tithes were by tlie Canons due tor all Mills, and by jlrtic. Ckr. cap. 5. 
Chamber- for new ere£^ed Mills, which exprefly provides that no Prohibition (hall 

lain. 1^^ injach a Cafe. 2. That there had been from Time to Time feveral 

fwml's"^ Refolutions and Decrees for Tithes of Mills. 3. That the reft of 
Rep. 463. the Mills within the Refpondent's Portions had all along paid and did 
asdetermin'd fliU pay Tithe or a Compolition for the fame, and every Modus for a 
in the Houfe jyjjj^ pj-Qves Tithes to be due if they were not difcharged by fuch iVIo- 
upon^an^Ap- ^"3 4. That it was a predial Tithe and the tenth ToU-Dilh pay- 
peal from a able for the fame, and {o was both the Canon and Cuftom and Ufage 
Decree of of this Kingdom. 5 That this was not a double Tiche far it was 
the Court of p^j J [^y difterent Pcrfons and lor different Purpofes, viz,. In the firlt 
V iKr^thc""' Cafe by the Owner of the Corn ; and in the fecond Cafe by the Owner 
Bili^was of the Mill- This Caufe was heard at the Bar of the Houfe of Lords 
brought for Monday 20 January 1706-7, and upon fome Debate in the Houfe the 
the Tithes Confideration of Tithes predial mixt or perfonal were due for fuch a 

T.ti'll in Ti- ^^'^^j ^"^ '^ ^"y ^^^ '" ^^'*'- ^l-^""^!" piiy<ible was referred to the 
vertonin Judges, who atter feveral Adjournments attended in the Houfe on the 
Dcvonfhire, 17th Day of February following, and all the Judges of the King's- 
^C'^r'^T i^ench and Common-Pleas (except Juftice Powell) were of Opinion 
detrmined, unanimoufly. That the Tithe due for a new erefted Malt-Mili was a 
v-iththe Af- peifonal Tithe only, and Ch. J. Holt, and Ch. J. Trevor held, That 
fiftance of S there was no Tithe due at all tor fuch Mill, becaufe a perlonal Tithe 
Judged ^33 (j^g Qniy where it had been paid within 40 Years before, accord- 
n'o'lt^ch T '"S ^° ^^^ Statute of 2 & 3 E. 6. cap. 13. S, 7. Upon which the Lords 
was one) that rev erfed the Decree of the Exchequer, but ordered that Mr. Newte 
Mills were fhould be paid the tenth Part of the Profits &c. deducing all Charges 
tithable, but ^^^ Expences, as Reparations &c. and that the Appellants fhould 
was a't^er-""^ account with him in the Court of Exchequer for thefe Profits &c. 
fonal Tithe, Monday 17th Day of February 1706. It is ordered and adjudged by 
and fo ought the Lords Spiritual and Temporal in Parliament affembled, that the 
to be paid Decree of the Court ot Exchequer complained of in the Petition of 
"rear Gafn Roger Chamberlain and Francis Plympton Ihall be and is hereby re- 
after all verfcd; and that the PlaintiiF in the Court below John Newte (the 
manner of now Refpondent) do recover his Tithes ot the faid Mill in the Na~ 
Charges and ^^^..^ ^j ^ perfonal 'Tithe only ; that is to fay, fhe tenth Part of the clear 
deduced' Profits artfmgfrom Corn ground in the faid Milly over and above all inci- 
And upon dent Charges i and to that End an Account is to be taken of the Pro- 
the Autho- fits of the laid Mill, and Charges tor the Time paft within the Time 
rity of this ^f jj^g Demand of the Plaintitt John Newce's Bill in the Exchequer 
Mlfter^of and fince, and the faid Tithes do fo continue to be paid lor the future, 
the Rolls And it is hereby ordered that the faid Court of Exchequer do caufe 
decreed, the faid Account to be taken, and what fhould be found due thereon 
Trin. 1728. p^j^j accordingly. MS. Rep, Mich. Vac. $ Ann. Chamberlain & al' 

in Cafe of *^ xt . 

Carletonv. V. NeWte. 

Brightwell, 

the Mill in Queftion there to pay Tithes, but that they fHould be only paid as a Perfonal Tithe. 2 

Wms's Rep. 465. 

Tithe for MMt-Milh is only Perfonal, for it is not natural Increafc, being only Profit arifing from 
the Invention of a Machine, and the Labour of Man and Horfc, and Perfonal can oitly be tor the 
Tithes of the neat Pro^t, deducting all Charges. MS. Tab. January zo. 1705. Chamberlayn v. 
Plympton. 



(N. a) 



Difmes, [or Tithes]. 41 



c 



(jS[a.) [Perfonal Tithes.] 

In what Cafes they are due. Of what Things they 

fhall be paid. 

I. KIO PCtfOltal '^itW njall be patti out of the dear Gains of the 

i\ Party. c@ic!)» 14 3a. 15. IR* pcc Curlanu 

2. As if tljC Owner of a Ship lends it to Mariners to go to Ifland Roll Rep. 
for Filh, upon a certain Quantity of Fifh to be paid to him upon their 419 p'. 5. 

Return, HO ^ttljcg upoit tljcic Emitii fljall Uc patD bi) tbc S©arincr0 ? pj'^' 
to tljcl^arfon out of tljofc JFinj uiljicl) tlje f)U]ncc fljall ijauc fottljCnotappe"^ 
iDtrc ot W ^IjiP, bccaufc tW ijs a pctfonal ^ttljc, aim fot tljat 
tijat it but of tljc clear (J5ain -, aiiD fo in De\jon upon tlja Mkz of a 
eijip or X^oat to tafee Ipilcbatbsi ot J^etringsi, ^\i% 1431a. 03* 

jR. pec DoOCtlbgC, in G#« and Horden's Cafe. 

3- Ufa^an purchafes an Houfe for 300 1. and fells it again in a a-va>/-s 

ihort Time for 500!. pet no '3Citl)e fljall be paiQ of tbe (Sain p) ♦F01.657. 
tljereof, fot tbi* 10 againft tije Common Xaiu. ,9©. nja.'B, ^ 
■R* betttJecn Davtes and Toibin tefolbeo, anb a iptoljibition gtanteb. 

5. 2 y 3 £. 6. cap. 13. 6". 7. .Every Per/on exerajirig Merchandizes .^ 
bargaining and fellings Cloatbing, Handicraft^ or any other. Art or Faculty^ 
being fuch Perfons and in ftich Places as within thefe 40 I'ears have tifed 
to pay perfonal i'lthes, or of Right ought to pay other than fiich as the 
common Day- Labourers, Jhall yearly at or before Rafter pay jor his perfonal 
tithes the tenth Part of his clear Gains,, his Charges and Expences ac- 
cording to his Eftate or Degree to be deduced. 

6. S.%. In all fuch Places where Handkraftfmen have tifed to pay 
their Tithes within thefe 40 Tears the fame Cttftom fhall continue. 

7. 2 E. 6. cap. 13. S. 9. If any Per fan refufe to pay his perfonal Tithes 
it pall be lawful to the Ordinary of the Diocefe where the Party is 
dwelling, to call the Party before him and examine him by all lawful Means, 
other than by the Parties own Oath, concerning the Payment of the faii 
perfonal Tithes. 

8. A Parfon libelled in the Spiritual Court ^^^/«y^ an Innkeeper for 
Tithes of the Profits of his Kitchen, Stables and Wine-Cellar, and aileg'd 
in his Libel that he made great Gain in felling his Beer which he 
bought for 500 1. and fold it for 1000 1. that Negotiando & Trafican- 
do he gained in the Sole 3000 1. and better ; the Court granted 2 Pro- 
hibition. 2 Bulfl, 141. Mich. 1 1 Jac. Dolley v. Davis. 



(O. a) Tithes Extra-parochial. JFho may have them, 

I. \S^'^^^rm%er map IjabC a Portion of Tithes in the Parifhof 
_[\ another patfon. 14 l^. 4- 1 7- 44 ^fl". 25. 

2. 3 C I Eotulo OElauroriim S^cmbrana 3- tbe Abbot tie "Bar 
go l^etti ban bp tlje Cbarters of bibec^ li^intxs Decimam venatio- 

nis capt' in Foreftis Regis infta COmitatUm j^artljt' 8 e. i. EOt 

Claufarum, ^. 2. accotbintjlp in Jf otefta Een;r0 cttta €:rentbam» 

M ?. 13^5'.' 



42 Difmes, [or Tithes]. 



*<iu3erc,i{ 2. ue»i. Kotuio patentium, 90. 6. tOe Dean! anti CDaptet; 
mifprinte'd * ^» ®* ^^^^ ^^J^ '<^i^&^ "^ iforctta De ClarmKOoit e;c conccffione 

for N. S. and ECfflSi* 

intended to 

fignify Kew Samm, which is but a fraall Diflance from Clarendon. 

• Br Scire 4. «2CI)C King fl)afl \)tiMz t\)t '^itl}z fit piace0 iuljtclj are out of an? 

; ,^"^i' P'- Pariflj, ajJ in iFOtCft0, anU tljC MU, aim may grant them by his Let. 

Afr75 II! ters Patents, aiiD tljc patentee ajall mt mm * 22 aiT. 75- D* 
Br. Difmes, Pcocpgi, 4 Co* 2. tljc "iSifljop Of J^mcijeltei: 44- for l)c tis pecfoiw 
pi. 10. cites mitm* 

Br. patents, pi. 5; cites S. C. Br. Prerogative, pi. 47. cites S. C. —Br. Prerogative pi. 

I45. cites S.C . 3r. Jurifdiftion, pl-64. cites S. C. 

z inft. 647. 5. Hibro parliamentoriim, jfol 19- inter piacita in parliaemn^ 
fame Record jg jij, ^g^g^ j tljc pim of Ciiiltol aiiti tljc Q6ifljop ofCarttol'^ 

See rP a) €aft, It ISi tljere laiD, tljat tlje Tithes of lailD within a Foreft, 
pl.z. iDljiClj 10 out ol any Panfh, belongs to the Kins, DeCaUlC IjC I'lS JfO^ 

reaa pr^Hict' iDilla^ setiificare, ecciefia^ conftrncte, Cctcags afTcc^ 
tare, $ Ccclefiao lUas, cunt Dccimtsi ^crcarum iltarunt, pro iJO= 
liuttate fua cuicunque tioluctit confctre poteft, to quoD Jforefta 
ilia non eft infra jitmiteis alicuHiiS pacocl)t£e* 

6. There is a Fenn called IVtldmore i» Conf Lincoln, which is not 

known to be in any Parilh within. Whereupon it was ordered in the 

Exchequer that in this Cafe the Tithes fhall be paid to the Parfon^ Vi~ 

car, or Penjionary Sc where the Owner of the Cattk inhabits; But if the 

Tithes have been paid to the Parfon of any Parity T'ime out of Mind &c. 

though it is not known in what Parip the Aioor or Common is, they 

pall he continued to be paid in the fame Parip where they have been 

ufed to be paid. But where no Ufe of Payment had been as before, nor 

the Parilli certainly known, they Ihall be paid to the Parfon or Vicar 

where the Owner dwells by a Provifo in the Statute 2 E. 6. cap, 13. 

Sav. 60, 61. pi. 136. 7 May, 26 Eliz. in Scacc. Wildmore Fenn's 

Cafe. 

By the Civil 7, The Canon Law is. That the Bifhop is to have all Tithes growing 

Law the on Lands not affigned to any Parifh within his Diocefe ; yet this Ga- 

n'^° f^'fli'^n non being againll the Law of the Land never had Allowance within 

have^the ^ this Realm, for in fuch Part of the Forefts as are out of any Parilhes 

Tithes of the King Ihall have them. 2 Inft. 647. 

Lands not 

v/ithin any Parifti there, but in England the King fliall have them by the Cuftom of the Realm; 
Arg. quod fuit conceffum per Coke and Hobart, that the King fhall have them. Roll Rep. 454. Hill. 
i4 Jac. in Cam. Scacc. 

8. If Lands are difafforejied and be within a Parifh they ought to 
pay Tithes ; for their not paying Tithes being in the Hands of the 
King is but an Immunity for that Time only. Sty. 137. Mich. 24Car. 
Banilkr v. Wright. 

9. The Parfon of the Reftory of A. by Right of Prefcription hath In- 
tcreft in and to the predial 1'ithes in the Parifh of B. where there are divers 
harrsn Heaths and waft Grounds converted into 'Tillage which never be- 
fore yielded any Profit to the Church ; The Parilh Church of B. ftjall 
have thefe Tithes becaufe they are Deciinie Nova.'tum, viz. ariJing of 
fuch Grounds as never were manured nor yielded any Profit at all to 
the Church before ; becaufe by the Foundation of every Church the 
Tithes in general of that and every Parilh are due to their own proper 
and peculiar Church. Now forafmuch as the Church of A. &c. could ne- 
ver before be in the Polieffion of the Tithes oi' thefe wait Grounds, 

becaufe 



Difmes, [or Tithes]. ^ij 

becaufe they never were in Being, and becaufe the Law is Tantum 
Prsefcriptum eft quantum clt Pofleflum & non plus ; and alfo becaufe 
Prefcription is not extetided ad fiitnra, viz. it reaches not to Profits of 
tithable Grounds to come, it llandeth with great Equity that the 
Church of B, fliould reap and receive thefe Tithes. The Tithing Ta- 
ble 7, 8. cites feveral Books of the Civil Law. 



(P. a) [Tithes Extra*.parochiaI.] 
To whom they belong de Jure. 

- Br. Scire F'd.' 

I. np^ € Citljeis of ruci) i^laccss a0 ate out of any Parifh belotin; c>as, pi. 154. 

1 De Jmt to tfje mmff, as Jfoccaiaij aim fuc& MU. 22 am '"^L^.^ , 

75. pet ^Ijotpc. Tu^u^S, 

Notes there. 

2. 18 C.I. libto patliamentotum 19 b. upon a %\x\t fotsee(o.a) 
Citlje bettaeeii tljc patfon aiiD tlje <^tantee of ilje mtiiQ;, $c. J©il-- p' j-. 
iiclniu0, qui rcquttiii: pto Domino Kege, melt, qitoD Decimae 
ptsOtctae ao Donumun Kegem pcttuteiit, $ an niUlum alium, 

quia DlClt, qtlOD ptstHCts place^c flint infra hundas Foreft« ipdus Do- 
mini Regis de ingiewood, f quoD tpfc DomuuiS Eet \\\ JForella 
fiia ptaeOlcta, aDiUas stiificare, eccicflas contttucre, tlCettas af= 
fcttate, 3: ecclcfuiiS illas, cum Dcclmls -^Tctcarum I'.latum, pro 
iJOIUHtate fua cmcitnquc liaUicnt couferi-c potcft, co quo5 jfcrcaa 
ilia non eft mfca Innites altcujus laarocljiiE $ petit quou Decinise 
\\\x 2)oniino Eegi renumeant, ptoiit Debent ratlone pcsDicta gtc* 

3. 2, E. 6. cap. 13. .y. 3. Every Per] on lahich Jhall have any Beajis or 
Cattle titheable depajitiring on any waft or common Ground, whereof the Pa- 
rip is not certainly known, jhall pay their Tithes for the Increafe of the 
[aid Cattle to the Par/on^ Oivner, or their Farmers, of the Partfb or Place 
•where the Ozvner of the faid Cattle inhabiteth. 

4. S. 4. No Perfon pall be ftied or compelled to pay tithes for any Lands 
which by the Laws of this Realm ^ or by any Privilege or Prcfttmption are 
not chargeable with fuch 'Tithes, or that be difcharg'd by any Ccmpoftuoa 
Real. 

5. Libel by a Vicar for Tithes of young Cattle, and farmifed. 
That the Defendant was feifed of Lands in Aiiddlefex, of which Pa- 
rilhhe was Vicar, and that the Defendant had Cmimon in a great M'afte 
called Sedgniore Common as belonging to the Lands in Middlefcx, and 
put his Cattle into the faid Conunon i the Defendant fuggefted for a, 
Prohibition that the Land where his Cattle went was not within the 
Parilh in Middlefex, bu.t no Prohibition was granted becaufe of the 
Claufe in the Stat, 2 E. 6. cap. 13. that Tithes of the Cattle feeding 
in a Wall or Common where the Pariih is not certainly known, ihall 
be paid to the Parfon of the Parifh v/here the Owner of the Cattle 
lives. Mod. 216. pi. 3. Trin. 28 Car. 2. C. B. Anon. 

6. Bill brought by the Reftor of S. for Tithes of Beafts fed tipon a 
Common-^ Defendant by Anfv/er inlilts. That the Common extends inti^ 
feveral Parifhes, and that the Cultoni was that every Farmer Ihould 
pay Tithes to the Re6for where he lived, and that he lived in another 
Parilh, and he paid theTithes to that Reitor j but there being Proof that 
the Cattle was driven upon that Part of the Cwimon that lies in S. there was 
a Decree for the Reftor of S. but reverfcd bccaule the Cultom w as good, 
there being no Inclofures. MS. Tab, Jan. 1710, Mickleburgh v. Crilp. 



^A. Difmes, [or Tithes]. 



(Q^ a) Payable. At what Place. 

Tithe-Milk i. T^Refcription to pay the T'tthe- Milk at the Parfonage Hoiife or at 
fliallbede- h' ^ny other Place is good enough i Per Popham. Cro. E. 609. 
Ihe'pfrfon- pl- 15- P^^^^' 4° Eliz. B. R. in Cafe of Auftcn V, Lucas. 

Per Raymond B. becaufc where there is no Cuftom the Common Law prevails; But Ld. Ch. B. and 
the other two Barons agreed that it fhould be delivered in the Church-Porch, becaule the neighbour- 
in? Parilhes did fo ; and lb it was decreed. Raym. 278. Pafch. 5 1 Car. t. in Scacc. Dod v. Ingleton. 

-— — -Freem. Rep 529. pi. 40^). S. C; ruled accordingly. S. C. cited 12 Mod. 206. by Holt Ch. J. 

who faid that this was a meer equitable Decree guided by the Cuftom of the neighbouring Parifhes ; 
and that a Parifliioner is not obliged of common Right to deliver his Tithe-Milk eiter at the Vicar- 

aee-Houfcor Church-Porch, but only to fet them out. Ld. Raym Rep. 559, cite^ S. C. and 

RokebyJ. held according to Raym. but Holt Ch. ]. contra, and cited 5 Cro. 609. Auftin v Lucas, 
ivhere Pophsm held, that a Prefcription to pay it at the P&rfon's Houfe is a good Modus, and that the 
;^elcluiion in Raym. is an equitable one. 

2. A Cuftom was laid to pa^ 7'ithe-Milk of Cows to the Vicars &c. 
at the Place where the Cows were milk'd. It was argued that this Cuftom 
was void for Uncertainty there being no Place certain mentioned, fo 
that it is in the Power of the Owner upon the tithing Nighs and 
Mornings to milk them in feveral Places and there leave the Milk, 
which being to be paid on certain Evenings and Mornings, it would be 
impoffible for the Vicar to have fo many Servants to attend at every 
Milking Place to take the Milk, and fo may be deprived of it ; befides 
in Law Tithe Milk in Kind ought to be carried by the Proprietor either 
to the Parfonage- Houfe or to the Church- Porch. The Court held the 
Cuftom void. Carth. 461. Mich, 10 VV. 3. B, R. Hill v. Vaux. 



(R. a) Payable. At what Time. 

J, rnpi H E Tithes helong to the Parfon as foon as fever d by the Pa- 
.1^ riihioners; Per Manwood J. 3 Le. 24. pi. 50, Mich. 15 Eliz, 
e. B. In Cafe of Tottenham v. Bedingfield. 

2. Tithes ought to be paid as foon as the tenth Part can be well fe- 
Vereii from the n:ne, if there be no Cuftom to the contrary i and fo it is 
for Corn and Hay as foon as it is made into Shocks or Cocks. Freem, 
Rep. 335. pi. 416, Mich. 1698. in Scacc. Anon. 

3. All Tithes ought to be paid fo foon as they may be fit for the 
Parfon to receive them i fo Calves at fuch an Age, and other Things 
as the Matter will bear. Raym. 277. Pafch. 13 Car. 2, in Scacc. Dod 
V. Ingleton. 



(S.a) 



Difmes, [or Tithes]. ^h 

(S. a) Payable. In what Cafes, though there is 

no Produd. 



I- TT^r HEN Tithes are payable by Ctiftmn they fliall be paid 
V V though the Lands are not rented or lay frefti. Hardr. 184. 
pi. 9. Pafch. 13 Car. 2. in Scacc. in Cafe of Holbeech v. Whad- 
cock. 



(T. a) Who capable. 

J. rTp//£ King was capable of Tithes at common Law ; for he Cm. E. 599. 
_|_ was Perfona mixta ; Refolved. 2. Rep. 44. a. in the Bilhop P'- 5. Hill, 
of Winchefler's Cafe, and cites 22 AfT. 75. r°r''\ 

2. And fo was his Patentee by the Prerogative of the King j Refolved. s.'p. agreed 

Z Rep. 44. a. cites S. C. per Cur. 

3. Eut the Kings Lejfee fhall pay Tithes, though the King never paid ^"'^ '^"" 
any ; for the King is privileged by Reafon ot his Prerogative. Cto. %^'~\'^'%' 
E. 511. in Cafe of Wright v. VV^right. Afg. cites it as adjudged, 3 1 Eliz. Mich*! 59 & 
in the Exchequer. 40 E\h.. 

S. I', affirm'd 

in a Nora at the End of the Cafe. Jo ;S7 pi. 5. Pafch. I2 Car. S. P. in Cafe of the Earl of 

ig CrtforO i). ?Lf CCJ); feefolv'd, and that the council of Lateran does not bind him unlefs where he 
voluntarily fubmits to it, that this was a Perfonal Privilege which non egrcditur Ferfonam, and tlieir 
Grantee fhall not have Beriefit of ir. 

4. 28 K 8. cap. I r. S. 4. If any Ofdinary take the Fruits, 'Tithes, 
Profits^ or Cafnalties belonging to any Parfonage or other Spiritual Benefice 
^c. during the Vacation of fuch Benefice Sc and the fame upon reafona- 
hte Reqiieji^ does nott rejiore to the next Incumbent^ or interrupt the Incum- 
bent to ha'-je the fame ; every Perfon fo doing fhall forfeit the treble Va- 
lue of fo much as he pall have received ; the Moiety of which Forfeiture 

Jhall be to the King, and the othrr iMoiety to the Incumbent, to he recovered 
in any of the King's Courts. 

5. In a Prohibition againft a Parfon who fued for Tii:hes, it was Mo 90S. pi. 
furtnifed, That the Clerk of the Pariflj and his Predeceffors, AHiitancs '^74-^ ^ 
to the Minifcer, have ufed to have 5 s. for the Tithe of the Plao^ where ['f fy.^'^'^"' ' 
&c. It was the Opinion of the Court that if this Ipecial iMa^ter be 

fhewed in the Surinife, it might perhaps be good by Reafon of long 
Continuance ^ and that by this the Parfon is dilcharg'd irom finding 
the Clerk ; which perhaps he fliall be charg'd with, and fo is as u 
Payment of Tithes to the Parfon himfelf ; but they held by common 
Intendment Tithes are not payable to a Parifh Clerk, and he is iio 
Party in whom a Prefcriptidri can be alleged, becaufe he is dative and 
removcablej vviierefore a Confultaf ion was awarded. Cro. £. 71. pi. 
26. Mich. 29 & 30 Eliz. Savell v. VV^ood. 

6. 'Sone ly the com}iwn Law had Capacity to take Tith.es but "«/»' Cro. E. 512, 
Spiritual Perfons, or Perfona mixta and regularly no mere Li^yman w^s pi. ;6. 

at common Law capable of them unlefs in fpecial Cafes ; lor no Law Wright v. 
man unlels in fpecial Cafes could at common Law fuc lor them in Court cX^''i^':« p 
Chriltian, viz. for Subitraclion of them ; Refolved. 2 Rep. 44. a. but th^t hy 
Pafch. 30 Eliz. the Billiop of Winchelter's Cule, wiy or Re- 

tainer he 
m3y wel! have them, and cites S E. 4. 14. RetriHer Fol, 3S. and F. N, B, 41. {fi) and th..i tlie.'e it i^ 
held that an Alligncc may hold difchargcd ot Tivhca. 

N , 7. Tithes 



46 



Difmes, [or Tithes]. 



For they are 17. Tithes cannot be faid to be Parcel of or appendant to a Manor ^ and 
Spiritual, jj^g Difference is between a T'enth and Tithe, the firft is Temporal and 
diftinftNa- the Other Spiritual. Cro. E. 599- pL 5- Hill. 4oEliz. B. R. Pigot v. 
ture, and fo Hearn. 

cannot be- 

Jong to a Manor, and the Court held, that a Man cannot prefcribe for Tithes as Parcel ofa Manor* 
but it he had prefcribed to have Decimam partem Gramrttm it had been good, but not to have Portio- 
fiem Decimartim, and a Conrultation was granted. Cro. E. 29;. pi. 7. Hill. 35Eliz. B. R. Sherwood 
V. Winchcomb. Safire Cafes cited Saund 141. 

8. Parifhioners prefcribed that there had been a Curate or an Incum- 
bent by Appointment of the Redor who adminiftered the Sacraments &c. 
and that the Cultom of the Parilh Time out ot Mind was, that the 
Curate fhould have all Tithes renewing within that Parifh except De- 
cimas Granorum which were paid to the Parfon, and that every Pa- 
rifhioner who had fo paid the Tenths to the Curate was difcharged 
againft the Parfon ; but the Prefcription was held ill ; for the Re6tot 
may remove the Curate at his Pleafure. Noy. 15. Mich. 2 Jac. B. R, 
Bott V. Brabalon. 

9. One who was accepted for a Chaplain to a Chapel of Eafe "juhich 
•was not Prcfentative or Donative, libelled for Tithes ot' the Inhabi* 
tants within the Preeinft ot the Chapel ; and a Prohibition was granted. 
Litt. Rep. 72. Mich. 3 Car. C. B. Anon. 

10. An Incumbent prefented by Simony cannot fue for Tithes againft his 
Parilhioners. Mar. 84. pi. 109. Arg. cites Mich. 10 Jac. Stamford v. 
Dr. Hutchinfbn. 

Jppropriator gave a Reffory by Will to the Maintainance of a Mi- 



II. 



nifter there for ever, referving no Nomination of a Minifter there, 
and faying Nothing about a Nomination. The Devife was void at com- 
mon Law, being made to no certain Perfon. The Ellate thereof came to 
J. S. who nominated A. to be Minifter and ferve the Curej afterwards 
B. fuppofing a Lapfe to the Crewn was prefented inftituted and induced 
as if the Church had been void. J. S. the Reftor fuppoling that the 
Komination of the Minifter belong'd to him, nominated A. It was 
urged for B. that here is a pious Ufe wholly fubje£l to this Court, and 
that coming in by the Ordinary, though he was not Parfon or Vtcar, [but 
Curate only] was allowed by the Bi/hop and decreed accordingly that he 
fliould have the Tithes. 2 Ch. Cafes 31. Trin. 32 Car. 2. Perne v. 
Oldfield. 

12. The Prior of N". being feifed of the Manor of N. and of the 
T'ithes thereof, y?/K«/ ^ femcl as of a Portion of Tithes, 25 //. r. granted 
the Manor and Tithes to A. and his Heirs rendering Rent, and he enter'' d 
and held it difcharg'd of Tithes, and ajter granted two Hides of Land, 
Part of the Manor to S. with the Tithes thereof, and A. and his Heirs paid 
the Rent to the faid Prior till the Difjolution, and after to the King and 
tZl,i"°"- )&» Afftgnsi It was adjudged. That the two Hides fliould be dif- 
S. C and *' charged of Tithes, for the Prior might prefcribe for Tithes en Prender, 
and being well in him he might grant tnem to A. paying $ s. Rent , 
and fo a Judgment in C. B. affirm'd ia B. R, 
34 Car. 2. in B. R, James v. Trollop. 



5'- 



Skin 

S. C. adjor- 

natur. 

Ibid. 239, 
S. C. but 
S. P. does 
not appear. 
1 Show. 



Judgment 
in C. B. af. 

firmed. 

Pollexf. 523 
S. C. argued 
by the Reporter. 



2 Mod. 320. Trin. 



13. A Layman is not capable of Tithes eu Prender, but a Layman ii 
capable of pacing and taking a Modm in Lieu of Tithes ; Agreed by 
Council Arg. 2 Show. 440. Mich. l Jac. 2. in Cafe of James v. 
Trollop. 



(U. a) 



" - I *• ■ ■ ^ ^ ^^^^ ■ I h I 

Difmes, [or Tithes]. ^ 7 



(U. a) Barrel^ Lands. And what fhall be fald fuch. 

I. 2 y 3 £. 6. A Z Z fuch barren Heath or -joajie Gfotind^ other than * Here aw 

cap. 13. S. s- £\ fuch as be difcharged of Ttthes by AB of Parlia- no zx^r^f^ 
tnent , which before this lime have paid no Tithes by reafon of Barnmiefs VS^"'"ds of 
and pall be improved and convtrted into arable Ground or Meadow, pall ^''cli'i''f;e 
* after feven J'ears after fuch Improvement pay Tithe-Corn and Hay growing duHne^he " 
upon the fame. feven Years. 

fonable Conftniftion it impliedly amounts to a Difcharge during the feven Years, and Uie fev^en^ Years 
are to be accounted next after the Improvement. 2 Inft 656. 

Only ^ch is intended barren Land, which before the ploup;hing produced no Profit to the Owner 

Freem. Rep. ;55. pi. 416. Mich. 1698. in Scacc. Anon.- Bendl. So.pl. 122. 2 Eliz S P fays' 

that It IS fo underftood by the Opinion and Judgment of the Common Law. S C cited D ' i-o* 

b. Marg. pi. y. • . ,u. 

Jf^ajie Ground is MnAtx^ooi fuch Ground as no Man claims for his own, or no Man can tell to 
whom itcertainly appertains^ and lies uninclofed and unbounded with Hedge or Ditch • But Ground 
that lies inclofed, and hedged and ditched in fo as the Land is known, is not wafte Ground Bendl 
So. pi. 122. 2 Eliz. Anon. S. C. cited D. i^o. b. Maig pi. 5. 

/^e/»*JGrDH«(f»j intended fuch Ground as is dilperfed and lies in Common, Bendl. 80 pi 122 
4 Eliz. Anon. S. C. cited. D. 170. b. Marg. pi. 5. • f • • 

2. S. 6. If any fuch Barren Wajfe or Heath-Ground, hath before this 
^me been charged with Tithes ^ and that the fame be hereafter improved and 
converted into arable Ground or Meadow ; the Owners pall, during feven 
Tears after the Improvement, pay fuch Kind of Tithe as was paid for the 
fame before the Improvement. 

3. A Suit was in the Ecclefiallical Court for Tithes of Wheat and Rye S. C cfted 
en 60 Acres of Land ; The Detendanc mov'd for a Prohibicion, fuggelt- ^ Hobait 
ing that the Lands were barren Heath and wafte Grounds. k°was To ^' i^**^' 
founded by Ferdiif that it was barren, but that of 30 Acres of it Tithe of hy^, that at 
iVool and La?nbs had been paid. And becaufe by another Provifo in the fi'"rt the 
Statute, viz. That fuch Tithes as were paid before Ihould be paid with- whole Court 
in feven Years after the Improvement 6cc. and not any Tithes of ano- Conn^^' 
ther Nature, and becaufe the Libel was not for other Tithes than for out^ht to be" 
Wheat and Kye, the Party could not have aConfultation^ but they told awarded fof 
him that he might commence a new Suit in the Ecclefiaftical Court for Tithes ^^^ Tithe 
(f Wool and Lamb in the -3,0 Acres not improved. D. 170. b, pi. 5. 171.^^1°'^"'''"' 

a. pi. 6. Mich, i & 2 Eliz. PelJs v. Sanderfon. bctte" Ad- 

viiement 
they refolr'd the Contrary ; For he had no Right to purfue his Suit for the Corn. 

4. If Land be full of TV^or/jj ^«^/ 5«/5?£j from Time whereof &:c and 2 Inft. 6^6. 
it is grubbed up and made Meadow or arable Land, Tithes ihall be ^ ^- ^ 
prefently paid thereof, notwithftanding the 2 & 3 E. 6. 13. For thofe ^^ ' ''^ ^ 
Lands were not naturally Barren, but became fo by Negligence or ill Mo. 909. pj. 
Husbandry, and the Statute intends only barren Land made good by H'^S. S. C. 
Induftry. Cro. E. 475. pi. 3. Trin. 38 Eliz. B. R. ia Cafe of^"^°l;^'<J^-^ 
Sherington V. Fleetwood, 14^. pi 66 

S C. but 

S. p. does not appear. Mo 599. pi. S24. S. C. but S. P. does not appear. ■ — S.C. cited by 

the Name of Farington's Cafe, by Coke Ch. J. Roll Rep. 554. in pi. 4. Palch. 14. fac. 

5 Bulft. 165. S. C. cited by Coke Ch. J. as refov'd. Bendl. 80. pi. 122. 2 £liz. Anon. 

8 p. - ' Freem. Rep. 535. pi. 416. Micl». 169S. in Scacc. Anon. S. P. 

J. Fennj 



^8 Difmes, [or Tithes]. 



if Land be 5. Fenny Land drained is hot exempted by the A£t. Mo. 430. pi, 60?. 

with Water and afterwards gained by Induftry, Tithes fhall prefently be paid thoujTh the overflow- 
ing h^d been Time whereot &c. Cro. E. 475. pi. 5. Trin. 5S Eliz,. B. R. in Gale of Sherington -:- 
Fleetwood. 



Herl. 147 
•s C. &: 



6. Land which has hroom is not within the Statute of 2 E. 6. For 
it is not barren Land, and therefore if converted into Arable flull pay- 
Tithe; Per CokeCh. J. Roll Rep. 39. Trin. 12 Jac. B. R. 
Roll Rep 7- ^^'^ "^^^ ^'' '^ g^^^"^ Expence^a/»j Land from the Sea, which was 

254. pi. 4. Marp and fandy Land, and covered with fait Water , and ai'ter wards cott- 
bucic V 'verts it into arable Land he Ihall pay Tithes prefently, becaufe this 
Witt S. C. L^nd is not barren of its own Nature, but only by Accident, by Rea- 
i'n'u'^noT ^''" of '^''^^ ^^^^ ^"^ Sale- Water overflowing it ; Agreed per Cur. clear- 
wuhrtanding ly. 3 Buill. 156, Pafch. 14 Jac. Witt v. Buck. 

it was infill- 
ed that the Party had been at great Cofts in making Mounds to keep out the Sea, and that the Statute 
was made for the Encouragement of Husbandry. 

8. If Sheep were kept on barren Land or if yielded any Profit which 
yielded Tithes, this T'lthe ought to be paid within the feven Years i 

^ ^- Per Kichardlbn Ch. J. Litt. Rep. 311. Mich. 5 Car. C. B. Flower v. 

Vaughan. 

9. In Aftion on the Statute 2 E. 6. the Cafe was an Inclofure was 
Part of the Wafte and it was turned into a Palture, and held that tho' 
it was of fniall Value, viz,. 2 s. per Ann. and never fown or turned 
into Meadow yet it iliall pay Tithes, and the very Inclofure is an Im~ 
fi'o-jm'.ent, and it is no wafte Ground within the Statute to be freed from 
fr/fi(?£j for a Time &c. Clayt. 127. pi. 226. March 1647. Anon. 

10. Barren Lands to be exempted trom Tithes within the Meaning 
of 2 E. 6. muft be fuch Land as is Barren Suapte Natura ; And on Sug- 
gelfion for a Prohibition to a Suit for Tithes of fuch Lands it mnfi be 
alleged to be Barren Suapte Natura j Per Powell J. 2 Ld. Raym. 991. 
Trin. 2 Ann. Anon. 

If 'Land II. Prohibition for fuing for Tithes of' barren Lands newly cultivated 

yields any y,^^ denied, ift, Becaufe t\iQ Plaintiff did not fuggeji that they were Suapte 

Profit be- fiatura Steriles, 2dly, Becaufe there zvas no Ajjiaavit that this was pleaded 

Wood'&c. in the Spiritual Court. 6 Mod. 86. Mich. 2 Ann. B. R. Anon. 

it is not 

within the Statute ; for it ought to be Suapte Nainra Sterilis. 6 Mod. ^6. z Ann. B. R. Ho.nsr v. 

Bonner. 



(X. a) Diicharge. By Common Law. 

So if he i. T F the Parfon of a Church not impropriate leafes his Glebe ths 
make FeofF- J^ Lejfee /ball pay Tithes j But otherwife it it had been an impro- 
Feoffe'e'^fhall V^'^^^ Church, becaufe of the Statute of 32 H. 8. of Dilfolutions. Noy. 
pay. Savil. 132. cites D. 43. a. 

5. pi. 8. 

Mich. 22 & 2; W\z. Vicar of Sturton v. Gricfly. D. 4;. a, b. pi. 21. Mich, ^o H. 8. fays the 

Juftices and Serjeants were of different Opinions as to the Leate of Parcel of the Glebe, rifervuig a 
Rent, and fays ideo Quxre. 

The Orrfm 2. The Prior of St. John's of Jerufalem had Privilege from Rome 
oj theCijler- yj^, QJlerians, Tmiplars, Hofpitallirs, that they Ihould mt pay Tithes of 
■iUxrf and any Lancts, ^U£ propriis manibus aut lumptibus twro///;;.', but their ler- 
Eofptallers, moTs and all other Occupiers paid Tithes aucording to the Statute 2 H. 

4 cap. 



Difmes, [or Tithes]. 49 

4. cap. 4. The Prior and Confreres made a Leafe for Tears before tht Diffo- were dif- 
liiticv, and the Lejfeepaid Tithes to the Church of Rochejlcr Proprietary, and x^vf^*^/-"/ 
the King after the Dijfb/tition granted the Rc-ver/ion of the Manor to B. and jyodrJ'iL 
his Hens, tn tarn amplo Medo as the Prior ^c. had it. The Term ^,amdiu 
expired, the Patentee and his Heirs Avail hold difcharged (i propriis frop-Hs mam- 
iiianibusexcolunt. But if he makes a Leafe the Termor ihail pay by ^"' excoUm- 
the Statute 31 H. 8. cap. 13. Per Ld. Keeper, Catlyn, Saunders, j^'^p ^^ [,. 
Souchcot and Dyer. Dy. 277. S. pi. 60. Trin, 10 Eliz,. Anon. atthebottom 

cites D. Z77. 
lo Eliz.— This Privilege to tliefe three Onlers of Religion v.-ls grmilcH tothe:i7 liy the Council 0} Latevan, 
Anno Doniini 121^, and Anno 17. Johannis Re5;i«, and was allowed by the general Conlent of the 
Realm ; but this Privilege extends only to the Lands ivhicb they had before that general Council, z Inft, 652. 

3. Lands in the Hands of an Abbot and of the Fanners of an Abbot 
'd'ere beyond lime of Memory Se. charged with Tithe only of Laruhs and 
Wool, and now the Parlbn ilies to have Tithe of Hay and Grain ; Pro- 
hibition lies by the Statute 31 H. 8. by the Word fdifcharged) in the 
Statute. D. 349. b. pi. 16. Pafch. 18 Eliz. Parfon ot Peykirke's 
Cafe. 

4. Unity of PofTeffion is no Caufe of Difchatge of the Difcharge of 
Tithes, but is only a Sufpenlion during the Time of the Unity, but if 
after Severance no Tithes are paid for ±0 or 30 Years they Ihall be 
charged with" the Payment continually, and the Payment proves tliac 
the Uhicy was the only Caufe of the Stay of Payment; but if after 
the Severance Tithes have not been paid it is a vehement Prfmnption of 
Difcharge by fome Compofition, or that the Abbey was of the Order 
of Cifterians, or others who were difcharged by the general Councel 5 
Per Manwood, Ch. B. Savil. 62. pi. 134- Pafch. 28 Eliz. in Cafe of 
VVhifcard v. Futter. 

5. Libel againlt the Kipop of L. f)r Tithes out of the Manor cf D. c,.o £_ j,^^ 
the Bif})op///^^{/?£'^, That he and all his Predeceffors were fifed of the pi 13 S. c: 
faid Manor, and fo long as it was itl their Popjfiuns it had been difcharged held accord- 
cf Tithes ; and that in the Reign of E. 6. the faid Manor was con- Lp,^^ ,_ 
veyed to the Diike of SoMerfet in Fee ; and afterwards re-granted to the ^^IfYnm.' 
Btfloop and his Snccejors i held the Prefcription good in a Spiritual 51. Eli?.. 
Perfon but not of a common Perfon ; and they were all clear that the 6-^l^- Per , 
Prefcription is not gone by this hterrnption ; for Tithes are not ilfuing ^'^J^ ^; 
out of the Lands, neither can a Unity ot Poffeifion extingUilh them, jj p p^/^' 
neither are they extinguiihed by a keleafe of all Right to the Land. Wray. 

Le 248. pi. 436. Mich. 33 Eliz. B. R. Lincoln (Billiop) v. Covvper. _ 

6. A mere Layman who was not cap':^.b!c of Tithes in Pernancy, yet was 
capable of a Difcharge of Tithes at common Law in his own Land, as 
well as a Spiritual Perfon j Per Cur. cites 8 E 4. 14. a. b. and the Re- 
gifter fol. ^8. that tnis may be by Grant as by the Patron, Prrfon and 
Ordinary, or by Compofition., as where a Purilhioncr gave Part of his 
Land to the Parfon fot Difcharge of Tithes of the Refidue ; bat not 
ly Prefcription to be difcharged of Tithes i For it is commonly laid 
in the Law Books that he may prefcribe in Modo Decimandi, but not 
io Non Decimando. 2 Rep. 44. a. b. Patch. 38 Eliz. The Biihop of 
Winchefter's Cafe. 

7. In Cafe of a Prohibition it was refolved. That Unity of the EJiate 
and not in Occupation of the Land and Reffory at the Day of Difjo'ltition of the 
Abbey, was not a Ditcharge of Payment ct'Tithes by the Statute 32 H. 8. 
bur il the Abbot held the Land at the Time of the Dillblution in 
Fee, and the Reclory alfo, thofe Lands were always difcharged i but 
if the Lands were in Lccfc for liars, although but for a fmall Term 
of Years, the Lands Ihould pay Tithes ; and fo it was faid it was • 
adjudged in Knightley and Spencer's Cafe i and in Green and Buskin's 
Cafe. Mo. 528. pi. 799. Mich. 40 & 41 Eliz. B. R. Benton v. Trot. 

8. As for the Coiaicel of Lateran I never knew it pleaded in my Life^ 
Some fay that Tithes were payable of Right before ^ but how an P'.c- 

O clclialtic^l 



^o Difiiies, [or Tithes]. 



clcllaftical Conftitution can inftitate or create a temporal Right is 
Ibmewhat ftrange ; befides it" this created the Parfon's Right it would 
riellroy all the P refcriptions and Modus's in the Nation ; Per Holt a 
Counfel. Arg. 2 Show, 440. pi. 403, Mich, i Jac. 2. B. R. in Cafe 
ot James v. Trollop. 

9. There are five Ways or Means whereby Jibhty Lands are holden 
dijchargcdofl'itbes^ that is to fay, Compojition, Bull, or Canon, Order^ 
Prefcrtption of Dijcharge, and Unity of Pojfcffion of Parfonage and Land 
Time out of Adind^ together with Payment of Tithe i of thefe Five, the. 
four firfi Difcharges the Abbots themfehes had, or might have them, but 
the fifth was no Difcharge in the Hands of the Abbeys, hut it made a. 
Difcharge of Payment 0/ T'lthes to the King, and thofc that claim under 
him by the favourable ConJirrSion of that Claufe of 31//. 8. for fo much 
as that Claufe extends to ■■, which Opinion was long controverted, be- 
ing confeffed of ail Hands, that it was no full and perk6t Difcharge 
in f^aw. 

Now of the other four, the Jirfi three, that is, Compcjition,, Bull or 
Canon, and Order "were granted and affixed unto the Body of the Mona- 
fiery, and were ^X'^\-\\.'^A\x^\lo^Ct\<im as perfonal Privileges, in refpeft of 
their Spiritual Abilities or Fun£lions, and their Capacity ot Tithes,, 
and Difcharge of Tithes for that Caufe ; and therefore thefe had all 
vaniped and expired icith the Dijfolution of the Body, if they had not 
been prcfavcd to the King and his Patentees by that Claufe. But Difcharge 
of Tithes of the Lands of Monalteries by Prejlription is of another Na- 
ture ; for having been always (as Preicription prefumes) in Spiritual 
Hands, the Lazv judges that it was never charged with Tithe ^ as the 
Pleading is. That the Lands were Immunes a Solutione decimarum Nega- " 
tive, fion Privative, fcilicet, uncharged., not difcharged, as if they had; 
been once chargeable; the Reafon whereof was, That being Spiritual 
Perfons they were able to minilter to themfelves Spiritual Rites, and 
therefore performing Officium they might retain Beneficium ; and this 
Non-eharge ftanding upon Prefcription was inherent to the Land, noc 
as a Thing given, but as a Non ens. Lands that never yielded Tithe, 
and Land of the little Monalteries io free of Tithes, the King by the 
Statute 27 H. 8. and his Patentees were to hold tree, not by Reafon of 
any Privilege which did need to be prefcrved by uuy Statute, but ever 
by the Grant of the Land by any Kind o{ Conveyance. 

And therefore though I laid that Difcharge of Bull, or Canpofttion, was 
to die with the Corporation, yet if it were once run oat Time oat of Mmd^ 
it was then to be pleaded and ufed as a Non-charge by Prefcription, which 
was a Title of Difcharge by the Temporal Law, and it it v.ere im- 
pugned it were to be drawn by Prohibition to a Trial at the common 
Law, and this vvirhout the Help of any Statute. And therefore in the 
Eifiiop ot ilBindjeftCr'0 Cafe it was refolved. That tlie Bilhop holding 
Lands of his Bilhoprick, difoharged of Tithes by Prefcription, his 
Farmer being a Layman Ihall have a Prohibition tor his Difcharge; 
and fo ftall the Billiop have himfelf though he be a Spiritual Perlbn. 
And yet Bifliopricks, and their Lands, are in Point ot Difcharge of 
Difcharge of Tithes at the common Law out of all Statutes ; lb then 
the Conclulion is, That ot the five Ways of Difcharge of Tithes, three, 
that is to fay. Order, Compofition, Ball or Canon, are preferved and kept 
oWvt by the Claufe of Difcharge in the Statute of ^i H. S. and a fourth 
which is Unity, is created by that Branch, and the tilth, which is Pre- 
fcription, fiands by the common Law, and has no Need nor Ufe of any 
Statute ■■, Per Hobart Ch. J. Hob. 309. Hill. 15 Jac. in Cale of NVright 
V. Gerrard and Hilderlham. 

10. There hQ divers Difcharges of Tithes, ill. Real Compojition , which 
a Layman may have, adly, Difcharge by Reafon of Order as Cifterci 

ens 



Difmes, [or Tithes]. 5* i 



ms &c. 3dly, By Realon of Papal Bulls. 4chly-, By Prefmption^ 
which ought to be only by a Spiritual Corporation ; And it' the Statute 
31 H. 8. had not been made, the pcrfonal Diicharge, as by Bulls, or 
by Reafon of Order, had been difcharged alfo, for that the Perfons 
to whom they were annexed were diirolv^cd, therefore to prevent it the 
Statute was made, which ordains, That where any Monallery was 
difcharged from the Payment of Tithes, in fuch Cafe the King fliall 
hold the Lands difcharged, notwichftanding the Corporation to which 
fuch Privileges were annexed be dilf )lved ; And there is not any Claule 
to this Purpoie in 27 H. 8. And this Statute of 31 H. 8. does not ex- 
tend toMonafteries diffolved by the Statute of 27 H. 8. therelore this 
Reafon of Unity of Poiielfion is not any Difcharge in itfeJf of the 
Tithes i and the Statute ol 31 H. 8. does not extend to give u Dif- 
charge but to the Lands which come to the King of the 4th of Febru- 
ary .27 H. 8. Cro. J. 608. pi. 3. Hill. 18 Jac. B. R. Gerrard v. 
Wright. 

1 1. Pope Innocent the 3d. by his Bull difcharged thofe of the Order s. P. Per Sit 
of Premoiijlratenfesoi xht?3.yn\tnt of Tithes ot fuch Lands as were John Davies 
of their own Manurance or other Improvement. Note, Jhoitt the l^ear ^"'^ ^"P'^- 
of our Lord 11 50 nwji of all religious Orders were exempt iromVuyment^^^^^^^^ 
of Tithes out of tlieir Pofleifions kept in their own Hands, which hi'g.^z'^M 
Pope Adrian the afh. about that <time rejlrained to Cijtercietices, Tauplarii, Rep. 479. 
Hofpittilariij and that all other Orders Ihould pay Tithes &c. 2 Inlt. ^°- 

652. 

12. The King is not by Virtue of his Prerogative difcharged of Tithes 
for the ancient I)ei.iefnes of the Crown j Held upon Evidence bj' Hale 
Ch. B. and the whole Court. Haidr. 315. pi. 7. Mich. 14 Car. 2. 
in Scacc. Coiupoft's Cafe. 

13. O/V." 'Tithe 111 cipecic cannot he a Difcharge of another Tithe in 
Kindi Per Holt Ch. J. 12 Mod. 498. Pafch. 13 V\^ 3. in Cale of 
SelL/y V. Bank. 



(Y. a) Difchargeti by Statutes. 

I. 31 H 8, cap. 13. .S*. 21. l\ L L Perfons which /hall have any Mo~ 

,/j^ nffierics Sc. or any Manors., Adcffaages, 
Parfomges appropriate, Tithes, Pcn//-v/s, Portions or other Hereditaments 
'Which belonged unto the Monaji cries Sc Jhall hold the fame difcharged of 
Tfithes in as ample Manner as the Abbots i3c. held the fame at the Days of 
Dijfoltition &c. 

2. An Abbot had a Re£fory impropriate, and alfo Land within the fame 
Parifh &c. and fo paid no Tithes becaufe he could not pay them to him- 
felf, and for no other Caufc was difcharged ; and alter the Diflblution the 
Reftory is granted to one and the Land to another • It was holden by 
Egerton Solicitor upon the Statute 3 1 H. 8. that in fuch Cafe the King 
nor his Patentees fliould not be difcharged of Tithes, for the Lands 
were not difcharged in Rights But it the Lands in the Hands of the 
Abhot were difcharged in Right, as by Compolition or lawful Means 
there the King and his Patentee lliou'ld be difcharged from Payment 
of Tithes. 4 Lc. 47. pi. 124. Mich, 30 Lliz. in the Exchequer. 
Prowes's Cafe, 

3. And' 



52 Difmes, [or Tithes]. 



3. And it was faid by Burleigh Ld. Treafurer, That if the Cowpoff- 
tion or Oijiom was that the Jblot and his Succejjors poiild be difcharged^ 
without extending to Farmers or Leftees if the Abbot made a Lcale, 
and the Ljfee faid Tithes as he ought, and after the Reverlion comes to 
the King the Lelfee lliould pay Tithes during his Leafe, but after the 
Lcafe determined the King and his Patentee Ihould not pay, but fliould 
be difcharged by the faid Statute. 4 Le. 47. pi. 124. Mich. 30 Eliz. 
Prowes'sCafe. 

4. The like Matter was in Chancery Trin. 30 Eliz. The Abbot cf 
Teivkesbtiry having the Reffory impropriate of Tewkesbnry 11 H. 7. prir- 
cbafed Lands withiu the faid Part/b to him and his Succeffors i atter the 
Diffolution the King granted to G. the Reftory and to \V^ the Lands i 
and if W. Ihould pay Tithes was referred to Man wood and Periam, 
who gave their Refolution, That Tithes were payable. 4 Le. 47, 
pi. 124. Mich. 30 Eliz. Pro wes's Cafe. 

Mo. 915. pi. _j. In Debt upon 2 Ed. 6. cap. 13. for not fet ting forth of Tithes ^ the 
'-^'•, Gale was, that the Lands were Parcel of the PoirelTions of the Kmghis 

wiint]'' Tcmpiars v\ ho •s.'ere difolved in E. If.'s Tiwe, and their Pof/ejions and 
S C. adpdg- their Lands annexed to the Priory of St. John of Jerafakm^ -with all 
cd accord- Privileges ^c. They had a fpccial Privilege to le difcharged of Tithes 



Jng'y„ ■— for airtheir Lands qiiaj/idin propriis mantbiis exeohintar, and thefe Pol- 
■^°Tiin V fefiions were afterwards given by general Words, In tarn ainpiis Modo 
Car. B.R. & Eorma &c. as the Abbot had them, to the King, by the Scat. 32 
in Cafe of H. 8. cap. 24. and from the King thefe Lands came to S. the De- 
y^hirton V. Pendant. Adjudged that the G>-^//fff//7^// /;o? have the Privilege to ha 
■y^refton, (ji^j_,i^,^jj.ged ; lor by the Common Law a Lay Perfon was not capable of 
^' w'^-iich fuch a Privilege, nor Jhoiild the King have Benefit of that Privilege iifi- 
and\v^''" ^'^ ^^'^ Stat Hie 3 1 H. 8. cap. 13. that the King and his Patentees 
bunona.<!^'^"l^all hold the Lands difcharged oi Tithes, in as_ ample Manner as Ab- 
judged, b"^ bots &c. held the fame at the Time of the Diilblution ; But this Sta- 
the Reafon tute extends only to fnch Poffeffmis as came to the King by Surrender Sc. 
■v/as, hecMCe and /hoiild be vejied in him by that Jtf, and not to fuch as veiled in 
it was not j^jj-n by another Afl: of Parliament, and thofe Lands were given to 
found hy ^[^^ ^^ ^y ^ fpecial Aft of Parliament of 32 H. 8. which hath the 
WbVine ^ame Words in the firft Claufe as 31H. 8. hath, but hath not the fc- 
rprdal)that cond, and therefore is no Caufe of holding them difcharged of Tithes, 
the faid Cro. J. 58. pi. 3. Hill. 2 Jac. B. R. Cornwallis v. Spuriing. 

Lands cauie 

by the Diffolution to the King, neither was any Mention made of the Statute of 52 H. 8. and then it 
it was not a Difiolution, (as it was in the faid Cafe) the Fermor fhall pay Tithes, and that after the 
Judgmnntin Spurling'sCafe, and after the Cafe ofUrryv. Bowyer, in which the Court was divi- 
ded, it was made a Point in the Serjeant's Cafe, which proves that the Cafe never was adju.lged ; for 
it is' not ufed to put any Cafe adjudged in the Serjeant's Cafes but a Point of Doubt which is in Con- 

trovcrfy. 

Debt on the Statute 2 E. 6. for Tiihes The Lands were Parcel of the PoffefFions of the Prior of 
St. John of jerufilcm, and came to the Crown by the 52 H. S. cap 24. and Parcel of St. John \Y. 
in the Paiifh'of M. and H. and whether they were difcharged from Payment of Tithes by 92 H. S. cap. 

24 was tlic Queftion on a Trial at Bar, and a fpecial Verdift found. Hale Ch. J. thought that they 
Ihould rot pay Tithes by reafon of the Word (Privileges) and in Whitty v. Wefton. Bridgni. 
"Z. Lat. si^. Godb. 592. pi 478. the Court was divided, but that Cro J. 57. Mo. 915. Cornwallis v. 
Spuriing. In Debt on z E. 6. Judgment was, that the Lands arc tithjble, and fo 2 Brownl. 8. 
20. Urrc-y v. Bowen ; Et adjornatur ; but D. 277. pi. 60. is, that they are not tithable; and after- 
wards rcfolved that the Lands are not tithable, and ludgment for the Defendant. Ravm 225 Mich. 

25 Car 2. B. R. Foflet v. Franklin. 5 Keb. 217. pi. 2;. the Court conceived that the Prefcrip- 

tion muftbe found tor the King, his Farmers and Tenants, and that Nonpayment by the Under ten- 
ants of the King's Fermor is fufScient Evidence ; £0 of Cefterciars, it not appearing that they ever 
paid Tithes, and yet in Tenant's Hands. 

Godb.392. 6.Debt Upon the Statutes Ed. 6. for not fettingoucTiches brought by the 

to 599; pl- Parfon of Merrow; The Defendant pleaded, that the Prior of St. John of 

^VS- ^-C- Jerttfakm in England was feifed in Fee of the Lands &c. in the Right of 

Wsand his Hofpital, and that he was cf the Order of the Hofpitalkrs, and that 

•^ he 



Difmes, [or Tithes]. ^3 



he and his Predeceflbrs ratione Ordinis fui, had Time out of Mind Hodendj^e 
been difchargcd ot' Payment of Tithes j then he pleads the Scat. 31 held, that 
H. 8. tor the Dilfolution of Monafteries, and the Stat. 32 H, 8. ior'J'Jjy^?/''^'- 
the Diirolucion of Hofpitals, and that by thefe Diflblutions the Lands fcrural°m 
were veiled in the King, and that he ratione Statutotum held them were Eccle- 
dilcharged of TitheS, who granted them to the Anceftor of the De- fiartkdl Per- 
fendanc, under whom he claimed ; and upon a general Demulrer the'?"''' '''""St^ 
chief Queltion was, Whether the Lands were dilcharged or not ? And divLrd'^'from 
that depended upon the Expofition of the Statutes 3 i & 32 of H. 8. viz. the Junf- 
whether the Claufe of Difcharge of Tithes in the Statuce 31 H. 8.''''^^'"" of 
Ihall extend to thefe which wtre given to the King by the Statute 32 ['^'^ Biftiop, 
H. 8. ? 2. When the Hofpitallers were dillblved by the Statute 32 H. w/sSoum'^ 
8. and all their Poifeirions, Hereditaments, and Privileges given toed to be fur- 
the King, his Heirs and Succellbrs, whether this extends to his Pa- thei-atj^ued. 
tentees or Aiiigns, lor that they are not named in the Statute? Upon ~7; ^^'- ^''•; 
the firll Point two Judges held, that thefe Lands were not difcharged a^^' j^^'J,'"^t' 
ct Tithes by the Statuce 31 H. 8. becaufe that Scacuce did noc givefaid i[°w"s 
any Lands or JVlonalteries, but only fettled them in the Crown, which well evi- 
then were, or hereafter ihould be dilfolved, as it was held in ^i^e fenced to 
aCCijfatajOp Of CamCl'lJUCV'S Cafe, and the intent of that Aft was [ll^^ J)','/ 
to difcharge thofe Lands only, and not any which came to the Kin^ were Eccle- 
by virtue ot any other Statute, and therefore this Claufe of Difcharge (^altical, and 
did not extend to thofe Lands which came to the Crown by the Scac-^'^* ]^'^R-^ 
ute 27 H. 8. for diflblving the lelfer Monalleries, and fo ic was ad- ^31%"'^^^? .^ 
judged in ItSriljljt auU Q5CCrarn'0 Cafe, nor co the Chancry Lands, whethe"/"^ 
which came to the King by tile Statute i Ed. 6. as ic was adjtidged in they are To. 
the faid Archbifliop's Cafe j nor to the Lands which came to tne Crown — SriJgm- 
by the Statute 32 H. 8. as it was adjudged in 2^imrlC0 ailtl ^pill'--^" j' ^ '"' 
iinn;"0 CilfC i Now ic is plain, that thele Lands did not come to the^^^ " 
Cruwn by the Statuce 3 1 H. h. becaufe they did not come by Diflb- 
Jution, Surrender, or renouncing, but by Aft of Parliament i it is 
true there are other general Words in the Statute 3 i H. 8. viz. or by 
any other Means, but thefe VV^ords cannot be intended of an Aft of 
Parliament, but by fotne other inferior Means. Two other Judges of 
a contrary Opinion, to whom one of the other having changed his 
lormer Opinion, agreed that thefe Lands came to the Crown by the 
Statute 31 H. 8. by Dillblucion, and by other Means, for che W(jrd 
(^Diliblucion) includes a Dillblucion by Aft of Parliament, and thefe 
general Wdrds, (by tiny other Means) include likewife an Aft of Par- 
liament, efpecially in this Cafe, becaufe great part of the Hofpitallers 
being beyond Sea, there vVas no other Meins to coiivey their Lunds 
to the Crown but by A6t of Parliarrient, for thofe v.ho were beyond 
Sea could not be compelled to furrendfer ; then as to the lecoiid Pay- 
ment, the Privileges of the Hofpitallers being givcii co the King, his 
Heirs and Succellbrs, and the Privilege to be dilcharged ot Tithes be- 
ing given to them by an ancient Council, and explained by the Coun- 
cil ot Lateran to extend only to thofe Lands which they had at the 
Time that this Privilege was granted, was held by one Judge to be a 
Perfonal Privilege, and that the Hofpitallers being dillblved, this 
Privilege is gone, and could not be transterred to another 'i but 3 other 
Judges were of Opinion, that this Privilege was given to the King by 
Aft of Parliament belore the Hofpitallers werfe diJibhed, and if fo, it 
is not a Perfonal Privilege in the King, but a real Difcharge ol' the 
Lands by virtue of an Att of Parliament, and ihall go with the Lands 
in whole Hands foever they come, lor the Privilege is co be difcharged 
quamdiu propriis nianibus excolunt, and when the King granted ic 
over it Ihall be propriis ,manibus of the Patentee, and judgment was v 

given [by the Opinion of Hide Ch. J, Dodcridge and J .>nes, contra: 

P WbJE-J 



:;4. Difmcs, [or Tithes]. 



Whitlock, that theie Lands were difcharged of Tithes. 3 Nels. a. 

302^ 303. pi. 19. cites W. Jones 182. [to 192. Trin. 4 Car. B. R.J 

VVhitton V. Wellon. 
Jo 2 pi.';. 7- The Prior of Hatfield and his PredecefTors, Time out of Mind, 
l\lich iS were fei fed of the Parfonage of Hatfield, and ofaFar.m in the Pariili 
jac. C. B. called D. Farm at the flinie Time. The Priory being under 200 I. per 
Gen'ai-d " ■^""- ^^^ given to the King by the Statute 27 H. 8. The King gives 
s C. and a. the Abby and Farm to the Abbefs of B. The Abbefs furrenders all 10 
Coniultation the King. The Quetlion was, whether the King and thofe that clairh 
awarded — unjer him fhall hold this Farm di!c barged ot Tithes by Force of the 
^°^SS S C perpetual Unity. A Confultation was granted. Refuived by 3 Jufti- 
and'a Con- ces, (Warburton e contra) that the Impropriation was given to the 
iultuion King by the 27 H. 8. tho' no Impropriation is there named, but only 
giaiKcd by Tenements, Churches, Tithes and llereditaments 2dly, If it was 
Co^nfait'of" "°'- granted and given to the King by the 27 H. 8. then it v\ as givea 
all tlie by 31H. 8. For by the DilFolution in 27 H. 8 the Body to which 

Judges — the Appropriation was made was dillolved, and confequencly the Ap-- 
Ci-o. J. 607. propriation gone, as in 3 E. 3. in the Cafe oi the Templars, and the 
^ .j' Statute 31 H. 8. extends only to thofe Appropriations which were noc 

Wright, dillbhed till 4 February 27 H. 8. 3dly, It was agreed that the Stat- 
S. C held ute 27 H. 8. does not of itielf give any Dilcharge of Tithes. 4thly, 
accordingly That Unity oi Polkiiion perpetual, and Time out of Mmd, of the 
^^s'bu"'' Lands, and of the Rettory, does not by itfelf make a good Difcharge 
Warbnnon of Tithes without the Benefit of the fiid Claufe. jchly, They re- 
J.econtsa, folved, that the Claufe of Dilcharge in 31 H. 8. does not extend to 
foi- he held thofe Monafteries that were dilFolved, but only by way of EKclulion 
that Aijpio- j.j^q|-^ which were diliblved after 4 Feb. 27 H. 8. fo. 187, 188. 
were not cites It as VV right s Lale. 

I'iven to the 

King by the Statute 27 H. S. and therefore to fupply the Defeift the Statute 51 H. S. was madcy 
wherefore thofe Appropriations being given by Statute ;i H. S. the laid Difcharge extends u'uo them, 
adly The Intent of the Statute 51 H. S. was to give equal Dilcharge to the one as well as to the 
other, as well to the Land given by the 27 H. S. as to that given by 5 i H. 8. and that upon this 
Reafon is the Cafeof the Lmd of the Land of the Prior of St. John's of Jerulalcm in 10 Eli?.. Dy- 
er But notwithftanding a Confultation was granted. S. C. cited and relied upon by Jones and 

Brampfton. Cro.C. 424, r-5- M'^'i- n £-'m. B. R. 

8. An Jbhot or Ecdcfidjiical Perfcn might prefcribe in Non Deciman- 
do, but when the Corporation was diliblved, or when the Corporati- 
on granted the Land to a Layman, he fliall not have Benefit of the 
Prefcription i becaufe it was Perfonalto the Abbot^ refolved. Jo. 373. 
pi. 10. Mich. II Car. B. R. Sydowne v. Holme. 

9. And it was alfo refolved per tot. Cur. that this Pri-'vilcge by Pre- 
fcriptiofty and other Perfonal Privileges by Bull or Order, that Abbeys un- 
der 200 1. a Year, and which were dilFolved by 4 Feb. 27 H. 8. cap. 
28. were not prefervcd and gran to the Kmg or his Patcntte by the laid 
Statute. Ibid. 

ID. But sdly it was refolved, that Privileges by Prefcription, or by 
Order or Bull, are preferred by the Claufe 0/31 H. 8, cap. [13.] and the 
King nor his Patentee ihall not pay Tithes, but it extends only to Mo- 
tiajieries difolved after the 4 Feb. 27 H 8. and therefore the lelFer Ab- 
bies under 20d 1. diliblved by 4 Feb. 27 H. 8. are not included within 
the faid Claufe of 31 H. 8. Ibid. 

II. An jjbbot ivas Parfon iviparfonee of the Church where the Scite 
of the Monafterics and Tithes were, and the Mby was dijjlhed. The 
King granted the Monajiery to one^ and the Parfonage and Reffory to an- 
other." It was the Opinion of the Julfices, that it the Land of Jx Ab- 
i>ey was the Glebe of the Parfon before the Appropriattorty then tiiis Land 
is difcharged of Tithes by 31 H. 8. cup. 13. for it remains notwich- 

Ihiv.'nig 



Difmes, [or Tithes]. 55 



ilanding the Appropriation, and the Gkbc cannot be gained py Prefcrip- 
tioH and the Glebe was never chargeable co pay Tithes ; But the De~ 
mefnes of the Abbey "voere oj. other Lands not Parcel of the Glebe, and there- 
fore Ihall be chargeable to pay Tithes it they were not difcharged in the 
Hands of the Abbot, but only by Unity of PoJJeffinn; but ;/ /// Right by a 
Compojhion, then they Ihall be difcharged aiterwards, as they were in 
the Abbot's Hands. Mo. 46. pi. 140. Pafch. 5 Eliz,. Anon. 

iz. Tuoi'a Abbies that came to the Cro-jun by 27//. i, ought to pay 
Tithes, and tho' no Payment hath been at any time lince the Diffjlu- 
tion for the Lands of fuch Abbies, that fliall not free them when thev 
come in queltion, k>( they were fpared in former Times becaufe the 
reafon of the Law was not then known. Clayt. 41. pi. 70. 11 Car. 
before Vernon J. Anon. 

13. A Prohibition was graiited to Hay a Suit for Tithes in the Ec- 
clefiallical Court, upon a Suggeftion that the Lands were P^ir? of the 
Pcfftfjions of the Priory of St. John's of Jernfalem, and fo difcharged by 
Statute 32 H. 8. [cap. 24 ] And though there be Difference of Opini- 
ons in the Books, yet the later Judgments are that they are difcharg- 
ed. Freem. Rep. 299. pi. 357. Mich. 1680. Scar v. Ellyot. 

14. Abbot fei fed tn Right of his Abbey oj a Rectory with all 'tithes &c. 
The Abbey is difliolved, and the Crown grants the Tithes &c. The 
Parfon difputes the Tithes with the Patentee, but Bill difmiflcd. MS. 
Tab. March 21. 1715. Turner v, Wray. 



f[ (Z. a) Difcharge by Unity of PofTeffion. Pre- 

Icription.' 

I. /'^NE Man in a ViU cannot prefcribe to ho y«/? 0/ Tithes, becaufe 
V^ it is particular. Contra it the whole Country fo prefcribe. Bi. 
Difmc?, pi. 14. cites Doct. & Stud. lib. 2. 

2. A Compojhion was betwmt an Abbot and a Parfon, that in Recctu- 
pence of the I'ithcs of all the iVcods within the Manor whereof the Abbot 
was Owner ^ he fhoiild have to him and his Sttcceffors 20 Loads ef Wood eve- 
ry I'ear^ m 2.0 Acres of the Manor ^ to burn and fpend in his Hoiife ; Af- 
terwards the Parfonage was appropriate to the Abbey, and alter that the 
Abbey was dijfohed ; and the King granted the Parfonage to one, and 
the 20 Acres to another. It was held, that by the Unity the Eilovers 
were not extinci, for if they be Tithes they are not extinct by this 
Unity of Pofleffion, for that: Tithes run with the Lands, and Tichts 
de jure Divino &c Canonica Inftitutione do appertain to the Parfon. Mo. 
50. pi. 151. Pafch. 5 Eliz.. Anon. 

3. In Cafe of a Prohibition, it was refolved, that an Union of Copy- 
hofd Lands ^ and oj the Parfonage in the Hands of the Parfon, as Parfoit 
ifuparfonce, was no Dikharge of the Tithes of the Copyhold Lands. 
Mo. 219. pi. 356. Mich, 28 Eliz. in the Court of Wards. Branche's 
Cale. 

4. Prohibition, and fmggejfed that he and all his Predcccffors i3c. were 
feif'cd of the A'lanor ot which Tithes were demanded, difcharged of 
Tithes, and that the AJanor in Time of E. 6. was conveyed to the Dake of 
S. and was afterwards re-granted to the Bipoprick again. It was the Opi- 
nion of the jultices, that the Prefcription was not determined when it 
came to the Bifhop again, for Tithe is not a Thing ill'uing out of Land , 
and Unity of Polfeflion doth not extinsSl them, nor a Keleafe of all 

Right 



<r6 Difmes, [or Tithes.] 

Right to the Land. Cro. E. 216.pl. i 3. Kill. 33 Eliz. B. R. Wick- 
ham V. Cooper. 
S^C. cited j_ The Statute SI H. 8. gave all Colleges diflblved &;c. to the 
pei°iw' Crown, with a Claule, that the King and his Grantees fhould hold 

ham. them difcharged of Tithes, as the Abbots held the fame at the Time 

2 Rep. 46 a. of the DilFolution. Afterwards, by the Statute i Ed. 6. all Colleges 
^'■'"•'^^''^' vvhatfoever were given to the Crown, but in this Statute there is nd 
Arch' [Slop Claufe of Difcharge of Tithes. Upon a Libel lor Tithes the Farmer of 
ot Canter- "^^e Lands of Maidftone College in Kent moved for a Prohibition upon 
bury 's Cafe, the Statute 31 H. 8. The Court held clearly that the King had the 
S. P, ard a Lands of the College by the^Statuie i Ed. 6. Another Queltion was, 
g°an,red whether thcfe Lands which the King had by Virtue of the Statute of 

and ibid, ^^9. 1 E^^- 6. Ihuil be difcharged of Tithes by the Statute 31 H. 8. but as 
b. citesthe to this the Jullices doubted • for though the Statute i Ed. 6. ena6ts 
principal tijat the King jhall have the Lands m as ample Manner as the Colle(res 
NapKot^''^ ^c. yet that Claufe extends only to the EJlute tn the Lands, and not to 
iGreenv. the 'Tithes. Another Queltiun was, wheih^r the Unity of PolJcl/ion with- 
Buftkin, and oiit. Compofition or Prejcriptwn zvas a Jufficient Difcharge of Tithes by the 
iharaCon- Statute ^i H. 8.? And agreed by all that it was. Mo. 420 pi c7q 
fdtat.on was j^jj^i^_ ^ g £|i^_ £_ jf^ q^^^^^ ^ Bofekin. ^ •> /.• 

granted ac- "^ ' 

cordingly. S. C. cited Jo. 4 in pi. 5. — Pollexf 9. cites the Arch- Bifhop of Canterbury's Cafe 

2 Rep 43. and fays that it prove.s, that_ it the Farmers paid TithL-s, then no Difcii.uf;e by reafon 
of Unity, and Ufcewi'^e exprefsly, that if the Lands were in Leale, and no Tithes p.ad by the Far- 
mer, that then they are difcharged by the Unity. 

itio. 552. 6_ In a Prohibition the Vh'nnlf^ fugge/ied that the .^leen and allthofe 

^"^^^^^^'^^f^whofe Eflatesfhe had Sec. itfed to pay the Reifor of K. 2.S. ^d. yearly, in. 
cordincly. Satisfqtlion for all Tithes of the Lands called Cowley in K. in Wiltlhire ; 
and fflue being taken upon this Prefcription, and upon Evidence ac Bar 
it appeared ihdt the ^ueen had the EJlate of the yibbot vf K. who was 
Owner of the Lands, and alfo Rc^or tn Fee in the Right of his Abbey ; 
on which it was inftfied, that the Plaintiff had not proved his Prefcrip- 
tion, becaufe neither the Abbot could pay Tithes to himfelt, nor the 
Queen who had the Eftatc of the Abbot, but that the Allegation fhnuld 
have been, that when the .^ieen let the Lands, the Occupiers ufed to pay 
2.S. 4^. in SatisfaHibn ot Tithes. But Curia contra ; for they were 
clear that the Unity ot the Inheritance, both of the Lands and Recto- 
ry in the Abbot, is nbt a perpetual Difcharge of the Tithes; and if fo, 
then the Retainer of them by the Abbot fhall be taken to be a Payment to 
hiinfelf. Mo. 527. pi. 697. Mich. 4o&:4i Eliz. B. R. Chambers v. 
Hanbury. 

7. Unity of Inheritance of both is no Difcharge perpetual of Tithes, 
nor of the recompence tor them, and if fo, then Retainer maybe fard 
Payment for a Alan's felf. Mo. 528. pi, 697. Mich. 40&41 Eiiz, 
B. R. Chambers v. Hambury. 
* Hoi. 500. 8. Refolv'd and adjudg'd that perpetual Unity Time out of Mind 
in Cafe ot until the Diflolution prima facie difcharges the Land from Payment 
Dulfe^Ho of Tithes, ill. Becaufe the Statute 31 H. 8. c. 13. does not fay Difcharge 
bart Ch. t" of Tithes, but cf Payment of Tithes ; and divers other Reafons, whereof 
obfervcs that the Principal was for the infinite Iinpn^ibility, and irhpoffible Infinitenefs 
Ld. Coke in offuch Immunities andDifcharges which fuch religious Houfes had cannot be 
of Priddl known, and that general Allegation of Unity at the Time of the Difjolution 
fays that if ^^' "without Averment that it was Perpetual is not fufficient. And fuch 
the Abbey Unity ought to have four .Qualities ; ift. It ought to be Jujl and Right- 
itfelfwere /«/, and not by Tort. 2dly, Equal, vi?.. a Fee in both, sdly, 'It 
fince^Memo o^g'^'^ ^^ be pfrpf/z/^f/ Time out of Mind, ^thly. It ought to be free of 
ry, then he' ■^'^y"^^'^^ °f "^"y 'tithes ; For if their Farmers at will, or for Years &c. 
cannot pre- paid any Tithes to them the Unity will not fcrve. And if the Appro- 
priation 



Difmes, [or Tithes]. 57 

priation was made in Time ol'E. 4. H. 6. H. 4. R. 2. E. 3. &c. it is f'-'fibc at all 
not fufficient upon the Point of Unity ; For it ougiit to be perpetual i Jj^^^'^'^jl'^j- 
But in fuch Cafe lie may allege the [aid Branch of ^i H. 8. of dtfcharge chu-j^e, arid 
of the Payment of 'Tithes^ and that the Abbots ^c. tim^ out of Mind till fo lc;ivcs v. 
the Diffoltition have held the Land difcharged of Tithes (as he well may as a Cafe 
prefciibe by the Common Law) and gives fuch Evirlence that he may ^'^j^P^'^^'^" 
approve it ; and fo if in Truth the Land be difcharg'd he has futlicient Abbqv vvas 
Remedy to relieve himfelfi * and lays, lee the Bp. of VVinchellcr's founded 
Cafe. 2 Rep. 44. b. 45. a. But if the Abbey &c. was founded within finite Time 
Time of Memory, then he cannot prefcribe at all, and lince the Appro- or viemory, 
priation was made 20 H. 8. it cannot be difcharged. n Rep. 14. b, J^J'^j^^" 



Mich. lojac. C. B. Priddle v. Napper. eaflly have 

. • - . . . veliev'd if 

he might plead a Difcharge at the Time of the Diflolution ^yithout fhev/in<^ How, which is either, a 
Kecradion or an Explanation of his former Report of the Bifhop of VVincheller's Calc 2 Rep. 43. b„ 

9. An Abbot having a Privilege to be difcharged of 'tithes of Lands, 
qmmditi propriis manibus excolunt^ in the Time of Ed. 4. made a Gift 
in 'Tail, and 31 H. 8. the Abbey was dijfoh'd. The Donee of the lUiie 
Iflue in Tail iliall not be difcharged of Tithes, becaufe the Statute 3 1 H. 
8. difchargeth none, but fuch as were difcharged at the Time of the 
Diflolution, fo that they mull claim the Eftate and Difcharge under the 
Abbot fince the Statute; But if the Land had returned to tlie Abbot or 
the King before or alter the Statute, it had been otherwife. Hob. 
244. pi. 320. Mich. i6Jac. Farmer v. Shereman. 

10. Hone has a Portion of Tithes out of a Reifory and afterwards he pur- 
chafes the Reiiory ; The Portion of Tithes is not extingaijlfd but remains 
grantable '; Agreed per Cur. and the Council of both Sides. And 
Haughton J. gave this Reafon for it, viz. becanje the Portion of Tithes 
may be more ancient than the ReSfory i, and that the Reifor in antient 
Times had no Title to the Tithes ; For before the Council of Lateran every 
one might paV his Tithes to what Parfon he would. 2 Roil Rep. 161. 
Pafch. i8jac. B. R. Sir Edward Coke's Cafe. 

11. A perpetual Unity of a Church appropriated and the Land is not Hob.joiS 

any Difcharge of Tithes of itfelfj And the Statute 27 H 8. doth not'^t'f%'^'^' 

give any Difcharge but gives ojily the Poffejions as they were in the Hands Hobart c/ 

cfthe Abbots^ and that relers to the Polfeffions, and hot tb the Tithes y — . [o. :;. 

out of them, which are collateral Things, and there is no Claiife (^'Wright v. 

difcharge of Tithes in the Statute of 2.'] H. 8. as there is in the Statute of ^'^^"^c „ 

31 ii/. 8. and the Statute of 31 H. 8. does not extend to the Statute of 27 idoived.^ 

H. 8. And therefore refolved, that the Unity of Poireffion of itfelt is s. C. cited 

not a Difcharge of Tithes. Cro. J. 607. pi. 3. Hill. i8 Jac. C. B. Cro. C 425 

the fecond Refolution in the Cafe of Gerrard v. Wrifirht. j^''^'^-. ' ' ^ 

" C. B. in LiW 

of Sydown v. Holme, and agreed by all the four JulHces to be good Law, that the Abbeys whi- li 

came to the King by the Statute 27 H. 6. were not within the I'riviiege of v H. 8. nor to h.ive , 

Benefit of that Statute. S. C. cited Jo. 3; 3. in S. C. olSydowav. Holme. 

12. Unity of Pofleflion o/^(? .i^i^/zcr and Reiiory w'xW not exempt the 
Demefne Lands from the Payment of Tithes when thev come to be 
fever'd. Comyhs'sRep. 498. pi. 213. Pafch. 8 Geo.' in Scacc. Fok 
V. Bardweil, 



Q, (A. b) Die 



58 Difmes, [or Tithes]. 



(A. b) Difcharge. By Order. 



•W 



[JHERE the Cijiercians had a Privilege to be difcharged of 

Tithes ariling from their Lands, which propriis manibus ex- 

colebant, but their Farmers ihould pay Tithes, and that Order is now 

diffolved, by the Statute 31 H. 8. the King and his Tenants of thofe 

Lands fliall be difcharged of fuch Tithes as the Spiritual Perfons were. 

Y or the King cannot exco/ere, and therefore kns Farmers Jhall be difcharged^ 

and fo Ivng as the King has the Freehold his Farmers though Lcfees for 

7'cars or at milpall have fitch Privilege ; But it the King grants over 

the Reverfon then the Farmers ihall pay Tithes. 2 Le. 71. pi. 95. 

29 Eliz,. in Scacc. The Countefs of Lenox's Ca!e. 

Wh r the ^- ^^ bere a Difcharge was ^7 reafon of the Perfons that were to pay 

PrfjcrMion Tithes as the Ctfiercians &c. there the Patentee ihould pay Tithes ; 

in an Abbot But if it was bv reafon ot Unity it fliall then be difcharged by the Sta- 

vas jwesi/y tute in the Hands of the PaterHee, lor that Privilege runs with the 

Couirnot Poirelfion. Per Popham ; and Judgment for the Plaintiff. Cro. £.578. 

extend to pi. I. Mich. 39 & 40 Eliz. B. R. Bimcov. Barkfdale. 

the Alienee, 

hmii'n y-'^i >» refpeH of any real Compnfition n is otherwife, but this real Compofition ought to be 
■fhewnthe fame in the Cafe ot the King and his Alienee. Lev. 185. Trin. 18 C^r. 2. B. R. Bolls 
V. Atliiiilbn.^ Sid. 510.pl. 13. Bowks v. Atkins. S. C. 

3. So long as the Land is occupied by him that has the Fee Simple 
which did formerly belong to the Order of Ciffercians^ it Ihail pay no 
Tithes^ but if he let it for Years or Life the Tenant ihM pay Titlies. 
Brownl. 44 Trin. 15 Jac. Anon. 
Lanii may 4. When Tumor Papalis was here in England all Monks were in 

be faid to refpeft of their Orders difcharged of Tithes, who after increafing to fo 
be manur d g^g^^^ ^ Number and having here great Revenues, the Holy Church 
Mambus v\ as thereby impoverifhed, and P"ilia Devoravit Matrem ; for Remedy 
by Servants whereof Pope Pafchall II. ordained that Cijfercians, Templars and Hofpi- 
if fobe it tallers Ihould be only difcharged, and that all other Orders fliould pay 
r^ '" ^d*" "^^^'"^ Tithes which alfo in reipetl of their great Revenues was found 
uVd°asa" to be an Impoveriftiment to the Church, and therefore Pope Adrian 
Farm by the conflituted that the Land of Cillercians, Templars and Hofpitallers 
Prior &c. fliould be only difcharged -^i^ Propriis Manibus" excoluntur. Per Mon- 
S'Jfi Ma'rch tag'^e Ch. J. Cro. J. 454 pi- 30. Mich. 15 Jac. B. R. in Cafe of 
x6- :; . before Doubitofc V. Curteen. 

■Vernon , . r, . ^ r 

Judge of ADHfe, m Horn s Cafe- 

5. If the Impropriation did not come to the Cro'xn till 31 H. 8. yet ft 
was an Abby under the Value mentioned in the 27 H. 8. and given 
to the Crown, the King fhall be in now by the Statute of 27 H. 8. and 
Ihall not participate of the Privileges given by 31 //. 8. for difcharge 
ofTithes. Clayt. 68. pi. 117. Aug. 1639. Sir Marmaduke Strick- 
lands Cafe. 

6. Where Land vi&s difcharged ofTithes by reafon of Order, and there 
was a Common belonging thereto, Land taken of late Time out of the 
Common, and which was no Part of the PoHelfions of the Abbot is not 
difcharged. See Clayt. 11. pi. 20. March. 8 Car. Bells Cali 



le. 



The 



Difmes, [or Tithes]. 59 

•^ "• _ : . ~ II I -■ -■■ —-—, ... ■■■■■ ■— ^— ^l^W^i—l W^— i^i»^ 

7. The Land which the Priors of St. John of Jerufalem held in their Land ef- 
Hands in Fee at the Council of Lateran, are only capable of difcharge cheated ahex^ 
ot Tithes, and not what they purchafed after, and where it was in a wards fhall 
farmers hands, though he purchafed the Fee afterwards he Ihould not "f 'f^,''g"p'^i_ 
hold it difcharged as a Lord Abbot. Clayt. i6. pi. 26. March 1633. viiege, but" 
before Judge ot AlTize. Horn's Cafe. Lands then 

in Leafe 
or Coi) when the Leafe endeth aftef the Counfel or Copyhold comes to the Lord, it fliall be privi- 
leged as thore then in their Hands fiiould be. Cl3yt.107.pl. 1 til. April. S Car. Whitfield Judge 
of Affile. Hodgfon's Cafe. 

8. In Cafe of Tithes and Defence made by Pri viledge of the CJtercian 
Order, viz.Dum PropriisMambtis excolunt &c. ift. It mufl be for thole 
thitzre Owners of the Inheritance of fuch Land. 2dly, K'lrujiee of 
Land though another has the Ellate in Law, is fuch ■xn Inheritor and 
Owner of Lands &c. 3dly, This extends to Meadow as well as Ara- 
ble, and this Priviledge was for great Tithes as Corn or Hay &c. and 
did not extend to fmall Tithes, and therefore Payment of fmall Tithes 
is no Evidence to prove the greater Tithes to be due. Clayt. 53. 
pi. 92. Aug. 13 Car. before Barkley Judge of Aflife. Anon, 

9. In Prohibition the Priviledge of the Cijtercian Order came in 
Queftioni The Land was Parcel of the Abby of Rivaux, and no 
Tithes had been paid Time out of Mind &c. nor was any paid at the 
Diffolutionof the Abby, the Judge Ipared the giving in Evidence Dum 
Propriis Manibus Excolunt, and held it fiifficient to fhew the difcharge 
of Paymant of Tithes Time out of Ad in d, and though the Order is put 
in the Declaration which is lufficient of itfelf, yet he may take Ad- 
'vantage of the Statnte of 11 H. 8. which is the belt Courfe. Clayt. 95. 
pi. 161. Aug. 23. 1641. before Whitfield J. Fofwick v. Bulmer. 

10. Lands were difcharged of Tithes, the Abbot being of the Order of 2. Roll Rep. 
<CiJerians, Dum propriis manibus excolebant ; The Lands were Parcel ^- ^^.j^^'^j 
cf the Demefnes of a Manor but in Leafe for Tears at the Time of the .D if- ' ng y> 
folution; Refolved, that although the Farmer paid Tithes at the Time uS. S. c. 
of the Diflolution, yet Quoad the Abbot, the Inheritance was dif- adjudged. 
charged of Tithes, and therefore that now the King or his Patentee 

fhould hold them difcharged, Cro. J. 559. pi. 6. Hill. i7jac, B.R. Por- 
ter V. Bathurll. 

11. If Land vt^as difcharged in the Hands cf an Abbot at the Time 
of the Time of the Dillolution, be it which Way it will, and without 
Shewing how by Union &c. and if he hath fo continued to be dif- 
charged it Ihsll be difchargedj and the 2 E, 6. gives no Remedy buc 
in fuch Courfe and Manner as then he might have had. Clayt, 67. pi. 
117. Aug. 1639. Sir Marm. Strickland's Cafe, 

12. The Cafe upon a feigned Iftue out ot Chancery was, Whether 
fuch Lands were difcharged of Tithes which formerly belonged to 
Fountaine Abbey in Yorklhire, -Oihich was of the Ciflertian Order ; and it 
was held clearly that the Council of Later an which freed that Order from 
Payment of Tithes zvas a General one received in England ; And it thefe 
Lands were difcharged of Tithes irom the Time ot' that Council, thac 
tio after Covenant or Central made by the Abbot to pay Tithes could difpenfe 
with this Privilege, or m ike them liable to Tithes ; for once difcharged. 
by this Council, and always difcharged for this Council is as forcible as 
an AB cf Parliament, which concludes all Parties ; and the Court were 
alio of Opinion, That it there were any fuch Agreement for Paymenc 
of Tithes before the Council, yet this Council as a general Law, 
which includes all Mens Confent, had dilfolved it, and the Lands 
were difcharged. Hardr. loi. pi, 5. Pafch. 1657. i" Scacc. Stavely 



t. Ullithorn, 



i%. Upon 



6o Difmes, [or Tithes]. 



llirdi-, 190. 13. Upon a Bill in Equity the Queftion was, Whether Lands werfe 
Pj,- ^^^^^^'^^' difcharged of Tithes ss having been Part of the PoJJeftons oJ[ an Jbbcy 
in Scacc!' o/^/^e Cijiertian Order ; The Court held that a Tenant lor Life or Years 
S. C. Says is not within the Statute, but that a Tenant in Tail who hath an 
an Iffue was Eftate of Inheritance is difcharged, Quamdiu propriis manibus &c. 
trTwhether ^^^^- ^74" P^' 4- ^''^^- ^^ Car. 2. in Scacc. Wilfon v. Redman, 
the Lands out of which they were demanded had belonged to any religious Order which claimed to 
be difcharged, Quam dlu pl-opriis manibus &c. It was clearly beld bv the Court, That if fuch 
L,ands were in Leafe at the Diflblution &c. or an Eftate for Life or in Tail were out upon them ; 
yer he in Reverfion Ihould have the Benefit of fuch Difcharge after the Determination of thofe 
Eftates ; becaufe the Dijcharge was vot ifiterrufteci, but only fitfpeiided during the ^ime that they were in 
the Hands cf particular Eftates . 

So in the j^_ Upon a Bill in Equity ibr the 7'ithes of Pajiure Ground^ Parcel of 

'moning. IbS" ^^ PoflelFionss of the Abbey of Fountaine, being of the Ciltertian Or- 
der J it was held per Cur. that Tithes yo;- Jlgijhnent of Cattle were pay- 
able by the Owner if the Cattle^ bectzufe they take the Profits snd Her- 
bage of the Soil, and therefore it cannot be faid that the Profits are 
taken by the Owner of the Soil, or that the Ground is in propriis ma- 
nibus. The Chief Baron faid, that the Owner of the Soil might pay 
them, but clearly the Agiltor is compellable to pay them. Hardr. 184. 
pi. lo. Pafch. 13 Car. 2. in Scacc. Pory v, VVright. 



(B. b. Difcharge by Payment of other Tithe or Thing. 

1. TTf T HERE the Paripioiicr does any 7'hing which he is tiot com- 
\r y fellabk by the Law to do^ which comes ■ to the Benefit of the 
Tarfon ; there if he demand Tithes of the Thing in Lieu whereof this 
is done. Prohibition fhall be granted ; Per Barkley, who faid it was 
a Rule. Mar. 65. pi. 100. Mich. 15 Car, In Skinner's Cafe. 

2. And there is another Rule ; That Ciiflom may make that tbitheabh 
•which of itfelj is tiut titheabk. Mar. 65. in the S. C. 

3. The Inhabitants of the Parilh of H. in which there was a Chapel 
of Eafe, fuggelted a Cuftom, That thofe who lived in fuch a Pre- 
cin£t of the faid Parift ought to find a Rope for the third Bell and to re- 
fair Part of the Mother-Church, in Confideration whereof they have 
been freed trom Payment of Tithes to the Mother-Church. Whethet 
this was a good Cuftom, Qusere, for it was adjourn'd. Mar. 91 in pi. 
151. Hill. 16 Car. Anon. 



(C. b) Difcharge. Pleadings. 



Cro. £.20(5. ,, -y I B E L &c. for the Tithe of Wood i the Defendant fuggelled 
nd'^^cr Ciw° 1 i that the Lands were Parcel of the Priory of Crec-Church, and 
A Spiritual t^^^ the Prior thereof and his Succeffors Time out of Mind held the fams 
Man may difcharged of lithes. Exception was taken becaule it did not fay any 
prefcribe in particular Difcharge, as Compoiition, Unity of Polfeffion, or Privi- 
mando^^nd ^^S^ Order, as Templars &c. Per Wray ; though the fpecial Man- 
by the 5ta- »^r of Difcharge is mt fet doiv/i, yet it Jball bs intended to be by lawful 

Means, 



Difmes, [or Tithes]. 6i 

Means, as Compofition or otherwife ? tor the Statute is that the King tute of 5 iH, 
Ihall hold difcharged as the Abbot &c. and we ought to take it that ^- ^^^^^^ 
it was a lawful Difcharge of the Tithes at the Time of the Difl'olu- ^^^l^l^ ^^ 
tion. Le. 240. pi. 325. Mich. 32 & 33 Eliz. B. R. Nalh v. astheTMor 

Mollins. hold it, and 

if he held it 
dfchaiged, non refert by which Means; ioi ir lliall be intended lawful Means. 

2. Prohibition, the Plaintiff //■/f^^^rt? that the Prior of B. icas fifed 
of the Reiioryand of the Lands^ out of which the Tithes were demanded, 
in Fee ftmul ^ femul, from Time whereof Sc. and at the Tune of the DtJ- 
folution^ and for that Realbn the Land is difcharged &c. The De- 
fendant traverfed the Unity at the Time of the Dijfolntton &c. Fenner and 
Clench (caeteris abfentibus) held that the Traverfe was good ; for 
though there had been an Unity of Pofleffion Time of Mind, yet if it 
was not at the Time of the Dilfolution Tithes fhall be paid ; but if the 
Difcharge had been pleaded generally by Prefcriptton^ and not by Unity 
&c. then the Prefcripdon ought to have been anfwered and not the Unity. 
Cro. E. j:34. pi. 14 Mich 39 & 40 Eliz,. B. R. Button v. Long. 

3. In a Prohibition the Plaintifi'/«^^^f^, That the Abbot of Vale Royal S. C. cited 
"was feifed in Fee of the Parfonage ofW. and of the Grange of D. out of - ^°'^ <5°» 
which the Tithes were demanded by the now Parfon of W. and by Reafbn 
thereof the faid Abbot and his Predecelfors Time whereof d^c. were 

feifed of the Parfonage and Grange in their Demefne as &c. in Right 
of the faid Abbey, & ratione inde fhewed the Unity of Pollelfion and 
Difcharge of Tithes upon the Statute 3 1 H. 8. The Defendant pkaded 
that the Abbey was founded 5 £, i . within Time of Memory, and <:on- 
fejfed the Unity of the Parfonage and Grange after the Time of its Foundation. 
The whole Court held the Plea in Bar good, and that he need not 
traverfe the Prefcription ; For ihepewing the Abbey to be founded within 
T'ime of Memory is a fifficient confejfing and avoiding; But if the Defen- 
dant againft theSuggeltion of the perpetual Unity, would pew that the 
Demefnes before the Statute, and in the Time of the Abbot, were in tht 
Hands of the Farmers &c. there he ought to traverfe the Prefcription i for 
though the PofTeflion was chargeable m other Hands, yet as to the Fee- 
Simple, which repofed in the Abbot, it is a Difcharge in Right. Yelv. 
3 1, Hill 45 Eliz, Gibfon v. Holcroft. 

4. Libel for Tithes of two Acres, Parcel of the Pofleflion of fuch an 
Abbey, which came to the King by the Statute 27 H. 8. the Defendant 
pleaded the Statute 31//. 8. and averred that the Abbey from the Time of 
the Foundation to the Diffolutton had been difcharged of Tithes of thefe 
two Acres ; and upon Demurrer to this Plea it was objefted that it was 
ill, becaufe the Dxfcharge pould be pkaded only to the Time of the Dijfo- 
lution^ by Reafon of the Uncertainty of the Commencement of the Difcharge ; 
Sed per tot Cur. a Confultation was granted i ButDoderidge laid. That 
;/ he had alleged that the Abbey was founded before Time of Meuiory, and that 
the Foundation, till the Diffolution, was difcharged it had been good, quod 
Coke concefTu. Roll Rep. 54. pi. 27. Trin. 12 Jac. B. R. Prowfe v. 
Lay fie Id. 

5. S. fues a Prohibition againfl D alleging, That an Abbot ^c. was j,., 6. pi ^. 
feifed of that Land difcharged of the Payment of Tithes at the Time of the h. C. and 
Diffolution, and fo conveyed it to the King, and from the King to Hobait,H..ir- 
him. The Defendant demurs and it was refolved that the Abbot's '°"."^J* . ,. 
holding of it difcharged of Tithes &c. was not good without fhewing (i,a'"h^' ^ ' 
how; tor note the Statute 31 H. 8. cap. 3. is in as large and ample otigiu to 
Manner as the Abbot held it &c. and the Statute pinches upon that ; ^^i:^'-' 'i"w 
ergo he ought to take Notice by what Manner the Abbot was dif- ^'"^ ^!''r'^'^ 
charged i alfo fuch a Claim of Dilcharge of Tithes is contrary to com- charged at 

K inoa 



(52 Difmes, [or Tithes]. 

the Time of mon Right, and therefore fhall be ftri£l. Noy. 97. Hill. 15 Jac. C. B. 

the Diffola- siade V. Drake. 

tion ; bor . 

that Statute gives Difchargc yet for pleading it as it was at common Law, the Pany ought particular- 
ly to fliew how ; But Warbuton held e Contra, and Error was brought et pendet Qusre de ceo, 

. Hob. 295. pi. 9;S. S. C. adjudged for the Defendant and a Confultation awarded t Warbuton 

dirtetitiente. 

6. Libel for 7'ithes the Defendant fuggejied for a Prohibition that the 
j^hbot of^c. and his Predece/Jbrs bejore and at the Time oftheDiffoliition^ 
hold the Lands difcharged of Tithes by Reafon of the Unity of FoJfe[Jion ; 
it was inlifted that this Suggeftion need not to be proved within the Sta- 
tute of 2 E. 6. For by that Statute the Suggeftion Ihall not be proved, 
unlefs the Caufe be detentiinable in the Spiritual Court for the not 
proving the Suggeftion, arid that this Cafe is not determinable there by 
the exprefs Words of the Statute i Sed per Cur. Though precife Proof 
may not be made oj the Difcharge^ yet the Defendant might fwear that al- 
ways /ince the Statute 31 //. S.the Lands have been reputed to be difcharged 
hy Unity y or that he had heard it commonly reported to be fo vel Similia. 
And Doderide faid he had known divers Precedents of Proof made irt 
this Court in fuch Manner. 2 Roll Rep. 125. Mich. 17 Jac. B. R, 
Congley v. Hall. 

. 7. 7. Upon a hill for Tithes the Defendant by his Anfwer fet forth, 
That the Lands of which the Tithes were claimed, were Parcel of the 
Priory oj . . . and that the Lands belonging to that Priory were difcharged 
by Order ; without faying any more this was held fufficient, Quod Nota j 
becaufe of the Uncertainty. Hardr. 322. pi. 5. Hill. 14 & 15 Car. 2. 
in Scacc. Page's Cafe. 

8. Suggeftion of a Difcharge by the Ceftertian Order in a Suit for 
Tithes ought to aver pofitively that thefe Lands were in the Abbofs Hands 
at the Time of the Dijfolution, and now in the Patentee's own Hands, 
otherwife no Prohibition will be granted i And it is not fufficient td 
fay that the Vills were, unlefs of which are Parcel. Keb. 830. pi. 
9. Hill. i6 & 17 Car. 2. B. R. Barrington v. Boucher. 



(D. b) Reviv'd. 

i. A Prefcription was laid in an Abbot and Convent to be difcharged of 
Jf\^ Tithes, and it appear'd that the Body corporate was diffohed, 
hecaufe all the Monks were dead, and the Lands came to Laymen, it was 
adjudged that they ihall pay Tithes in Kind, becaufe the Prefcription 
continues no longer than the Lands remain'd in the Abbot's and Con- 
vent's Hands. Godb. 211.pl. 301. Mich. iiJac.C. B Windfor 
(Canons) v. Webb. 



(E. b) Trefpafs juftlfiable in order to fetting them oilt 
and carrying them away. And Pleadings. 

i. ^'Y^RESPASS lies by Parfon againft him who carries away Tithes 
I fever'd from the nine Parts ; contrary where he will not (ever his 
Tithes, and carries them all away j there Suit lies in the Spiritual 
Court, Br. Trefpafs, pi. 108, cites 38 E. 3. 5. 

2. In 



Difmes, [or Tithes]. 63 

2. In Trefpafs of Corti taken the Defendant jujiified for I'ithes as 
Seyjant of the I'arfon ol" M. \o he took the I'ithes cj his Majler atque hoc, 
float he took the Corn of the Plaint rff and others e contra. £r. Tiefpafs, 

pi. 49. cites 44 Ed. 3. 39- ^ . 

3. Trefpafs de Claufo Fraffo on D. in the 6th Day of July the Defend- Br. Replica- 
ant jtijfijiedforas I'ithes fe'ver'djrom tne nine ?arts as Pdrfon the 10th Day "j^",''^' ^'_ 
of Align If ^ abfque hoc that he Is guilty tinlefs ajtcr the 'Tithes fever'd and j^p^rCon 
till they zvere carried away, and it was held clearly that every Parfon Uiall have 
mny enter to colleif his Tithes, and to turn them till they are dry, and oi ye4ov,ihk 
this the reafonahle Time {hall be tried, and a good Plea, and jball not be ^""t",////^* 
canpell'dtofaythat he is not guilty before nor after ^ For he is guilty feiccd'from 
every Year after the Tithes lever'd, and the Plaintiff rt/j/j'V, That the rhe nine 
Day the Defendant fifiified, the Defendant was not Parfon, or that the P-irts, audio 
Tithes this Day were /over' d i and fo fee that the Plaintilf was not com- ',yj"//^^'^ 
pcU'd to reply to the abfque hoc taken by the Defendant, Br. Traverfe j,.^^ ZdZat 

per &C. pi. 242. cites 12 E 4. 6. /^e carries 

them away. 
Br. Trefpafs, pi. 525. cites 12 E. 4. 6. 
In Tietpiifs where the Dejendant jiiflrpes as Pnrfon and cclleHed the '/ithes which were fewred from the 
Tihie Parts, it is a good Iffue that the Tithes v/e're not fevered from the nine Parts. Br. Iffues joincs, 
pi. 69. cites 12 E, 4. 6. 

4. Trefpafs oi Grafs cut, the TiQknda.nx. jtiftijied as Parfon of the Parifh, 
and took ijj ;7//^£j/^wrW from the nine Parts, the Plaintiff laid. That 
Defon tort demefne without fuch Caufe. Per Brian this is no Plea, 
no more than 'ahcre the Defendant juftijies as his Franktenetnent, or by 
Leafe, or for Years, fuch Replication De fun tort &c. is no Plea, 
Pigot faid, this is true there; For the Defendant claim" d intcreft in the 
Soil and the Occupation there ; contra here, by which he replfd as above, 
abfque hoc, that they were fever d from the nine Parts. Br. De fon tore 
&c. pi. 21. cites 16 E. 4. 4. 

5. In Trefpafs in D. the Defendant jujiified as Parfon ofD. for Tithes, 3|._ Traverfe 
the Plaintiff faid that they grew in another Place, and not in the Place in per &c. pi. 
the Bar, and no Replication unlefs they had faid that the Place is out of ^^7- cite.s 
the Parip of the Defendant ; For he may take his Tithes in any Place in -' ^- ^ <55- 
this Parifh, by which he faid that it was in another Parilli, and not in ought'^to tra- 
the Parilh ol the Plaintilf Br. Replication, pi. 54. cites 21 E. 4. verfe the 

Parifh, and 
not the Place ; Fof primS facie if they grow in the Paridi the Parfon fliall have them. 

6. Trefpafs for breaking his Clofe and treading his Grafs &c. and 2 Lutw. 
taking and carrying away five Loads ot his Hay ; The Defendant '^s'^'?. and 
to all except breaking the Clofe and fpoiling the Grafs pleads Not ^s'^^j^ g^^'^jj 
Guilty, and as to the Reft he juflified, jir that he is feifed of the Tithe- faie vult. 
Hay arifing in the faid Clofe ; and for that the Hay, (viz. J five Cart- Loads 

were cocked feparately for Tithes of the faid Hay, he entered the Clole 
and carried away the Hay, doing as little Damage as he could, .^(J^ funt 
eadem &c. the Plaintiff replied. That the Defendant took the Grafs which 
the Plaint i;ff had cut and made it into Hay upon the Land, and carried it- 
away, and fo five Cart-Loads of his Hay mentioned in the Declaration, he 
took and carried away, and traverftd that there were Jive Cart-Loads of 
Hay in the faid Clofe feperated for Tithes; the Defendant demurred Ipe- 
cially, for that the Plaintiff trarerfed the Quantity of Hay leperated 
for Tithes which is not traverfable; and of that Opinion was all the 
Court, for the Delendant having pleaded Not Guilty as to all except 
the fpoiling the Grafs, and juftified this by entring and taking Tiihe^ 
■of Hay, it is good whether they were loaded in one or tv\o or five 
Carts ; and it was lawful for the Defendant to make the Hay on the 
Land after it was feparated, and Judginent \'> as given for the Defen- 
dant by th^ whole Court. 3 Lev. 228. Trin. i Jac, 2. C. B. Paine 
V, Brjcrham. 



64. Difmes, [or Tithes]. 



7. In TreJpafs Defendants as Servants of the Parfon, juftified their 
Entry into the Land with their Horjes and MolUter chafed the Cattle in 
the faidClofe to fee what Tithes were due for the Cattle. It was objefted 
that this was not jullifiable, becaufe there were other Means to come 
to the Knowledge thereof But the Court delivered no Opinion as to 
that, Judgment being given on another Matter. Cro. J. 360. pi. 21, 
Mich. 12 Jac. B. R. Rolls v. Boulting and Roberts. 



(F. b) Remedy for Recovery of Tithes. And ia 

what Court. 



I. /"^ F Tithes there is not any Form to demand at the Common Law. 
\^ But you will find in the Regifter lol. 165. a Form of Writ 
of Covenant De decimis Garbarum ad Eccleh'am iplius Prioris de N. 
qualitercunque fpetlant'. Thel. Dig. 68. Lib. 8. cap. 9. S. i. 

2. In A[]ife a Plaint is made of the tenth Part of all manner of Corn 
growing in 100 Acres oj Land, and of the tenth Part of all Manner of 
Hay in 10 Acres of Aieadow cut after the 'Tithes of the Parfon afftgned &c. 
The! Dig. 68. Lib S. cap. 9 S. 2. cites Hill. 44 E. 3. 5. But fays, 
that now by the Statute of 32// 8. cap. 7. a Man pall have Prtfcipe 
quod redaty and all Manner 0/ Writs real of all Profits called Kcclefiaftical 
or Spiritual, as Parfonages, Vicarages, Portions, Penfions, Difmes &c. 
After the making of which Statute Theloall fays, he has feen Writ of 
Covenant of fuch Form to levy a Fine, Quod teneat Covent' &c. de 
Reftoria Ecclelise Parochialis de M. ac de omnibus decimis granorum, 
garbarum, & foeni eidem Reftorise fpeftant' &c. five cum omnibus 
decimis granorum garbar' & foeni eidem Reftor' fpeftan' &c. 

3. And in Praecipe quod rcddat omnes S omnimndas decimas majores 
mixtas et minutas infra Vtllamftve Hamlet' de B. in Parochia de A. quo- 
qnomodo crefcen' contingen' ac anntiatim renovan' &c. Quaere of thefe 
Forms and ot others now ufed. See Praecipe quod reddat quartam par- 
tem decimarum S oblationum Ecclejia SanCii &c. Thel. Dig. 68. Lib. 8. 
cap. 9. S. 3. cites 16 E. 3. Quare Impedit 147. and fays. See Fine 
levied of a Parfonage 2 H. 3. Grant 89, 

Br Aflife 4- -4^^^ ^^^ maintain'd of Tithes by Name of Profit Apprender, not- 

pl.' 19. cites withftanding the Defendant demurr'd to the JurifdiStion. Br. Jurif- 
S. C. diftion, pi. 7. cites 44 E. 3. $. 

5. \ixhe King grants Tithes which grow in great Forefis, as Engle- 
wood by Letters Paeents, and another takes them he fhall hai'e Scire Facias 
againfl them in Chancery, and f hall be at Ifjue there, and then it Ihall be 
fent into B. R. to try as in other Cafes. But if the Suit be agaii/fl them 
who ought to render the Tithes and fet them out and ihver the nine Parts, 
then lies the Suit in the Spiritual Court ; note the Difference. Br. Difmes, 
pi. 10. cites 22 Afi* 75. 

6. 32 H. 8. cap. 7. S. 2. All Per fons of this Realm and other his Ma- 
jejlies Dominions /hall truly fet out and pay all Tithes and Offerings, ac- 
cording to the Cujloms and Ufages of the Places where fuch Tithes or Duties 
pall grow; and in Cafe any Perfons, of their ungodly and perverfe If 'til, 

with-hold any Tithes or Offerings, the Parfon, or Party Keck fi aft ical or 
Lay, having Caufe to demand the faid Tithes or Offerings, may convent 
the Perfons offending bejore the Ordinary, his Commiffary or other competent 
Judge, according to the Ecclejiajlical Laws. And the Ordinary ^c. hav- 
ing the Parties, or their lawful Procurators before him, ffoall proceed to the 
Examination, Hearing and Determination, of fuch Matter, ordinarily or 
fummarilyi according to the Cotirfe 0/ the kcclejiaffical Laws. 

7. 32. H 



Difmes, [or Tithes]. 65 



7. 32 H. 8. cap. 7. iJ, 3. In Cafe any of the Parties appeal from the 
Sentence of the Ordinary Sc the Judge pjall adjudge to the other Par- 
ty reafonable Cojis, and pall compel the Party appellant to pay the fame by 
comptilfory Proce/s and Cenfiires of the Laws P.cckjiajtical, taking Surety 
of the other Parties to rejiore the Cojis^ if the principal Catife be adjudged 
agatnft him ; and fo every Ordinary, or other Judge Ecckftafiical, fhall 
adjudge Cofts to the other Party upon every Appeal in every Suit oj Sub- 
Jira^ton or detention of 'tithes, or in any other Sun concerning the Duty of 
ftich tithes or Offerings, 

8. S. /\. If any Per fans, after Sentence definitive given againfl them, ob- 
ftinately and wilfully refufe to pay their Tithes or Duties, or fuch Sums of 
Money wherein they be condemned for the fame, two Jujiices of Peace of the 
ShirCy whereof one of the .&uortim, pall have Authority, upon Information, 
Certificate or Complaint, made in Writing by the Rcclejiafiical Judge that 
gave the Sentence, to catife the Party refufmg to be attached and committed 
to the next Gaol, till he jhall have found Smety to the Ufe of the King toper- 
form the Sentence. 

9. 6", 7. Where any Per fms which fball have any Efi ate of Inheritance, 
Freehold, term. Right or Interefi, in any Parfonage, Vicarage, Portion, 
Penfion, tithes. Oblations, or other Rccleftaftical or Spiritual Profit^ made 
temporal, or admitted to be in tetnporal Hands by the Laws of this Realm 
(hall be difjeifed, or otherwife put from their lawful Inheritance or Inter ep 
by any Perfon claiming title to the fame, the Perfons fo difjeifed or put from 
their Right, their Heirs, Wives, and fuch other to whom fuch Injury jhall 
he done, floall have their Remedy in the King's temporal Courts, or other 
temporal Court, as the Cafe pall require, for the Recovery of fuch Inheri- •_ . 
tance or Interep, by Writs of Precipe quod reddat, Jfjtfe of Novel Dffeipn, By this Aft 
Mortdancepor, ^lod ei deforceat. Writs of Dower, or other Writs original, ^ L^y^an 
as the Cafe pall require ; andXVrits of Covenant, and other Writs for Fines Jj?-^j"^ 
and other Apurances of any fuch Parfonage, Vicarage, Portion, Pennon, or 0{ii:rk\°l 
other Propt called Ecclepafiical or Spiritual, pall be granted in the Chance- may either 
ry, as hath been ttfedfor Lands. ^ fue for the 

or with-holding of the Tame in the Ecclefisftical Court, or at the Common Law, at his Eledtion •' 
and feeing that no fpecial Writ is given by the Statute, the Parcy muft have a general Writ of AfTife 
de libero Tenemento, and make a fpecial Plaint ; But his Praecipe muft be Q;jod reddat omnes 6c Om- 
nimodas Decimas majores, minimas & minutas infra Dale quoquo mode crefcent' contingent' ac annua- 
tim renovant* 8cc. according to his Cafe. But neirher Affife nor any Praecipe did lie of them as of 
Tithes or any other Ecclefiaftical Duty at the Common Law; for the Alllfe' brought of any manner 
of Corn growing in an hundred Acres of Land after the Tithes of the Parfon taken was a Lay Profit 
Apprender, and no Ecclefiaftical Duty. But Tithes, or other Ecclefiaftical Duties that came to the 
Crown by the Statutes of 27 H. 8. 51 H. 8. 37 H. S. and i E. 6. are by thofe Statutes, and this of 
52 H. 8. and of i &2P.& iM, in the Hands of Laymen Temporal Inheritances, and ftiall be ac, 
counted Aflets, and Husbands (hall be Tenants by the Curtefy, and Wives endowed of them, and 
ihall have other Incidents belonging to Temporal Inheritances, only that they have this Ecclcfiafti- 
cal Quality, that the Owner or Pofl'effor thereof may lue for the Subftraftion of the fame in the Ec- 
clefiaftical Court. Co. Litt. i 59. a. 

Mo Pr£cife lies for fetting out Tithes at Common Law ; and I doubt not, hy the Statute ;2 //. 8 ca*>. 
7. tho' Sir Edw. Coke in his Litt. fol. 1 59. a feems to be of Opinion, that a Af^?i may at his EU-clior. 
Iiaie Remedy for with-holding Tithe after that Statute hy Jaion or in the Ecclejiafiica! Court, by thic 
Statute doubtlefs he has/»c the. Title of7ithe, as for Tithe of Land, or for the taking thcni away bpc 
not, perhaps, for not fetting them out ; Per Vaughan Ch. J. Vaugh. 195. Hill. 18 & 19 Car. V (J. 
B. in Cafe of Holden V. Smallbrooke. 

10. S. 8, Provided that this AB pall not give Remedy or Suit in the 
Courts temporal, againji any Perfon which fhall refufe to fet out his tithes, 
or detain his tithes or Operings. 

11. 'ThQ compelling the Appellant to pay Cops, is to be tinderpood when 
the Cafe appertains properly to the Spiritual Court ; but it the Suit did 
not originally or properly appertain to them, as in Cafe for tithes of 
Trees fpent in Fuel, a Prohibition lliall be awarded, as well to the 
Cofts as the original Suit, notwithltanding this Statute. Noy 137, 
Anon. 

8 X2. When 



66 Difmes, [or Tithes]. 



12. When 1'ithes were fet out, they are Laj-Chatt/es i and if a Stran- 
ger carries them away, Aifion lies not in the Spiritual Court but here j 
btherwife where they are not fevered from the 9th Part ; Per Dode- 
i-id2;e J. and Ley Ch. J. 2 Roll Rep. 440. Trin. 21 Jac. B. R. Gwyn 
V. Merryweather. 

13. The Parfon iexhibited his Bill in the Exchequer for predial and 
other 7)th'es, and upon Proof of the ^lantity and Value, had a Decree jor 
the whole ; and the Clerks faid that this was the conflant Praitice where 
a Bill is exhibited for predial Tithes, and the Jingle Value is only de- 
manded. Hardr. 4. pi. 4. Tirin. 1655. in the Exchequer, Hard wick v. 
Newte. 

*IntheCon- 14. 7^8 W. '^. cap. 6, Impowers two Juftices of Peace fo de- 

ftniftion termtne Complaints for Nonpayment of fmall Tithes, jind the Money ad- 

bcen°id- ^^^ J'i^e^ ^^'^ P^^^ ^^ ^^'"'^^ h' Dtjlrefs and Sale. But the Complaint miifi be 

judf;ed, that made Within two Tears. Appeal may he to the Sejftons^ and no * Certiorari 

if the Party fjall he allowed unlefs the Title he in :G)i!eflion. 

irfirtson any /,, £^j^ ^y^ Modus the Jujiices are not to intermeddle. 

La^w'^before ^'^^ Judgment jhall he mrolled, and he a Bar to any other Pro- 

the Juftice cefs. Party reiHoving into a foreign County may he followed if adjudg~ 

of Peace, ed againjl him. If the Complaint be votacious. Defendant pall have 

which is any Qy^j ^^^ exceeding 10 s. and any Perjon fued for any thing done in purfu- 

hi^iTona '^«" °ft^-"^ ^^i and the Plaintiff be nonfuit'Sc. /ball have double Coi\s, 

Cull-om in a if no Suit he begun in the Exchequer or E^ccleftaftical Court. 

Parifli to be _ 

difchar£;ed of a certain kind of Tithe Sec. the Order may be removed ^yithin the Intent of the Statute. 

atiawk. PI. C 2S9. cap. 27, S. 3S. cites Hill. 6 Geo. The King v. Furnace. 



(G. b) Remedy for Recovery of Tithes. How ; And la 
what Cafes. And Pleadings. 

iy the Opi- i. A Parfon fues in the Spiritual Court for Tithes cf Wheat and Ryft 
iiionofall J~^ growing on 6o Acres of Land. The Defendant f'uggcjled for a 

''rbodi"^^' P^'ohibition that thejaid 60 Acres were barren, and chat by his Indultry 
Benches, they became fruitful, and that 7 Tears are not expired according to the 
(except Statute 2 E. 6. for Tithes of barren Lands. The Jury found, that 30 
Whiddon) Jcyes of the faid Lands Were barren, hut that 30 Acres of the [aid Lands 
*''ho^l\Ied in ^'^^ Jjve-y^^ 'I^ithes of Wool and Lambs to the Parfon. The Parfon ihall 
the Spiritual not have a Confultation for them ; for he has not fued for them in the 
Court Ihall Spiritual Court ; By the Judges oi both Benches. Jenk. 218. pi. 65. 
iiaveCon- cites D. 17 1. 2 Eliz. 
fultation for 

the f^id Refidue, ad quod Saunders Ch. B. concefTit D 171. a. pi. 6. Pells v. Saunderfon. S, C. 

cited Hob. 192. in pi 242. thata Confultation was denied, becaufe he fhould not hive liied for Tithes 
in Kind, which it they fliould grant, a Confultation fhould be allowed but for the fmall Tithe 
only. 

4 Le. 7 pi. 2. An Aftion of Debt was brought upon this St.ttute by G. againfi 

50. 26 EHz. two Tenants in Common, and it appeared that one of them fet out bis Tithe, 

B. R-Ger- and th&x. the Other afterwards took it and carried it azvay ; and adjudged. 

rardsCa^e, jj^^^ jj^g A£lion lies only againft him which carried it a\\-ay. Hutt. 

^fe-vend and 122. cites it as a Cafe Ihewn Mich. 8 Jac. Sir John Geirard's Cafe. 

carried aivay 

by a Strapger, and that the Parimioncr may plead the f^ime Matter in B.ir in the Spiritual Court. 

■ 3. Ira 



Difmes, [or Tithes]. 67 

3. In Debt on the Scacute 2 E. 6. for noc fetting out Tithes, the De- 
claration recited the Statute as made Nov. 1. Anno 2 £5*3 E. 6. whereas 
it could not be in two Years of the fiid King, and therefore after Ver- 
dict Judgment was arrelted. Mo. 302. pi. 452. Mich. 33 & 34 Eliz,. 
in Scacc. Langley v. Haynes. 

4. ABion on this Statute may be Iroiight in any of the King's Courts ; 
Refolved by all the Karons. Sav. 131. pi. 206. Pafch. 36 Eliz. in Scacc. 
Anon. 

5. Defendant pleaded N'ot Guilty, and held well enough, the ASlion Cro. E. 7(15. 
of Debt being founded on the Statute for a Wrong done, and Debt lies P'- 4; Trm. 
on it tho' a certain Penalty is not given thereby, but the treble Value, t"]?''^ 
which is uncertain. Cro. £. 621. pi. 11. Mich. 40 & 41 Eliz. B. R. jg„ v. Her- ' 
Johns V. Carne. pingham, 

S l^ re- 
folved accordingly ; for it is not for a Noti-feafarce, but for a Male-feafance wherein the Tort is 

iuppofed. Mo. ;o2, pi. 452. Mich. ^5 & 54 Elii. in Scacc. Langley v. Hains, S. P. adjudged. 

Brownl 51. Pafch. 10 Jac. Anon S. P. Ibid. 6^. Tiin. S Jac. Pain v Michols, t>. P. 

For Wool or Lambs no Aftion lies upon the Statute; for they are not predial Tithes, nor 

ftnall Tithes by the Statute of E. 6. Brownl. 70. Hill. 9 Jac. Morti.nier v. Freeman. Palm 

212. Arg. cites it as refolved 40 & 41 Eli/,. Sharmm v. Beadle, that Aftjon of Debt lies upon this 
Statute tor Tithe of Lambs ; and thence infers that Lambs is not fmall Tithe. 



6. Baron poflefs'd of a Leafe for Tears in Jure Ux' may fue alone and Cro. E. 608. 
recover the treble Value, and need not mention the Quality of the P'- ^^.^ "• 
Grain, jcnk. 279. pi. 2. cites the Cafe of Bedel v. Smith. Bcadle%. 

Sharman. 

8 C held accordingly. 2 Intl. 650. cites 5. C. & S. P. refolv'd accordingly, Husband 

and Wife /c;»'<-/ and held good. i5Rep. 4S. Bedel v. Sherman. But where the Action is for 

Vi/Zip.t/f* w they cannot join, though for Tithes not let out they may. Jo. 525. pi. 5. Mich. 9 Car. 
B. R. Anon. 

Baron and Feme were Leitees of a Parfonage &c. A Parifliioner fets forth the Tithes and prefently 
takes them away again. Rcfolv'd that the Husband and Wife ought to have join'd in the AiSion ; 
becaufe it is not for a Thing in Poffcffion ; and if the Husband dies the Wife fhall h.ive the Da- 
irages, and not the Execu or of the Husband. Noy i^tJ. Hill. 7 Jac. B. R. Ford v. Pomeroy. 

2 Brownl. 9. S. C. Curia advifare Vult ; but feem'd of Opinion that the Wife ought to join; 

iFor the Stature fays that ihi Proprietor fhall have the Suit for the not fetling forth &c. and the Hk/- 
h.ind in this Cafe is mt intended Proprietor as the Statute intends, hut the iVife. 

7. AfterVerditl on this Statute for the Plaintiff, it was moved /« Mo. 912. 

arreji of J udgment that the Suit for the treble Value ought not to be brought P'- ' -^^• 

at the Cojnmon Law, but in the Spiritual Court as it ought to be for the accoi-di'ncW 

Tithes before they are let out ; but refolv'd that the Aftion was well_jcnk.l79. 

brought, and Tanfield faid it was ruled in the Exchequer in Man- pi. 2. S. C. 

wood's Time, that it lay well at the Common Law. Cro. E. 608. ^^■''- — 

pi. 9. and 63. pi. I. Trin. 40 Eliz. B. R. Beadle v. Sherman. pi u's^^' 

^- Hill. '34" 

Ehz,. B. R. Wentwonh V. Ci-ilpe. S. P. adjudged. 

8. Refolv'd, that the Statute which gives treble Damages does not Cro. J. 73.- 
allow the Jury to give other Damages. No CxdHs being given by the ?'■'•■ ^•^SS 
iStatute, the Jury can affefs no Cofls. Mo. 915. pi. 1294. Trin. ^on'^S^C 
44 Eliz. B. R. Day v. Peckvell. Pafch. 5 

Jac. in Cam. 

Scacc. adjudg'd, 

9. Debt upon the Statute of 2 E, 6. hy the Plaintiff (a Farmer) for Mo. 91 ;. pi. 
T\otkmng{onh.oi Tithes, and demanded the treble Value; The '//oj 1294. Day, 
upon Non-dcbet pleaded, find jor the Platntijf. It was ajignd for Error "■ P=ckveiL 
that the Statute does not give the, treble Value to the Farmers of the Par- folv-d'ac- 
fonage, fed non allocatur. Cro. J. 70. pi. 12. Pafch. 3 Jac. in Cam. cordingly" • 
Scacc. Dagge and Kent v. Penkevon. that he fti.ili 

, have Aftion 

by the Equity of the Statute, becaufe he lias Right to the Tithes though the Statute does not give 
Action to the Farmer. 

10. Action 



68 



Difmes, [or Tithes. 



Jenk. 316. 
pi. 4. S. C. 
Mo. <; I 5. 
pi. 1294. 
Day V. 
Peckvell 



10. A6lion was brought ^j; two [joint'} Farmers who demanded the 
Forfeiture jor carrying away the Corn without fetting forth of the 'I'lthes or 
agreeing with them for the Corn, but without faying that he did not agree 
with chem nor either of them^ yet held good and Judgment for the 
Plaintirt, and aifirm'd in the Exchequer Chamber; For if he agreed 

^^'■^^"'^''^ with one of them, he ought to fhew it. Cro, J. 70. pi. 12. Palch. 3 

!!lAg"i'" Jac. Dagg V. Penkevon. 

ment with 

one Faimer fhall bind his Companion; Rerolv'd. Mo. 915. pi. 1294. S. C, 

11. If a Paripioner fets forth his i'lthes and prefently takes them away 
"" again ■■, Debt lies tor treble Damages upon fuch a fraudulent fetting forth, 

though the Statute fpeaks nothing cf the P^raud. Noy. 136. Hill. 
7 Jac. B. R. Ford v. Pomeroy. 

12. An Aftion of Debt brought upon the Scatute of E. 6. for not 
fetting forth of Tithes, and the Plainti^ declared as well for the predial 
Tithes^ for which he might well bring his AH ion ^ and for other Tithes^ as 
of Lainb and Wool for which no AH ion would lie, and upon Trial the 

Jury found for all -is well for thofe that would, as would not bear an 
Aftioni and after a Verdicl this Exception was taken, and Judgment 
arrejled. Brownl. 65. Trin. 8 Jac. Pain v. Nichols. 

13. Upon the Statute of 2 E. 6. cap. 13. In a Prohibition to ftay 
Proceedings by a Parfon in a Suit in the Spiritu.il Court againft one of 
his Parilh, for hindring him in his Way in the Carriage of his Tithes, 
the Court all agreed that if a Parfon has his iifual Way Jiopt fo that he 
cannot come to take away his tithes being fet out jor him, he may have his Re- 
medy by Suit in the Spiritual Court ; But if the ^lejlion be zvhether the 
Parfon be of Right to have a Way one Way or another, this is triable by the 
Common Law, and not in the Spiritual Court ^ but if he has a certain 
Way granted to him and fet out by the Common Law, if he is at any 
Time difturb'd and hinder'd by any of his Parifhioners or by any other 
in the Ufe of this his Way, he may fue in the Spiritual Court. Bulll. 
67. Mich. 8 Jac. Anon. 

14. Debt on the Statute &c. after a Verdift for the Plaintiif, it was 
moved in arrell of Judgment that the Declaration was ill, becaufe the 
'?\iiinx\?[ did tit allege that he was Parfon, for he ought to bring the 
A£lion according to the Name by which he claims the Tithes ; for if 
a Man will bring an Aftion as Heir, Executor, or Sheriff, he mult 
name himfelf fo ; but upon producing two Precedents to the contrary, 
it was adjudged per tot. Cur. for the Plaintiff! Brownl. 98. Mich. 
9 Jac. Willot V. Spencer. 

15. A Man poffeffed of Corn fells it, and before two Witnejfes fets out 
his Tithes and afterwards privately takes away his Tithes ^ and the Parfon 
files him upon the Statute of Treble Damages, for not fetting forth of 
Tithes ; and rhe Defendant proves by Witnelles, that he fet forth his 
Tithes i yet the Fraud is helped ; for the Words are without Fraud or 
Deceit. Brownl. 34. Hele v. Frettenden. 

he carries them away; this is not a fettiyig forth within the Statute. For the Words 
JuHly and without Fraud or Covin. Noy. 152. in Cafe of Kochefter v. Porter cites 



A Parifli- 
ioner pri- 
vately fet 
forth his 
Tithe.s and 
takes Wit- 
refs of it, 
and immedi- 
ately after 
are, Truly, 
43 £lii. B. 



S. C. cited 16. So One fecretly fells his Corn td one who was not known, and after- 
by Coke Ch. wards the Vendee^ commands the Vendor to cut the Corn, which he does, and 
~ °"'"' takes away the whole Corn without fetting forth his Tithes i and the Quef- 
tion was. Who Ihould be fued tor the Tithes ? And the Court held ths 
firfl Vendor Jhould be fued, for it was fraudulent. Brownl. 34. Hele v. 
Frettenden. 



J. 2 Bui ft. 
1S4. Hill. 
II Jac — 
2 Inft. ($49 
cites S. P. 
refoiv'd. 
Trin. 44 Eliz, 



B. R. in Cafe of Sprat v, Heale. 



• Noy. 15:. in Cifc of Rochellcr v. 



Porter.' 
i. P. 



Difmes, [or Tithes]. 69 



S. p. and that the Parfon flialt not he compelled to fue the Vendee, who it may be was not known to 

him, cites 44 Eli/,. B. R. Baker's Cafe. And it is not traverfable, if the Tithes iirere fct forth 

according to 47 Eiiz. refolved in Trin. 7 Jac. B. R. Brickendine v. Denwood. Ibid. 

17. In Debt upon the Statute of 2 E. 6. the Cafe was, A. waspojfcfs^d 
of 'tithes in Jure Uxoris as Executor of her former Husband, and granted 
tottim Jus, 7'itultm & Intereire fuum de et in Decimis praediflis ; Re- 
folv'd unanimoufly that the Grant was good, and the Leale he had in 
the Tithes in Right of his Feme did thereby pafs; And Judgment for 
the Plaintiff. Cro. J. 318. pi. i. Hill. 10 Jac. B. R. Arnold v.- 
Bidgood. 

18. Debt upon the Statute 2 E. 6. cap, 13. fornot fetting out Tithes; Brownl.iij: 
the Words of the Statute are. Every of the King's SubjtBs ; and the Plain- ^'PP|"S v. 
tiffin reciting it, declared that ^iiihbet Subject us DiSlt Domini R^gis i s^q^'^S P 
adjudged this was a Mifrecital. 2 Bullf. 119. Ttin, 11 Jac. Tipping held accordl 

V. Svvan. '"S'y.' and 

that It was a 
Fault incurable ; For the Statute refers Subdilits to his politick Capacity^ but {diBi) goes to his natural 
/iTid file Capacity, and by fuch Conilrudtion the Force of tlie Statute fliall be determined by the 

King's Death ; By three Jultices but Houghton doubted and fo it was adjourn'd. —Cro: J. 524 

pi. 5. S. C. held accordingly 6c adjornatur. 

19. If the Plaintiff declares in Debt for not fetting forth Tithes, as of 
^Leafe made to him for 20 Tears where it was but for 10 Tears. This is 
good, for ic is not material in this Cafe how he doth declare, fo as 
Tithe is to be paid to him out of the Land. Per Coke Ch. J. z Bulft, 
86. Tin. 1 1 Jac. 

20. As to the Word Proprietor in the vStatute, // a Reifory be leafed It was mbv'd 
for I'tars the Lejfee may well fay Pcjfcffionatus fuit, though he can take no i" ^'■'■'^ft of 
Profits before Harveji, and the ftiewing the Leafe, and pleading that by ■1"'^"1|"^q£ 
Force thereof he was pofTefs'd and fo continued, is clearly good ; Per ciaration was 
Doderidge, quod tota Curia conceflit. 2 Bulfl. 67. Mich. 11 Jac. that the 

Plaintiff was 
PriraoDie occiipator ac poftea eodeb Die &c. lb that ic appears not that he was Proprietor, and there- 
fore the Aftion does not lie ; For he may be Occupator wrongfully and fo not Proprietor ; But it was 
anfwer'd that the Declaration is that tali Die Polfefftonatus fuit & ab eodem Die occupavit, and* this 
Ihall be judged of a rightful! Eftate, and it is faid that he is Reftor Ecclefia: and fo fhall be intended 
that he is Proprietor o{ the Tithes if the contrary be not flieWn; and Judgment Nifi.Sty, 107. Tnn. 
^4 Cap. [Hobart v. Borafton.J 

21. A Parfon may fue for the double Value in the Spiritual Court and rio 
Prohibition will lie i For that is given by the exprefs Words of the 
Statute of 2 E. 6. and fo it was adjudged in ^^aitlOOOU'jS %^Z in the 
Exchequer; Per Coke. Godb. 211. pi. 301. Mich. 11 Jac. C. B. 

22. Plaintiff declared in Debt on the Statute that he was Proprietor gro^nl tz-. 
for feven Years of the Reftory out of which the Tithes were ilfuing, s. C. Sc's.^." 
and that Dtjendant was Occupier of Lands there for Jik Months from held accord- 

March 10, and cut his Corn in Augujt Jollowing^ and earned it away'^'^^y 

\oth of September after -^ Though by Plaintiff's own fhewing Defendant's Tip^K v?' 
Interell in the Land was determined before he carried away the Tithes, Swan, s C. 
yet he flill continuing Owner of the Corn the A6lion lies. Cro, J. 324. adjudged. 
pi. $. Mich. 12 Jac. B. R. Kipping v, Swain, als'. Stone. 

23. In Debt upon the Statute of E. 6. of Tithes Plaint iff rt'^f/^rw, 
ihat he was feifed in Fee of a Portion of 7'tthes of Corn and Hay growing 
upen fuch a Grange, whereof Defendant was Occupier, and alfo of 40 Acres 
fown with Wheat, Rie and Barley, and reaped the Corn and carried it 
away without fetting forth the tithes, which were worth 40 s. and the 
treble Damages 6 1. after Verdi6l it was moved that the Declaration was 
not good, becaufe he intitles himfelf being a Lay Pcrfon to a Portion of 
Tithes, and does not pew how ; and it being a Profit in another's Soil he 
ought to make a good Title to himfelf; Sed non allocatur; For this 

T Aaion 



jo Difmes, [or Tithes]. 



Aftion is grounded on a Tort for not fecting out the Tithes, for which 
he demands the Penalty of the Statute, and the Seifin in Fee is only a 
Conveyance, and for this Aftion he needs not make a Title, and 
therefore it rs ufual to bring the A£lion as Firmarius or Proprietarius 
without fhevving any particular Title and Judgment lor the Plain- 
till: Cro. J. 437. pi. 9. Mich, ij Jac. B. R. Sanders v. Sand- 
ford. , . / 1. j-j 

24. And it was alfo objefted not to be good, becaule he did not 
pew the Quantity of every Gram in Specie, and fo it is uncertain, and 

the Court'lfnows'noc how to judge of it i Sed non allocatur; For he 
ftews the Value of the Tithes which is the Wrong fuppofed lor the 
carrying them away, which is fufficient. Ibid. 438. 

25. The J/bot of Evilham feifed both of Rcilory and Land time out of 
Muid 26 H. 8. dmtfed the Land for fix Tears, and by the fame Leafe 
dcmifed all Tithes with a Covenant that the Lcffee pould not fet forth the 
T'lthes [0/ ] Corn and Hay to the Leflbr [and his Succeifors] but that ha 
pall pay Tithe of Wool and Lamb to the Lejfoi; and fmall Tithes to the Vi- 
car. It was adjudged that the Lands Ihall pay Tithes, ill, Becaule 
the Tithes were demifed, and therefore the Lands were not dilcharg- 
ed but the Tithes were payable, adly, Becaufe there was a Covenant 
that the Leflee Ihall not fet lorth his Tithes to the Lelfor which Ihews 
that they Ihould otherwife have been fet forth, jdly, Becaufe there 
is a Provifion for Payment of Tithe Lamb, VV^ool &c. all which are 
llrong Evidences that the Lands were not difcharged, as Itrong as if 
there had been a£tuai Payment, and the finding of all thefe do Itrong- 
ly imply that if there had been nothing elfe but a Leafing that that 
had not been fufficient, but that it was necelfary to find Payment, or 
that which amounted to Payment, difcharges by Grants and Covenants 
«xprefs. PoUexf 8. cites Car. 2. [Cro. J.] 453. [Mich, i^Jac.B.Rj 
Dobitoft V. Courteen. 

Bi-ownl. 52. 26. Debt upon the Statute 2 E. 6. fornot fetting out Tithes, the 
Bawkey v. Defendant pleaded nil debet i and this was adjudged a good Iffue. Hob. 
anfthJE^'- 218. pi. 285. Mich. 15 Jac. Bawtry v. Ifted. 

aken°to the r^ wire facias, becaufe ie was of Horfted-Parva, and not of the Parini of Horfted Parva, 
vet Tud<Tment waf given for the Plaintiff, becaule both the Town and Panth were named in the 
Record.^and the Venire facias may be either of the Town or Paridi. 

2 Roll Rep. 27. In Debt upon Statute 2 E. 6. of Tithes, the Plaintiff in his 
54. S. C. ad- J)eclaration demanded more than the treble Value did amount unto, and did 
judged ac- /h,r« SatisfaBion for the reft; But all the Court held it good 



I 



udged ac- n Sat I staff ion for the refi ; But al 

ordingly. — J , ,- ' , -l r\ A- t 

, P. held enough, tor there is a Difference when 



S°p'hlld enough, for there is a Difference when an J ft ton is grounded upon 
accordingly, a Specialty or a Contraft which is a ceatatn Sum, or upon a Statute which 
Comb. 2S5. ^i^g^ a certain Sam for the Penalty, for there he may not vary from the 
Trm 6 W. Specialty. Bnt when the Demand is of no Sum certain, bnt only fo 
B RAnain much as /hall be given by a Jury, although he varies from the firlt Va- 
V. Burfcoe. luation it is not material, for he pall not recover according to his De- 
mand in his Declaration, but according to the Verdift :, Judgment lor 
the Plaintiff. Cro. J. 498. pi. 6. Trin. 16 Jac. B. R. Pemberton v. 
Shelton. . 

An hforma- 28. In an A£lion brought upon this Statute of 2 E. 6. it vyas laid to 
thn was ^^ y'J^^^ ^^^ Domino Rege quam fro Seipfo, and upon Exception taken 
brought by j,^gj.g^Q j^ ^33 refolved to be good ; becaufe the King is to have a 
!«/jupon Fine. Hetl. 121. Mich. 4 Car. C. B. Luvered v. Owen. , 

this Statute, r ^ c ■ ■ l 

and tlie treble Value was demanded, and adjudged that it lay not ; for the Statute gives it to the 
Party grieved and not to the Queen ; and afterwards it was brought by the Party grieved, and he 
had Judgment to recover. Cro. E. 60S. in pi. 9. cites It as ruled in the Exchequer in the Time of 

Maiiwood, ia the Cafe of Wood v. H:iltoa. Debt tatn quam lies not on this Statute; For the 

Queen 



Difmes, [or Tithes]. 71 



Queen carmot have any Benefit thereof, nor is it given to her by the Starute but to the Party p;rievcd 
only, and thereupon the Court commanded Jud(;ment to be flayed. Cro. E. 621. pi. 11. Mich. 40 

& 41 Elix. B. R. Johns v. Carne. Ato 911. pi. 12S5. Anon, but feems to be S. C. held ac- 

cordincly, and that Adtion of Debt non competit Rcpinae but rather a Fine for the Contempt upon 
an Information or In'iiCtment, the Statute bcinga Prohibition not to carry away the Tithes till the 
nine Parts are fevered. 

29. A Lcafe was made to two, they enter andoccttpy aud fef tiot out thei'r 
tithes. Debt was brought againji one of them, ic lies not ; But here it 
•was found that one only occupied the Land, and therejore the jitfion 
-well lies. Hutt. 121, Mich. 8 Car. Cole v. Wilkes. 

30. Debt upon the Statute for not fetting tbrth Tithes ; After Verdift All So. S.G 

it was moved that the Declaration was too general and uncertain, it '!^'°!'''^^''] ^'^" 

being for fuch a .Quantity of Grain, but didpeiv what Sort of Grain i And'h^beinr 

and fo it may be jor Grain not titheable^ for the \Vord Grain cviiiprehends further ob- * 

Rape-Seed, Cole-Sccd &c. there is a very good x\uthority that it com- jetted that 

nxehevids Mudard-Seed; but adjudged. That the Declaration was good, ^}'"^,^.^^^^}^'^ 
, y r^ ■ ■ r I c ij J u \ir J i^ • had intitkd 

for tt was jor Gram growing m Jiicb a bield ; and the Word Gram '» himfelf as 

com7i!on Underjianding is taken Jor Corn. Styles 103^ 108. Trin. 24 Car. Proprierari- 

B. R. Southcott V. SouthcOtt. us Decima- 

rum Garba- 
rum, and demands for Tithe of Grain in geueral, whereas (Garbarum) is a Word of uncertain Sig- 
nification, and divers Sorts of Grain are not wont to be bundled up as Rape-Seed, Muftard Seed, 
and Cummin-Seed, which ufed to be threfhed in the Field ; But refolved that Girba in its prime 
and proper Signification is intended of Corn ; And foRoU laid it was refolved in 15ii;ct'l"r'5(irafE upon 
Confultation with the Civilians, where one upon a Grant of Dccimas Garbarum would have had 
Tithe Hay, but they did agree that the Word in its Latitude did comprehend any Thing that ufcd 
to be bundled as Wood &c. but the Ambiguity of the Word here is taken away by the Verdift, and 
is to be intended of Grain that is Garbab'e. adiy. The Word Grain is certain enough ; for that it 

is exprefs'd to be fown upon a eertain ^« umber of Acres. Grano feminat* was held good without; 

mentioning the Quality of the Grain. 15 Rep. ^pEliz. Bedel v. Sherman. 

31. /» Z)f^/ upon the Statute 2 E. 6. for Tithes, x\\q Plaintiff" de- 
clared, 'That he wns ReCior of M. h. and by Reafon thereof ought to have 
the Tithes of loo Acres of Land in that Pari/h, and of Ho Acres of Land in 
the Parilh of M. G. without (hewing how he was entitled to the Tithes of 
the Lands out of his Partp ; The Court held this to be well enough after 
a Verdid , befides that a general Allegation without fliewing a Title is 
well enough in this ABion. Another Exception was, That the Plaintiff 
did not allege that the Defendant was Subditus Domini Regis as the 
Statute requires ; Sed non allocatur, becaufe it is alleged, that he was 
OccupatorTerrie, which implies that he was Subditus. Hardr. 173. Mich. 
12 Car. 2. in Scacc. Phillips v. Kettle. 

32. A Tenant in Common of Tithes brought Debt and declared for tbi 
20th Part 'of the Tithes. Exception was taken that the Tithe is but the 
loth Part i But per Windham J. though it be improper to the Signiri- 
cation of the VVord, yet one may declare for the 20th Pare of the 
Tithes or the ijch Pare of them ; For the calling them Tithes is only to 

Jhew and defcribe the Natt&e of the Thing demanded. Sid. 49. pi. 11. 
Mich. 13 Car. 2. B. R. Cole v. Banbury. 

33. Debt tor not fetting out of Tithes lies for Executor of Parfon^ buc 
hot againll Executor of the Parifhioner ; Per Twifden. Sid. 88. ill 
pi. 5. Mich. 14 Car. 2. B. R. faid that fo it was adjudged lately 
in C, B. 

34. Where a Suit was in the Spiritual Court for double Damages upon 
'2. E. 6. for not fetting out of Tithes, pending which Suit Defendant dies, 
and tlien they fue the Executors for double Damages, it was iniilled 
for a Prohibition, that this was a perfonal Offence and Tort of the 
Teftator, for which by the common Law the Executors lliall not an- 
fwer; And ot this Opinion were VN'indham and Keeling J. Sid. i8r. 
pi. 20. Hill; i^ and 16 Car. 2. B.R. Weekes v. Truflell. 

" 35. Deferidani 



/ 



Difmes, [or Tithes]. 



Vent. 12(5. 35. Debt upon the Statute 2 £. 6. for Tithes, and declared, thac 

JJ^e^oV"^^ he is Reftor ot the Churches of Dale and Sale, and the Deiend- 

Pellow°\r ^^^ occupied 400 Acres of Land in D. and S. fbwed them, and took 

Kingsford, ^way the Corn not tithed ; after Verdift for the Plaintiff it was moved 

in Arreft of Judgment, that he Jhould have (hewn what Part of the 

Lands were in DaU, and what Part in Sale, fo that the Defendant might 

know how to anfvver particularly to each leverally, and perhaps he has 

good Title to one Church and not to the other ; But per Hale Ch. J. 

and Cur. it is good, for the Adion is in Nature ot'Irefpafs founded on 

the Tort i and the Exception difallowed, and Judgment given for 

the Plaintifl^ 2 Lev. i. Pafch. 23 Car. JB. R. Fellows v. King- 

Iton. 

^ - 36. M. brought Dek as Executor upon 2 E. 6. for not fating forth 

pl ig^lvfor--^''^^* ^"^ ^^ ^" Teftator. It was infilted that this Aftion though for 

ton V. Hop a Forfeiture for a Tort done to the Tellator was maintainable within 

kins, S. C.& the Equity oi the Statute 4 E. 3. that gives the Executor Trefpafs de 

S P. held Bonis afportatis in V ita Tellacoris j and the Court were clear ef Opi- 

that"fucif '^ nion for the Plaintilf, and faid that it had been formerly refolved io in 

Aftion lies the Exchequer Chamber. Vent. 30, 31. Paf^h. 21 Car. 2. B. R. Juf- 

for Exccu- tice Moreton's Cafe, 

tors but not 
agaiiift Executors. 

35. If the Exffff^or of a Par fon brings a. Bill iff Chancery for TitheSy 

he, not being entitled to the treble Value by the Statute, need not offer 

to accept the /ingle Value, as the Parfon fuing there ought to do if liis 

Bill be tor carrying away the Corn &c. without fetting forth the 

Tithes according to the Statute. Vern. 60. pl. 57. Mich. 1682. 

Anon. 

Cro. J. 63. 36, In Debt upon the Statute 2 E. 6. for not fetting forth of Tithes ; 

P'-. ^- ^- ^- Plaintiff declared upon two Leafes, one of the Parfon who had tzvo Parts ^ 

coi-dingly^ " ^^'^ another of the Vicar who had the third Part. The Defendant pleaded 

and held the Not Guilty, which was found againft him. It was moved in Arreft of 

Aftion well Judgment, that Not Guilty was no good Pka, but nil debet; but adjudged 

brought, m ^^^yy enough. Then it was incved that the Plaintiff ought to have brought feve- 

PlahitifFhad ral Actions, his Title being by feveral Demifes ; fed non allocatur ; for' 

both Titles that the Suit was for the Tort as well as upon the Title ; fo Judgment 

in him, and vvas for treble Damages. Mo. 914. pl. 1293. Hill. 2 Jac. B. R. Sir 

he.is to have Richard Champernoon v. Hill. 

the intire ^ . , ^ . . 

"ifithes Nov 5. Champion v. Hill, S. C. refolved accordingly ; for it is Perfonal, and one in- 
tire Debt for one Wrong. Yelv. 6j. S.C. held accordingly. Brownl. Sd. S.C. feems on, 

ly a Trar.flation of Yclv. 

Comb 28}. 37, In an Action of Debt upon the Statute 2 E. 6, of Tribes, where-' 

AuHin V. jn jhe Plaintiff demanded the treble Value &;c. Upon ml debet pleaded the 

S^Cpand Plaintiff had a Verdiil in C, B. and upon a Writ of Error brought in 

judg.ntnt I^- R- it was very much infilled on that the Declaration was ill, be- 

affirmed nifi. caufe the Plaintiffs had only alleged that the Defendant had carried away 

the Corn without fetting out the Tithes, but did not aver that the Defendant 

hadnot made any Agreement with them for the Tithes, for the Statute gives 

the Penalty where the Tithes are carried off without any Agreement made 

for fo doing ; therelbre if the Defendant had agreed with the Plaintiffs 

for carrying off the Corn without fetting out the Tiches, (as it does 

not appear but he might) then it had been no Forfeiture ; And the 

Court was of that Opinion, viz., that the Declaradon was ill for the 

Reafon fupra if it had been upon a Demurrer; but this was helped by 

the Verdi[l ; for if there bad been any Agreement proved at the Trial ^ ths 

Plaintiff could not have obtained a VerdiR. Garth. 304. Paich. 6 W. <Sc 

M. in JB. R. Alfton & al' v. Bufcough. 

38. SuiE 



Difmes, [or Tithes]. 73 



38. Suit in the Spiritual Court for Tithes may be well brought /« 
Name of the Curate and Seqiiejirator. 2 Lutw. 1066. Mich. 13 VV^. 3. 
Burton v. Cookermao. 



(H. b) Count and Pleadings. 

1. T T was awarded, that where a Lay Man hrings 'trefpafs, and the 
\^ Defendant clatms as Lord of the Parfonage for 'tithes^ the Spiritual 
Court lliall not have Jurifdiclionj but Ihali anfwer in Banco. Br. Ju- 
rifdiftion, pi. 10. cites 47 E. 3. 17. 

2. The Bounds of a Parip were put in IlTue in Trefyafs of Sheaves 
taken where the Delendant claimed them as his Tithes as Parfon of D. 
Br. IlTues Joines, pi, 48. cites 50 E. 3. 20. 

3. If a Man leafes Ttthes for Years, rendring Rent, there in Debt he 
ought to count that he was Parfon, or otherwife convey to himfelfthe iiihes. 
Br. Count, pi. 96. cites 10 H. 7. 21. 

4. In a Suit for Tithes, unkfs the Plaintiff demands the Jingle Value 
mly, xht Defendant flyall not be compelled to anf'juer fo as to difcover the 
Quantity and Nature of predial fithes ; Arg. Hardr. 137. Hill. 1658. 
in Scacc. fays, that it had been often refolved in this Court, and that 
{o it was adjudged here i Jac. in Cafe of Fenner v. Robinfon. 

5. In Ejedment ot 'Tithes, he muft Ihew that it was by Deed, becaufe But in Dehi 
that it cannot pafs without Deed. Cro. J. 613. pi. 3. Pafch. 19 ]2lc. "" ^ ^ ^•> ^^^' 
B. R. Swadling v. Piers. thrlratute 

gives the 
Aftion to the Proprietor, and when he names Yiim^eM Proprietor he need not fhew any other Title. 

Roll Rep. I ;. pi. 16. Pafch. 12 Jac BR. Babington v. Mathews. 2 Bulft. 228. S C adjudged^ 

and Man Secondary informed the Court, that to fay generally Polfeffor, Occupator, Firmariusor 
Proprietarius is good and fufficient Pleading upon this Statute, which gives the Aftion to the Propri- 
etor, and that io it had been feveral Times adjudged. 



(I. b) Suits in the Ecclefiaftical Court allowed or not. 

In what Cafes. 



i. 9 E. 2. cap. I. TT'OiJ Tithes, Oblations, Obventions or Mortuaries, 

J/ when they are propounded under thofe Na??ies the 
^ings Prohibition Jhall not hold Place, albeit jor the long with-holding of 
them they coine to a pecuniary EJiimatidn, but if an Ecckfiaflical Perfon 
ledge his Tithes m his Barn, and then fell them jor Money, if that Money 
he demanded before a Spiritual Judge, for this a Prohibition lieth ; jor 
by the Sale they are Temporal. 

2. 9 E.. 2. cap. 2. Ij Debate artfe upon the Right of Tithes, (having his 
Original from the Right of the Patronage) and the JJhiantiiy oj the fame 
Tithes do amount to ajourth Pari of the Goods of the Church, jor this a 
Prohibition Iteth ; but ij a Prelate iiijom corporal Penance, and the Party ■ 
afterwards commutes for Money, that Money is recoverable in the Court 
Chrijiian, and in that Cafe a Prohibition lieth not. 

3. 9 Ed. 2. cap. s. A^o Prohibition jhall be granted where Tithes are 
demanded of a New Mill. 

U 4. Where 



y^ Difines, [or Tithes]. 



4. Where a Man -mil not tithe his Corn, Suit lies in the Spiritual 
Court ; But where he fevers the 'Tithes trom the 9 Parts, and a Man car- 
ries It away, Trefpafs lies at the Common Law. Br. Difmes, pi. 6. 
cites 38 E. 3. 6. 

5. Trefpafs by a Lay Man againji W. N. Clerk, of Corn taken, the De- 
fin ti ant fcCtd that he IS Parfon there, and the Place is within his Parilh, 
and the Corn were Tit hes fevered from the 9 Parts ; Judgment if the Court 
will take Conuiance ; et non allocatur ; for a Lay Man by Intendment 
cannot have Tithes ; By which he faid, that Debate was in the Spiritual 
Court between him and the Prior of D. who claimed Tithes there, 
and the faid VV. N. faid, that the Prior hirafelf was feifed of the Land, 
and infeoffed another, fb that in his own Land he could not have 
Tithes, by which Judgment was given for W. N. and after the Plaintiff 
claiming by the Prior got PofTeffion, and the Defendant took them as 
his Tithes ; Judgment if the Court will take Conufance; and no Plea, 
but the Defendant was compelled to anfwer over, becaufe the Plaintitl" 
Was a Lay Man. Br. Jarildittion, pi. 6. cites 42 E. 3. 12. 

6. j^ffife of Novel Dtifei/hi wa9 maintained of Tithes as of Lay Pro- 
fit Apprender, and was brought by a Prior, and therefore the Defen- 
dant demanded Judgment if the Court would take Conufance, and yet 
the Affife was awarded to inquire of the Truth j And there Ludlow 
faid, that in ancient Time ev'ery Man might grant his Tithes to what 
Church he would quod verum eit, and of fuch fuch Tithes the Jurifdic- 
tion belongs to the spiritual Court ndtwithjianding the Grant. Br. Difmes, 
pi. I. cites 44 E. 3. 5. 

7. Hut where a Miw Grants the tenth Part 6ver and above the Tithes 
which he ought to pay to the Church, there of this the Lay Court Ihall 
have Jurifdiftion. Br. Difmes, pi. i. cites 44 E. 3. 5. 

8. 45 K. 3 cap. 3. A Prohibition (and an Attachment thereupon) Ooall 
be granted, where a Suit is commenced in the Spiritual Court for the Tithes 
of Underwood above twenty 2}ars Growth in the Name of Silva dedua. 

9. 2.') H. %. 20. Perfons {ablhzEi'ing Tithes Jhall be convened before the 
Ordinary, and bound ovtr by two Juffices to obey the Sentence. 

10. A Man Hull have Prohibition upon a Surmife, and fo it was 
agreed 3 i H 8. that if a Man be fiied in the Spiritual Court for Tithes 
of fcafonable l^'ocd, the Party grieved may make Suggefiion in Chancery 
or in B. R. that he isfued m the Spiritual Court for Tithes of great Trees 
•which IS pafi the Age of 20 Tears, by Name of Silva Gedua which is fea- 
fonable Wood ufed to been: where in Fad it is great Trees, and pray a 
Prohibition, and fliall ha\e it. Br. Prohibition, pi. 17. cites F. N. B. 
43. and H. 31. H. 8. 

11. 2^3 £. 6. cap. 13. S. 13. Perfon filed in the Spiritual Court, 
and not obeying the Sentence fhall be excommunicated and the Writ of 
Excommunicato capiendo Jball ijjue. 

1 2. Where it appears by Libel that the Eccleftajlical Court ought to hold 
Plea, there Prohibition of the King does not lie. Contra where it appears 
that they ought not to hold Plea. Br. Difmes, pi. 14. cites Do6t. & 
Stud. lib. 2, 

13. Where this is no Parfonage Houfe or Barn, and a Difpute is about 
a Way by which the Tithes pould be carried, the Way to plead is, that J. S. 
isfeis'd in Fee of the Keftory of D. and that time out of Mind he and 
thofe &c. have ufed for them and theirs formerly to have a Way to 
carry their Tithes trom fuch a Place over the Land where &c. unto 
fuch a Highway, and name the Way which is the next to the Place 
where the Trefpafs was done. 2 Le. 10. pi. 13. Mich. i9&2oEliz. 

Le. 128.pl. B. R. Anon. 

175.S. C. 14. Spiritual Court cannot try an yf^)w»w/? between the Parfon and 

cited ac- J>^r//?7;o««-J for Tithes. Arg. Cro. E. 136. Trin. 3iEliz. in Cafe of 
cordmgly. Gomerfal v. Biiliop, fays it was {o ruled in the Cafe of Pendleton v. Hunt. 

15. The 



Difmes, [or Tithes]. 75 



15. The Spiicual Courc vvill noc allow oi any Plea ibr a Modus De- Mo. 907. pi. 

tmandi. Per Coke A rg. Cro. E, j'li. pi. 35. Mich, %'i &c 39 Eliz. '^^^ ''^f''^''- 

JB. R. ia Calc of Wright v. Wright. ' f l%\y^t 

V. Beftney, 
S P. 

16. It was furinifed for a Prohibition that the Parfon or Proprietor of Mo 911. pi. 
the Rcftory and his Predeceilbrs had 20 Acres of Pall ure, and 20 Acres '^^4- S. C. 
of Wood in fatislaftion ofTiches. It the Witneffes prove the 20 Acres and^no Con-' 
d Pafure^ hut do mt prove the 20 Acres of Wood it is Proof fufficient. fuhation 
tor the Subltance is proved that he held Land in fatisfa61ion. Cro. E. granted. 
736. p.l. 4- Hill. 42 Eliz. B. R. Aullen v. Pigot. 

17. On a Proh-'bitibn Platiittjf' fiirmtfed a Ciijlom time out of Mind to ^bid. fays 
fay 3 J. 4(y. jor all great 1'ithes except Corn grviving on 70 Acres of Land^ '^^^ ^J?'. 
md made Proof hy fao Witneffes according the Statute^ but they teftified that^Mich 
that the Cuffom w&s to pay i^s. yet a Prohibition was awarded j For;4&;5 
though he had fail'd in Proot of the Prefcripcion, yet fo much ts prov'd E'iz. BirD 
that the Spintul Gurt had noQaife to proceed for Tithes m Specie. D. 171 ^' CoIlmg== 
a. Marg. pi. 6. cites Mich. 42 & 43 Eliz. Rot. 227. B. R. Webb Sffk',i„„ 

V. Leal. was awarded 

...... . in fuch Cafe, 

but Popham anfwered rliat tne Opinion of the Juftices of C. B. now is e contra; For when a Modus 
Decimandi is furmifed to he in one Manner and it is f roved to he in another Manner, tue ous^ht not to award 
a Confultation to give them Authority to fue for Tithes in Kind, hut only to fue for lithes in fuch Kind 
as is proved, 

i8. Libel for 'tithes of Cows and Calves &c. the Defendant fuigejled a 
Modus to pay a Half-penny for the 'Tithes of every Cixlf^ and 1 d. for a Cow^ 
and that upon a itrtain Day they iifd to bring thofe Tithes to the Church.^ 
■and there pay them to the Vicar ^ who libelled now to coinpcll them to bring 
the 'Iithes to his Houfe ; It was held by Winch (he only being in Court) 
that lince they agree in the Modus, and differ only in the Place of Pay- 
ment, that is not matter ot Subftance, and therefore no Prohibition will 
lie. Win. 33. Trin. 20 |ac. C. B. Anon. 

19. WhcKxht Right oj Tithes comes in .^{cjlion a Prohibition Ihall 

not be granted i Per Ley Ch. J. and Doderidge J. 2 Roll Rep. 440. > 

Trin. 21 Jac. B. R. in Cafe ol Gwynn v. Merry weather. 

20. It belongs to the Spiritual Court to determine who fhall pay Tithes 
for Agijlments, whether the Owner of the Land or the Proprietor of the 
'Cattle. Jo. 254. pi. 5. Hill. 7 Car. B. R. Facy v. Longe. 

21. h. Confultation was pray' d upon a Suit for Tithes of two Mills in 
Newcaftle, fuggefiing that they ivere ancient^ and per Curiam //fc/j, nor 
no other Suggejhon^ but only of a Modus .^ need not be proved within Jix 
Months by the Statute 2 E. 6. cap. 1 3. and Twifden faid he knew ic 
thus ruled heretofore in this Court, and this is on a Difcharge at Com- 
mon Law, and on reading the Statute, though the Words were gene- 
ral, yet the Court would not grant Confultation lor this Caufe, but 
■ordered that il the Plaintift'did not declare on his Suggellion, the De- 
fendant appearing thereto, a Confultatien fliould go by the firlt Day 
of the next Term. 2 Keb. 134. pi. 100. Mich. 18 Car. 2. B. R. Eat- 
on V. Nay lor. 

22. Upon the Suggellion of a Modus the Court ufes to grant a Pro- 
hibition without Notice given to the other Party. Freem. Rep. 78. pi, 
95. Trin. 1673. Anon. 

23. A Prohibition was prayed toftay a Suit for Iithes of Wood. The Sid. 447. pf. 
Plaintiff fuggejled he had a Houfe in the Parijb^ and that the Wood was ^- ^- ^.- ''^''^ 
cut for Fuel burnt in his Houfe. But the Court faid, that this would ^'^'^"'''^" Mod 
not ferve, unlels it were expreffed, that the Houfe was for Maintenance ijo. pi. 10,1 
of Husbandry, by reafon of which the Parfon had ULcriores Decimas. Vent S.C. but 
7i, Palch. 22 Car. 2. B. R. Tilden v. Walter. S P. does 

not appear. 
. — 2 Keb (J28. pi. 31. Tilders V.Walker, S.C, 8c S. P per Curiam. 

24. The 



76 Difmes, [or Tithes]. 



See Tit.Pro- 24. The Ecclefiaftical Court cannot try a Modus the' the original Suit 

liibition(F) be for a Modus, becaufe the Prefcription differs; but if the Queftion be 

fhU \° Paynwit or Non-payment , then they may proceed ; Per Hole Ch. J. 

(Q_)p).'u. Cumb. 427. Trin. 9 VV. 3. B. R. Godlrey v. Mathews. 

15. ClJ^pl 

I. and the Notes at tlw feveral Places. 

25. One may libel in the Spiritual Coutt for Tithe of Rakings of Corn 
if it never -was gathered into Sheaves ; but otherwife after Corn has 
been gathered into Sheaves, and there was no Fraud in the gathering, 
and Prohibition would lie; Per Holt. 12 Mod. 235, 236. Mich. 10 
W. 3. Anon. 
The Jurif- 26. Tht Spiritual Court has general J urifdiB ion of Tithes, and if any 
dittion an- j-p^^i^i J]^att£r deprives them of their Jurifdiifio>r, it muji he pleaded there y 
Spiniual ^^ i" Cafe of a Suit there Jor Tithes of Faggots cut from the Stumps of 
Court by Timber Trees above the Gro-ivth of 20 7~ears ; if this had been pleaded. 
Matter dif- there, and Iflue ji fined upon it, and on the Trial it had been found not 
cloka m the ^^ \^^ Sylva Csedua it had been well ; But // they had refufed to admit 
be take"n ^'^"' ^^'^^ ^ Prohibition Jhould be granted. 2. Ld. Raym. Rep, 835. Mich, 
from thsm, I Ann. Dike v. Brown. 

but by other 

Jilatter difclofcd in the Plea, and therefore in the principal Cafe, which was a Libel for Tithe of 
Silva Ccdua, tie S:ig('efHon that they tvi'i-e 7wiher Tveei, and of 2.Q Tears Growth, ought to have been fet 
forth hi the Plea ; and a Prohibition was denied. Barnard, Rep. in 3. R. 71. Trin. 2 Geo. 2. Bou- 
ton V Hurflcr. 



(K. b) Where the Parfo.i (liall have them; And where 

the Vicar. 



Before tins i. TlEFORE the Council if Latcran Met\ might have given "their 
Council jl^ Tithes where they pleafed, and by thisCouncil they iLall give 

there were j^ only to the Curate of the Parilh where they grow or come. Br. 
nor Parilh Dlfmes, pi. 21. Cites 10 H. 7. 18. 
Prierts that _ 

could claim Tithes, but a Man might give them to what Spiritual Perfon he would, but to the Church 
he muft ^ive them ; But fince Parifhes were ^refted they are due to the Parfbn (except in Spiritual 
regulai- Caiss) or Vicar of the Parifli ; Per Hobart Ch. J. Hob. z')6 in Cafe of Sladc v. Dr.ake. 

2. Libel Sc If the Parfon for Tithes in Specie in the Parip of N. The 
Defendant for a Prohibition fuggejled, that he was an Inhabitant in the 
Parip of S. and that time out of Mind every Inhabitant there had paid 
Tithes for their Lands which they had in the Parijh of N. to the Vicar of S. 
and that the Vicar of S. had paid to the Parfon of N. 2 d. for every Acre. 
The Court held that a Prohibition lay, and it is as if he had prelcribed 
to pay 2d. for every Acre. Cro. E. 136. pi. 4. Trin. 3 1 Eli;.. Cote-' 
ford V. Peafe. 

3. If a Vicar is endowed of Tithe-Hay, and the Land is foion with Corn^ 
the Parfon fliall have Tithe in Kind, and when the fame is in Hay, 
the Vicar fliall have the Tithe-Hay. Godb. 194. pi. 278. Trin. 10 
Jac. C. B. Brown's Cafe. 

4. A Modus pleaded to pay fo much to the Parfon in difcharge of Tithei 
claimed by the Vicar was difallowed ; and per tot. Cur. a Confultatioa 
was granted. 3 Bulft. 220, 221. Mich. 14 Jac. W'intel v. Child. 

5. Jlteragimn willpafs Tithe-Wool &;c. to the Vicar ; certified by 
the Do£lors ^Vin. 70. Hill, 21 Jac, C. B. in Cafe ol' Bret v. Ward. 

6. Payment 



Difmes, [or Tithes]. 77 



6. Payment is Evidence of EHciowinent of a Vicarage, and no Man cart 
prove other Endowment; Per Cur. zKeb. 729. pi. 13. Hill. 22 & 23 
Car. 2. B. R. Brigham v. Robfon, 

7. A Modus to the Reffor is a good Difcharge againji the Vicar ; Per 
Cur, Mod. 216. in pi. 3. Trin. 28 Car. 2. C. B. Anon. 

8. A Suit was in the Spiritual Court by the Vicar againji the Leffee of 
the Impropriator of a Rcifory Jor the fma/l Tithes of the Parilh, and the 
Hay-Tithe of the Gkbe^ which the P'lcar claims by Prefcription and E»- 
do-jvmc/it. Eyre Ch. J. held it to be good ; becaufe the Glebe may be 
charged by an exprefs and particular Charge. Gibb. 79. Trin. 2 & 3 
Geo. 2, C. B. in Cale of Barton v. Hollis. 



(L. b) What Words will pafs or extinguifh 

Tithes. 

I XD ELEASE. of all Right of Land is no Extinguifhmenc of Tithes. Cro. E. zi'6. 
IX Le. 248. pi. 336. Mich. 33 Eliz. B. R. Lincoln Bilhop V-^'g^p^'^', 
Cowper. Le.300.pl. 

411. Trin. 
51 Eliz. B. R. Stile v. Miller, S.P. Ow. 59, 40 Stile v. Miles, S. C. & S.P. per Wray. 

2. If the King makes a Grant of Tithes, all Sorts of Tithes pafs thereby. 
Hardr. 305. Arg. cites it as held clearly Pafch. 12 Car. 2. C. B. in 
Cafe ol (iCtfingtOn ll. "BaCfeer, and fays the Doubt in that Cafe was 
occafioned by a Videlicet in the Grant^ viz. of fuch and fuch Things ; 
and the Queltion was, Whether Tithes of other Things, which were 
not named, would pafs? But if the Viz. had been out of the Cafe there 
would ha\e been no Scruple, but that all Sorts of Tithes had pafled. 



(M. b) Equity. 

I. T ORD Chancellor declares that Matters for Tithes are determih' 
JLj able in this Court. Toth. 282. cites Moone v. Bond, 3 Eliz. li. 
A. 10. 621. 

2. A Demurrer becaufe the Matter concerneth Tithes over-ruled and 
ordered. Toth. 283. cites Windham v. Noris. 17 Eliz.. li. a. ful. 
282. 

3. Cuftom proved of 16 Pence an Acre for Tithe of Wood, and 
no Wood in Kind, yet the Court would not decree a Cultom. Toth. 
Ill, 112 cites 38 Eliz. Wingfield v. Bedford. 

4. A Bill for the Manner and Cuftom of Tithing difmiffed. Toth, 
113. cites lo Jac. Knivet v. Freeman. 

j;. Point 6t Tithes determinable in this Court ^ and Parcel or not Parcel. 
Toth. 283. cites Decanus & Capit' Ecclefiae Chrilti in Oxon v. Grant, 
June II Jac. 

6. Bill toejiablip certain Cujloms of Tithing within a particular Parifh 
which never had been tried. The Bill difmilied as not proper lor Equi- 
ty. N. Ch. R. 10. 5 Car i. Gawle v. Lake. 

7. Tithes tn Kind decreed^ notwithftanding a Decree in Lord Bacon's 
Time. Toth. 131. cites 12 Car. Farmer v. Trolt. 

8. A Decree lor lithe Conies and Wood. Toth. 132. cites 13 Car, 



Shires v, Burgaine. 



X 5. In 



78 Difmes, [or Tithes.] 



9. In an Information in the Exchequer Chamber hy Knglip Rill for 
fviall Tithes appertaining to the ReSiory of S. in D. T'he Defendant in his 
jinf'wer did not admit the Plaintiff's Title, bat alleged an Extingmflomt of 
the Tithes by Unity of Pojfcffion. And the Plaintiff made no Proof of the 
Value of the Tithes, nor --Jiihat Cattle had been depaji tired in the Place •where 
&c. and for thatCaufe the Court upon hearing of the Caufe refafed to di- 
refi a Trial at Laiiv, becaiife no particular Damnification appeared to them 
whereon to ground a Decree tor the Plaintiff" if the Verdift fliould paf» 
for him; and hereupon the Bill was difmilled. Hardr. 4. pi. 3. Trin. 
1655. The Att. Gen, v. Straite. 

10. Upon a Bill in Equity for Tithes of Corn and Grain and a Demurrer 
to it becaiife the ftngle Value was not barely demanded, but it was a Bill 
of Difcovery only to enable the Plaintiff' to recover the treble Value; Sed nora 
allocatur; for that Tithes were fuable for in this Court before the Sta- 
tute ; Quod Nota & Quasre, becaufe it is contrary to the common 
Pra6tice and Ufage to have fuch a Bill without alleging that the Plain- 
tiilis contented to receive the lingle Value only. Hardr. 190. pi. 18. 
Pafch. 13 Car. 2. in Scacc. Driver v. Man. _ 
fjavdr. T ;o.^ j j_ jj, ^ Bill for Tithes due to the Complainant as Vicar and Jnciimhent 

Mich i&5S>. p^- jj^ Eliex ; the Complainant did not pew how he was intitled to 

^equer,"' thcm, viz,. By Preicription, Endowment or otherwife. And the Co«'f 
Biinon V. held it to be good notivithjlanding, a.<? well as in an Aftion at Law f jr 
Honey. S, P. xithes upon the Statute of 2 E. 6. where the Plaintift'is not obliged to 
and the Ex- ^^^ ^^^^j^ j^j^ Title. But the Reporter adds quod Nota tor it is againft 
over-°ulcd^ feveral Precedents in this Court, which he fays he has known of De- 
bccaufethe murrers for thst Caule held to be good. Hardr. 321, 322. pi. 4. Hill, 
Defendant j^ ^ j^ Q^j 2. Stone V. Ludlow &ar. 

fwcr admitted him to be Vicar, and that the Tithes in queftion were his Due, but infjfted only upori 
Payment and Satishttion. But there is .1 Nets added, that it has been often ruled contrary, it being 
the Ground and Foundation of the Plaintifl's Title. 

12. Chancery will fiot decree a Rate Tithe, though it was infifted thac 
ft was frequent to do fo in the Exchequer. Chancery Cafes 187. Mich.; 
22 Car. 2. Bufti v. Rilhley. 

13. A Bill was exhibited for Tithes, and the Jurifdidion of the 
Court demurred to ; but the Demurrer over-ruled, and the Defendant or- 
dered to anfwer. And it was laid by Fmch Lord Keeper, trtat the 
Court of Exchequer did not hold Plea by Englilh Bill until the Sta- 
tute of 33 H. 8. cap. 39. Freera. Rep. 303. pi. 371. Trin. 1674. in 
Chancery. Anon. 

Ld.Chan- ^^ gjj. Jq^j, Churchill as Amicus Curiae faid thac a Suit for Tithes, 

"^f'^dth'at efpecially/ffz^/ZT/^^^J, was not proper in Chancery, and had not been 
th'is Court ufed; yet Finch C. pronounced a Decree for them, tlieBill for Re- 
had Cogni- fufal to anfwer being taken pro Contelib. 2 Chan. Cafes 237. Mich. 
Miice of 20 Car. 2. Anon. 
Tithes as ' 

■well as the Exchequer, and that the Plaintifl iiad Eleftibnem Fori. 2 Freem. Rep. 27. pi. 29. Anon, 
feems to be S. C. 

S. P. as to j^ Biiig to eftablilli a Modus Decimandi have been feveral Times 
blifhilTtrthr difmiOed, but where it is only to preferve Teitimony North K. 
Modus and thought it reafonble that the Defendant Ihould anfwer, and over-ruled 
Demurrer the Demurrer. Vern. 185. pi. 184, Trin. 1683. Somerfec v. Fo- 

^l°«'=i therby. 

Chan. Rep. ^ ^ . „• ,, j j l 

27. 4 Car I. Browne V. Thetford. Such Bills have been feveral Times allowed ; ajrcsd by 

Connfel and Court ; But the Bill being likewil'e to compel the Parlbn to £;u'c Receipts on 1 .lymenc 
of the Modus, it was difmilTed at the Rolls. Mich. 179S. Wood v. Fanngion. ■ ft was for- 
merly doubted whether a Bill in Equity would lie to elfablifli a Modus or curtomary Manner ot 
paying Tiihes, efpecially it the Cuftom had not been found good at Law ; and lometimes on a Uc- 
murrer to luch Bills they have bsen difmiOed ; but the conft.^.iu Praitice now is to retain lu:h Bills 
■" and 



DilTeifm. 79 



and to decree on the Pleadings, or to di reft a jjanicular Point to be tried at Law, concerning the 
Reality of fucb a Cuftom or the Legality of it. Equ. abr. 367. (3) in the Note in Marg. againft 
pi. I. 

16. Bill to be relieved for Tithe Oar ; The Court direfted a Trial 
if any and what Cuftom within the Townfhip. 2 Vern. 46. pi. 43. 
Pafch. 1688. Buxton v. Hucchinfon. 

17, In a Bill for Tithes brought in the Exchequer, though the Right The Editor 
be ever fo plain yet the Decree theie is. That he fiall account and pay m-akt^ a 
•what Tithe is due to the Time of bringing the Bill, but not that he Ihall pay ^^l'^ 'f 
Tithes (or the jut are; But in Chancery it is to the Time of the Decree. \^ly^^^^^^^^ 
2 Wms's Rep. 463. in a Nota there fays that it was faid and admitted Rule of 
Trin. 1728. in Cafe of Carleton v. Brightwell. Chancery, 

or done only 
of late in Tome few Inftances. Ibid. 

For more of Difines [or Tithes] in General, Sec Tit. ©IcbC, 
PrefClttattOlt, (C. ) $C, PCOljilnttan, and other proper Titles. 



Difreiful. 



(A) DifTeifin of a Rent. 
[And where it is by one it lliall be faid to be by others.] 

I- T Jf J IjalJC n Rent-Charge ilTUing out of Lands of which there , , 

X arc leveral Tertenants, aUD 3i dlftrain UpOn M^ Of tljC lanOji ' FoTfisS. 
anti one oi the Tertenants makes a Refcous without the Confent of •— ''''~^''"*^^ 

the others, pct t[)G otijetis atc Diflcifors alfo, for tlje D(ffrrr0 is a ux^ff^'"^ 
Demaim in Laui, ano tlje Boit^papment a Dnifal, anofo a DiO dtes s c 
reifiiu 39 ^ff» 4. aojuogeu* and though 

made the Refcous that all were adjudged Diffcifors. Br. fays that it feems the Reafon is becaufe all 

of them detained the Rent. Fitzh. Aflife, pi. 555. cites S. C. & S. P. but he that made the 

Refcoas only was awarded to Prifon Ibid, pi 539. cites 40 AfT. ;. S. P. Co. Lite 

161. b. S. P. as to a Refcous by one Jointenant, but he that made the Refcous is only the Diffeifor. 

2. 3f tfj0 Grantee of a Rent-Charge demands the Rents, aitll aftfC * Br. DilTei. 
diftrains, ntlt! a Stranger without the Alfent ol:' the Tenant makes ''"> P' *^o 

Refcous, pet tm is a DlITeifin in tlje Ccnant, for tlje iI3on^painnent p'^h^ ?r 
toasi a Denial, aim tljeDirtrcfs \m not mmw tbiSDitrciflmfife.pi.,:,. 
'2C!}cCareaforefaitiot39aflr»4. proijcti tijis, * 29 air* 51. mibi= cites s c_ 
tatiir. 

3. Jf \)t lllljO OltCljttO IjaUe a Kent-C(jarp comes to the Proftor 
of theTe-jant ol the Land out of which the Rent ilFues, and demands 
the Rent, nnd he refufes tO paj? tt, tl)i6 10 a DiflClfm* 18 C* 3- 3P 

fije 78. aDsuQitco. 
4 If 3 ija^c a Hcnt^Cljatffc imiinff cut of jLanU, of toijiclj tfjere R^- DitT.itin. 

arc OetiH CtltrnantjS, a Demand upon the Land in the PoHeJfion oj P'- 6' (^9) 
ci.e ui the I'enants, and Non-payment, i|5 a Dlffdrin Jjp all, ftr all!!! slefSra 

tljEpl.. ■' ' 



bo DiiTeifm. 



tlje Ecnt ilTut^ tut cf tXitt^ Ipart 39 3ft'. 4- atimittcD by tljz 

c.'lc was fa id that Detainer of Rent-charge is a Difleifin, but noc of 
'Rcfit-fervtce, quod noca. Br. Diileilin, pi. 17. cites 3 Afi' 8. 

6. AlTifeot Rent-charge againlt A. and B. in B. R. the Afiife faid,; 
that the Plaintilf was feijed and came to dtjiraii^ and A. would not faff cr 
bim, and after A. alien d to B. and the Plaintt ft' demanded the Rent of B, 
and he "would not pay it ^ and both were awarded DiHeiiors, and the Dif- 
feiftn of A. was with Force and Arms^ and coiintervjits Refcous, and that 
B. IS a Difjeifor by his ContraditiioH^ by which the PJainriff recover'd, 
quod nota. Br. Dilfeilin, pi. 23 cires 9 Aff 7. _ 

7. In Affife it was awarded ailufficient Caufe of Difleilin of Rent, be- 
caufe the iZf«««^«/-f out of which the Rent is illijing were io inclofcd 
that the Lord could not enter 10 diltrain for the Rent, quod nota. Br. 
Dilieilin, pi. 58- cites 36 Ail". 7. & concordat Littleton tit. Rents. 

Br t)ifleifin 8. In Ailife it was held by Parle that if Rent ijfues out of certain 
pl.'j. cites Land which is incbjed in a Park of ancient 7'ime fo that none can come 

S C jQ diftrain becaufe the Gate is always loclc'd, that of this Inclofire 

^h "h^IuJ " A (life dees no: lie, becaufe it is not inclos'd for this Purpofe, and alfb 
hion was/* it was made of ancient Time fo that the Seifor is dead ; therelore 
That if a Qiisere, where a Man at this Day keep fuch Land inclos'd of Ancienty, 
Manilas ^^^^ jj^g Rent is demanded, it he lliall not be a Dilieifor as well bv tne 
Rem ijfumg Kggping it inclos'd, as if he hinifelf had inclos'd it. Br. Seiiin, pi. 6. 

cut oj tine .^°n-„,,' '^ 

^,,„,; ClttS 49 £. 3. 15- 

P rk of ancient 'time, and ccnies to diflraiv and cannot for the Inclofure, and the Tenant denies to let 
'h"! enter that this is no Difleifin-, For Denier is no Diffeifin for Rent Service, and the Inclofure 
which is 'the Caufe was not done by this now Tenant. Br. Diffeifin, pi. SS. cites 49 Aff. 6. 

9. J}fftfe oj Rent by Priorefs which was taken for Default^ and ihe 
rnade iitle as to the Rene-Service, and it was found that the Tenant 
held of the Priorefs, and that the Houie was never out of PollelHon^ 
but the Predeceflbrs had been feifed of Land &:c. And that the Bailiff' 
of the Priorefs cameto dijhain^ and the Tenant faid^ that he fhould have 
no Rent nor Dijfrefs there Lcjore he had recover d it by Law, by which bs 
dared not to dtjiratn for doubt of Death. And the Seiiin in the Time of 
her Predecellors is taken as well as Seiiin in her own Time. And this ' 
Menace ts taken a good Diileilin, and this in the Time of this Plaintiif, 
and therefore Ihe recovered by Award. And Ihe recover'd likewife up- 
on the like Title in three other Affifes. Br. Alfife, pi. 39, cites 46 

E. 3- 14- 

10. jind where a Man co7nes to enter into Land where he has Right of 

Entry and makes his Claim and dares not enter jvr fear of Death, it Ihail be 

adiudg'd Seiiin, and Diileilin by this Claim, quod nota, per Perfey. Ibid. 

Denial is a II. Denier is a Dilfeilin of Rent-charge or Kent-feck, but not of Rent- 

Diffeifin of /^fa;/Ve unlels there were a Relcous madej Note the Diverlity. Br. 

a Rent- Difleifin, pi. 8. cites 8 H. 6. 58. 

Charge as ' *^ 

Rent-SeclT- -Mbeit he may diftrain for the Rent-Charge as well as for a Rent-Service. Co. Litr. 

^^\oifmne bereadyyiVonihe.'LmAto^ay it, when it is demanded &c. Br. Difleifin, pi. 105. cites 
Littleton, tit. Diffeifin. 

12. If the Lord is going to the Land holden of him to diftrain for 
the Rent behind, and the Tenant hearing this encountereth with himj 
and fore/lalls him in the Way with Force and Arms, or menaces him that he 
dare not come to the Land to diltrain tor his Rent behind, for doubt of 
Death or bodily Hurt, this is a Difleilin, becaufe the Lord is dillurbed 
of the Mean whereby he ought to come to his Rent. Litt. S. 240. 

13. There 



Diirdfm. 8 1 



13. There be three Caiifes of Diffcifin of Retit-fsrvice^ viz. i?f/c:o«j, Yo\i may 
RepkvitK and Eiicloftm. Lite, S. 237. '^^^^■f'" c 

r ^ J •'I ^ ^ VrJIeiJiKS of 

a Re»i-ferme, viz. Rc/cciis of a DiftreCs, Refifiance to difli-ain, Replevin, Inchfure, coimterpleading of 
zhcThle, and -jowbini^ of a Recent, ami}aHiK(r. Co. Lift. l6o. b. 

Lenier is no DilTeitln of a Rent-lei'vii-c without Rejcctis or Rcfiflance. Co. Lift. 161 

14. If by foreflalling or menacing he that has a Rent-charge or 
Renr-feck is foreftalled or dare not come to the Land to ask the Rent 
behind it is a Dilieilin. Litt. S. 240. 

15. Denier of Rent-charge upon the * Land is a DifTeifin. Contra //*Ong. is 
it h off' from the Land, quod non negatur. Br. Diffeilin, pi. 69. cites (Tenant.) 
14 E. 4. 4. 

16. Jl'id if Leafe be made rendering Rent, and for Default of Pay- 
ment a Re-entry there if the Tenant denies the Rent upon the Land, 
the Leflbr may re-enter, but Contra off from the Land ; ^lare inde, 
Br. Dilieilin pi. 69. cites 14 E. 4. 4. 

17. If a Man grants a Rent-Seek oat of Land in one County payable at The Father 
a certain Day and Place in another County, and the Grantee is feifed S""^"^^^ ^ 
thereol'j if the Grantee comes to the Place appointed for the Payment, and ^f . | p^^ 
there demands the Rent upon the Day accordingly, if the Rent be de- Ann. to B. 
nied this is no Dilieilin of the Rent as it fhali be upon a Denial upon his Son, if- 
the Land where the Rent is payable upon the Land. Plowd. Com. 71. h'"^-°"Si?j 
a. an Inference by the Reporter irom what went betore. Hill. 4 & 5 t^g Unicora 
E. 6. in Cafe of Kidwellie v. Brand. in L. paya- 
ble at Lady- 
Day and Michaelmas, at the Houfe of the faid B. in L. to begin at Michaelmas after his Deceafe, 
and gave 6 d, in Name of Seifin. The Jury found the Grant and the Seifin, and the Demand at 
the laid Houfe called the Unicorn, and that none was there to pay it. Refolved it was a good 
Demand, being made at the faid Houfe out of which it was iffuing, though not made at the 
Houfe where it was payable, and a Diffeifm for Non-payment of it. Cro. C. 507. pi. 12. Trin, 
14 Car. B. R. Smith v. Smith. 

18. Difleilin cannot be of Rent but at a Man^sPkafme. Kelvv. 113. a. 5 Rep. 85. a. 
pi. 46. Cafus incerti Tempori?. — 2 Sid. 75,' 

19. Note, that when Books fay that a Detainer of a Rent-charge or 
Seek is a Diffeilin, it mull be intended upon a Demand made. Co Litt. 
161. b. 

20. ^here be tivo Caiifes of Diffeifm of a Rent-Seek, viz. Denial ^fd In- j„^j^rj,^^ - 
'clofure. Litt. S. 239. a DiifcTfinof 

bccaufc the Grantee cannot come upon tlie Land to demand it. Co. Litt. 161. b. 

21. The Mirror faith, that Dljlurhance of one that is in peaceable Poj- 
feffion doth amount to Diffeilin ; as if the Lord that is in quiet Poflefli- 
on of his Rent comech to dillrain, and is by the Te.n-xntdiftnrbcd fo as 
'he cannct take a Dijirefs, this Difturbance is a Dilieilin of the Rent, 
'sinll. 414. 

, 22. So when the Lord taketh a Diftrefs, and the Tenant pays not his And though 
Rent, butdilturbs him by uniult Suit of a Replevin. 2 Inlt. 414. ' ^ Replevin 

■' ^ ^ be brought 

and thereupon the Sheriff makes a Redelivery of the Diftrefs to the Party bv the Courfe of Law 
yet this is a Diffeifinof the Rent-Service, becaufe by the Relcue and the lliing the Replevin the 
Lord is riifturbed of the Means by which he ought to have and come at his Rent, viz. Of the 
Diftrefs. Litt. 161. a. 

23. There are four Caufes of Diffeilin of a Rent-charge^ viz. Refcoas, You may 
Replevin, Incloftire and Denial \, tor a Denial is a Difleilin of a Rent- "^'^ " ^'f'^'* 
charge as is faid beloie of a Rent-Seek. Litt. S. 238. v\z. Refift- 

° -' ance to dil- 

train, Coun^ 
ter-flecJitt^ md lovching a Record avd failing. Litt. 161. b. 



82 DiiTeifm. 



24. A Dijlrefs for the Rent is a Demand in Law, and then the Non- 
payment is a Dental and Di[fajin. Co. Litt. 161. b. 

25. Wherefoever there is a lawful Demand ot a Rent, and the fame 
is not paid, whether the Tenant be prefent or abfent yet this a Denial 
in Law although there be no Words of Denial. It appears here that 
the Demand niuft be made upon the Land, and although the Tenant 
or any for him be there, yet muft the Grantee demand it, becaufe with- 
otit a Demandthere can be no Denier in Deed, nor any in Law. Co. Lite. 
153. b. 



(A. 2,) Of what Eftate it may be. Particular Eftate. 



I 



F one who is only Lejfee for Tears enters upon him that has a good 
_^ I'ttle he is a Difleiflbr of all the Fee Simple ; Per Anderfon and 
Pcriam J. Goldsb. 43. in pi. 22. Mich. 29 Eliz,. 
If the Kimis ^' ^°^^i ^^ ^as faid by Sir Francis Bacon the King's Solicitor, that 
Leffee for it was adjudged the 40 Eliz. in the Exchequer, that where Lejfee of tbe 
Tears be King for Life was oulted by a Stranger it Ihould be faid a Dilieifm of 
oufted by a ^j^g particular Eftate, againft the common Maxim, that a Diffeijin can- 
^rtTi^e^Ke- "■'"^ ^'^ °f ^ ^^f^ Eftate than a Fee Simple. Godb. 138. pi. 166. 40 Eliz. 
verfion be- in the Exchequer. 

iiit; in the 

King he eannot be out of Poffeflion but at his Pleafure. Cro. E. 34 Eliz. C. B. Wingate v. Mark: 



(A. 3.) What PolTeffion is an Impediment of 

a Dilfeifin. 



I 



F A. is feifed of a great Clofe where &c. and a Stranger enters and 

occupies Part, but A. continues in the PofTeflion of the Reli- 

due, he Ihall be judged in Poflcdion of the Refidue, becaufe it is an 
entire Thing, cites 4 E. 4. 2. 8 £, 3. 13. Seilin of Part of the Services 
is Seilin of the Whole, cites Eetfworth's Cafe. 2 Rep. Brownl. 230, 
Mich. 1 1 Jac. in Dame Pett's Cafe^ 

2. The Pojfejfion of a Houfe is the Polfeffion of the Land for the LefTee 
againft the Lellbr of that which paffes by one Demife ; but if a Stran- 
ger enters, fevers, and Parts by Metes and Bounds^ nothing is wroughc 
by the Poireifion of the Refidue, Arg. Brownl. 230. Mich, ii Jac. 
in Dame Pett's Cafe. 

4 Mod 48. 3. It" Conufor of a Statute continues to keep Pofieflion after the Return 
w""lf^ H °^ Liberari feci, the Conufee's Eftate is turned to a Right like the Cafe 

5 C°he'ld °f Dilleifee's making continual Claim as foon as ever the Difjeifee 
accordingly, leaves the Premifes, the Continuance of Poffeilion by the Dillcilibr 
— Skinn. make a frelh Dilleilin. See i Inft. 156. Litt. 129. and ihis is not like 
5°° P'- 4- the Cafe o^ Mortgagor who continues in by Confent and not in Opoolition 
accordingly; ^o ^he Mortgagee i Per Hclt Ch. J. 2 Salk. 563. pi. i. Trin. 3 V\^. & 
Pel- HoU ' M. in B. R. Hammond v. Wood. 

C J. utid 

Eyre J. 3 Lev. 312. Stephens v. H.ianam, held accordingly. 

(A- 4) 



JDiffeifin. 83 



(A. 4) What is a Difleifin ; And what an Abatement j 
And Pleadings in fuch Cafes. 



1. T'^NTRr far Dijfelfm by D. againft A. who faid that kSCxo non, 
l^j tor he iald tb.n T'.-was feifed and infeoffed'two who gave to the 
Baron who is dead^ and to this Feme Tenant then his Feme in 7'ail^ and 
gave Colour, and the Plaintiff' faid, that bejore the Donors any thing had, 
L. was feifed in Fee, and gave to his Father and Mother in Tail who had If- 
fiie the Demandant, and the Father died, and the Mother furvived and 
died protejlando feifed, and the [aid 1. abated and infeoffed the Donors 
named in the Bar, and the Tenant maintained his Bar and traverfed that 
the Tenant did not abate after the Death of his Mother &c. prout &e. 
and per Danby Jullice the Title is not good ; for he has Ihewn that his 
Mother died proteftando feifed, after whofe Death the Tenant abated, 
which cannot be unlefs the Mother died feifed in Fa£l; for if llie was 
difleifed in her Life, it cannot be called an Abatement buc a Dilleilin; 
lor he cannot plead Abatement but where there was a dying feiled in 
Fact, which all the JulHces agreed ; and per Prifot clearly, if the A- 
batement was well alleged the other may' well traverfe ir, and iliall 
not be compelled to traverfe the Gifc in Tail, by which the Demandant 
was intitled, but may traverfe the Abatement. Br. Pleadings, pi. 56. 
cites 38 H. 6. 18. 

2. Abatement cannot be but upon Maintenance of Seifin in Fact, and 
not by Protefiation ; Quod Nota per Cur. Br. Pleadings, pi. 59. cites 
39 H. 6. 5- 

3. The Cafe was, that in Formedon of the Gift of IV. the Tenant faid^ 
that before the Donor any thing had, J. N.was fifed, and gave to his An- 
cejlor in Tail, who by Protefiation died feifed, and IV. abated and died, as 
in the Writ, and the Tenant re-entered as Heir, and the Demandant faid 
that W. did not abate after the Death of the Father of the Tenant 
prout &c. and no IfTue ; for where there is no Abatement then it is 
not traverfable, by which he omitted the Proteftation ; Quod Nota. Br. 
Pleadings, pi. 59. cites 39 H. 6. 5. 

4. It after the Deceafe of the Father a Stranger frjl enters into Land 
and abates, and zhe youngejl Son enters upon him, and dijjeifes htm, and 
dies feifed, this is an Entry by DifTeilin, and not by Abatement, and 
fo fliall not bind the Eldefl. Co, Litt. 242. b. ad finem. 



(A. 5) Of what Eftate or Things it may be. 

i. /'^F Things not manoiirable, Haereditamenta Incorporea, As**spbv 
V^ Common, Corody, OfHce, Rent, &c. he that is feifed ofHobanCh. 

them has EleiStion to have AfTife, and to admit himfelf to be out of Pof- J- Hob. 522 

fellionj Refolved. 9 Rep. 51.3. Trin. 8 Jac. in the Earl of Salop's 

Cafe. 

2. Oipojfeffory Things an Expulfion may be made as well as a Dif- ^ Termor 

feiiin ; and therefore if a Man made a Leafe for Tears of Land, and a ^^j|-",°j(j^ 

Stranger puts out the Lelfee, he does alfo difleife him in the Reverfi- Cro. J rt.79. 

on i but if the LefTor put hfm out, there is no Difleifin committed, pi. 15. Mich. 

and yet the LefTee has left his Eflate, and has buc a Right to it, and a j. Jac Johns 

'^l,^^v.R.dler 



8+ 



DUreiliii. 



that whether he will or no; for though it be true, that when two 
are in PofTeflion the Poffeffion is judged in him that has Right, for he 
only poffeffeth though the other be in Poffeffion too, and takes away 
the Trees, Corn, or the like ; yet, when the true Owner is clearly put 
out and removed, then he has no longer Eftate or Poffeflion, but Right 
only, and has no £le£lion to be in Poireffion or not in Poffeffion, as thac 
Cafe Hands, and therefore clearly he cannot now grant this Term ; 
And if the Leffor brings an Aftion of Debt for his Rent due at Michael- 
mas, the Leffee Ihall plead that he did enter upon him and put hini 
out, and he continued his PoUelTion at the Term, for he cannot have 
Rent out of that Land that he himfelf pofleffes ; and if the Leffor af- 
ter fuch Expulfion dies, the Land fhall defcend in Poffeffion to the 
Heir, and the Executor ftall not claim that that was a Leafe i for a 
Term never bears a Que Eftate ; but it is true, that there are certain 
Cafes wherein a Poffelfion cannot be gained i Per Hobart Ch. J. Hob. 
322. Pafch. 17 Jac. in Cafe of Elvis v. York (Archbiffiop) & al'. 



(B) Refcous. 
\_By fwhom^ Stranger^ 

i TiF ^ S0iin diftrains for a Rent-Service, ailH a Stranger refcues 
X tIjC DtfttEfgi in the Name of the Tenant, tljiSi 10 a DtlTeifiU Of 

tlje Eeim 56 D* 3- atinere ©taffoco 16. pet curtauu 

2. If Lord and Tenant are, and the Tenant detains the Rent, and 
the Lord dijirains for it, and two Strangers make Refcous, the Tenant be- 
ing ahfent, they are all Diffeifors, and yet the Force is only in thofe 
two that made the Refcousi Per Dyer and Wefton. Mo. 53. pi. 155. 
Pafch. 5 Eliz. 



(C) fThat A^ Ihall be faid a Difleifm. 

Br. Affife, I. Tif Baron and Feme purchafe JiaitllSi in Fee, aitU aftCt tljE Baron 
pi. 1 14 cites I is attainted of Felony, auH t^C King feizes t^C laittl, attD af' 

S C. Brooke ^gj. jjjg Lqj^j^ of vvhom it is held, upon his Suggeftion hath it delivered 

St "he""' to him out Of tlje I|)an0i30f tljc mtng as his Efcheat, tw 10 a DilTeiaii 
King did to tftc l©tfe, ttljo Oati a joint (Eftate Uiitlj Ijcc I^usbattD i foe it taais 
not teke but jeUUeteD out of tfje ^janHiS of tlie jKing bD a faife Suggeition, and fo 

DayT'and ^ Dili'eilin to the Feme. 4 aiT^ 4- aOjUtlgCO* 

Wzile, and 

then the Entry of the Lord by the Livery obtained by faHe Suggeftion made the Diffeihn, and wa,? 

no Diffeifin during the Poffeffion of the King. • Br. Refeifer, pro Rege, pi. 16. cites S. C. 

. Br. Forfeiture de Terres, &c. pi. 28, cites S. C. Tit. Affife, (E) pi. i. cites S. C. 

Fitzh. Affife, pi. 166. cites Mich. 4 E. 5. 47. S. P. 

Cro. E. 639. 2. 31f a 50an devifes Capite Lands to his youngeft Son, ailU f^K^, 
P| 4'- tuljicl) iiS ^010 foe a tljitD Ipatt, aim aftet tlje Devifee emers mto the 

Price SC ^'^°^^ generally, Ujl)iCl) ijS ail eittcp fOt tljC ElOeft ^Ott alfO, and af 

& s. P. held tet leaies the whole to anotljEt fot ^car0, ^Et tW iss iiot niip "Dl^^ 

accordingly feifin tO tljC ClOeft, fOV one Tenant in common cannot be oulled with- 
out 



DiiTeiluL 



85 



out an aaual Ejeamcnt. $^. 40, 41 eil>» 'B. E^ fJCtlUCCn Hcmpflcy per tot. Cur 
4»rf Brke, pCC Curiatlt. ner.'~"' 

Mo. 54.6. pi. 729. Himley v. Brire, S. C. aoj'.idged not)iflHftn becaufe there was no Expulfion, but 

held that Leal'c for Life with Livery would have made ir 3 Difleifin Where there were two 

Copaitnevs ot an Houfe, and tlie one entered gererall/, and made a Leafe for Life by the Name of All 
that his Houfe &c. The Quelhon wa.s, whether all or the Moiety only of the HouCe palled ? Pop- 
ham and Fcnner held that the entire Houte palTcd ; tor when he lays. All that my Houl'e &c. that 
intended the whole Houl'e, and by hi.s Livery made lie gained the intire and gave the intire, altho" 
bv h<s general Entry it is not intended fh^it he entered into more than to wiiat he liud rigiit ; but 
Gawdv e contra; For as his Entry prima facie does not gain more than he had Riglit to demand, 
no more fhall this Leafe; And Fofter at the B^t cited, that it was adjud(;ed in thl.< Court in 
3K.f ignOlO'jS Cafe according to the Opinion ofPopham". Cro. E. 61 5. pi. 4 Trin. 40 Eliz. Gerry 
V. Holford. 

3. So It lUill be if t!jC Devifee levies a Fine of the whole. JDIUCIW, 

pec Curtiiuu 

4. 3|fil$T9nU leafes feveral Acres fOU ^Ciltjl, rendring one intire nW^"*^ 
Rene, anO * tljC Lelfee is oufted of one Acre by a Stranger, and ilf 1* I^X^xTj 
tCClCacDlS iW nDtiDltijftanHiUff pays the intire Rent to the Lelibr, cT^wnl 250 

pet tjjigi fljall not continue ©eifin of tlje lelTot of tljc luljole, but Ijc u^me Pett-s 
10 DiffetfeD ottlje fain acre. $t9. 1 1 3!a. 15. K. Dubitatue. cafe, s c. 

5. !J,f a Man hath an Houfe and locks it, and departs, aull another i^jj" °g,jj 
comes to t)i.£i]^OUfe, and takes the Key Of tlje DOOE UltO bijj J^MnU, 

and fays that he claims the Houfe to himfelt in Fee tUttljOUt aUJ? (EU' 

tcp into tlje i^oufe, tW tJS a Diffetfin of tlje Doufe. 1?. 15 Iia. 15; 
iHofs Caje, aonuttcti clcacl}? upon (iSiJiDence at tlje ^ac in an affife 
taken bp Default. 

6. Jf A. cuts Trees in his own Soil, auD B- that has Common Br. DilTeifin, 
there fays the Soil is his Soil, and commands him that he cut nothing ph 4-, (4U 
(IC. UpOntUljiCl) A. departs out ot the Land, J)Ct tIjiS IS UOt ani> Dif ;^" p-*^, 

feifinto bim, fot fjctbatijasi no Risljt cannot be feifetiora JFcce= Airife Ji 
i)oia bp iPatoU 26 air. 1 7. aojuugeo. 257. cites 

S C - - 
Br. Aflife, pi. 2^5 . (z6z.) cites S. C. 

7. 3jf aS^antbat baS Right to enter into Lands, in coming to- Br. DilTei/in, 
wards the Land is difturbed irom entering, tbtS" 10 a Diffetfin. 26 P'- ^^ (41) 

a(r.IV . " — BrfAr- 

fife, pi. 263. 
(2(5z.) cites S. C — Fitr.h. Affife, pi. 257. cites S. C. 

8. 3if a Stranger receives of my Tenant by voluntary Payment, Br. Affife, 

tuitbout Coercion of Difttefisf, tbe Rent due co me, tW 10 a Dtf ''•• ^c ^r"^ 
retfin to me at mp Eicftion. 40 m, 19- irmyTenT 

ant pays his 
Rent tea Stranger without Coertion he is a Diffeifor, and it by Coertion, both are DilTeifors. Br. 

Difleifin, pi 97. cites 25 H. 5. and Fitrh. Afl. 454. Litt. S. 5SS, 5S9. and Co. Litt. 525. 

b. S. ? S. P. by Hobart Ch. J. Hob. ;22. 9 Rep. 51. a. S. P. refolv'd Cro. C. 

1503. Pafch. 9 Car. B R. per Cur. S. P. 1 1 Sid. 75. Pafch. 165S. B. R. in Cafe of Crouch v. 

Wills S. P. and cites Litt. If ore receives my Rents without my Confent, I may charge him as 

my Receiver or make him a DilTeifor at my Election; Per Roll Ch. J. and Curiam. Sty. 40;. 
Hill. 1654. 

9- 3ifa 93an enters into my Houfe bv mv Sufferance, without claim- 
ing any Thing from me, tbt0 10 UOt ah}) Difleifin* n C 3- Affife 

■86. aUjuTigeo. 

»o. 3f tlje King be feifed in Fee of the Manor of B. attH a Stranger S. C. cited 
erefts a Shop in a vacant Plat of the Manor, and takes the Profits A""!^-.- L''- 
tbereOfwithout paying any Rent to the King, ailll afteC tbe King J^^" '"bPJ,,.. 
giants over the Manor in Fee, anU tbC Stranger continues aftCrU)arD0 v GoodmJv 

2' Ut 



86 DilTeilin. 



■ — Ow 96-tntl3e %\M, nntl occupies it as bCfOCe, pet tljiS Continuance is HOC 
? P- .4';^ any Dilieilin, becaufLi the firlt Entry was not HIW DlflCifilt. D» 9. 
InfnEica:- 10 d* 266. 10 Co* 4- Adams and Lambert lo^. tCfOliieD* 

merit the 

tare was. The Kinf; was feifed of Lands in Fee, and a Stranger intruded, and the King; grants this 
Land to J. S.. in Fee, aud the Intruder continues Poflcflion, and dies (sized ; The (^eltion was it 
this Defcent fliall take away the Eniry of J. S. Johnfon, faid it Ihall not , for none will affirm that 
an Intruder fliallgain any Thing out of tlie Kinj;, but that the Land fhall pais to the Patentee, and 
the Continuance of the Intruder in Pollcflion, and his dyin<; feifed fhall not take away the Entry ; 
For he cannot be a Diffeifor, becaiife he pained no Eftate at the Beignning. Cook contra ; By this 
Continuance of Poffeffibn he fhall be accounted a Diffeifor, and the Freehold out of the Patentee, 
for anbher Ellate he cannot have, for Tenant at Sutleraiicc he is not, for he comes in at Hrft by a 
Title ; But a further Day was given Cook to fhevV Caulc why Jiidgtiient fliould not be given againll 
him. Ow. 95. Hill. 31 Eli?,. Bcron v. Goodyne. 

11. [So] 3if a Span enters into JCtl-tatU LauQ, Parcel of a Manot 
tUljiCi) IS i" W'lrd of the King lip rcnlon Of ttjC BOltilp Ql% %, mA 
takes the Profits as Owner tljCtCOf, nilO aftCCj-S. lues Liverv, aitO 

after tl)C intruder continues the Poiidrion, atHi tljc tahuiff tl)c l5rofitai 
as before, pettlje Continuance fijall not be anp Difleifin to % %. 
uecaufetljc firft Cntry luas net anp DilTeian. ^. 17 3a. 13. R, 
bctUieen tlje ILorn ■^^ids and tlje College of Corpus Chnjn ni Oxotiy 
refoinen per Curiam, ann tljejiurp mrccten accorDingip. 

12. JiftljCCe be Tenant at Sulierance, aUO a Stranger not having 
any Right to the Land makes a Leafe to him by Indenture, rendring 

Rent, without putting tijeCenant at S)UfFerance out of Poifeffionj 
ano tlje tenant paps tlje Kent to tljc Stranger, tljis is' not anp 
©ilTeifin to Ijivn tljat IjaQ Kigljt. p. 3- 3ia» 03. E. between ^nnfon 
and Stone ^ pet Cutiam, upon Cbiocnce. 

13. 3if Guardian by Nurture makes a Leafe by Indenture tO OUC, be= 

ino; unner tlje 'SDitle of tljeJnKint, rendring Rent to himfeifujljiclj is 
pain accottJiuslp, pet tljis is not anp DiffeiCn to tbe infant. P; 
3 3la. 03. E. per 'SDanfielo. 

if a Guardi- 14. Jjf Guardian in Chivalry continues the PoflefTion of the Land 
an after the in W^ard after the full AgcOftljeUBarn, without Title, tljiS is a 
full Age of ^jfleij^n (0 j|j5 ^^xi bCCaUfe Ije comes in by the Law, aUU tljetCfOrC 

comiiinesin tlje Coutlnuance bcyonn tljcCinie tuljiclj tljcLaiu Ijatlj itmittcD, 

Poffeflion, ano againft tlje Cruft rcpofcD in ijiin bi) tfje ixir, ann tlje law 

he is no \\\t!^z^ It a Difleifin to tlje pcir, ujIjo mas nclier out of IPoiTefflou, 

Juff-Tance l^nt tlje <©uattiian uias fcilcD m ijis Eidjt. 7 1). 4- 42. per ^\\\^ 

but'^an pepper. 

aeainft whom an Affife of Mortdanceftor lies. Co. Litt. 578 He is an Abator becaufe his In- 

tereft comes by Aft in Law. Co, Litt. 271. a,- Ow. iS. Arg. cites S. C. that the Eflate fliall be 

judp-edin Fee. 2 Inft. 134. S. P. and fays this is proved thereby the- Statute of Marlbridge^ 

^ap j,j_ Ow. 9(J. Arg. fays that if a Guardian continues ii. PoU'eflTion after the Heir is of 

full Age be is no Diffeifor, nor fhall gain any Elfate. 

r^^-A-xn i^. Jf Lelfee for Years holds over his Term, pet IjC IS nOt aiiP 
*Fol.6()o. 2)iflfeifor, becaUte IjC comes in by the Aft of the Party; bUt Ije IS 

HPniflef' call'D (*) a %z\\m. at euffecancc ; tempore J), s. %, 356. t 9 
L,pi.63.'j;. 7. 24- per curiam. £)ubitatur, 11 22 €.4. 38- b. 

(62) cites 

6. C & S. P. unlef-, the Leflbr enters in faft 

II Br. Ertatcs, pi. cfi. cites S. C. but Brooke fays, that it feems to him that he is not a DifTeifor 
before R Corel's of the Leffor, but he continues by his firft Entry, and therefore this feems to be the 
Reafon why Writ of Entry ad Terminura qui priteriit lies againft fuch Termor as holds over hi? 
Term 

It a T'erwi))- h!\di over his Term there an Effate in Fee is confeft to be in him by matter Of Law. 
But it is a Doubt whether he be a Diffeifor or not. But it fcemeth nor , For a ^refiafi lies not againjl 
him bejoie Rcgrefi. Arg. Ow. 2S. cites. S2 E 4 3^ 

16. If 



Diiicilin. 



«7 



1 6. II Guardian tjkcs hccffvitnt [of the Infant] in Cnjicdia ftta this is Br. Difleifia 
Dilleilin, and he ihall be imprifoned it' ihe Infant will bring Alfile agaiiift l^.'- '-'5 ^^yi^ 
him, and the Matter be lound, quod nota. Br. Allife, pi, 451. dtes « E. "^"^ ' ' 
2. and Fitxh. Alfife, 39c. Icinere Cane. 

17. It' a Man will dijlram for 'Rent -Service by Doors and Wihdoivs and 
one prohibits him, this is a Dillcilin, but not with Force and Arms. 
Br. Atiile, pi. 465. cites 3 E. 3. and Fit-h. Alf. 469. 

i8- li'tioo Infants arc Jointenants^ and the one releafes to the other, by 
which he holds the IFhoIe, this is a Dilleil'n as it is laid i For it feems 
that the Releafe of an Infant is void as to the Interelt of the Land j 
Contraif he made Livery. Br. Dilieilin, pi. 19. cites 7 Ad. 17. 

19. Guardian oi an In f Am injected J. N. of the Land of the Infimt, 
and the Inlant brought Affife without Entry, and the Plaintifi" recover- 
ed ; For the Entry of the Feoffee is a DiJJetfin^ quod nota, and this feems 
to be by the Statute ot Weftininjler 2. cap. 25. which wills that where 
a Guardian or Termor makes a Feoffment, that as well the Feoffor as 
Feoffee Ihall be taken lor Difleifors. Br. Difleilln, pi. 22. cites 8 
AU: 28. : . ■ 

20. If^-f. has Coinmon in the Land of B. and B. conns with his Fa- 
mily and inclofes the Land fo that A. cannot ufe his Common, there 
B. and his Family are Dtffeifors. So if the Family come in Aid of him. 
Br. Diffeihn, pi. 79.cites8Aff: 18. 

21. In hiMt xhQ Father injcoffed his Son zvithin Age, and after the 
Father entered to the Ufe of the Infant as his IFard, and alter infcojfl'd f. S. 
and the Father died, and the Infant h-oright A/^fe zgainfi the Feoffee ty/r^- 
otit Entry., andbecaufe the Entry of the Father was to the Ufe of the In- 
fant, and the Feoffee by his Entry was a Diffeifor, therefore the Infjnt 
tccover'd. Br. Dilieilin, pi. 94 cites 8 E. 3 432. and Fitzh. Affife 146. 

22. Where a Man is dijiiirbed of the jUcan., by •which he cannot lake r,. DiiTdfiu 
Tois Profit of a Thing, this' is a Difpi/in of the "Thing itfeif. As ot iTiif- y\. 25. cites' 
turningof Water by which the Mill cannot Grind, Allife lies of the 
Mill, and of diffurbing my Way to my Common, Affife lies of the 
Common as it isfaid elfewherG. Br. Afffe, pi. 148. cites 9 Afl'. 19. 

23. Note, Per Cur. in Affffe that where a Man gi'ves to the Tenant Bi-. DiiTeifin 
in the Affife all the Tenements which he had in B. except a Chamber tn pi- -S- cites 
which he lay ill, and after the Seifin he gave the Chamber and removed ^- ^» 
himjelf into the Hall ; if this Removal be by the Sufferance of the Fe- 
offee, ckiming nothing to his own Ufe, and fo pleaded or given in 
Verdift, this is not a Diffeifin ; Quod Nota ; arid fo fee that Entry by 

Stiff erance claiming nothing to his own Ufe is hot a Difleilin. Br. Te- 
nant perCopie. pi. 7. cites 11 Aff. 6 

24. In Affife Baron and Feme pure hafed the Land in Fee, and after the Br, DifTciriti 
Baron aliened to his yoiingejf Son in Fee within Age, and after the Baron pi. ;o. cites 
and Feme entered into the Tenements with Ajfent of the Feoffee who was yet ^ ^■ 
•within Age, and after the Baron died, and the Feme continued Seilin 

and died, and the eldelt Son entered as Heir, and the youngeft who 
was inlee'ffed brought Affffe and recovered by Award ; for the Affent 
was void, becaufe he Was within Age, and fo the Entry of the Baron 
(ifid Feme a Diffeifm, Quod Nota. Br. Affife. pi. 169. cites ri Aff! 14. 

25. A Man made Simple Deed of Feoffment and Letter of Attorney Br. Diffeifin 
flccordingh', and the Attorney delivered the Sei/in np'on Condition^ and there- pi. 34. cites 
fore a Dilieiiin by Award. Quiere, where it is ot t\Vo Acres and Livery ^- ^ — 
of Seilin of the one, for in one Cafe he exceeds his VV^arrant, and in the ^^ ^ ^^^" 
other he diminiflies it. Br. Feoffments de Terres pi. 25. cites li Deed ofFe- 

Alf! 24. off ment with 

Letter of At' 
iovney to dcliz-er Seifin upon Condition, and he ctelivei-f it fimpty the Attorney is a Difleifoi-, aiid the 
Feoffor may lay that nothing puffed by the Deed. Br. DilFeifin, pi. 71. cites I H. 4 5. 

s6. In 



9 ^'X. 19. 
S. P. 



88 Dil 



26. In AlTife it was found that xhtComifor upon a Statute-Mtrchattt aj- 
itr Execution ftied againft him took the Conufee by Force and p-^ore him' 
that he (hoiild render him the Land, and after he 'voluntarily rJeafed aB 
Anions of Debt and ^refpafs^ and alfo voluntarily fttrrendered the Land^ 
and this Oath he took lor Fear ot Death, and therefore notwithftand- 
i'ng that the Surrender was made at Large, yet becaufe it was made by 
reafon of Diftrefs before, therefore Perning adjudged it a Diffeilin when 
the Conufee entered by fjch Surrender. Br, Durefs pi. n» cites 14. 
Aff. 20. 

27. A Man leafes for Life rendering Rent with Claufe of Re-entry for 
Non-Payment^ and came after and dijlrained for the Rent, and being 
■po£effed of the Dtjlrefs rc-cntercd, and this was awarded a Dilleilin, in- 
airnuch as he entered being pollefled of the Diftrefs. Br. Dilfeilin, pi. 
81. cites 14 Afl'. II. 

g. P. nor lie 28. 'Tenant itt Tail is bound in a Statute-Merchant and dies, and Ex- 
ih Owi-t t'o ^'^'^^^°" is ftted again ft the Iffiie, this is Difleilini becaufe by fuch Execu- 
plead Bi". tion there IS nd Gamipment made to the Heir, Br. Affife, pi. 214, cite& 
Diffeifrn. ' 17 Affi 21. 
pi. 41. 
cites S. C. 

Br. DiiTeifin, 29. Tenant in Tail was botfnd' in a Statuts-Merehant and died, and the 

pi 92. cues Qojjufg ijiade his Executors and died ; the Executors fued Execution againfi 

"'■^ the IJJ'ue, and tnade Joint EJlcite to twOj and the fame Day the Ifjue 

brought AJ/ffe, and all this found, by which the Plaintiff recovered, 

and yet the Jointenancy was pleaded, but becaufe the Joint-Eftate was 

made the Day of the Telle of the VV^rit, and the Executors were 

named who were Tenants the Day of the Writ, and the Seilin and 

Difleilin found, therefore the Plaintiff recovered ; tor the Execution was 

a Dijfeijin to the IJfue, quod mirum i for it is made by the Sheriff by 

Writ as it feems. Br. Alfife, pi. 406. cites P. 18. £. 3. Fitzh. Alf 77. 

30. Guardian in Chivalry ajjigned Dower to one who was not the Wife 

of the Ward's Father ; \i pe enters fhe is a Difleiforefs as to the Ward. 

Br. Receipts, pi. 50. cites 21 E. 3, 4. 

S.P. Br. Dif- 3 1. Reaping of Grain with Sickles is Difieilin with Force. Br. Brief, 

feifinpl. io4,pl. ^jo. cites 21 E. 3, 34, 

32. If none inhabit or manure the Land, and the Rent is demanded, 
it is Difieilin, and Affife lies thereof, and Refcous, Replevin and Inclo- 
fure, are Diffeilins cf Rent-Service ; And Refcous, Replevin, Inclofure 
and Denier, are Dilfeilins of Rent-Charge i^ And Denier and Inclofure 
are Dilfeilins of Rent-Seek; And Menace is a Dilfeilin of all thofe 
Rents ; And fo fee that the fuing of Replevin is a Dilleifm of Rent- 
Service and Rent-Charge. Br. DilTeifin, pi. 103. cites 21 E. 3, 4. 
Bf.Diftrcfs, 33, In Affife it was laid, that Sovcnt Dijirefs is no Dilfeilin but where 
pl. 53. cites fj^g £q..^ difiraifu ; for if a Stranger diltrains the Tenant may make 
Refcous as it feems ; QuiEre, for the Plaintiff durll not demur. Br. 
DifTeifin, pl. 46, cites 27 Aif 51. 

34. If a Man incroaches 10 s. Rent of my Tenant by Diflrefs who holds 
of ine by 10 s. Rent yet this is no Dillt;ilin to me^ for it cannot be in- 
tended my Rent, and if I diftrain and the Tenant and he who in- 
croaches make Refcous I fhall have Affife againft my Tenant alone, and 
not againll the Incroacher ; per Thorp. But Brooke fays. It feems 
that he fhall have Affiz.e againll both if he will. Br. Difieilin, pl. 14. 
cites 24 E. 3, 40. 

35 If a Ward enfeoffs his Guardian in Socage the Entry of the Guar- 
dian upon this Feoffinent is a Dilfeilin. 2 Roll Remitter, (G) pl. 3. 
cites 35 All". 8. adjudged. 

36. So if Attorney be to deliver Seifin after the Feoffor's Death and he 
delivers it dnriiig his Life he is a Diifeifor. 2 Roll 9. (S) pl. i. cites 
40 Af]^ 38. Curia. 

37. la 



DifTeifin. 89 



37. In an Aflife between two Tenants in Common a Forbiddiitg by Word 
cf Month to the Tenant to pay his tLent was adjudged a Dilieilin. 
kaym. 371. cites Mich. 47 E. 3. 22. a. pi. 51. 

38. Mcnaiice of Death, and Lic/ofiire of La;id, fo that the Lord cannot 
diltrain, are Dilieilins of Rent-Service^ Quod Nota. Br. Dilieilin, pi. 
87, cites 49 Afl. 5. 

38. If a Alan makes DiJJiifm aiid carries away Goods'^ he Ihall be ad- 
judged DifTeifor with Force, and (luill be iinpriioned i Per Tremail and 
Hank. Br. Damages, pi. 51. cites II H. 4. 16. 

39. If a Letter ot Jttorney be to deliver Zeifin upon Condition'^ and he 
delivers it -without Condition, this is not good, but is a Dilleifir. 2 
Roll. 9. pi. 14 cites iiH. 4. 3. 

40. VVhen any di ji rains fo out r agio tijly^ that is, fo often as the Terte- 
nant cannot plough, or duly ufe his Ground, this amounts to a Dilieilin. 
2 Inll. 414. cites the Mirror, cap. 2. S. 25. 

41. A Dilfeilin is properly where a xM an enters into any Lands or Co. Litt. 
Tenements where his Entry is not lawful and oulls him that has the ,'^'- *"°^" 

v. 1 1 J T • o here, that 

Freehold. Litt. b. 279. ^^^^y 2,,^^^ 

, is not a Dif- 

fefin unlefs theee bfc an Oiifter alfo of the Freehold. And. 1 54. pi. 1S4.. Hill. 27 Eli?.. S. P. 

ci':es4i E. 3. 40. and 5 E. 4. 5. 

42. Note for Law, if Tenant at Will, or at Suff'erance, makes Feoff- 
ment in Fee, he is a Dilleiibr, viz. the Tenant at Will, by making of 
the Feoftment. Br. Dilieilin, pi. 64. cites 3 E. 4. 17. 

43. Where the King enters into my Land without Title, the Frankte~ 
nement re7nains in me. Br. Dilleinn, pi. 65. cites 7 E 4, 19. 

44. If Tenant at Will or for Tears Makes a Feoffment he is a DilTeifor by 
the Common Law, and the Statute of Weltm. 2. cap. 25, .^lod vivsntc 
aitero eormn is only a Recital ol the Common Law. Br. Dilieilin, pi. 
66. cites 10 E. 4. 18. 

45. II Tenant at Willy or Tenant by Sufferance at Will, make a Leafe 
for Tears, this is a DiHeiiin to the firlt Leiior, and the Tenant at Will 
thereby gains Frankceaement ; By all the Juliices. Br. Dilieilin, pi. 
68. (67.) cites 12 E. 4. 12. 

46. ii an Infant makes a Leafe for Tears], and the Leffee enters, the In- 
fant Ihall have Affifc; Per Brian, and affirmed by Hulley, FineuXj 
and Frowicke. Br. Dilieilin, pi. 63. cites 9 H. 7. 24 

47. And if a Man makes a Leafe by Dunfs, and the Leffte enters, the 
Lelibr fhall have Aflife. Br. Dilieilin, pi. 63. cites 9 H. 7. 24. 

48. But if an Infant makes a Feoffment and makes Livery, the Infant 
fliall not have Aflile. Br. Dilieilin, pi. 63. cites 9 H. 7. 24. 

49. So of Feoffment and Livery by Durefs, the Feoftbr Ihall not have 
Affile. Br. Dilieilin. pi. 63. cites 9 H. 7. 24. 

50. But if the Infant, or a Man in Prifon, makes Letter of Attorney to 
^tiivcr Seiftn , there they Ihall have Alfife, Br. Dilieilin, pi'. 63- cites 
9 H. 7. 24. 

51. But where a Man Uafes for Term de auter Vie, or for 2 ears, and 
Cefly que Vie dies, or the Term espires, the heiior /hall not have AJftfe a- 
gainfi the Occupier luithout Entry in Fa£t. Br. Dilieilin, pi. 63. cites 
9 H. 7. 24. per Brian, and alFirmed by HulTey, Fineux, and Frowike^ 
quod fuit concelfum per tot. Cur. and Brooke fays it feems to be good 
Law. 

J2. Lellee for Life makes Deed of FeofTment, and delivers it, and 
makes Letter of Attorney to A. who enters and makes Livery according- 
ly^ Adjudged that the Attorney is a Difleifor. 4 Le. 7. pi. 29. 26 
Fliz. B. R. King v. Cotton. 



.A a ^3- li 



po Dilleiiin. 



53. It' A H'ife grants a Rent-Charge^ or makes a Leafe^ and the Gran- 
teeenters^ this is a DiHeifin ; Arg. Goldsb. 13. pi. 13. Pafch. 28 Eliz. 

54. Where a Man has PoffeHion of Lands, his Continuance therein 
cannot gain to him any Intereft, or increafe his Eftate, without feme 
other Aft done ot later Time. If the Guardian continues in Pojfejftoit 
after the full Age of the Heir, he is not a Difleifor, nor has any great- 
er Eftate in the Lands. And upon the Book of 21 E. 3. 2. this Cale was 
coIle£ted ; The Tenant of the King dies, his Heir within Age^ a 
Stranger intrudes; the Heir at full Age lues his Livery out of the 
King's Hands ; the Intruder dies in Pofleffion. The fame Defcent fliall 
not take away Entry. 2 Le, 147. pi. 182. Trin. 30 Eliz, E. K. in 
Cafe of Berry v. Goodman. 

$$. If Copyholdir w Fee dies feifed, and the Lord admits a Stranger 
to the Land who enters, he is but Tenant at Will, and not a Diflei- 
for to the Copyholder who has the Land by Defcent, becaufe he comes 
in by the Aflent of the Lord &c. 3 Le. 210. pi. 274. Trin. 30 Eliz. 
B. R. Anon. 

56. Woman Tenant in Tail marries ; Husband makes Feoffinent in 
Fee and dies; Wife ■without any Entry made lea fe for Tears. The Free- 
hold is not reduced without Entry. Le. 122. pi. 165. Trin. 30 Eliz. 
B. R. Page v. Jordan. 

58. General Entry amounts to a Difl'eilin. As if A. makes Leafe 

for Years of the Land of £. Leflfee enters by Force of that Leafe ; now 

Leflbr without any Entry is a Difl'eifor. Le. 122. pi. 165. Trin. 30 

Eliz. B. R. Page v. Jordan. 

But if L#e 59. If ^tenant ai Will^ or for Tears ^ or at Sufferance, make a Leafe 

atWiil makes j-gyj-^ars this is a Dirteifin, and a Tenant at Will doth thereby gain a 

a Leafe for pfgehold, and claims a greater Eftate than he ought j Per all the J uf- 

cmmeZin tices. Ow. 28. Roufe's Cale. 

aotzpre/ent Dijfeifin. Noy ^6. in Cafe of Cooper v. Columbell. 

But if he 60. Lefjee Piir atiter Vie holds over after the Death of Cefty que Vie j 

holds over jjg jg only Tenant at Sufferance, and not DilTeifor, and has no Fee, 
^m^of hi Ovv. 27. 29- Roufe's Cafe. 

he is a Difleifor. 2 Le. 45. pi. 59. Hill. ^9 Eliz. B. R. Arg. in Cafe of Roufe v. Artois, S. C. cites 

So it he does aft after fuch Continuance of PotTefTion contrary to the Will of his LelTor, he is a 
DJlTcifor. Ibid, cites S. C 

T , 61. A Copyholder of Inhiritance of & Manor in the Hands of ?^e King 

84 s! Cin is otijled [by J. S.J It was held in fuch Cafe, that he [J. S.J has not 
totidemVer- gained any Eftate fo as he may make a Lease ior Years, upon which 

bis. his Leflfee may maintain Ejectment, but he has only a Pofleffion againft 

?"^'^* . all Strangers. 3 Le. 221. pi. 294. Pafch. 30 Eliz. B. R. Anderfon v. 

Stranger e»- ^Z. P •" r ^t 

ters upon the Haywatd. 

rne^ he by fuch Entry hath gained' the Eftate for Years, and if he makes a Leafe to another, his Lef- 

fee may maintain Ejedment. 9 Le. 206. pi. 265- Pafch. 50 Eliz.. in the Exchequer It was fail 

by Bacon, the King's Solicitor, to be adjudged, 40 Eliz. in the Exchequer, that where the King made 
a Leafe for Life, and the Lejfee was oufted by a Stranger, that the fame fhould be faid a DlflTeldn otthe 
Particular Eftate contrary to the common Ground, viz. That a Man cannot be difleifed of a lefs 
Eftate than of a Fee-Simple. 

62. If Coniifor of a Fine fur Conuzance de Droit come ceo &c. conti' 
fines PoJeJ/ion, he is a Difleifor, and not Tenant at Will or Sufferance, 
and a Praecipe lies againft him. Goldsb, 8s. pi. 24. Hill. 30 Eliz. 

63- If 



DifTeifni. p i 



63. If Tenant pur atiter Vie is diJJ'cifed and dies^ yet he remains a Difl 
Jeifor, and the Occupancy does not qualify fuch Difleilin i faid Arg. 
2 Le. 121. pi. 167. Mich. 33 Eliz. 

64. yf. feifed of Land t/iakes a Feoffment thereof to B, npon Condition to 
convey it to ji. for Life, Remainder to the eldejl Son of J. in Fee. A. 
takes the Profits, and makes a Leafe of the Land to C. for Tears, and yet 
continues the Poffejffon in himfelt. B. acknowledges a Statute to a Stran- 
ger. The Years expire. A. makes a feoffment of this Land with 
Warranty to his fecond Son. B. enters in the Life of A. and infeoHs 
the elder Son. This Feoffment was good and lawlbl, and fo adjudged 
and affirmed in Error. Refolved, That A's taking the Profits, and 
making a Leafe for Years, was a Diffeifin to B. aud lufpended the Con- 
dition. Ceftuy que Ufe at Common Law, ot Ccjluy que Truji, at this 
Day, takes the Profits ; it is not a Diffeilin ^ for the Feoffee corf'entit ta- 
cendo, and in the principal Cafe there was neither Ufe nor Trult, but 
an Eilate paffed upon Condition. Jenk. 25^. pi. 44. 

65. A. 'Tenant for Life, the Remainder in Fee to h. — A. inade a Leafe 
for Tears to J. S. The LeJJ'ee entered. A. granted the Tenements to C. 
habendum from the Fe-dHoi Michaelmas Jo/iowing for Life. f. S. attorns. 
C enters, and makes a Leafe at Will, to whom A. levied a Fine come ceo 
&c. E. entered. In this Cafe it was refolved, that when C. entered 
by Colour of the Grant, he was aDiffeifor. 2 Rep, 55. b. the 3d Re- 
folution, Mich. 39 &40 Eliz.. in Buckler's C.ife. 

67. A Difleifin is when one enters intending to ufurp the Pofieffion, 
and to cult another of his Freehold. Cro. C. 303. cites Co. Litt. 
153. b. 

63. If Tenant at IFiIl grants over his E^ate to another, and theGrantee This Cafe 13 
enters, he is a Diffeifor, and the Leffor may have an Action of Trel- 1ue"ioned, 
pafs againft the Grantee, for although the Grant was void, yet it a- ' j^r"^ ' ^,'^- 

' ° J T~v • • 1- L- vT'-ii /-^ T • ' -^ and (hvs, that 

mounted to a Determmation ot his W jll. Co. Litt. 57. a. i, j,, „ot 

known wliar 
Ground Lord Coke had for fuch Opinion, that the Year Books quoted in the Margin will nor warrant 
it ; for they are in no Sort parallel ; that the Cafe in 27 H. 6. 5. is no more than that Tenant at 
Will cannot grant over his Eflare, becaufe he has no certain or fixed Jntereft in it, and much to t'ii- 
fame Purpofe is the Book of zi E. 5. there cited. 

69. li Bargainor after Inrclment continues Foireflion, he is a DilTeifor} 
for the Statute transfers the Franktenement to the Bargainee. Noy 
106. Bellingham v. Alfop. 

70. When the Lejfee by his own Act or Sufierance does a Thing in 
alteration of the Polleffion, of which b}' common Intendment the Lcfor 
cannot have or take Notice, there the Law will not prejudice the 
Leflbr, fo as to make it a Diffeilin. Arg. Brownl. 230. Mich. 11 Jac. 
in Dame Pett's Cafe. 

71. If A. be fcifed of a great Clofe, where &c. and a Stranger enters 
and occupies P^r? of the Clole, yet notwithltanding A. continues the Pof- 
fefion of theReftdue. The Quel'tion was, Whether this fliall preferve his 
Poffeffion in the Refidue and he fhall be judged to be in Polleflion of 
that becaufe it is an intire Thing ' Haughton was of Opinion that it 
was a Diffeilin, and Dodcridge faid it would bemifchievous if it fhould. 
Brownl. 230. Mich. 11 Jac. Petts's Cafe. 

72. Father dies, the eJdefi Son beyond Sea, the Youngeft may enter ; 
But if he keeps out his Brother after his Rtturn, he is now Diffeifor. 
Per Doderidgc J. Palm. 416, Pafch. i Car. B. R. Mayo v. Strump- 
iing. 

f^3. Entry 



92 DifTeifm. 



Such* En- 73. Entry of Lcffee by Deed for Tears before the ^Tehu Is no Difleifin, 
Ti-visaDir. uniefs an Expullion is alleged. Cro. J. 684. pi. 2. HilJ. 21 lac. 
EtnS-5 B. R. Brookbank v. Taylor. 

his Poffeffi- . ^ - ,, . „ , . ^. 

- on after the Commencement of the Term. Lev. 45 Hennings v. Brabaron.- — Clayt. 27. Mercalf v. 

Stavely.-- 8 Mod. 5;. Sheers v. Lammas, but no Judgment. But adjudg'd, 54 Mack- 

donald v Weldon ; That it i.^ no DifTeifm where the Continuance in Poffeflion was f by the Cen/ent 

cf Leffor. '■ It there was any Agreement or Afllent that the Leflee fhould enter it cannot be any 

DilTcifin. Ar.g. Le z<)6i in Cafe of Ctifp Si. <!5oIDing. And if Rent iticurrs ajlerwards. Debt 

lies for the LefTor on the Privity of Contraft. Cro E. 1(59. Alexander v. Dyer. For the Leffee 

cannot deftroy the Contraa unlefs he makes a Feoffment. Per Jones J. Godb. 584. pi. 471. Patch. 

2 Car. R R. Green v Moody. He hath not but for Years in refpetl of his Claim. See Godb. 

585. in Cafe of Green v. MooHv. 

* Cro. E. 76(i. in I 3*0 of Douglafs v. Shank. 

■\ Cro. E. 906. Waller V. Camincn. 

Lift. S. 5SS, -74. If a Man receives ftiy Rent, it is at my Ele£lion iff will charge 
5SJ). S. P. j^jp, ^j|.j^ jj Diifeilin, by bringing an Alfife or other AftioHj or have an 
Account. Cro. C. 303. in pi. 6. Pafch. 9 Car. B. R. 

•)$, There were fjvo 'tenants in common of an Houfe^ and one of them 

nailed tip the Doors, and made up a Wall againll the Houfe to prevent 

the others getting into the Houfe, and this was refolved no Difleifin, and 

fo the Jury was difcharged. All. 8. Pafch. 23 Car. B. R. Water's 

Cafe. 

2 Le. 121. 76. Leafe dated 24 June to commence a Die Datus, Leffee enters the 

?'; '"^V- fame 24 June, He is a Diffeifor. Sid. 8. pi. 3. Mich, 12 Car. 2. 

eIiV in'the C. B. Goodgaine v. Wakefield. 

Exchequer. 

Arg. S P. 

77. Leafe by Ceffy que 'Trufi to T. is no Difl'eifin but only at the Elec- 
tion of theTrultee, but it is good between Lellor and Leflee at leaft. 
Keb. 24. pi. 71. Pafch. 13 Car. 2. B. R. in Cafe of Thorn v. 
Burton. 

'I'wo Ten- 78. A Man cannot be difleifed of an undivided Moiety. 2 Salk. 423. 

ants in com- pj. jq. Hill. I Ann. B. R. Reading V. Roy ftori. 
Com of an 

Mwafcn one alone prefents, vet at the next Avoidance they may join, and if they are difturbed, 

Quare impedit lies as in the Cafe of Coparceners. Qujere. And. 6;, Harris v Nicholls ^ -Cro. 

E Its. S. C. per; J. makes a DitFcrcnc. between Grantees of Copaceners, and meer Tenants in 
Common, that in the firft Cafe .in Ufurpation of one fhall not put the others out of Pofleffion; but 
that perhaps would be otherwife in the laft, unlefs they were fuch as derived their Eftates from Co- 
parceners, and yet 22 E 9. 9 is that between Strangers in Blood or where two make Compofirion to 
prefent by Turn, if one ulurp upon the 1 urn of the other, this fhall not put him out of PofTefSon, 
but Andcrfon doubted. 

79. If a Leafe be made to A. •which in 'truth determined before it hegdti, 
and A. leafes to B. the j-ime Land reiuiving Rent, and for Rent arrear 

A. dtftrains, B. brings Trefpals, and A. avows, and in the Pleadings 
of A. the Determination ot the Leafe to A. appears, whereupon B. in- 
filled that A. had failed in his Title, and that the Leafe to A. failing, 
the Leafe by A. to B. muft fail alfo. But it was anfwered, that if B^ 
has failed in deriving to himfelf a lawful Ability to make a Leafe to B. 
then the Confequence will only be that that Entry which A. fet tbrth 
to be Virtute of fuch Leafe mull be taken to be a Difleifin, and a tortious 
Fee Simple fujficient to fuppc-rt the Leafe. See 10 Mod. 265. Mich, i GeoV 

B. R. Potter v. Pinknc) . 



(C. 2) What 



Diileiiin. 9^ 



(C. z) What Is a Diflclfin. Aci in Lavv. 

I. T F a Man recovers Land by Default aga'wft a Feme Ccjert this is 4 
J[_ Dilieilin, and Ihe and her Baron ih ill have Allife, and if the 
Baron dies the Feme fliall recover by Alliie, and it Scire Facias be 
fucd upon fuch Recovery by Scire Facias the Feme Ihall extort the 
Execution; Per Trench, which was denied becauje the Judgment 
Itands in Force, and Execution is awarded of Damages, et quod habeac 
corpus coram Rege at a certain Day. Br. Error, pi 86. cites 24 E. 3. 
24. 43. But Brooke fays. Quod Mirum, becauk it feems that the 
Matter is Error. 

2. In Affife if the Plaintiff makes 7'itle, and the Defendant counter- 
pleads it, the Affife fhall not inquire of the Seiiin and Dilfeifin (as was 
touch'd by the Court) if they find the Title for the Plaintiff, but inquire 
over of the Damages only ; For the Defendant is a Diffeifor by his 
Counter-plea of the Title of the Plaintiff, quod nota, and the Title was 
found for the Plaintiff and he recover'd. Br. Diffei'in, pi. 47. cites 
27A{r 6$. 

3. In Affile, becaufe the Tenant had confe_(fcd FJlate in the Plaititiff, 
and pleaded in Bar that which was adjudg'd no Bar, the AfHIe was 
awarded in right of Damages, and he adjudg'd -i Diffiifor by hts Counter- 
plea, and was taken, quod nota. Br. Diffeilin, pi. 48. cites 28 Alf. 21. 

4. An Infant Ihall not be adjudg'd a DiHeifor by his Conufance or * Orijrinal 
Nient Dedire, and therefore when he had pleaded that Ne unques is^Accoroptj 
* Accoupleagainft the Plaintiff^ and this is certified againll him, the 

AfUfe was taken in point of Ailile, and Ibund ibrhim, and the Plaintiff 
barr'd, quod nota. Br. Diffeilin, pi. 52. cites 28 Alf. 52. 

5. A Man granted a Rent and died before Attornment, and after the 
Tertenant paid the Rent to the Grantee, and he received it, and the Heir 
of the Grantor brought ylffije againji the Pernor of the Rent, who counter- 
pleaded the JJftfe by the Grant and Attornment, and it was found as 
above, and by Judgment the Plaintiff recover'd, and the Pernor ad- 
judged a Dtffeiforfor the Counter-plea of the Affife "jjithout Title, quod nota. 
But if the Pernor above had not counterpleaded the Afftfe he had not been 
a Dilieifor by the Receipt ol the Rent, where the Tenant paid him 
gratis, but xh^xtthe Tenant is a Dijfeifor as it fcems. Br. Dilieifin, pL 
61. cites 40 Aff. 19. 



(C. 3) Diileifin with Force. What is. 



i. 'X/TOWING the Land, Fiffjing^ Catting &c. which cannot be 
XVJL done line Manu Opere are Diffeilins with Force and Arms j 
Per VVilby. Brooke fays, Qujere, For they are clearly Dilfeilins, buc 
^Utere of Force. Br. Dilieilin, pi. 33. cites 11 Alf. 25. 

2. Lord and Tenant, and the Lord came to dijlraut lor the Rent, and 
the Tenant zvould net fuffcr him to enter the Hoiife to dillrain, but Inter- 
rupted him with Force, and theretbrc he was adjudged a Diffeifor„ 
Br. Diffeifin, pi. 53. cites 29 Aff 49. 

B b ' 3, A 



94 



Dillriiiil. 



3. A DJfleifor madeDiileifin but siocwith Force, and by examining it 
appeared chat the DiJfe$fnF had cat Wood., buc this was after hisjirji En- 
try^ aad notwfthftandsng this he was adjudged a Dilieiflbr with Force 
and Amis, Q^aaerc Bf. Di llesjin, pi. 55. cites 30 AiFjo. 

^ li'a Man levies my Rent of rny Tenant by Coercion of DiJIrefsy 
this is aDiiletJin w ith Force and he Ihall go to Prifon, quod Nota Bene, 
and yet the Tenant might have thereof Trefpafs, ior it is a double 
Tort. Br. Difieiiin, pi, 62. cites 43 AKg. 

5. Two tnay be Dtjjeihrs^ and the oyie with Ferce, and the other not^ 
As si I comriiand one to make a Diileilin and he mikes a Diffeilin with 
Force, and alfo it one enters with Force to my Uie, and after I agree 
he is a Di/leifibr with Force and I am not fo, and ihofe Cafes will an- 
fwer the Books ot Aliifes, for in thofe Cafes they were prefent but in 
thefenof, and fo I hold that he which. is prefent when Force is made, is 
a Diileilbr with Force ; Per Aiidcrlbn. Gouldsb. 42. Pafch. 29 Eliz.. 
ia Cafe oi Dickfey v. Spencer- 



^D.) //7.w^ Perjw may be a Dlflelfor. 

•8 •D■Mr^v^^• A ^^"^^ *^^'^" ^^^^^ "^ ^^ a DifTcirorens by the Aa of the 

pi.6-.y<5) ^ ^^^°°' 7 ^- 4- 7- ^- * '2 ^- + 9- b. 

cites S, <1. — 

Fitzh DJficifin, pi. 5. cites S. C. F N. B. 179. (G) S.P. See (F.) pi. 3. &c. 

Bi-.Diflcifin, 2 In Affile the Father mafic Feoffment in Fee upon Condition and diedy 
pi. 43. cuts Yi'xvin^ two Daughters, ihc one of full ^ige and the othtr an Infant, and 
the eideji thinking the Condition broken, which was not broken, entered 
claiming for her ^?W /;£t i5'///tT who was an Infant i flie of full Age is 
Difjeiforefs only, and the other who is an Infant nor, for uothing veiled 
in heri Per Skipwith. Br. Ent' Cong. pi. 60. cites 26 AfT 39. 

3. \i my 7'enant pays \\\s Rent to a Stranger withuat Coertion, he alone 

is Difleifor, and // hy Ccertion both are Dilfeifors. P>r. Affile, pi. 455. 

(454) cites 23 H. 3. and Fitzh. Affiife 439. 

^ But tliey 4. Affife by making of a Ditch by the Defendant where his Servants 

did not affift^gjj^g jj, ^-^^^ jjyj jj^gy (jj(^ j^yj t manure the Land, and yet thev were 

TfThe'"^' Dilleifors, Quod Nota. Er. Ailifc, pi. 448. (447) cites 8 £.'3. and 

Ditch, 8 E. Fitzh. Alfife 14J:. 

5. 59- 3°- 
pl- 3. 

5. An Infant purchafed, and one as his Guardian takes hint and made 
Feoffment and died, and the Feoffee was adjudged a Dijfeifor by the Statute 
of Wejiminjler 2. cap. 25. For living either of them the laid Writ Ihall 
hold Place, and therelbre the taking of the Infant only as Guardian is 
no Dilleilin, Quod Nota, by Judgment. Br. Affife, pi. 449. cites 
8E. 3. 

6. A. vmn recovered again fi him who had nothing, and infeoffed B. and 
one C. deliver'd Seilin, and the Affife was brought againft B. and C. 
and the Plaintiff recovered, the Feoffor not being named ; and fo fee 
the Attorney who delivered Seiftn was a Diffeijfor. Br. Dilleilin, pi. 27. 
cites 10 Ait 22. 

Br.Difleifin, 7. In Affife N. and A. his Feme were feifed and leafed to IV. and bis 
jpl.j2. cites Heirs for i<]Tearsy }V. died within the 'Term, and P. his Son and fieir 

enttred 



Diffeiiin. . . 95, 

entered and levied a Fine to A-J. -mho rendered to P. and K. his Feme in S C. Brooke 
Fee, and P. dted^ and N. died i tiie "term expired, and v?. who diiirrt not ^[j^. /hit 
approa-ch in the Lilt- of N, rffered now to enter, and K. dijiarled hun^ j^ l^'^^^ 
and the faid A. bron^^ht Affij'e againfi K. and recovered and Damages to wo Dijjhjln 
the Time of the Dilturbance 3 ior K. was no Difieilbr till the Diftar- nil tie D,f- 
bance; for She was Covert betore, and P. -aJas Difetfor alone till KJ""'''"'^^- 
■was Sole aKd made the Dijlarbance. Br. Alfue, pi. 172. cites 11 
Alfzi. 

8. A Vtlkin made a Feoffment of his Land which he held in Villei- -^ P; ."'■• 
nage, the Feoffee is no Diffeilor j Per Cur, Br. Alfife, pi. 454. cites J^^'J c.'tes 
■2.0 E. 3, 20 H. %. 

and Filzh. 
AtTite 43 i. 

9. Affife agaififl the Baroft and Feme and W. N—W. made Default, and ^'^ Covcr- 
the Affife was awarded againll him by Default, the Baron and Feme ^^^^^'^q''^' 
pleaded Record m Bar 0} Affife, which was denied, and they were adjourn- ^ 

nd, at which Day the Baron made Default^ and the Feme wa's received 
notwithftanding the Statute ot Weitminfter 2. cap. 25. Quod habeantur 
pro DiireifitoribusabfqueR,eoognitione Affifse. And lo fee that Feme Co- 
vert by Reafon of the Receipt ts not hound by it to be a Diffetfor , for it feems 
oj beth« Aft of the Baron. Br. Affife, pi. 186. cites 13 Air i. , 

10. In Affife a Man leafed Land for Life, rendering Rent, and went B"-. DiffeilSn, 
ieyond Sea, the Tenant for Lif-e died, and T JM. coiinfdkd H. IV. the Heir ^ ^^ ' 3^^'" 
cf the LeJJor to enter, who entered and enfeoffed P. And the LeJJor came ^. ^^ ,^ 
■and imuld have ■intend^ and P. difiurhed htm, and he brought Affile accordinglvp 
againii P. and the Counfellor, and omitted him who entered, and the w'lc''^. the 
Plaintiff recovered, for the ComifeUor ts Diffeifor, and ib it is fufficient it'^°""'^','"/^.^ 
Difieifor &c. be named in the Writ, quod Nota. Br. Affife, pi. 193- to Prifon ; 

cites 14 AIT 12. for the Dil- 

, feidn was . 

Vi et Armis. — ' Br. Difleifin, pi. 40 cites 17 Afl. 14 S. P. and To o! him who com- 
mands. Bt. Diireifin, pi. 45. cites 27 Afl. 50. 

\ I. In Affife, the Tenant vonchd Record and failed at the Day, he is 
a Diffeifor by the Statute. Br. Alfife, pi, 202. cites 15 Alf 16. 

12. In Affife, the Father made Feoffment in Fee upon Condition and died^ Br. Difleifin,, 
having ?«;o Daughters, theow of full Age, and the aher anlnfint, and the ?'■ *'■ *^"" 
JLldeff thinking the Condition broken, which was not broken, entered, claiming ■ • 

for her and her Sifter who was an Infant, Ihe of full Age is DtJJetforefs onl y, 
0nd the other who is an Inlanc not, for nothing is veiled in her i Per 
Skipwith. Br. Ent. Cong, pi. 60. cites 26 AH! 39. 

13. If one enters claiming as Guardian of the Bodv and Land where , 
he had no Right, and alter devifes over the Wardlhip, luch Devifee is 
& Difleifor as well as his Grantor. Br. Dilleilin, pi. 85, cites 28 Alf, 
II. but ^dds quod niirum elt! for that he vva.s not the iirll: who enter- 
ed, but the Devifee of him. 

14. K^\(q againff ^in Injaut whvpleadtd Jiccord and failed at the Day, 
yet he may plead other Matter, and ihali not be a Difleifor notwith- 
itanding the Statute wills that they lliall be taken tor Diflbifors, 5c con- 
cord' 33 E. 3. and there per Finch the Affife ffiall be at large i Quod 
quaere. Br. AUife, pi. 460. cites 36 P^, 3. 

15. A. has Right to recover in a Fnrmedon ijgainjt B. Tenant of the 
Land. A. by Covin with C. caiifes C. to di[feife B. to the Intent that C. 
Ihould make Delault in a Formedon againlt him, and that A.jhould re- 
cover by Default. A. recovers the Land againll C. accordingly by this 
Covin, by Delault, or Confelfion. A. enters. He is not remitted, 
E, enterSj and A. ouftshim. Kefolved, by all the Sages in Parliament^ 

that 



^6 Diireilin. 



that this Covin makes A. a Dijfeifor of bis cwn Land. 3 Rep. 77. Far- 
mer's Cafe. Coke has many Cafes to this EfFeft. Fraus & Dolus ne- 
mihi patrocinentur. Jenk. 46.pl. 88. cites 41 AfT! 28. 

16. Leffee for Life is dt[Jetfed. Hq In t\it Revcrjion otifls the DiJJeifor. 
The Dilleifor brings an Affile againfl: him ; and it well lies during the 
Life of Lelfee lor Lile. Jenk. 52. pi. 99. cites 44 Aff! 35. 

17. Affife againlt Baron and Feme ; they pleaded ifi Bar and confejfed 
an Oujier, and the Plaintiff traverfed the Bar, and after the Baron made 
Dejault, and the Feme -was refceived and pleaded the fame Plea, and the 
Plaintilf traverfed it, and the Affife found for the Plaintiff^ and that he 
was feifed and difleifed, but that there is not any Dilleifor named in 
the Writ. Dfgg.faid che Baron by his Plea contefs'd an Ouller, and the 
Feme has maintained the fame Plea, and fo Dilfeilor by Confeffion ; 
Per Tank, the Affile is not taken upon the Plea of the Baron, and when- 
thi Feme was received the Baron was out of Coart^ and his Plea nothing of 
Record to prejudice his Feme, and a Feme Covert cannot be faid a 
Dilleifor by her Plea, & concord' Belke, & adjornatur. Br. Affile, 
pi. 24 cites 44 E. 3. 23. 

18. IfT'snant for Tears, or Guardian, aliens for Life, the Remainder 
over in Fee, he in Remainder who enters after Death of Tenant for Life is! 
a Dijfeifor as well as the Leflee for Lite^ for all is but one and the 
fame Eftate in Law. Br. Ent. Cong, pi 27. cites 50 E. 3. 21. 

Where the 19. It the King enters by Title, or without litle, the Party cannot en~ 
h"''^^"id'o- '^^ "P"'' '^'"^j "O*" 's he a Dilleifor i and this feems to be, where he 
infufficienr enters without Record or Office this is without Title, but there he [hall 
Office, or fue by Petition, nor the King in this Cafe is not a Dilleifor. Br. Enc. 
enters widi- Cong. pi. 95. cites 3 E. 4. 24, 25. 

out Tire, 

and grants the Land by Patent, Affife lies againft the Patentee ; for the King cannot be a DilTeifor, 

and therefore the Patentee is DiflTeilor ; for infufficient Office does not give Seifin to the Kino-. Br. 

Office devant &c. pi. 42. cites 7 E. 4. 16. and 22. Br. DilVeifin, pi. 65. cites 7 E. 4. 17"! S C. 

& S. P. 

20. The A7«^ cannot hQ a DilTeifor. Br. Office devant &c. pi. 42. ' 
cites 7 E. 4. 16. and 22. 
Br. Difcent, 2 1. Il a Monk dijfeifts a Man to the life of a fecular Man, this is no 
pi. 15 cites j)ijjeij5n ; For he has no Capacity to take Franktenemcnt, and it feems 
sIp.perFi- "^^^^ though the fecular Man agrees afterwards he has no Franktene-' 

neux. ment i Per Fineux Ch. J. Keiivv. 91. b. pi. 3. Trin. 22 H. 7. 

10 Mod. 

iz?. Arg. fays that the Authorities are many that a Monk may be a DilTeifor ; but that it particularly 
appears to be fo for this, that a Writ of Affife lies againft a Monk, and the Judgment in fucli 
Writ is, Quod recuperet Seifmara, which fuppofcs a Monk to liave a Freehold. 

22. If I difleifeone ?o the Ufe of the Dean and Chapter, they cannot 
agree but by Writing. Br. Corporations, pi. 34. cites 14 H. 8. 
2. 29. 

23. T\it King cannot he diffeifed, but all Intruders are but Trelpaffbrs 
to him, and if he will he may charge them by A<5lions of Account, as 
Bailiffs, yet he may if he will bring a Writ of Right of Advowfon ; 
Per Hobart Ch. J.' Hob. 322. Pafch. 17 Jac. in Cale of Elvis v. York 
(Archbilhop) & al'. 

24. An /»/i««^ cannot be a DilTeifor. Arg. Godb. 364. pi. 456 Trin 
2 Car. B. R. in Cafe of Affifield v. Affifield. 

25. It an Infant makes Letter of Attorney to make Livery and Seilin 
and the Attorney makes Livery accordingly, he is a Dilleifor. Arg, 
Godb. 387. in pi. 474. Palch. 3 Car. 



(e; 



Difleifin. py 



(E) By Agreement. 

t. \% iftlje Baron difleifes ailOtljCt to the ITe of the Feme, t?)C Br.DifTcinn, 

r\ Jrcme 10 not a DilTcUacEfjs bp i\fS Clrt of tijc a5ai-oa« r.' ^r c^^) 
^2^*4. 9. b. . --fj^.;r 

feifin, pi 
•> cites S C 

2. So it fljnll be though the Wife agrees tO It during Coverture, ' 

for !jct agreement \% UotD. 

3. 3ifOlteMan diiieiles another to the Ufa of a Feme Covert, ff 
tIjC Feme agrees Dlirmn; tljC CODCttUtC, }?Ct fljC IS UGt CSIJ) DllICUu^ 

rcf0, for ijer Slgrcenient is ijoio* 

4. So If tlje Baron agrees tO tljC DtlTcifnt, ti}f3 fCtt!C0 iUt CUatC R''- r^ifTlifin 

in tljc JfeniC; but %i fljall not be a Diflctrorcf^ bP toe Sgrecirxnt ''•• '*". ^'^"^ 
cf tljc Ooaron* 12 e* 4- 9- b, " S du^ 

fc'fin, pi 5. 
cites S. C. Bi-. Agreement, pi. 4^ cites S C. 

5. -gcbe fame lam if bot:h agree, pet tlje lenie is not a DIITaTc= Br.D.flcifii, 
tcfis* Contra, 15 C 4- 'J- b« aomitteD. Se's'.sc''* 

but not S. P. If a Man dijfeifes another to the Ufe of Baron and Feme, and the Rnron alter 

agrees, the Frankteiiement by this is in him and his Fere, but thereby the Fcnu Pr.Al not be a DiC- 
feiforefs. Br. DiiTeifm, pi. 67. cites 12 li. 4. y. 

6. But after the Death, of the Barori, if tIjC Feme agrees tO ti)Z B. DiiT-ilTi! 

DifT^Um flje fljali be a DtiTcirorcrs* 12 e* 4. 9- b. Cuna. ?> ''7("^'J 

citts ,S C. — 
Fitih. DiiTeirin, pi. 5. cites S. G. Br. Agreement, pi. 4. cites b. C. 

7. If a ^an tiiflcifcs anotljcr to the ufe of an infant, vn tljc In-- ev D.pijin 
fant fljaUnot be a Diffeifor bp Ijisi asrecmcnt tijcrcto, iDtsDua- '^"-^/^ »/ 

tux, 2 e, 3- 32- theln'H,,; 

i is not Diffei- 

for nor Tenant without f.ftual Entry ; For Jfreemert of an Infant to a Tort Hces not m.ikc him a 

tort Fcifor et adjournatur. Br. AiTile, pi. 46. cites 5 H. 4. 16. in the written Boi k — Br. 

UilTeifin, \\. ?, cites S. C. Brook fays and fo fee that he who rray agree iN .t Diileifor by his Aj^i tc- 
nient, as v.ell as Tenant. Br. Diflcifin, pi. 5. cites 5 H. 4. 17. S. C. 

It was adjudg'd in Writ ot Error that if two dilleife another to tic Uje 0'" an Infavt, and the Infant 
agrees to it, yet he is niJt DifTeifor nor Tenant.; For agreement of an Infant is vi.,!d ; Eui if he enters 
then he is by this Tenant, quod nota. Br Agreement, pi. 9 cites ; H 4. 1 7. in the wriiien i-iouk. 

Brooke fays and lb fee that t'le Fr.inktenenicnt fli.iU not be adjudg'd in him by tlie Entry of 

the two to his ViC, till the Infant himlelt agrees to it by his adtual Entry. Ibid. 

8. li t\\Q Bailiff" of aii Infant, ivho lies in a Cradle^ difleifes a Man to 
the Ufe of the Infant, the Bailiff only is a Dilleifor ; and if an Infant 
commands a Man to enter into another's Land which he does, he who 
enters only is Dilfcifor. Br. Dilfeifin, pi. 16. cites 2 Alf 2. 

9. If a Man makes Diffeijiii of Cjonn/wn 8ci:. and J.N. co?ues in Aid 
of him, ]. N. is a Dilleifor. Br. Dilfeilin, pi. 21. cites 8 Alf. 18. 

10. li a M'in grant a Seigniory with Condition of Payment ^ and Non- 
payment, and iheCrantor itnders the Money according to the Condition ., 
and the Grantee rejiifes it, and after the Tertenant pays the Rent of the 
LcrdtotheGyantee, and the Grantor brings Alfife, this Iliall be againll 
the Tertenant and the Grantee ^ For the Grantee is Tenant of the Rent, 
by the Receipt by hinvhad utter the Tender according to the Conditi- 
on. Br. Dilieilinj pi. 82. cites 15 Alf 22. 

C c ir. In 



98 



Diireifin. 



II. In Aifife of Rene it was found that the Refcotis of the Diftrefs 
taken by the PlaintiH was made Ly a Stranger, to which Refcous the 
q'crtmant named in the JJJife agreed, and therefore the Affife well 
brought againft him only, and he a Dilfeifor bv the A'^reemenr Rr 
Dilleiiln, pi. 38. cites 15 Air II. ' ° • 

12^ L^nddefcended to '"' /«Ja»t, and one J. N. entered, clalmhg 
JUrdonly, and devijcd tt to W. N. and died, and IV. N. en teAl And the 
Infant brought Alhle againfthim, and havas aimrded a DtllV.for <7s weH 
as his Grantor Quod Mirumi For he was not the fir/t whoeater'd but 
the Devifee of the Diileifor. Br. Diifeilin, pi. 85. cites 28 Aff i i 

13. It a Man does an Acf tn my Right where I have no Rnht 'there if 
lag,-ee thereto alter I am a Trelp^Hbr. And by the lame ConVequence 
in other Cale Dilfeiior by Agreement, as it leems. Er Dilleilin nl 
99. cites 38 An. 9. ' ^ 

S. P. For 14. Per omnes Prjeter Finchden; M Tenant for Ttrxx\ nf ri... t 

Eftate. Br. ot Life dies, or if the remi^t in rail dies -xuhoiit Iffae, and he in Re 
Difl-dfin, pi. mainder enters, there he in Remainder is a Dilfdlor as ^N&n as he who 
;. cufs 50 alien d, and this by the Statute of VVeftminfler 2 cap 25 For the Fn ■ 

^ 5 "■ try of him m Remainder is an Jgreanent to thejirfi Livery ; For the Sta' 

habet Prasdiaum breve. Br. Difeihn, pi. 86. cices 4^ Alf. 4. -^ co 

R Arrr ^""t'^f ^°^^' ^^'^' '^''% ^^'^"^^^ "^^ny of the Fleas m this Year! 
Rr. Am, IS. It a Man enters mto Land and makes Diir^iin to mv UP and 
Pl-o. cues r.^5. //,.Pr.A.. ro ,«jC//. this does not make me a DifieiS\ill I 'a^rce 
to It. Br. Agreement, pi. 10. cites 37. All. 8 ^ 

16. If I leale Land at \Vill, and my Tenant at Will enters into the Land 
^djo'nmg, claming to my Ufe, and fa/l„res the Soil, and aits Wood, and cuts 
Oaks, by which the Tenant of the Franktenement ^h^reoi v Jst he pL 
feffion, and brings Jffje, and th:s xMatrer is found, bet the L.'llor has no 
thing J the Profit, but the Dilfeifee might have taken che PrXs if he 
wou d, and that the LelTor dtd not command his Tenant fo to do But 
the Jury faid, that they thought that forafmuch as the LelFur after he 
knew that his Tenant had lo occupied, did not make him to make 
Gree to the Diffeifee, that therefore the Lelfee agreed to the Afts of his 
LefTee at WiJL But per Cur. //.. » «. Agreement, ^nd therefore by 

^-T'^?',^'^^°''^'^'°^'^^''^"'' '^"'^ *••"■'• hence fee clearlv tlS 
It there had been an Agreement, the Lelfor bv this had been a Diirei 
S P. Br. ^or, quod nota. Br. Dilicilin, pi. 59. cice,9^7 Aff S 
DiiTeiiln, 16. It my Eatlifff difafes another to my Ufe, and 1 aor.e to it after 

PI..04. Ifordi.s amaDilfeillor, Per Clam. Br. Ejeftione &c. pi 8. S 

S'"6?"'dt1w '^- ^^^here DilTeifin is made by the one to the Ufe of another this 
P . 67 ^,,, ,^^,„ Franktenement to tire ether tdl the cth.r agrees, and by Agree- 

• "^"""l ^11 ^u'^'f\ '"^ ^T""' °^' ^'^'^ i'>-ktenen>.e'nti bu^t IS- 
vient of the Baron liall .,ot make the Feme to be Dilfeiibr, but contra 
MJhe^ agrees after the Death of her Husband. Br. Agreement, pi. 4 "ites 

fz'^i'?- ur^ i^T ^^° '''f no^^Cap,icity as Feme Covert dijeifes another to the 
^uL'of Ufe of her Baron, without his ^fent, th. Franktenement is not in him 
D>ffcif.n f d Affent after does not make a Dilfeilin in him, but contra of -in A^^ 

to theUlcof her Baron; Per Fiiienx. 

hrly tTe' • h^' ^^°" f'l<i<^^<^^ ^ Was held by Anderfon, That if a Feme Covert 
.ha/a fL f ^.^ !"'^' ^"--^ that afterwards the Husband .jffenls, that yet Te Hal 
a.nic.mox band is not an Ejet^ori lor an Kjcamcat is made in an Inll nt md 



h.- 



,is 



Diileifin. 99 

has not a Continuance j otherwife of a DilFeiiin. Nov 52. 37 & 38 ^^^,P,'*^f'- 

,.,. r, , A < J ^ ^ : ^ lords by her 

thz. Broth V. Archer. Commaid- 

tKf.nt or Procurement precedent, nor hy her Jffent or Jjrre'emait /tihfequenti but by her attiial Entry 
or proper Act (lie may be a Difleiforcls. Co. Litt 557. b. 



(F.) Bv what FerJonSy ntid to <whom it may 

be made. 



I. A B Infant of tljC 3^ Of 18 Years HWp bC H DUTCifOt: tUItl) 
/l. StOVtC by actual Entry. 12 C> 4. 22. b. 

2. an intunt map be a Difleifoi: bp a$ual emtp* 3 P* 4- n- ^!\6 ^tes 

5 H. 4. i<S. S C. Br. Agreement, pi. 9. cites S. C. Br Dilleifor, pi. 5 cites S. C. 

3. So \mv a Feme Covert bp aCtltal etttcp. 9 Jp» 4- 6. * 12 e» 4- * S.P. Br. 

9- b» Ciina. 7 C. 4- 7- b» ^f".'!"A 

pi. 67(66) 

cites li E. 4 9. S. C Fitzh. DifTeifin, pi. 5. cites S. C. Co. Litt. 557. b. S. P. 

But without aftual Entry rtic fliall not. F. K. B. 179. (G) 

4. Eut an Infant fljaU not bC 3 DiflGifaC by Agreement tO a "DlM- Br. Affire, 

fin to Ijiis life. 31^,4. 17. 12]^. 4. 22. b» pi. 46. cites 

o. C. — * 

Br.' Agreerftent, pi. 9. cites S. C. . Br Difleiror, pi. j. cites S. C. 

5. 3if tbe Baron and Feme enter into Land in the Right of the ^ P Rt-. 
Feme where Ihe hath no Right, tbC Feme iS llOt a DtfTcifOrCfl ,9 I3. Di(r.-ifln. 

4. 6. %tt 1 35 3fr. 5- Contra 28 m, 37 Cutia, foe tlji^ fljall be tn^ ?;e 4T-I 
hen to be tJje 3rt of tljc ipuglinnb onlp. t Br. Affi^, 

pi. 540. 

(559) ci-esS. C- Rr Coverture, pi 41. citea S. C. Fit7.h Aflife, pi. ^21. cites S C. bur that 13 

that the Writ ab.itctl bv the not naming of the Feme. Br. Affile, :S-. C-S6) citcsS.C. that where 

the Baron is dea-i after the DifTeifin i< made by them, the Writ (hall abate; For the Feme has now 
loft the Name of the Feme, and in Aflife there cuglit to be JJilleifor and Tenant, (^lo.i Nota. 

6. Ufa Man takes a Diftrefs for Rent ifluing out of the Land of a Rt" DilTeifirt, 
Feme Covert, anU the Baron and Feme make Relcous, tijC)? bOti) aVC l\ ^^ ^^'^^ 

OiCfeifor^. 2ie4-53- €unn. ' andVooie 

fayv, Et Cic 

Vide, that a Feme Covert may be DilTeifbr, Quod Nota bene. Ibid.pl. 70. (69! ciics S, C. by 

Brian Ch. J. Quod fuit conceltum, 

7- !Jf tlje Baron difcontinues the Land of his Wife, the Feme be- 
ing in PoliefTion, and DlfanirCeinn: to tbe ifeOffment, claiming her 

firft Ertate, tljc Jfeuie tg a Diireffoucfs; tijerebp. 21^.3- 6. b. 

8. In Allife it was found that Land was given to Baron and Feme in ^'' DifTeifin, 
7*^/7, the Baron went out of the Country, and the Feme injeoffed O. "who ^ ^'^j.'^""^-^! 
leafed to the Feme for Life, the Baron died, and the Feme died wif/w/// j^'^ oincifm 
l(!uc, and the Donor entered, and O. oufled him, and the Entry of the to the Baron, 
Donor adjudged lavvlul j For the Fcottment of the Feme was a Dif- and there- 
leilin to the Baron, and by the re-taking of Eftate fhe was remitted, p^f.f^.p^JJ,'^'* 
and theretore the Reverlion in the Donor, and his Entry lawlul ; Pi^r g.,^ j],g|.g.* 
tct.Cur. Br Remitter, pi. 17. cites 9 All! 20. fore the 

Feoffee only 
is a Diflcifor, as it feeems, 

Q. AlTife 



loo Djileifm. 



9. Aiiife againft an Infant who pleaded Releafe of the Plamtijj in Bar^ 
and it was admictedi and it was faid there that by his Plea he _^ja/l not 
be attainted Dijfeifor by Reafoii of his Injancy. Br. DilTeilin, pi. 26. cites 
10 Afl". I. & concordat tlie fame Year, p. 13. 

10. In Aflife it was faid, That before the PolTeffion of the King 
none can make Dili'eilin to the Tenant of the Franktenement. But by 
the Reporter, if the King be feifed in Jitter Droit and a Man abates 
upon the Fojjeffion of the King, this is a Dilfeilin to the Tenant of the 
Franktenement J Quaere. Br. Diffeilin, pi. 56. cites 31 AiT. r. 

11. A Man cannot gain Franktenement by Entry upon the King nor 
Upon the Farmer of the King, nor this cannot velt in him as a Dilleifbr 
nor by Difleilin. Br. Dilfeilin pi. 4. cites 2 H. 4. 7. 

12. Where a Man abates upon the Poffeffion of the King in Land which 
he has in Ward, yet the Franktenement remains in the Heir, by which 
he cannot devell the PcffeHion out of the King &c. j Per Gafcoign and 
Huls. Br. Diffeilin, pi. 6. cites 8 H. 4. 17. & concordat H. zrE. 3. 
fol. I. 2. Brooke lays, from hence it feems that a iMan cannot be a 
Diffeifor fo long as his Termor remains upon the Land. 

13. Allife againft divers, who pleaded Nul tort &c. The Affife 
found that all the Defendants were Dilleifprs, but that one of them 
made the Diffeilin with Force. Harper thought the Verdi6t not good, 
but Dyer and Wefton e contra ; for that the Force and Dilfeilin are two 
diltinft Things J for Force is aided by the Statute, and is not incident 
to every Diffeilin; for it iTiould be inquired by the Alfife if they, or a- 
ny of them, had done the Diffeilin with Force i and if Leffee for Years 
be re-oufted with Force, and he in Reverlion brings an Aiiife, and the 
Diffeifin is found with. Force, yet the Force is not puniiliabie; tor the 
Force was to the Lelfce tor Years, Mo. 53. pi. 155. Pafch. 5 Elii. 
Anon. 

14. Tht ^ueen as Dut chefs o/ii?«(:.'7/?6T cannot be difleifedi for tho' 
flie be not feiled in Jure Corona, yet it is in Seilin of the Q^ueen, and 
cannot be taken from her in refpect ot her Perfon ; Relblved. Ow. 15. 
Pafch. 36 Eliz. B. R. Rot. 41. Leigh's Caf^. 



(F. 2) Diilelfin by one, where it fhall be faid a Dif^ 

feiiin by others. 



r 



F two Sijiers have 7'itk of Aciion where their Entry is tolled," znd the 

one eaters Jor her and /'cr Sifter, thisdocs not make the other to 

_, be aTDilieifor. Br. Diffeilin, pi. 76. (75.) cites 14 E. 3. 3. and 42. 
IfA.dilTcife 2. If one makes a DiJJLiJm to my Vfe without my Commandment with 
Vkoi^ P^<"'"i ^"^ afterwards I agree to the Diffeilin, I am Dilleifor, but .all 
■who knows the Force is only in the Coadjutor ; but if be agrees fpccially to the Dijfeijin 
not of it, withForce, then peradventure he ihall be guilty of the Force alio ; 
and B. aflents pgj. ^^..^j. .^^^ V\ efton. Mo. 53. in pi. 155. Pafcii. 5 Eliz. Anon. 
to it, in this •' 

Care tiil the Agreement A was Tenant of the Land, and after Agreement B. is Tenant of the Land, 
but both of them be Diffeifors ;f or Omnis*Ratihabitio ren-otrahitur Sc mand.ico equiparatur. Co. Liic. 
180, b, 

(G) What 



Diffeifin. joi 



(G) What Verfon may be a Difleilbr. 
To the Ufe of another. 

I. \ Feme Covert CaitltOt Xmht 3 Diflfeifin to the Ufe of her Hus- Br. Diflcifor, 

/-\ band. 8 3D* 14. b. Curia (faccaufe tljoiigl) m mm an (£;r= ^' '5- '^"" 
tatc bp !)cc Cnttp, pet flje Ijass not poujcc to Dtfpofc tljcrcof to an= . 
ottjet, licmg Covert, m fijc ougljt if (Ijc couia make a Diflcirm to 
anotljet ufe.) Contra, 21 ^, 7. 35. 

2. ^ f^enie Covert CannOt lllflCife a ^an to the Ufe of a Stranger, ('-^.^a^O 

for tijc Caufe aforcfaiD, Contra 21 jp, 7. 35. foi 66,. 

A Feme Coven cannot difleife another but tothe Ufe of another, for fhe hevfelf cannot take any thing ; 
but Ihe may difleife one tothe Ufe of another. Br. Diffeifin, pi. 15. cites S.C, 

3. But it feem0 a Monk may tiiircifc a S0an to tlje nfc of anotljcr, sr. Dineifin, 
fiecaufc Ijc iis not capable of an CCtate to w otnn ate* 21 ip* 7- 35- ^ c^:!!!!L 
atJimttcn* Keiiw,9i.b. 

pi ^ Trin. 
21 H. 7. per Fiucux, S. P. that it is no Diffeifin. 

4. a Corporation aggregate cannOt mafeC a DilTclTin tO tljC «fC Of Br Corpo- 

anotljcr* 8 jp, 6. 14. b. "etc. 

by Cand. but it fecms the contrary if one enters for them by Authority in Writing under tiicir com- 
mon Seal, where their Entry is not congcdble. 

5- 3if il Corporation aggregate DtffiifCjS OUC tO tljC l\k Of aUOtljCC ^/- Corpora- 
Sl9an, tljCP are Diffeifors in their natural Capacity. 8 ^, 6. 14. ij, dles'b C^''" 

6. 3if a Man brings an Infant tUIt!) IjtUI into the Lands of J. S. and 
there cJaims the Lands to the Ufe of himielf and the Infant, VCt tljC 

3Infant i$ not anp DilTeifor, becaufe Ije maQc no Clainu 26 aiT. 
39- per eitiptmtlj* 

7. Trefpals upon the 5 R. 2. The Defendant pleaded Bar by J. and 
his Feme, and gave Colour. The Plaincifl'faid, that before the faid 
J, and his Feme any Thing had, W. S. wasfeifed tn Fee and in feoff ed the 
Plaintiff in Fee, who wasjeifed, ttll by the Defendant dijfetftd^ to ths Ufe 
of J. and his Feme, to •whtch Dtffeijin ^. and hisFeme agreed &c. Jenney 
laid, that nov/ he ought to plead that all three difleiled him by realon 
of the Agreement ; But Littleton J. faid No; For there is a DiverJiTy 
where a Man is privy to the Dijei/tn at firfl, and where not ; for where f 
command a Man to enter iinlawjtitly for me, both are Dilfeifors, and fo 
it fhall be pleaded ; for there the Franktenement is in me immedtately ; 
£«Mn the Cafe of the Difleilin to the Ufe &c. the Franktenement ;j 
not in Cejitiy que Ufe before Agreement ; Quod Nota. And io it feenis that 
he who agrees and was not privy before is Tenant only by his Agreement, but 
tiot Dijfeifor. Contra of him who commands &c. Br. Diileiiin, pi. 12. 
cites 15 £. 4. 15. 

8. The Demandant and others in a Prsecipe did diffcife the Tenant to the 
Ufe of the others, and the VVrit did not abate, for the Demandant was 
a Diffeifor, but gained no Tenancy in the Land, lor that he was but a Co- 
adjutor. Go, Litt. 180. b. 

D d 9^ A 



I02 



Diffeifin. 



o. A Man diflafcs 'fen ant for Lije to the Ufc of him m the Reverjioti, 
and" afrer he in the Rtver/lon agrees to the DilTeilin ; It is faid, that he 
in the Reverlionis Dilleilbr in Fee, tor by the Diireifin made by the 
Stranger the Reverlion was devefted, which (they (liy) cannot be re- 
\eiitA by the As>;reement of him in the Reverlion, tor that it maices 
hima Wrona-doer, and therefore no Relation of an Eftate by wrong 
can help him. Co. Lite. 180. b. 181. a. 



(H) Who fhall be faid no Difleifor at the EWion 

of the Tenant. 



S p. and fb I. T if a Man enters ilttO tfje JLailtl Of attOtfjCt, claiming, as Guardian 
ifhffenrc's ^ wiiere the Land is not lield of him, or where he ought to be 

GuaT'ian'* ^uard ian, tljouffi) \)z IS a DilTeifoi: at tlie election of tlje j^eit , pet tijc 
by Kurrme Ijett 1113? elect ijuu to tz no Dilffifot;. 28 go; 1 1. aujunseo -, m 
vherc he is fudj (gufiriuaii aftft Cntrp s^uwtz^ tlje J©atti oucc, ann tfje ©ran 
Bot, and cues j.^5, cutctcip, 000 Ijc aOjuogeO a DilTetfor, ano tljetefoce tf)t;fic(f 
loE ^Ac *JDUaroian UJa!3 no DilTeifot fa}) election, for if Ije uiaiS a DinMor, 
compr,'-,5. tlje fecono ©uatOian coulo fae no DifTetfoi; to Ijiin, 

and 5: H 5. 

2. -id fays', that man7 0t'ier Books are fo ; Per Jones, Berkley, and Crooke. Cro. C. 503. Pafch. 

9 Ca ■. — S. P. Arg. Carr. 162. 

Cro. C. ;c2. 2 3;f Leffee at Will makes a Leafe for Years, tlji0 10 a DiiTeiTin at 

5°3. pi ^ tlje (Election of tfje LeOot at llBili tijat Ijarlj tlje Szt, for if ye oif- 
apd the ps?ft!3 of tlje Lano nj5 if no Diffeifin ijao aeen, tijen it is no Diffet= 

Judgment in flJl. \% 9 Cai\ 15. E. faettOeCn B/mden and Baiigh^ BrsiUOgCO tW SI 

c.B. was x^'cii Of Crrot pec Curiam; contra EicljarBfon, anD tlje Jtiog- 
reverfed by (.jp^( ^^^s^w to tljc contfarp In Oganco fap tijc Court agciintt cparop 
lirTbut re\3£ifeo aecoruinglp* 31ntcatur, rpilU 7 Car* 05. E. Eot. 1106. 
F.ichardfon luijcte nftcr tlje Leaie for ^zm maoe fap tlje lelfce at nam, tije ler= 
t:hj.e fee at i©iU nno iieffor at i©ill jomeD in aline, ann oeclarco tlje 
contra. And ^r^^ of a jfce, 300 aU)uOffeo goon* Cijts loas for tije $a9anor of 
add a^Now 'Btccljinslp, luljidj concerneo tl)e earl of ii^ottingljam, 

fol. i66 at 

the End of the Caff, that Sir Robert Heath Ch. J, of C. B. and Crawley J. Baron Denham and Ba'- 
ron Trevor a^refd with thi<; Judgment in B. R. and conceived, that it would be very mifchievous 
if it fliould be a Ij'idped otherwife., Bat Sir Humphry D.ivenport Teemed to doubt whether the Leltee 

for Years ought not ftrittly to be taken for the DilTeifor and Tenant. Jo. 515. pi. 5. Blundell 

V Baugh. S. C. in. B. R. and ihe Judgment in C B. reverfed. Litr. Rep. 572. Vaugh v. Bluti- 

dell, S, C. inC. B. adjornatur. Lat. 53. Jones J. faid, that if LelTee atWill makes a Leafe fir Years, 

and the LtfTee entcr.s, there this is a DilTeifin at the Eleftion of him that has the Franktenement, 
andnot otherwife ; and cited the Cafe of Parlley [Powfeley] v. Blackman, and cited Mich. 7 Car, 

Slundfdeu's Cafe adjudged in C. B. that Leflte for Year? only was the Diflcifor. — S. C. cited 

Cart. 162. Arg as relblved that itis no DifTcifia but at Eleftion, and if it be a DilVeifln, that the Te- 
nant at Will is the DilTeifor, and not the Te:iant for Yeirs. 5 Mod. 197. cites S C. held that 

the making the Leafe was no Diffeifin of the Freehold ; For it was found in that Verdift, that he 
occupying at Will, and entering by hisFather's [the LefTor's] Affent, the Leafe was alfo intended 
to be made by his Affent. 

3- And in tl)e argument oftljiscafe, anotljcr Cafe tuns ijoucOeti 
to fae aonuigeo faettoeen Po-^jiiy and Eiackman accorOinglp* €^r» 
isja. Kct. i-io. 05, E. 
The Cafe 4. "isut JiuOffmcnt 1030 Bi\jen tlje 20 3iac» iuljere after a Leafe for 

wns, A Man Years HiaOe bv Tenant at S.,llcrance upon a Mortirage, tlie Devife of 

mortgaged ' '^ ^ a ■• j ^^^ 



Difleifin. 



103 



the Mortgagee M^ atIjUt!Q;£D gOOll, nilll fO UO DiiretflU at W ^^'"'* ''>^"'^ 
dCttJOlL '"*■""''' "?"" 

_ Payment cf 

Mo7iey at the Cid of five Tears, and by the Indenture it was agrcsd that the Mortgnt^or potitd enjoy and 
tnkc the Pi\fit of the Lands in the Interim. The Mortgagor made a Leafc for fix fears ; the Lejj'ee en- 
tered and furroidered his Interefi tj the Mortgagee, at the Day the Money was not paid ; the Mort- 
gagee without any Entry dcvifed the Term ard died Adjudged that the Devife was good, which it 
could not be if the faid Lafe was a Difleifin Nolens Volens to the Mortgagee. Jo. ;i6, Palch. 
9 Car. 15. R. cited per Cur. as adjudged in B. K. 5 or 15 Jac. Powfeley v. Periman. [Blackman] 

Cro. J. 659. pi. 9- Hill. 20 lac. B. R, the S'. C. adjudged per tot. Cur accordingly. 

2 Roll Rep 241. 2S4. 285. S C. adjudged that the Devife was good ; but the Reportei- fays that no 

Reafon was given. Bridgm. i 2. Ponefley v. Blackman, S. C. after many Arguments adjudg'd 

accordingly. Palm. 201. S. C. adjudged accordingly, S. C. cited per Cur. Cro. C 304 

Pafch. 9 Car. BR. 

5- 3if a ^tlU enters into the Land of an Infant bv his Affent, tijiS ^"Z-^"' '^"Z" 

IS) a DKTcirnt to tijc Infant at Ijifii mcctm -, for tlje Infant cannot ^°'' J^'''' 
mmitc DimfeJf np 1)10 Menu 1 1 €» 3- am 87. aJjtiQsers. Rent"n"d 

n <-L r r Leflec en- 

ters, It IS at the Elettion of the Infant to charge him in AfTife, or bring Debt for the Rent, or-ccept 
the Rent ai his full Age. Cro. C. 505. Hill. 9Eliz. B. R. per three Jurtices, cites 1 E. 4. 6. and 
Ibid. 506. Richardfon Ch J. agreed to this Cafes 

6. 31f 3. be fcifec of £anti0 nt Jfee, ann a Stranger enters upon 

!)im by Colour ot a Leafe for Years, which is void, and pays the 

Rent to \m, tW isi not anp Diflfcifin at Clcftiou i foe if a. aftcc 
couenants to aanti ftifeo to tljc Mfc of Ijtnifcif in Cat!, tlje Cftate 
fljall UJCll rife, p, 6 3a. 15. MoUmnxs Cafe, per Curiam. 

7. If A. i'eifed in Fee makes a DCCO Of Leale, tip UlljiCi) {JC tiemifC0 t Cro. C. 
it to B. habendum a Die datus for Life, with a Letter of Attorney in 7^^ ?'■ ^'^: 
the Deed to make Livery, anQ refCtDini]; 6 0, 8 Q. EeUt, anH 'tlje J'har if Caufc 
Attorney makes Livery the fame Day Of tije ©ate, aCCOrOtnn; tO tfje were not 
ifOrm of tIjeCljartCr, and tljeLeflee enters, claiming it by Force ofthe fhewn &c. 
Indenture and Li\ erv, and pays the faid Rent tO tljC SLCffOr aCCOrOino: J"''iT^k' 

to tljc if ocni of tlje Innenture ; x\U 10 not anp Diffafin to a. at lji0 enre ed fo' 
election, tljougt) prima fatie Ije U)a0 a Difleifor, yet inafmncfj a0 r^^^t^^^ 
(*) {)c cUiimta but a Icafe, ann paiQ \m Kent a'ccorsnialp, tlje p°' "-• 
icffoc n^.np elat tijat ijc fljaU not be a Dilfdfor. ^icfj. 10 Car. Sr'^T^a' 

IS.E. \^timZ\\\ Bull and Wiat.'^A'amM %l\\\. CiU. EOt. 514. For thaT the 

upou a fpeciai ©ertsict for a (5?aroen in QDriflo!. -SCfje Court fccmeQ fuffering a 
nt nrft e contra; but after tijcp iraijc a peremptory Kulc for lusu^ Reco.erv 
mtntfor tlje iJIaintifTupon tlje jQon^attentiance of tijc OefenDant, ^^=!^^"^^'^°?- 
IpujljicO tljev ntuunscn it to be no Diireifin at election, uiijere ti)c and lu under 

cafe U3a0, '^Ijat tljc Heir ol" the Leiibr att^r the Leafe maDe fulfcred him to % 
a comiTion Recovery of the Land upon a Praecipe brought againfi: him tli^r flie was 
without any Entry into the Land, niltJ bp COnfcqUCHCC if 11)30 al3= "f'.^"?''"^ 

juOffcn, tljat xm iaeco^crp m.^ gooti. T3ut it fcems tljat x.\)Vi> m holf "'" 
mm it upon tlje laft [3oint of tijc Eecc^jerp. et p. i r Car: %. ' 
K. ijctojeen Sa- Kc;iehn DigOy and Jordan^ per Curiaui, uuon Cl)i= 

HentC at tlje TSar, refOlllCri, ^Ijat this is an abfolute DiUeilin, bccaufe 
the Leii'ee entered claiming his filiate for Life, auD tljat \% IjaO Deett 
otherways it he had claimed as Lellee at Will. 

8. If A. leafes the Demefnes of a Manor for Years to B. and after 
afliires a Jointure of the fame Land to his Wife for IjCr lifC, and af- 
ter aliens the Fee, aUU the Alienee enjoys the Rent bp tij£ i!)anI30 Of 
tIjC ''(EerniOr, anO after a. dies, an"0 tlie wife enters claiming her 
Jointure,, and tlif re keeps Court fiC. ailB B. affcnts tljCtCtO, and at- 
torns to tlje i©ife, ann pap0 to ijcr tlje Kent i tijis i3 a Diireiim to 

tne Alienee or not at his Pk-.tiure, UOilljitijitantSino; tIjC COUtimtanCe 

Of iijc poilcluon of tlje Ccrmer. D. ^ et 17S. pi 3b'. 

9. In 



lo^ Diffeilin. 



9. \n yijjife of Rtnt or Convno}]^ be ic in Grofs or ^'Ippendant^ a Man 
is in Seifin iind out upon Ditturbance made at his Piealure ; lor he may 
chufe to take forDiireifin ornor. Br. Seifin, pi. 17. cites 8 AlT. 4. 

10. In Alfife it was lound that the Plaintiff at full Age was dijfiifed, 
and aiterivards came upon the Land, and put his Foot within, but took 
no Profits, and the other onftcd him, and by Award he recovered Da- 
mages lor the firft Diifeifm ; the Reafon feems to be inafmach as it isi 
at tlie Election of the Plaintiff' if he will take this Matter lor a Seiiin 
or not, and the Di[Je;foi\ who is a tortious Seifor, cannot plead it ; for 
this was Ibund by V'erdi^ at Large. Br. Difieifin, pi. 84. cites 26 
Aff 24. 

Co, Lut. jj_ ]■£• one enters zn^ claims as Guardian in Socage, or by Nurture'^ 

'^' ^' where he is not, the Infant may bring Aliife, or charge him as Guar- 

dian, thereby admitting him to be in without Wrong. Cro. C. 303, 
cites 49 E. 3. 10. 40. E. 3. Accompt. 35. and 33 H. 6. 2. 

12. If a Man receives 7ny Rent of my 'tenant, this is no Difleifin to 

me, but at my Pleafurci contra if I bring thereof Affife. Br. Diifeifm, 

pi. 100. cites 15 E. 4. 8. 

S. C. cited 13. U Leffee for Tears ftirrenders his Eftate to the LefFor, andjj'f? cofi- 

Jo. 517. tin lies in Poffeffion, and always after pays the Rent to the Leffor, this was 

per Cur. j^gj^j ^^^ jq 5^ ^^ly DilFeilin to the Lelfor, but at his Plcafure. D. 62. 

a. pi. 33. Pafch. 38 H. 8. Pennington v. Morfe. 

14, Lejfor by his Bailiff' difchargcd his Lefjee at Will, and neverthelefs 

he continues Pofleirion and pays his Rent ; it is at Lellbr's Election to 

take him as Dilfeifor. Jo. 317. cites it as 2 Eliz. the Cafe of Hayman 

V. Hatch. 

4Le. 4S. 15- Grandfather Tenant in Tail {_at IVill] Father and Son. The 

pl 126. S. C. Grandfather died; The Father entered and paid the Rent to the Leffor, and 

cited per ^ig^ jn Poffeffion; Adjudged that it was not any Defcent. For the 

vei-'^^fa? ^^^ Paying the Rent explains by what Title he enter'd, and fo heUiall not 

Vv'ords',^^ be a Dilfeifor but at the Eleftion of another; cited by Coke Arg. Le. 

And 134. 121. pl. 163. as adjudged in C. B. Skipwith's Cafe. 

PI. 184. Hill. 

27 Eliz Skipwith v. Conies, S. C. and ftates it thnt afrer tlic F.u'icr's Death the Son iikewife entered 

Generally, and p.-rid the Rent, and this was adjudged to be no Difleifin. The Words ( in Tail ) 

are mifprinrtd, and Ihould be (at Will ) and (o they are in Anderfon. 

Le. 121, 16. L. Tenant in Tail leafed for Tears to J. S. who afftgned over 

pl i6_9^S C.^Q p f}^^ Plaintiff^ s Father'. L. died. W. his Son entered upon P, 
Verbis '^'^ ^'^^ re-enter'' d. W. without other Words demifed the Lands to P. for Life the 
Remainder to Joan his Wife for Life, the Remainder to P.'s Son for Life 
with Warranty, and a Letter of Attorney to re-enter and deliver Scijin ac- 
cordingly. P. died before the Livery executed, and afterwards the At- 
torney made Livery to Joan. W died. E. the Son and Heir of W. entered 
on Joan his W^ite. Joan re-entered and leafed to the Plaintiff^ who up- 
on Oulter brought an tjectmenr. It was infilled that P. by his Entry 
was not a Dilleilbr but at the EleS;ion of VV". for when' P. accepted fuch 
a Deed from \V, it appears his Intent was not to enter as Dilleifor ; 
and it was not found that P. had any Son and Heir at the Time of his 
Death, and if not then there was no Defcent, and there is no Dilleilin 
found, that P. expulit L. out of the Land i and Judgment was given 
againlt the Plaintitf. 4 Le. 48. pl. 126. Triu. 30 Eliz. B. R. Piers v. 
Lcverfuch. 
Cro. E. 4^0. 17. A Tenant for Life, the Rem.rina'er in Fee to B. A. makes a Leafe for 
pi. lb. and Tears, and afterwards grants the Rtverjion to C. Habendum Tcnemcma, 
Ibid. 5S5. prgetiiQ;, jjfQj/i Midfummer next following for the Life of the Grantor. Al- 
Biicklerv. '^6'" Midfummer the Leffee fur Tears attorns ; the I'ears expire; C. the 
Hardy. S C. Grantee enters and leafes at IViU to D. to whom A. the Grantor levies 

adjjdp;c-d ^ fjfjg Qviite Ceo. B. in the R':maind<!r enters. Rcfolved that when C. 
but not on j.j,j^.^5 



Diffeiiin. 



^"^"-^^^ fy Colour ot this void Grant he is a DifTeifor; and a DiverficTti^iTpdiTi: 
was taken between a Grant made by A2;reement of the Parties which ^'''- 4^5- 
ftands no: with the Rules of Law, and which never can by any fubfe- ^l'V-?\^- 
quent Aft (as by Li very or Attornment) be made good, and a Grant good no'^oli^tnis 
at the Commencement, but to have its Perfeaion by Ceremony fubfb- P ^ 
quenr as in the Cale of a Charter of Feoffment if the Feoffee enters - 



oint. 
And. 2y. 



u c T ■ u • T^-n--r ^ ^uiuiicuL n me reonee enters -"""■ -v- 

before Livery he is no Difleifor i tor the Charter is good and the A- &• ,'^- 
greement of the Parties accords with the Law, and it maybe madeS:..tYc 
good by Livery fublequent. 2 Rep. 55. a. b. Mich. 39 & 40 Eliz. -^•ip^J, 
C.B. Buckler's Cafe. ^ but nor oa 

s. p. 

18 CcpjMder or Leffee for Tears or at Will levies a Fv:e of his Lands . And. 17^. 
lo holden among other Lands, and yet pays his Rent, this Fine Ihall P'- 9S s'c. 
not bind • lor It is no Diffeiiin but at Ele£tion. ? Reo in b Hill '•^■^""Vd by 
44 Eliz. in Cane. Farmer's Gafe. if- 1 1- ■ -"i^^- all the Jui- 

tices at Sef- 
^i::S.r^l^- ^''- ''■ '^- ' ^- -'■"■^•^ ^y ^'' '.. Judgesof ^n,X.J'.^Z C. 

19. Tenant at Will made a Leafe /row 7W /5 r..w. Per Dver and If i./r«.« 
Man wood ,t is no DilFeiffn, and denied the Book of 12 £ 4 '/; b" t ^^^£ 
Harper J. e contra. 4 Le. 35 pL 95- 15 £liz. C. B. Anon. ' /f-" ^'^''^^ and 

;f ?S;:'^?^S? N^LS!"^ ^'-"^^^'^^ F.nlcte„e.cntandnotorhe.wi^. ?.. jB'^t^ 

20 U A leafe La,d to B. referving a Rent &c. E. pays his Rent Cro. C ,0^ 
/.Cthisis no Dilieihnto A. unJels he will. 2 Sid. 75 Pafch. 1658 p'- ^^■ 
Crouch V. VViJls. '•' ■ ^^^0. ^ ^^^ ^ ^ 

I'ci'Cur. 

f D, • . ^^ ^ '" Cale 

ot iilundcn v, Baugh. 

in-^\ ^'f^^U" S''^ '-^ "" ^'"^ "'''^"^' ^^'' f^"'« '■« F^<^ and dies The 
Iflue has his Eleftioni If he will difiram he is in Polie/fion : But if he 
bnngs hormedon he is out of Polfdiion. Co. Lit. 57. b. cued per Archer 
J. Cart. 58. •'If 

zz Esecutor de fo7i tort of a Term is a Diff^eifor only at the Eleaiori 
ot the Lord or the Reverlioner. z Show. 458. Hiil. i & z \xc z 
B. R. Norwich (Mayor) V. Johnfon cjjc. 2. 



(I) mjo fhall be faid a Dtffeijor or not. 
A Man <7^;/^o; ////^//)^ his own fFrom, 

I. t f a DifTeifor makes a Leafe for Years or at Will i^ntl ftlf Dlf n . u 

ton V. Bir- 

3- So If a ®aii cntnS claiming as Guardian M here he i» n„r r„„ 
*an, Ijnsa ©«0r. 9rp.6.°3r. b. .8 aff. , . „6,UDB«.''""" ^"^ 



Br. Allife, pi. 280. (2-9) cites S. C ' 

Ee 4. So 



jo6 Difieilm. 



cites 



S. 




Fitzh Aff. 4. So if a {i^aiuntiT0 into lanB, datming 2s Tenant by Scatute- 

pl. i;,o.^ jvierchciiic when he has no Right $C. IjC IS a DtJTCilOn 24 (£, 3. 31. 

5. ft Guardian in Chivalry afligns Dower tC OIIE, tlS tljC WllZ Of 
tl)2 "jftltijCC Crtlje IBaCS, where ihe was not l)lS Wile, fl)e 10 a Dtf^ 

Moccf^ to tijc ipnr, tijousljllje niters a0 -tenant in iDoicet* 21 

6. Jta ^*1J^ ^^■'^^'-'^^^^^^^'"^ to another and his Heirs, ailtl aftet 
the Leiiee dies, ailH 1)10 llCCt Heir claiming the Land, enters JUtO tljE 

kanu, tljousU tm 10 Sjiit aCljattel, fa tfjat tije Cpeic Ijatfj na 

Elgtjt tljCl'Cta, PCi: bCCnUrC he claims but the Term, 1)0 10 110 DlfTCl^ 

(or. II C. i- «s. aOjUQscD. 

7- 3if a Copyholder leales fOt ^Cat^ by Licence Of tljC LorB, and 
after enters upon the Leffee, ailD OUft0 f)lm, tljiS is a Dilieilin to the 

Lord oftljcjfrccljoiri. C|5. ii3la» 05. E. pccCofec. 

8 3f ti)C King Guardian continues the Polleffion alter the full Age 

of the Heir, tjc BOC0 HOt saiit tljc fct tWthv, btcMz l)Z Ijatlj 
E!St)t to contiue it till Litierp fucG. 7 P^ 4- 43- 

9. ^iftlje Guardian holds IjUUfClf in alter the lull Age Of tlJC ^£IC 

without caufe, i)i 10 a Diffdfor. 7 J;. 4- 43- Uut a tenant at 
Tic Eibte. gjiifferance, for iuljiclj, Uio. tlje £)i^iaon0 unUer Citlc *- Cfrate, 

CD. c) pi. 5- ^ ^^gj^ GIJ3C, 86i. D. 

10. But If Leffee lor Years holds over his Term, \}Z 10 UO OG^ 

ftifOr. 7l> 4-43- ^ , r r .■ r-^ , 

11. It icna/it for Tears, or a Guardian makes a Leaje for Lije, the 
Rem-ahidcr tu Fee, and Tenant for Lite enters, he is a Diffeilbr, becaufe 
he takes the firlt Livery j and fo it is of him in the Remainder for Life 
or in Fee, it he enter. 2 Inlt. 413. Marg. cites 50 E. 3. 22. 

12. A Aidfi and a Woman Executors filed Execution oj a Statute^ and 
the Man granted his EJiate to the Baron of the Fe?ne, Co-executrix, arid 
died. The Baron -granted his EJtate to another, who entered and was feifed-, 
and alfo the Baroti and Feme feakd an Indent are of Grant of their Efiates 
to another, and delivered to him the Obligation of the Statute, but not Seiftn^ 
by \vh\ch. entered claiming fuch Eft ate only, yet he is a Dilfeifor, by rea- 
fon that the Grant is void, and a Dilfeifor by his Claim nor other- 
wife cannot qualify his Eftate. Br. Dilieilin, pi. 78. cites 24 E. 3. 31. 
and 63. 

13. Mayor and Commonalty cannot dijeife another unkfs to the Ufe of 
themfekes i Per Cand. Contra it feems if one enters tor them by Au- 
thority in Writing under their common Seal, where their Entry is not 
lawful. Br. Corporations, pi. 24, cites 8 H. 6. 1.4. 

14. It there be two Jointenants, and the Grantee of a Rent-charge 
ditlrains lor the Rent, and one of them makes Refcous, they arc both 
Di£eifors j for a Diltrefs for the Rent is a Demand in Law, and thea 
the Nonpayment is a Denial and Diffeilin, but he that made the Ref- 
cous is the only Dijfeifor with Force. Co. Litt. 161. b. 

15. If a Man enters into Land oi his own Wrong, and takes the Pro- 
fits, he cannot qualify his own Wrong by faying he holds it at the Will 
ol the Owner. Co. Litt. 271. a. 



'K) Who 



Diireifin. 107 



(K) Who ftali be fald a Dlfl^clfor. 
Bj Commaj2d. 

I. TJf a^ait commands J. S. to enter mtO CCttiliU LailU in his Bi. DiflTeilinj 

£ Name, it' he hath Right thereto, or in the Name ot nis Coulin, p'- 57- cites 
if he hath Right, if % @). CUtCL'iS aCCOrOinClp, pet if tlje Command- ^'^^^ ™y'= 
er or his Coulin have no Right, I)C fljail UOt tC a DllTCtfaf, bUt 3!* €>♦ yudgeof his 

OnlPj toe 1)10 Command was conditional. 342lir, 12. aO)Ul!gC5. Kir.^t, an^ 

theietorc it 
was his Folly to enter where the Commander had no Ri^ht ; Qiiod NotA. -Br Entry Conge- 
able, pi. 72. cites S. C. ■ Fitzh. Affile, jl. 51 j. cites S. C. tnd J. S. who entered was award- 
ed the DilTeifor. 



2. So if a 5i5att faps to % %. tijat Mjcce W ^ntcffor tueu fcircu ^^ <""?"• ?'• 

'^ -" - -- ■■!. and the 

Notes there. 



Of ccttain Lanri, Ije Wiimiano0 liinVto "e'DTeriiito it in"hi7Name it [■^''■'^ '^'^ 



his Anceitor died leifed ot a Fee^ otherwife not; if 3!. S)» CUtCty III 
1)10 il^aitlC, I'Ct if tIjC Anceitor of the Commander did not die feiled of 

a Fee, 3i. &>, oufp 10 tl)z Diffctfot, auQ ttot i)z tljat commauiicD . 
ijiui, for 1)10 Comniano tua0 conoitional. 34 Sff. 12. 

3. Jf a C]9an commands J. S. todilieile J. 1). and he does in aC'*.^'V"^. 
fOrQlUSlp, toe Commander 10 a DlirCifOU 30 KCl! a0 % €)♦ * 22 ™Sch Point 

$iir. 99- , being there. 

4. [So] If a ^ait commands his Bailiff to make a Dilliilin, anB Fitzh. AiTire, 

ijc Doe0 it accotDinsJy, tlje Commantiei: t0 a Diffcifou 27 Slff* 3°- pj -h- 

5. 3fa $Pait counfels another to make a Diffeilin, aUtl tlOC0 it aC- pitih. AffiTe^ 

cotningip, ti)c CounfcUor i0 a Diiietror. 279^,30. aniisoscD* pi. 154. cite* 

Co. Liti. iSo. b. S. 1*. and that Afiife lies ag.iinft him. 

6. Jfa i^aU makes a Leafe for Years of the Land of another nut of 
the Land, ailO tljC Lelfee enters, tljS Leffee OU!p 10 t\}Z ©liTeirOt, 

ann not tijc Letfor. 13. lo ja. OS* Contra 23 p, s. @). 27. 

7. 3if Leflee at VV^ill makes a Leafe tor Years, aitt^ tijC Leflee for 
Years enters, ti)E Leflee at Will i0 tljC DllTeiror, ailU UOt tl)C LCJTCC 

for 2^car0, for tbat otljeriuife ttiz leafe for ^cnf0 tHouItJ lie i30irj. 
1^. 9 Car* 15. E» bctiuccn Binurie/i and Baiigb, m a |©rit of (£ruar 
upon a JuDgmcut in 13auco, rcro!ticl3 per Curiarii, ptceter E!Cij= 
arBfon, aiiQ tIjc JuBixuient oilien in 'Banco bp EicijarBfon, tlm 
htiim Cijtcf IwMz tijcrc, ano 'w t!jc court, pr^^tcr i)ar\3c\>, rc= 
lierfcD accorQingl';. Jntratar, l3!U. 7 Car. 15. E. Eat. "06. 
Cfjid U3a0 for ti)e ^nuor of 'Bkcljiiiglp, tuljtrlj bclcnpn to tIjc 
Carlof jl^ottingijam. 

8. Jlf Tenant at Will or Sufferance makes a Leafe for Years, tfjC B''- J~>'f'^''i"« 
LefTea at Will and Tenant at Sufferance ntC ri)C DlffCifOr^, ailU nOtP-' '^\ (p^ 

tl)z um for i^f ars. 12 e. 4- ^ 2. b. lip all ti)t 3n^icc0. ^ Kir!:i,. 

Dill'cilin, 
pi. 4. cites S. C. 

9. Affife againfl an Infant and others; The Difleifin was found by F. N B. 
Commaiid of the Inj ant to Ins ownUfe^ but hi: was not -prefent, and the^'^-C^) 

■ Infant was acquitted of the Difr.Miia by Judgment, for he. cannot con- ^^^ TT 
A'.'/', and becaufe one came V'i iSc Armis to make the DiU'cilin, all the of fall A-'c 



oth 



cr3 



io8 DiiTcifin. 



mavbea others were adjudged to Prifoii ; and fo fee of Trefpafs. Br. Diflei/in, 
piflTeifor if I cj^es J 2 Ali: 33. 

he commands r j j 

atiother to encer into Land Ibid. 

10. Lord and Tenant by Rent-Service. The Lord diftrained. The 

'Tenant commanded N. to make Refcoits, wto did fu. The Aifife is well 

brought againft the Tenant only ; tor he is Tenant, and is Diffeifor 

by the Command, and fo Difleifor and Tenant named &c. Br. Dif- 

feilin, pi. 54. cites 29 AiV 59 

L\n Rep II It a Man fays that he will diffeife J. Isf. tomyUfe, and / fay thai 

V^^^q' I ^f^' content, he is fjle Difleifor, and this is no Command but a SufFer- 

anTtays, that ance. Br. Dilfeiiin, pi. 15. cites 21 H. 7. 35. 

a material 

Imolicatinn will not ferve, as faying, Do if yowxill ; and fays it was agreed there that this is no DiH. 

feifin to his \J^c. 

12. If a Man dijfeifes a Stranger to the Ufe of JK IV. hy my Command 
it is a Tort in me. Per Pollard. Br. Dilfeilin, pi. 15. cites 21 
H. 7. 35. 

13. \tA.leafes the Land of J.N. to me for Years rendring Rent, 
and the Le/fee enters and pays the Rent to the Lejfor, the Lellbr is a Dif- 
feifor. Br. Difleifin, pi. '77. cites it as faid for Law T. 25 H. 8. For 
this countervails a Command to enter ^ and he who commands is a Diflei- 
for, quod nota by his void Leafe. 



(k. 2) Who is DilTeifor by Faller of Record 

pleaded. 

i. 13 £. I. cap. 25. TF the Defendants fails to make good the Reception 
\^ 'which he pleads, hefhall be adjudg'd a DtJ^eifor 

without taking the Afftfe, and jh all give to the Plaintiff double Damages^ 

and pall ftiffer a Tears Imprtfonment. 
Br. Aflire, 2. In Aliife the Baron and Feme pleaded Record in Bar and fail'd 
P'-'^'^-"^^' at the Day, and th& Feme was received, and was no Difjcifor by ths 

Failer of the Record^ notwithllanding the Statute of Weltminlter 2. cap. 

25. Br. Difleilin, pi, 36. cites 13 Ail. i. 

3;, In AJ/ife if the I'inant vouches Record and fjils at the Day, he is a 

Diffeifor without confefftng the Affife by the' Statute of Wejiminfhr 2. cap, 

25, Br. Failer de Record, pi. 5. cites 15 Ali. 16. 

4. yf«^ where a Man hiils of his Recon.1 at the Day &c. he is not 
exctis'd to fay that the Jtifiices before whom the Record remains was ifi 
Wales, and cannot be foimd. But byfome he is excus'd to fay that ths- 
Record remains in C. B. which Court was always after closed fo that hg 
could not have the Record ., Qns^rt. Br. Failer di? Record, pi. 5. cites 

15 Afl: 16 

5. In Mortdancefter the Tenant vouched, and the Demandant granted 
the Voucher, and the Vouchee vouched Record and JaiFd at the Day, and 
vet the Aflife was not awarded of the Damages as in AHile of Novel 
Dilfeilin, but the Aflife was at large upon the Points &c. For the 
Statute iays, That by P'ailer in Aliile habeantur pro Difleifltoribus &c. 
and vo Diffeifor is in AJJife of Mortdancejlor. Br. Failer de Record, pi. 
10. cites 29 Afl^ II. 

6. If 



Diikilin. 109 

6. If an Iiitmc pUads Record in AJJife and fails at the Day, he Br. Diflbifin, 
fliiill not be DilTeilor by the Scatuce. Br. Coverture, pi, 76. ^'ites p'-^^-^^"" 

36 K. 3. Fit7.h.' 

Affifc. 445. 

and concordar, 5; E ;. ibi N 67. quod nota.- Br. Failer de Record, p?. i^. citc,^ S. C. and 

"' E. 5. S. P. accordingly; For Corporal Punifhment fliall not be againft an Infant. 

7. An Infant fhall not be a Difleifor by Failer of Record, for corpo^^ 
ral Ptinipmcnt ihall not be againlt an Infant. Br. Failer de Record, 
pi. 13. cites 36 E. 3. and 33 E. 3. 

8. Attaint in Allife the Baron and Feme pleaded Record in Bank and 
fail'd at the Day, and tlie Baron made Dejatilt, and the Feme was re- 
ceived, and therefore the Baron was adjudged a Diffeifor by the Statute 
by the Failer of his Record ; For judgment cannot be given upon the 
Failer of the Record by reafon ol the Receipt.. Br. Duieifin, pi. 72. 
cites II H. 4. 51. 



(L) Dilleifin hy Officers, 

I. Tif il ^iin recovers feveral Houfes in an AfTife, aitti ilFtCC tlj6 
X Tenant reveries it in a Writ of Error, Hlltl a l©l'lt Of Execu- 
tion ilfues to tljC ©IjeCiff to put them in PolielFion Of tIjC fpOUfC^ 

lulncMje loll bptlje idlutigment, tijoiig!) tijc 'S^crteiiantd are ^tran= 
nEv0 to tfie Ecco\3eii>, auD tljercfoce ougljt to tic cuiltD taitljoiit a 
%ViXZ Jfaciass againit tijcnt, vet if he does Execution puttinn; tijciu 
out of jp^olTEffion by Force oi this Writ, ije fljali uot bc nnp Diffeifar, 

iJECaUfC 1)0 hath the direct Authority of the Court to do ir. p» ij Ja* 

Qt5» E* pet CtlCiai:!, tefalUCH bettueeil Fhyd and Rcthd. r^VsTL^n 

2. 'Cfje fame ILatU 10 in all Cafes where the Execution is of a judg- Fol. 66^. 
ment in'which the Demand was of a Thing certain, \f t\}Z %l)ZVM ' ^^ 

r.ialte etccution of tlji^ 'S^ljlng, i)c is no DitTafot. p. i5 2a» 
15, jK* betttseen -F/oy ^^«^ Bethel, refoIiieB pet Curiam* 

3. But where the Execution is in the Generaky lUItljaUt tt1CntiOn= 
ins any '2Cl)iUlJ \\\ pattiCUiar, tijete tfie sheriff ought to make Exe- 
cution of the right Thing at his own Peril, OtfjCrUlifC \)Z Ulill be 3 

©iffetrot, fot Ije i0 bounn to tafee Jl^ottce tijeteof, anu ije {jatO no 
uaatrant ftom tlje Court to maUe Ctecutiou but of tljc visljt 
mym* P* ^s 3i,a» ^♦E. betiucen Fioyd and Bethel, refoiucb pec 
Curiam* 6K»2. Slff* 71- 



(M) In what Cafes a Difleifin of nahit PartJhaU be 
a DiiTeifin of the /fljole. 

I. T if a S^an be diffeifed of Part of a Corody, tW 50 HOt aitp Br. Affife, 

1 DilTcifin Of tljc t©l)Ole* ^zi), 6. lo. pi. 76. cit« 

o. \-t: or, 

DifTeirin, pi. lo. cites 15 E. 4. 5. S. P If the Corody be to take four Loave.'; and four Flagons of 

Drink every Week he is difleired ot the Loaves; this is no Difleifin of the Drink, but if difTeifed of 
two Loaves only ; this is a Difleifin of all four. 8 Rep. 50. a. cites 21 H. 6. 9. b. and 12 Afl! 23^ 

F f 2. 3f 



1 1 o Diireifm. 



Br AfF.fe, ' 2. Jf Q ^fiU llC tlilTcifCtl of Part ot "the Profits ot an Office tl)i0 10 

pi 70. cites not mipDiITEifm Of tijcMjoie Office* 22 ip, 6. i-j.. ' 

Br. Difleifin, pi. lo. cites i 5 E. 4. S. P. 

3. 3!f a Man holds of me £cs. Rent, nnti diflcifes me of 103. 
thereot, tW I^ » DtiTCifllt Of tijC WljOlC. 22 J;. 6. 10. J), 
Bi-. Affife, 4. Jif a Sl^an fCtreO of a Manor luftlClj extends into feveral Counties, 
pi 76. cites jijitl onCdiiieifesme ofan Acre inone County, tl)i0 10 ttOt attP Di^ 
For Entry fClfm Of tljE ECfimiC Of tljC S^flUOC* 22 tp; 6. 10. D* 
or Livery 

of Seifin in ohe Countv in Name of Things in two Counties fhall not ferve but for the one Counts 
Per Pafton. Br. Diffeifin, pi. 10. cites S. C. ^' 

Br. Aflift, 5. irjive Coparceners are, and the one takes more Profits than he otiTht 

pl. 121. cites to tai^e^ this is a Dilfeilin to the others, though he relinquifhes Part to 

the others ; but if the others take this little Pan it fhall abate the Writ. 

Br. Dilfeilin, pl. 18 cites 7 All 10. 

6. DifTeilin of one Parcel of an Office, or of the Profits of an Office is 
no Diffeifm of the whole. Br. Dilfeilin, pJ. 10. cites 22H. 10 per 
Pafton. 

7. If one diffeifes me of Part of a Houfe, and I am in Pojfeffion of the 
refi of it, it is at my Election whether I will admit myfelt out of Pof- 
feflion of the Houfe or not. Sty. 341. Mich. 1652. Cydall v. Spencer 
& al'. 



(N) Where It is purged. 

t. fFthe IJftte in Tail enters after the Death of his Anccftor upon the 
X Difcontinuee '■joithm j^ge^ and aliens m Fee, he fiiall not have For- 
medon, but Dwnfuit infra atatem, becaufe the Diffeifin is not purged by 
the Difcontinaance. Br. Formedon, pl. 47. cites 7 E. 4. 19. 

2. If a M^n ledfesjor Life, th<; Remainder oy&t to another for Life, if 
he in Remainder diffeifes I'enant for Life^ and after the "Tenant for Life 
dies, he in Remainder is not now any Dilfeifor ; for by the Death of 
the Tenant of Life, he in Remainder is now /eifed by his Remainder, 
and the Fee reverted to him in Reverlionj for there he in Remainder 
cannot enter after the Dilfeilin, inafmuch as there is a Mefne Remain- 
der between them. Br. Dilfeilin, pl. 74. cites 19 H. 6. 22. 

3. If a Man diffeifes my Father, and / enter npon the Deffeifor, and 
after my Father dies, now / fijail retai:i againit the Diffeifor, and yet 
the Dilfeifor may have Action of Trelpafs againit me for my firft En- 
try ; for ^f/ife lies againft me in the Life of my Father ; Per Brian and 
his Companions. Brooke fays Qusre inde ; for Dillei for cannot make 
Title. And fo fee that the Defcent of the Right after Ihall change his 
Matter. Br. Dilleiiln, pl. 90. cites 21 E. 4. 78. 

4 Rep. ^5. 4- If the Dijfeifee levies a Fine to a Stranger, the Difleilbr Inall retain 

a. $6.3. the Lands for ever ; becaufe the Dilfeifee againll his own Fine cannon 
Buckler's claim ; but by the Fine the Right is extinit, of vohich the Diffeifor (hall 
Sid t'htfixth ^^^^ Advantage. Mo. 423. pl. 591. Pafch. 37 Eliz. adjudged both in 
Point there C B. and in B. R. Buckler v. Harvey. 

it was faid 

accordingly. Gouldsb. 162. pl. 9(>. Hill. 4^ F.Iir,. S. P. put bv Coke .\ttorncy-General to the 

Court ; but Popham andGawdy thought that Dilleilor fhnuld not take Advantage of it. — ^iar. 

105. pl. iSo Reeve and Crawley Jufticcs held that this Fine fhall enure only by way ot Eltoppel, and 
Eftoppels bind only Privies to them, and no: Strangers, and tliereforc thi Difilifor here (hall not 

take 



Diireilin. 



IIJ 



t,.ke Benefit of it, and therefore did conceive z Rep 56. a to be no Law. DilTeirce levied a 

Fine, and declared the I'le of it by Deed to theConurce. Bririgman held that this fhall nor enure to 
the Diffeifor ; but it no Ul'e had been declared, then it flionld enure to the Ufe of the DifTeifor and 
extinpuifh the Ripjn of the Dillcitce. Lev. iiS. Hill. 1 5 & i^i Car. 2. at Ler.i Air17.cs at 6uu;hwark. 
Peterborough (^Countefs) V. Bludworth. 

5. If a Lcafc for Life be made, the Remainder for Life, the Remain- g .■ 
(ierin Fee^ and he in Remainder Jor Lije dijjeifes the Tenant for Ltfe^ and Death of' 
then Tenant for Life dies^ the i>)ilicilin is purged, and he in the Remain- the DiiTeifee 
der ior Life has but an Eltace for Lile j And fonote a Diveriity, where l''^'' ^'■''■"ng- 
the particular Ellace for Life is precedent, and when lubfequem. Co *"' ''^/.^ 

i . r- r ' n • ^^- turned into 

Lltt. 276. a. a rightlul 

■ , Eltate by 

Operation of Law. S Mod. 55. Arg. ' 

6. Rights, and the ptirging of vrongf/il vl&s are always favottred in MS. Rep. 
Law^ and therefore where a Diffeilin or Abatement is made, and the ^'"- '^ 
Difleifee brings his Ejeftment, and has a Verdi£t and Judgment tor Go"^^]^", 
him, (but no Execution) yet an Entry being found as being in the De- Ri'ideil &'' 
claration of EjeSment, that Entry will purge the Dijfeijln, "and the con- al'. 
tinning in Pofjeffion afterwards is only as a Trefpajfor. See Hill. 12 Ann. 

£. R. Gocdtitle v. Rifden. The Cafe was as follows, vis. 

In Ejetl' Firmae the PlaintifFdeclared, that Brown Forcefcue, 13 April 
Anno Regins nunc 9. did demife to the P.laintifftwo MelFuages, two 
Gardens &c. with Appurtenances in Clauton in Com' Devon' ha- 
bend' a 25 Die ejufd' Men/is Aprilis tor ten If ears then next follow- 
ing, and that James Fortefcue pollea fcilicet eodem 13 April' Anno fu- 
pradifl' did demife the fame Tenements (as above) &:c. and alfo that 
jBroVvn Fortefcue pollea fcilicet eodem 13 Die Aprilis Anno nono 
fupradi£t' did demife the faid Tenements (as above) ; that by Virtue 
thereof the Plaintilf entered, and was potiels'd until the Defendants 
ejected him&c. On Not Guilty pleaded, and upon a Trial at Devon 
Aflifes, the Jury find a fpecial Verdift, viz. they find that Leonard 
Pore was feiled of, and in the Premilles with the Appurtenances iri 
his Demefne, as of Fee, and being fo feifed 3 Martii, 16 Jac. i. hv 
A certain Indenture made between him of the one Part, and Richard 
Gedge, and John Mayne, ot the other Part, did infeoff the faid Rich- 
ard and John, habend' to them and their Heirs, to the Ufe of Leonard 
for his Lite, and atter his Deceafe, then to the Ufe of * M. the VV^ife * The true 
of John Pote,Son and Heir apparent of the laid Leonard tor the Term ^".""^ **^' 
of her Life, and after the Deceafe of Leonard and M. to the Ui't of the whichTeil?<r 
faid John Pote, and the Heirs Maleof his Body lawfully begotten, or an odd ^ '" 
to be begotten, upon the Body ot the faid M. and for Detauk of luch <-firiftian 
Iffue, to the Ufe of the Heirs Males of the Bodv of the faid Leonard ^'ai^efca 
Pote, lawfully begotten upon the Body of VVillmot his late Wife, de- chaTcd int 
eeafed, and lor Default ot fuch Iffue to the Ufe of the right Heirs of (M.)^'^ '"^^^ 
the faid Leonard Pote. That M. died in the Life-time of Leonard 
and Leonard died feifed of fuch Eflate in the PremiHes as aforefaid 
after whofe Death the faid John Pote entered, and was feifed in his 
Demefne as ot Fee Tail, and had Ifflie by M. Leonard hiseldeft Son 
John his fecond Son, and Thomas his third Son ; that John Pote the 
Father died feifed c&c. and that the Premilles defcended to the faid 
Leonard as the Son and Heir of the Body of the faid John Pote the Fa- 
ther, begotten on the Body ot W. whereupon Leonard the Son enter- 
ed, and was feifed in Fee Tail, Remainder as aforefaid ; and being fo 
feifed the faid Leonard the Son, 22 Die Martii 1688. died thereof feifed 
■without Iflue ; that John the fecond Son died in the Lite-time of the 
faid Leonard alfo without Iffue. They find that Leonard the Son in 
his Lite-time married one Eliz,. Pine, who furvived him, and immedi- 
ately after his Death entered &c. into the Premilles, and during her 
Life continued the Podelfion thereof ; that one John Truebody in 

her 



J 1 2 Diildrin. 



her Lite-cinie, vb. Trin. 2 W. & M. in C. B. impleaded rhe faid Eliz. 
(alter the Death of her iaid Husband) & al' in a Plea of Trelpafs 
and Ejectment (inter al') of the Premiffes upon the Demife of the laid 
Thomas Pore, Nurranao verfus eos inde (inter aP) Modo & Forma fe- 
qucn' videlicet Devon' ff Johannes llavvj Eliz. Pote, & aF attach' 
luerunt ad relpond' JohanniTruebody Gent' depiacitoquare Vi &Ar- 
mis qiiiiiq'Mefuag'&c. qus pr.^di£t' Tho. Pote dimiliilet ad terminum 
&c. iniraverunt & ipfum johannem Truebody a iirma fua prsdicl' 
ejecerunt 3ic. et unde idem Johannes Truebody &c. ad tunc quere- 
batur quod cum prsdict' Tho. Pote 1 Apriiis 2 W. & M. &c. dimi- 
filfet eidem johanni Truebody Tenementa praedifl' &c. habend' eidem 
]ohanni Truebody a 25 Die Martii tunc ult' preterit' ufque iinem 
Termini quinq' Annorum ex tunc prox' fequen' plenar' complend' & fi- 
niend' virtute cujus quidem dimillionis prasditt' Truebody in Tene- 
ment' pr£edi6V &c. incravit & fuit inde Poffeiiionat' & lie inde PolFeffi- 
onat' exilten' prgedift' Johannes Rawe & al' poltea fcilicec eodem r 
Die Aprilij Anno fecundo fupradi£t' apud Clauton &c. ,Vi&Armis 
&c, in Tenementa &c. cum Pertinentiis quae pr?3fat' Thomas Pote 
eidem Johanni Pote in Forma prsdi6t' dimilic ad Terminum qui non- 
durn praEteriit intravermu & ipfum Johannem Truebody a firma fua 
pr^edict' ejecerunt &c. Upon Not Guilty pleaded and Ililie thereupon, 
in quo quidem placito taiit' procets' fuit in e.dem Cur. &c. quu.i po- 
ltea fciP Term' Sanfti Mich. Anno fecundo lupradic:' prsdift' Joiian- 
nes Truebody per Cons' ejufdeni Cur. recuperavit verfus profit' Johan- 
nem Raw Eliz,. Pote &al' Terminum fuum prjedift' (inter al') de & 
in Tenement' prsedict' cum Pertin' ice. ad tunc ventur' & faper inde 
Johannes Truebody p;ciii breve dittorum nuper Regis & Iveginse de 
Habere fac' eidem Johanni Truebody polilllion' Termini fui prtedifl:* 
ad tunc ventur' de & in Tenement' prat'dict' &c. per ipfum lie utprse- 
fertur recuperat' prout per Record' & Procefs' &c. They fur- 

ther find, that after the faid Judgment, and before any Entry by ths 
faid Thomas Pote, or by the iaid John Truebody, a Fine was levied a 
Die San£ti Mich. inTr' Septunan' Anno Regni vV. & M. fecundo be- 
tween John Fortefcue jun. Gen' Qucr', and the faid Tho. Pote De- 
Ibrc' of the faid Premifies &c. unde Placitum convention' fa£l' inter 
eos &c. fcil' quod the faid Tho. Pote did acknowledge the faid Pre- 
miffes to be the Right of the fiid John, ut ilia quae idem Johannes ha- 
buit de Dono ipfius Thcma; &c. prout &c. They llirther find, that 
the faid Fine levied of the Premiiies was, and by a certain Indenture 
dated i Die Mail, Anno tertio W. & M. and made between the faid 
Tho. Pote of the one Parr, and the laid John Fortefcue of the other 
Part was, at the Time ot the levying thereof, to have been had and 
levied to the Ufe of the fiid Thomas Pote and his Heirs for ever; that 
the faid Thomas Pote atterwards, Icil' 2 Die Juuii, Anno 5 W. & M. 
entered upon the faid Preniilfes, and was thereof feifed &c. and being 
fo feifed, he the fime Day by an Indenture made between him of the 
one Part, and the faid Brown Fortefcus of the other Part, and then 
fealed and delivered by the faid Thomas upon the faid Premiiies &c. 
in Conlideration of 500 1. paid to him by the faid Brown Fortefcue, 
did demife to the faid Brown Fortefcue the fame Premifies &c. habend' 
for the Term of 1000 Years, by Virtue whereo! the faid Brown Fortef- 
cue entered, and waspollelled &c. They fuither find, that the f^iid 
Eliz. Pote poltea fcil' 26 Die Martii Anno Domini 1710 died, and 
that after her Death the faid Anthony Rildon, and others, entered in- 
to the fiid Premifies, and were thereof feiled &c. and that alterwards 
the laid Brown Fortefcue, by Virtue of the laid Demife, entered into 
the Premiiies &c. and was thereof feifed &c. and being fopolfefs'd, 
poltea fcil' Die & Anno in Narr' inde mencionat', did demile to the 

faid 



DifTeilin. 113 



faid George Goodciclc the Premilles &c. That the faid George Good- 
cicie by Virtue ol the laid Demife entered &:c. and was pollels'd &c. 
upon whole Poffeflion the faid Anthony & al' re-entered & ipfum Geor- 
giuni afirmafua praedifl' &;c. inde ejecerurtt prouc idem Georgius in- 
ter! us verfus eos inde queritur fed utrum &c. 

'I'liis fpecial Verdict was argued Pafch. 12 Ann. by Serjeant Prat for 
the PLiintitF, ahd Serjeant Hooper for the Defendant ; and in Mich.- 
Term loUowing it was argued by Serjeant Pengelly tor the PlaintilF, 
and by Serjeant Chelhirc ior the Detendant ; and in Hill. Term fol- 
lowing the Court of C. B. fcil' Lord Trevor Ch. J. Biencowe, Tracy, 
and iJormer, gave Judgment for the Plaintiff' 

The Ch. J. delivered the Opinion of the Court as follows, viz.. that 
upon this Ipecial Verdicl three Queftions had been made and argued 
at the Bar; ift. Whether, as this Ipecial VerdiiSl was found, Elizabeth 
Pote, who vvas the Wife of Leonard Pote, mull be taken to have en- 
tered bv Difleifin or Abatement, and to h'ave gained an Inheritance by 
Wrono"? Whether this Entry mull imply a Diii'eifin or Entry by A- 
batement, or muft be fuppofed to be a wrongful Entry to him who had 
the Right? 

In the next Place, whether the Recovery in the Ejectment that was 
profecuted by Thomas Pote againft Elizabeth, (fuppoiing there had been 
a DilTeilinJ has not purged that Difleifin, and re-velled the Eilate in 
Thomas ? And ■ ^ 

jdly. Admitting there was a Diifeilln to him, and that that Difieilin 
■was not pureed, then whether the Fine levied by him, who was dilici- 
fed to ]ohn'Fortefcue, who was a Stranger, and had nothing in the El- 
tate did not work by way of ExcinguiJhment, and ibr the Benefit ot the 
Deicndant, the Right of the Lellor of the PlaiaiiiF being extinguillied 
bv the Fine ? . ' 

' Thefe were the Queftions argued at the Bar ; now if either of them 
be with the Plaintilf, he has a good Title ^ lor if there were no Dif- 
fcilin, or if the Dilleilin was purged, or if there was no Extinguilh^- 
rnent by the Fine, it is plain he had a good Title unlefs it had been 
dellroyed by thefe wrongtul Afts. 

Tinat as to the firft Queftion, whether it was a Dilfeifin or not, and 
as t-o the third Qwllion, whtther the Fine levied by a Dilfeifee to a 
Stranger, to the Ufe of him and his Heirs, did work by way of Ex- 
tinguilliment or not, the Court, as to either ot them, would not de- 
liver any Opinion at all ; But upon the fecond Queftion the Court 
were of 'an Opinion, that the Recovery in Ejectment had purged the 
Difleifin. >A hen an Eje6l:ment is brought the Piaintjft' declares upon 
an Entry ; ill. He declares of a Demile or Leafe made to him by his 
Leflbr, and then of an Entry by the Plaintiff, and then that afterwards 
the Defendant entered upon him, and ejefted him ; now all this is con- 
felied by the Rule of the Court, and tnis Conleilion is in Nature ot an 
Elloppel, that the Entry will purge the Dilleilin, therefore alter a Re- 
covery in Ej-efilment the Plaintiff, or his Leflbr, may bring an Aftion 
lor the mefne Profits from the Time of that Entry. This is the con- 
llant Pra£lice, the Defendant has confefled the Entry ; As to himfelt 
he is concluded from denying it afterwards, he is accounted a Trcl-. 
paffor, and the melhe Profits Ihall be recovered againli him. 

There is nothing plainer in the Law, than that Rights, and the purg- 
ing of wrongful Acts, are always favoured, i therefore where the Plain- 
tiff has recovered his Eftace, and an Entry is found by the Jury that 
Entry purges the Dilleilin, and the Continuer in Poflcllion afterwards 
is but as a Trelpaifor, though there was a Dilfeilin it is now purged j 
But whether there was a Dilfeifor or nor, or whether Fine levied by a 

G g Difll-iles 



1 1 A Diffeifin. 



4- 



Dilleilee will extinguilh the Right, it is not neceiFary in this Cafe for. 
the Court to give any Opinion upon at all ; fo the Plaintiff mult have 
his Judgment. Judgment pro Q^uer' per tot. Cur. 



(O) What AdloDs &c. Difleifee may have agalnft 

Strano;ers. 

i. TF the 'feftant of the Land with Warranty he diffeifed by a Stranger, 
^ he Ihall not have this Writ during this Diffeifin, becaufe he is 
not Tenant of the Land during the Diffeiiin, and the Writ fuppofes 
him Tenant. iiH 3. Rot. 3. between g)nnOlt Of SlbeiUlUn miU KC* 
gtlttllD He 319CKetlUl"P agreed aud adjudged. 2 Roll Warrancia Char- 
ts (D) pi. 6. 

2. So if a Stranger takes unjiijily redditum Terra, (that is, as it feems^ 
takes the Profit ot the Land, by which is intended a Diffeifin) ironi 
the Tenant, or of the Tenant, he (hall not have this Writj for he may 
'have his Jiffife if he will. 11 H. 3. adjudged. 2 Roll Warrantia 
Charts (D) pi. 7. 



(?) What Charge of DifTeifor fhall bind DilTeifee. 

I. XT'Oungefl Son difleifes the Elder. In Aflife or other A£tion it 
JL is lound by falfe Oath againfl Plaintiff Then the youngell 
grants a Rent-charge and dies without Iffue. Before Attaint brought 
he muft hold the Land charged ; for he comes in now as Heir to his Bro- 
ther. The Attaint is gone by his Death, and no Remitter contrary 
to the Recovery. D. 5. b. pi. i. Trin. 24 H. 8. 

2. Diffeifor leafes tor Life, and grants Reverjion to Dijfeifee. Dif- 
feifee accepts the Rent of Leffee. Qusre, if Diffcifee fhall oult Leffee ? 
D. 30. b. pi. 207. Hill. 28 H. 8. in Cane. Compton v. Brent. 



(O ) Power of DiiTeilee or Difleifor as to Strangers. 

I. TF a Man is diffeifed, and the DiJJeifor makes Feoffment, and the 
J^^ Diff'eifee re-enters, he Ihall have Aftion of Trefpafs as well againlt 

the Diffeifor as againft the Feoffee, and recover all his Damages, io 

that by divers Writs every one ihall be charged for his Time of the 

Damages. Br. Trefpafs, pi. 31. cites 33 H. 6. 46. 

2. If Diffeifor takes the Eeajts of a Stranger Damage-feafant upon the 

Land, and after Diffeifee rs-enters, yet Diffeifor may jultity the keeping 

the Beafts taken before the Re-entry till Agreement be made with him. 

Kelw. 40. pi. 3. Mich. 17 H. 7. 

3- A 



Diffeifin. 1 1 5 



3. A Diffeifor makes a Leafe for Life or Years, the Diffeifee fliall 
not have Action of Trefpafs Vi ^ Jriiiis againft him, becaufe he comes 
in by Title. For this Ft ^ ion of Law that the Franktenement hath al- 
ways been in the Difleifee, fhall not have Relation to make him that 
comes in by Title to be a Trefpaflbr Vi & Armis. Arg. Godb. 318. 
cites II Rep. 51. [Mich. 12 Jac] 

4. If a Man enters on another, and makes a Leafe for Life, he gains 
a Reverfion, and fliall W(?;«/^;« ari A£iionof ^'^f. Arg. Godb. 318. 
pi. 417. Pafch. 21 Jac. in Scacc. 



(R) Writ and Pleadings. 

I. TFyfw Ctparcc/ters are, and the one takes more of the Profits than he 
X. ought to take, this is a Difleifin to the others, though he relin- 
quillies Part to the others, but if the others take this little Part it pall 
abate the Jirit. Br. Diireifin, pi. 18. cites 7 Ali'. 10. 

2. In Affife \i DiJJliJor named in the VV^rit comes in proper Perfon he 
may plead m Abatement of the JVrtt. Br. Dilfeilin, pi. 20. cites 8 
A 11: 2. 

3. In Mortdancefter of Rent, the Pernor of the Rent was not fuffered 
to plead Hors de fon Fee^ and therefore it feems that this is only for the 

Tertenanc. Br. Dilfeilin, pi. 80. cites 12 Afl'. 38. ■_ — But it feems 

2 H. 6. I. That Stranger to the Avowry Ihall plead this Plea well, but 
there he had Intereft in the Land, contra of Pernor. Br. Dilleilin, 
pi. So. 

4. A Dijffeifor Jhall not plead Recovery in Abatement of the Writ, nei- 
ther ly Conctujion nor Mifnofmer, nor otherwife, whhont fl^ewing the Re- 
ord immediately ; lor he cannot lofe the Land by Failure of Record^ as 
tlie Tenant may, therefore the Allife was awarded immediately ; Quod 
Kota. Br. Alhfe, pi. 413. cites P. 20 E. 3. 

5. The T>\&\['orjbali not plead Record in Abatement of the JFritj nor by 
Coijclii/ion ; Per Skipvvith. But per Grene, Dilfeifor Ihall plead Mtf- 
tiofmer of the Plaintiff, or that the Feme Plaintiff is Covert Baron. But 
Sbard e contra of the Coverture nor Record, wiUfs he Jhews it immedi- 
ately ; for if the Record be deny'd he cannot lofe the Land by Failer 
of the Record j Per Thorpe, Dilleifor may plead that he was Anter- 
foits acquit of the Dtfeijin. Br. DilFcifui, pi- 93. cites 20 E. 3. Fitz.h. 
120. 

6. Prsecipe quod reddat againft Pernor of the Rent, who [aid that he 
is Tenant of one Houfe cut of which See. and W- N. not named, is Tenant of 
the other Houfe cat of which &c. Abjque hoc that ht is Pernor of any Rent 
of this Houfe, and a good Plea, and the Demandant was compelled tn* 
maintain his Writ ; for if there is not all the Tenants nor Pernors 
named, this is not well. Br. Difleifin, pi. 73. cites 21 E. 3. 24. 

7. Entry, fuppoling that the Tenant entered by W^. and K. his Feine^ 
and the Ten&ut faid that the Feme's Name was J. Prill ; and the De- 
mandant was compelled to maintain his \\'rit that her Name was K. 
For known by the one Name, and the ether is no Plea. Br. Enter en leper, 
pi. x6. cites 21 E. 3. 47. 48. 

8. In Alfile Dilleifor fliall not plead AncientDemej'he, nor any but the 
Tenenant, and he who takes upon him the Tenancy, Quod Nota. Bt 
Dilieifm. pi. 83. cites 21 Afl' 2. 

9- in 



1 1 6 DUTeifin. 



9. in Affife DiTlcifor iliall not plead that the Plmmiff was feifed the 
I}jy of the IVrit furchajed ; for this is for him to plead who takes upon 
"him the Tenancy, Quod Nota, by Award. Br. Dilieilin, pi. 44. cites 
26 Afl^ 49. 

10. jj/ife agaivji B. and J. and B. pleaded to the JJJife as T'oiant 
of the Frankteneijient ; and A. pleaded thai the Platntijf was feifed of 
the Eranktenement the Day of the Writ purchafed^ and yet /j, where the 
FhintiiY had eJeffed B. for -Ttf/afa l^ejore, and from hence it feems that 
the Difleifor may plead this PJea to the Writ, Quod Noca. Br. Dif- 
feilin, pi. 51. cites 28 Aff 41. 

1 1. In Ailife it was (aid by Afcue J. That among the Affifes Anno 28 
is, that Bailiff nor Dilieifor cannot plead that there are two Fills of the 
fame Name in the fame County^ and none without Addiiion. Br. Dif- 
feilin, pi. 9. 

12. In AlFife the Bailiff of the Diffeifor pleaded, 'l^hat the Plaintiff 
never had any I'hing, and if &c. Nul tort. Filh, faid his Mafter had 
nothing in the Franktenement, therefore he fhall not have the Plea, 
and the Opinion of the Court waa with him, and thereiore it feems 
that the Difleifor Ihall not have the Plea. Br. Dilleifin, pi. 49. cites 
28 Air. 24. 

13 It was the Opinion of the Court, that the Dilieifor Hull not 
plead that there are two S. 's in the fame County fcil. Great S. and little S. 
and none without Addition, Judgment ot the Writ, nor other Plea, bat 
Mifnofmer of his proper Name, and fo was the Opinion of the Conrt , 
and it feems that thefe Words (no other Plea) are intended no other Plea 
oj Mifnofmer^ but Mifnofmer of his proper Name. Br. Diffeilin, pi. Jo. 
cites 28 Air 38. 

14. In Affife the Tenant pleaded in Bar hy Statute made by himfelf 
to the Plaintiffs who had the Land ajter in Execution by Extent, which 
Plaintiff was after condemned at the Suit of C. in 40 / and this Land deli- 
vered in Execution hy Elegit, as a Chattel, which E.Jiate C. the Defendant 
has. The Plaintiff faid that he had the Land in Execution by the Statute 
ut fupva, and was ieifed till by the Defendant diffciied, abfque hoc that C. 
had ever any Thing in this Land, Prill, and the other e contra ; and fo 
fee that in Pleading by Tenant by Statute-Merchant he faid that he 
was feifed} and yet it is only a Chattel. Br. Affife. pi, 348. cites 38 

Afl:4. 

15. DiJJeifor made Feoff'ment to a Feme Sok^ who took Baron^ and Writ 
of Ejitry was brought againjl both, fuppofing that the Feme entered hy the ' 
Diffeifor, and not that the Baron and Feme entered by the Diffeifor, and the 
W rit awarded. Quod Nora, and it leems that the Writ had been good 
alfo if the Entry of both had been fuppoicd by the Diffeifor of this 
Part, contra of the Part of' the Demandant, as in 5 H. 7. Br. Enter 
eu le per. pi. 34. cites 39 E. 3. 25. 

16. Affile hy Baron and Feme, quod Diileilivit eos, the Defendant faid 
that he himfetfwas feifed in Fee, and leafed to B. C./or Life, who aliened 
to the Feme and her firji Baron \ the Plaintiff made other Title, upoa 
which they were at Ifjue out of the Point of Affife, viz.. That the Lelfee 
had Fee, unA found for the Plaintiff', and that the Feme was Jeifed and 
diffeifed before the Efpoufals, and that the Baron never h:>d Sei/in, Hache 
demanded Judgment of" the Writ, which is, Qqq<\ Dtffeifi-vn eos, where 
the Baron was not feifed, & non allocatur, but Seilia awarded to the ' 
Plaintill^ tor an Oujler was confcffd by the Defendant in his Plea berbre, 
and therefore ought not to have inquired of the Seihii and Dilieilin, 
and fo the Verdict void. Br. Affife, pi. 369. cites 44 Aff. 6. 

17. Entry in the Poll of Difcijin to the Brother of the Dem'.ndant, the 
Tenant pleaded Feoffment of this fane Brother to f. N. .^'le Edate he has. 
Judgment fi Alt 10, and held a good Bar i quod Mirum ! fur ii feems 
Argumentative. Br. Enter en ie per. pi, 10. cites 2 H. 4. 19. 

18. Writ 



Diffeifin. 



117 



1 8. VV^ric ot'Entry ftirDiJfei/in made to J. N. the Tenant pleaded Feoffment 
of this fame J. N. made to another^ J^ie EJiate he has, and held a good 
Bar ; quod niirum ! for it feems only Argumentative. Br. Bar, pi. 14. 
cites 2 H. 4, 19. 

19. Feme Covert is infeoffed, Writ of Entry is brought, fappojlng the 
F.'f/try to be by Baron and Feme, as Land cannot revert to the Feme Co- 
vert but to the Baron alfo j but otherwife it fhall be where the Feme en- 
ters and after takes Baron fo that he finds the Feme leifed j for there the 
Writ of Entry Ihall fuppofe the Entry of the Feme only. Br. Enter en 
leper, pi. 12. cites 7 H. 4 17. 

20. Pernor of the Profits fliall not plead Ancient Demefne, nor Rekafe « q^-^„ j; 
cf Right, Fine, Recovery, nor fuch like by Que Ellate, as it feems, un- (DiffeiencO 
lefs in fpecial Cafes i but he may plead all Atlions, or traverfe the * Dif- 

fet/tn, or the Pernancy of the Profits &c. Br. Dilleilin, pi. 91. cites i 
H. 5. Fitzh. 381. 

21. In \\^rit of Entry fur Diffeifin made to the Anceftor, the Writ But Ibid, 
was, ^Ute clamat efjejiis et H^ereditatem ftiam^ by which the Writ was ^- '^ '^y*' 
abated. Thel. Dig. 105. Lib. 10. cap. 14. S. i. cites Mich. 20 E. 2. o'rintmTon' 
Brief 851. but cites 10 H. 6. contra. upon the 

Pofleffion o'f 
liis Anceftor, and in every Writ where a Man demands a Fee Simple upon the PoffcfTion ot his An- 
ceftor, he ought to have thefe Words, Qus elamat effe jus et Hered' (nam, cites the Regifter 2zS, 
£29. but contra in Nat" Brev. 191. but in no Writ of his own Poffeffion, unlefs in Cui in Vita 
Ilich. 10 H 6. 9. 

22. In Trefpafs Illue was tendered that J. JSF. Defendant did not 
dij/eife the platnttff to the life of IF. P. and the other e contra, and by 
Danby and Davers, it is Negative Pregnant i but if he lays that no/i 
DiJJei/rjit ModoS Jorma, it is good to all Intents. Br. Negaciva &c. 
pi. s- twites 33 H. 6. 37. 

23. In j^Jife they were adjourned for Variance between theWrit and the Br. Affife, 
Patent, to VV eltminller, and thereto H. fuch a Day, at which Day the p' 14. cites 
Parties appeased, and the one Defendant took the Tenancy upon him, and^' '^• 

f leaded in Bar, and the other faid that the Plaintiff' after the laji Con- 
tinuance had entered into Parcel oi the Land put in View and now in 
Plaint, and demanded Judgment of the iVrtt, and there it is agreed that 
the Diffeifor Ihall have this Plea to the Writ. Br. Diffeilin, pi. i. cites 
is- II. 0. II. 12. 

24. And it is faid that he fiall have every Plea which goes in Excufe o/^Br. Affife, 
Damages as this Plea does, and every Plea which goes in Bar and does p'- H- cites 
mt meddle -with the Right of the Land, as Releafe of all Anions pcrfonal ; ^- ^■ 
Quod Nota, it is agreed that this is a good Bar in Alfile, but he Ihali 

not plead Releafe of all the Right, for this goes to the Right ol the 
Land. Br. Difieilm, pi. i.cices 35 H. 6. 

25. But per Prilot and Fincham, he may plead to the Writ, that at ^^ Affife. 
another Time the Plaintiff brought t-Vr it of a higher Nature vgainfl him, p\. 14. cites 
and he may plead that iio Tenant of the Frankteneniert namid m the Writ, S C. 

aud that the Plaintiff' has nothing unlefs jointly with one J. N. not named 
in the Writ who is in full Lile ; for tkofe Pleas do not go in Extin- 
piifhrnent but in Excufe of Damages, and therefore by the Entry into 
Part the Affife is gone, and he cannot recover any Damages. And fo 
fee that Entry ihto Part goes to all the Writ; for the Damages are entire, 
Q_uodNota, by which the Plaintifffaid, that he did not enter, and the 
others e contra. Br. Dilfeifin, pi. i. cites 35 H. 6. 11. 12. and fays fee 
14 H. 6. lol. in Fine, and 28 Alf. 41. 

26. In Prsecipe quod reddat the Tenant faid that J. S. was feifed till 
by him diffeifed bfore the Writ piirchafed, which f. S. has entered upon 
him pending the Writ ; Judgment of the Writ and a good Plea. Br. Dit- 

H h feilm. 



1 1 8 DilTeifin. 

feilin, pi. loi, cites 5 E, 4. 5. 6. and fuch a Plea was awarded good 
Anno 15 E. 4. and fo lee that for his Advantage to abate the IVrit &c. 
the Tenant may confefs a Dijfeijin to a Stranger. Br. Difleifin, pt loi. 

As in Dower 27.^ A Man may confefs^ that he himfelf did a Dijjeifm tor his Benefit. 

the I'enant Br. Difleilin, pi. 1 1, cites 15 E, 4. 5. 

faiii that he- 
fore the IVrit furchafed A. B. was fei/ed in Fee till by this Tenant dijfeifed, and that the loth Day of 
Ocloher A .re-entered. Judgment of the Writ, and a good Plea per tot. Cur. And it is w Replication that 
ji. entered by Covin ; for his Fntry was lawful, and a Man cannot do Right by Covin. Br. Brief, pi. 
192. (his'j cites 1 5 E. 4. 4. 

28. In J^fe againjl DiJJeifor and Tenant, the Dijfeifor may plead to the 
Difjeifin, and in Ear, and in Exctife of the Tort, but he cannot meddle 
with the Land ; for the Tenant only fhall plead to the Right of the 
Tenancy. Br. Diffeilin, pi. 75, cites 13 H. 8. 14. Per Brudnel. 

29. Ani Jn Aflife againjf Pernor and Tenant the Tenant fhall plead 
a Difcharge of the Tenancy only; But the Pernor may plead to the 
Tort, and pall intitle hitnfelf to the Rent out of it it' he c^a. Br. Dillei- 
lin, pi. 75. cites 1 3 H. 8. 14. Per Brudnel. 



( S ) Pleadings. What Plea is a ConfelTion of a 

Difleifin* 

I. TN Aflife, they are-at Iflue upon Hors de fon Fee; the Seifin and 
\ Diffeifin fliall not be inquired ; For it is confelled implicative by 
the Plea, quod nota bene. Br. Aflife, pi. 429. cites 10 E. 3. 41. 

2. In Allife, t\it Tenant pleaded a Deed in Bar, and waved it, there 
the Aflife fliall not inquire of the DilFeifin, but only of the Seilin; 
For he is Difl'eifor by his Plea; Per Parninge. Br. Affife, pi. 416. 
cites M. 13 E. 3. 

3. Releaje pleaded hy the Defendant is a Confeflion of the Difleilin, 
fo that the Seilin and Difl^eiiin (hall not be inquir'd. Br. Affife, pi. 
417. cites 22 E. 3. 4. 



(T) Entry in the Per &c. Pleadings. 

1. TJ'NTRY brought ^v a Feme ^ m that the Tenant had not Entry 
p, unkfs by the fame Feme, and the Tenant [aid that floe and her 
Baron demifed to him, Judgmentof the Writ and a good Plea, and lhe_ 
put to her Cui in Vita ; For it was in Writ of Entry ad terminum qui 
prjetcriit. It feems that flie may enter if there be no Defcent after the 
Difcoverture. Br. Entry en le Per, pi. 43. cites 6 E. 2. Icinere Cant. 

2. If Writ of Entry ht brought in the Poji lahich may be within the 
Degrees it jhall abate. So if it be brought in the Per, or in other De- 
gree within the Degrees where it Ihould be in the Poll, this fliall abate. 
Br. Enter en leper, pi. 39. cites Vet. N. B. Tit. Brief de Non com- 
pos mentis, and Brief de Entry duni fuit infra £etatem, and Fitzh. 
Tit. Brief 286. 438. and 440. and 17 E. 3. 

3. Entry fur Diireilin againjl a Man mid his Feme in the ^nibiis, 
the Fane not having Entry milcjs by R, •'Mo ivrongjtilly Sc\ dtjfeijed his 

Father, 



Difleifin. up 



Father^ and not fnppqfing the Entry of , the Earofty and yet the Writ 
awarded good, and it the Baron aliens and retakes to him and his Feme^ 
yet this fliiU not change the Degrees j For the Feme is remitted. Br. 
Entre en le Per, pi. 25. cites 39 E. 3. 25. 

4. Entry fur Difleilin oyi2e«?, the Tenant made bar of Rent-Charge'^ 
iand the Demandant made Title to the Rent-Service^ and good per Cur. 
For it may be that he has both there, and brings the Aftion of the one, 
and there the Tenant fhall have new Anfwer, and this to the Writ if 
he will in this Cafe, and fo he had there ; For the Bar was not pleaded 
to this Rent-Service. Br. Entre en le Per^ pi. 35. cites 12 E. 4. 
10. II. 

5. Writ of Entry againji the Baron and Feme^ the Writ floall le that 
the Feme had not Entry unlefs by N. Sec. and not that the Baron and Feme 
had not Entry unlefs by N. &c. 'Br. Enter en le Per, pi. 36. cites 
7 H. 7. 2. 

6. Entry in the Poft, fuppojing that the Tenant had not Entry unlefs 
after the Dijfei/fn which j. <i. made to his Jncejlor &c. And the Tenant 
J aid. That before that the Anccjlor any Thing had^ T. was feifed in Fee and 
leas' d to B. for Term of Life, and B. injeoffed N. by which the Lejfor en- 
ter' d for Alienation to his Dijinheritance and died feifed, and the Land 
defcended to the Tenant as Heir &c. and per tot. Cur. this is no Plea, 
becaufe he does not traverfe the Difleifin alleg'd by J. S nor he does 
not contefs nor avoid it ; And per Vavifor in Writ oj Entry the Dtffei- 
fin ought to be conjefs'd and avoided or traversed. But otherwife it is m Af- 
ftfe J For there it is fufficient to plead Feoffinent of a Stranger, and 
give Colour to the Plaintiff; Contra in Writ of Entry fur Dilieilin. 
Br. Enter en le Poft, pi. 22. cites 15 H. 7. 16, 17. 

7. In \V i-R of Entry m the Pofl, the Tenant /^/V/ that he was feifed till 
by the Plaintiff dijfeifed^ upon which he entered^ and a good Plea. And 
the fame Law in Xrclpafs. Br. Enter en le Per, pi. 46. cites 16 



H. 7. 4- 



(U) 



Pleading's, Traverfe in what Cafes. 



'a 



!• T7 N TRY in the Per by which the Tenant had not Entry but by 
y^ J. who diffhfcd (he Demandant, the Tenant faid that the De- 
mandant injeoffed J. and no flea without faying abfque hoc that J. d/f~ 
feifed the Demandant ; For Plea contrary to the Suppofal ot the Writ, 
is no Plea without traverfing the Point of the Writ. Br. Enter en le 
Per, pi. 15- cites 38-E. 3. 2. », . ^r 

2. If a Man isdilfeifed he may have Aftfe or Writ of E^ntry in Na- 
ture of Affife at his Pleafure. Br. Enter en le Poft, pi. 14. cices 

3.*In'Entry fur Difleifm it is no Pica that the Plaintiff' infeoffed him 
mlefs he traverfes the Difeifin. Br. Traverfe per &c. pi. 299. cites 

4 H. 6. 29. 

4. In Trefpafs the Defendant pleaded his Franktaiemait at the Time 
&c.' per quod &c. the Plaintiff faid that before that tie Defendant any 
Thing had, P. was feifed in Fee and infenff}d htm, by which he was feij- 
id till the Defendant enter d and did the Trefpafs, and he frejhly re-entcr'd, 
and becaufe the Defendant acknowledg'd the Treipaf'*, Judgment &c. 
the Defendant faid that J. N. was feifed m Fee, and died feifed and W. his 
4iiir enter d and died, and he as Heir to him^ and jhtw'd how ^c. enter d 

and 



J20 



DilTeilin. 



and of fnch Eft ate was feifcd at the 'time of the Trefpafs, &c. and held no 
Plea • For he hts not travers'd tne DilTeiliii in the Replication, 
nor contefs'd' and avoided it. Br. Travcrle per &c. pi. 6i. cites 
7 H. 6. :?3. 

5. In trcfpafs the Dcferihnt [aid that ke was fcifed &c. till by A. dif- 
feifed^ ivbo iii^eoffcd the Platntijf upon whom the Dejendant entefd^ oi 
which Entry the PI aiucifF has brought this Aftion, and the Plaintiff 
[aid that before the Defendant or thcfiid A. any Thing had, W. wasfeifed^ 
and fo convifd the Dcfcent to the faid A. and that the Defendant abated 
after the Death of the Ancefm of the faid A. upon whom A^ enter d and in- 
fcoffed the Plaintiff, and ajter the Defendant dtd the Trefpafs, of which 
he has brought his Action, and pray'd his Damages, and by the Opi- 
nion of the'^Court the Title is not good Without traverfnig the Diffeijht 
alleged in the Bar. Br. Traverfe per&c. pi. 13. cites 9 H. 6. 32. 

6. I'or it is faid there and the fame Year, fol. 19. and 30, that 
•where Dijjeifm is alleged by Siippofal, as in IVrii or Declaration, as in 
AlTife or W^rit of Entry fur Diifcilinj there it is fufficient to plead 
Matter of Bar as above, without traveriing the Dilfeilin ; £rt^ where it 
is alleg'd in Bar, Title, or other Pleading, there it ought to be ' con- 
lefs'd and avoided or travers'd, quod nota, and in the Cafe above the 
Plaintiff has not done the one nor the other. Br. Ibid. 

7. Trefpafs againft R. who pleaded that his Franktenement &c. the 
Plaintiff faid that before R. any Thing had, IF. was feifed and infeof'sd 
the Plaintiff, who was feifed till by N. diffeifed, who infeoffed the faid R, 
upon whom the Plaintiff frefloly re- entered, and the Trefpafs mefne between 
the Diffti fin and the re-entry, to which the Dejendant faid, that E. was 
feifed in Fee, and injecffed the fiid R. and no Plea without traveriing 
the Dilfeifin to the Plaintiit." Br. Traverfe per &c. pi. 292. cites 
21 H. 6. 5. 6. 

8. Where the DifTeifin is alleged ly Way Conveyance to the Title or_ 
Pojfcjfion of the Plaintiff', it is not traverfable, and efpecially where the' 
Plaintiff and Defendant con'vey from one and the fame Perfon. Arg. D, 
365. b. 366. a. pi. 34. Mich. 21 & 22 Eliz. in Ld. Crumwell's Cafe, 
cites 21 and 30 H. 6. 2. and $ E. 4. and 4 & 5 H. 7. 

9. In Affile, the Tenant may fay that his Father was feifed, and 
died feifed, without traverf.ng the Dilkilin fuppofed in the Writ or 
Plaint. Br. Traverfe per &c. pi. 279. cites 22 E. 4. 39. 

10. Formedon againfl Pernorir of the Pro/its of the Day of the Title ac- 
crued; Per Littleton the Statute does not give Ailion but where the 
Defendant is Tenant of the Franktenement the Day of the A6lion ac- 
crued, and where the Delendant takes the Profits the Day of the VV^rit 
purchafed, and fothe Delendant may traverie any of the Points i Con- 
tra in Affife or A£lion founded upon DilieiJin, there he ihall traverfe the 
'Diffeilin or the Prender of the Profits. Br. Traverfe per &:c. pi. 216. 
cites 4 E, 4. 38. 

For more of Diffeilin in General, See c^fTlfC, S^lfCCltt, ClltrjJ 

and other proper Titles. 



Diftrefs. 



121 



Diflrefs. 



(A) Diimage-F^afaHt. What Things may be taken 

Dama^e-Feafant. 



^iy 



I. A Grayhound um? bC tilltCn DmimgC^JFeanillt running after 
J\ Coneys in a Wurren. 2 i£. 2. Jftt?!)* ©iffCCr^, 20. 

2. So n QSnit map tal^c a Ferret tljat nnotOcr tjatlj lu'omjljt into 
!)t]5 UBarrcn aun taken Concpg U)tt6» 2 (£. 2. itt=;lj. auouJCD 1^2. 

3. if a Q5an urtmx^ Nets and Gins tijrouij:!) U1J) UDutrcn ji caimat 
taUe tljem aut of fjis uanDS. 7 C 3- ClDoiDcp. 199- 

4. if a ii^an rJOes upon mp Corn 3! cannot tal^c tjij !porfe ^n^ sid 440 iii 
magc^ifeafant* 7 ^» 3- auouirp. 199- ^, ^^'V^ 

" "" _ _ the JinQ or 

pi. 9. Hill. 21 Car. 2. B. R. the Chief JulHce fjid, that a Hovfe on which a Man is riding may be 
diftraincd Damage-Feaiant, and it ieems he fhall be led to the Pound with the Rider on his Back, 

5. Shocks of Corn uia? bc tafectt DattiaB^ifcafant* 21 ]^, 7. Br.Diftrers 
39. b. bp all tlje Suftitesi, s" c^'" 

Fit7,h. Avowry, p!. 263. cites S. C. and THn. i 4 H. 7. S. P. accordingly, per Cur. Obiter. 

Lat. S. Hill. I Car. B. R. in Cafe of Stilman v. Chance. 

6. Trefpafs for taking a Grayhound with a Collar, the Defendant 
plciided that the Dog was courjing a Hare in his Laiidj and thereupon 
he took him and Jed him away; upon Demurrer this was adjudged 
an ill Plea. Cro. J. 463. pi. 10. Hill. 15 Jac. B. R. Athill v. Corbett. 

7. Trelpafs for cutting the Plaintifis Nets and Oars; the Defendant 
juftified, tor that he was feifed in Fee of a feveral Fifhery, and that 
the Plaintiff v\ ith others endeavoured to row on the Water, and with 
tbeir Nets to catch his Fijh ; and thereupon to preferve his Filhing, he 
cut the Nets, and Oars &c. adjudged no good PJea, for he might 
have taken the Nets and Oars, and detained them as Damage-Feafant. 
Cro. Car. 228. pi. 5. Mich. 7 Car. B. R. Reynell v. Champernoon. 

8. It ten Head of Cattle are doing Damage one cannot take one of 
them and keep it till he be fatisfied for the whole Damage, but may 
bring Trefpafs for the Rett. Per Holt Ch. J. 12 Mod. 660. Hill. 
13 W. 3. in Cafe of Vafpur v. Edwards. 



(B) The Goods of (whom may be taken Damage- 

\ eafant. 

J. T if tI)C Lord agifts the Cattle of a Stranger in the Common Of /'^Vsjv.^^ 

1 tljeCenantdiuljcccfie Ijimfelfijatlj Rtixljtto fccti tljc Caai foi. 66,. 
nion, tijcugi) De ijatij tljE jfrcEijolD, pet a Ccnant map tal^c tlic 
Cattle Damaijc=JFcarant» 3° €, 3- 27. 

I i 2. In 



5 



122 Diftrefs. 

2. In Avowry it was held that where J. is amerced in a Leet for re- 
ceiving of W. by a Year and a Day, who was not put in Decennary, 
the Lord cannot dillrain J. but by his proper Beafts, and not by the 
Beafts of another in his Cullody, by reafon that the Offence arofe upon 
thePerfon, .contra where it arifes by the Soil, as for Rent-Service or 
Damage- Feafant ; note the Diverlity, for it is good as it feems, but the 
Plaintiff pafled over Gratis. Br. Diftrefs, pi. 3. cites 41 E. 3. 26. 

3. Note, It was faid that if the King grants a Rent out of his Manor, 
the Manor is not charged, but the Perfon by Petition, the Reafon 
feems to be inafmuch as a Man cannot diftrain upon the King, nor 
have Aflife or other Aftion againlt him. Br. Charge, pi. 37. cites 13 

E. 4. 5. 6. 

4. Lejfor cuts Wood, and puts it inio his Cart, and leaves it on the Land 
for a Month, and then will carry it away ; Lellee may difturb him, 
for he may diftrain this Damage-Feafant for the VV^rong to him ; Per 
Doderidge; (N. B In the Cafe in Judgment the Leflee had covenanted 
not to difturb the Leflbr in felling or carrying away &c.) Palm. 504. 
Hill. 3 Car. B. R. Hayward v. Fulcher. 

5. The Cattle of a Stranger cannot be diftrained uqlefs they were Le^ 
vant and Couchant, but it muft come on the other Side to fhew that they 
were not foi Per Keeling. Mod. 63. in pi. 6, Trin. 22 Car. 2. 
B. R. 



(C) ^Fhof in refpe^ of his Eftate^ may take Cattle 

Damage-Feafant. 

I. A (Commoner tm? juftifp tlje tiflung of tl)c Cattle of a %tmv 
£\ get upon tl)e lanD Damap^JFearant. 30 €» 3- 27- 
2. ff tl)ete be a shack Common \\\ a €;attm UJljcte eijerp one 

fenOtDsi W Patt, but it ItejS in Common, pet no Commoner may 

alioU) tlje tafeing of Cattle Damap-ifeafant in any Part of tljc 

Common but in that which is his own Part. ^JCl). 8 3!aC. 13» Bode- 

ridge's Cafe, pet CUtiam* 
Br. Avowry. 3. ;jf a g^flU OatD Common for ten Cattle, auH I)C plltS XW mOte, 
pl. 29^^s |.jjp Surplufage above the ten may be taken DamaUC^ifearaitt^ 46 <£» 

holders had ,, • -n 1 1 • ■ 1 j 

Common for all Beafts levant and couchant upon their Eftates ; the Plaintifts were both intulcd to 
this Cominon, and the Plaintiff putting in more Cattle than were levant and ccuchant upon his 
Eftate, the Defendant diftrained them ; and the (^ueftion was, Whether one Commoner mi«;ht 
diftrain another in this Cafe ? It was agreed in this Cafe, that one Commoner mi»fit have a:i Aition 
upon the Cafe againfl another that put in more than were levant and couchant, and that the Lord 
might in fuch Cafe diftrain ; and that vvliere a Commoner was intitled to a Common foi' a cen.uu 
Number of Cattle, as for ten or any other certain NumSer, there if he furcharged, anochcr Com- 
moner might diftrain. It was likewifc agreed, that if a Stranger, who has no Right of Comm m, 
put in Cattle, any Commoner might diftrain ; but this was fiid to be a Cafe not vet rcfolved, 
Wliether one Commoner could diftrain another for a Surcharge in the Cafe of Levar.c) an^l Cou- 
chancy ; And i'o the Court took Time to confider till the next Term. Freem. Rep. 275. pl. 500. 
Pafch. 1698. C B. Dixon v. James. 

If a Man hath a Freehold in a Market- Place, and Corn is brought 
thither on the Market Day, and fet down, he cannot juftify the taking 
it there Damage-Feafant. Cro. Eliz. 75. pl. 34. Mich. ^9 ,Sc soEliz,. 
B. R. The Mayojc of Luuaccfton's Cale. 

(D) Diftre!s 



^Diftrefs. 120 

(D) Diftrefs Damage-Feafant. h 'what Cafes it 

may be. 

I- Jf n Man takes my Cattle and outs them info rh« T ^^a ^c 

Cattle Dcing Damagc^Jfearant, anoT map to them Smff Sr 
til S)atiSfaftion of ti)e Damages Vrii"?5 S I R^lS m 

i2o/^;«>; and Waller, ^ct tOtatll CUtiam" ^* ^^"^^^ 

Feafant butt n ^rrh aa'^'"' T^ ^f """°^ ^'^^^^i" ^hem Damage- Si. a"s.P. 
otherw^Ve in rff r r 'ra*^'°".°^ ^''^^^^^ ' P°^ '" ^"^h Cafe though — Pi-^^- 
otherwile in the Cafe oi Rent Arrear the Beafls oueht to be Damage ^S- ^- «• P- 
Feafant at the T>me of the Diltrefs ; Per the Rfporter in a Nott I^.Tn? " 
9 Rep. 22. a. cues x6 E. 4. xo. b. and 2 E. 2. Avowry 180. ^;^::^ . 

Rercous brought Sy one named Rich Hill f.ii ^ „„a u -j j l t-.- . . a Writ of 

heM t^ .r L4c-Fea.nt the^a^tj^l^ ;h;^^^-^S^'- laL^^^l.^ .^ U^ 

1. Mod. 661 HUl. 15 W.3. mCafeo/kfJc'J^tfiS;/"" """'' take then., Fer Holt Ch. J. 

3. Trefpafs againlt A. yjho jujiified for Diftrefs for his Lord- th^ 
Pla,uutf ff that he had a Clofe Jdjim4 ,n M EeaftsZreZat and 
they efcapcd und wm tuto the other's Lands -where Trefpafs ^c^ and he 
Plam,ff f reply parfued them, and before that he could tike them out the 
Defendant took them, and yet the Diitrefs is well taken, per Cur not 
w.t.Uand.ng the Ireih Suit, and that they were not levant and" 
couchant , lor they -jjerc there without Authority. Br. Trefpafs, pi. 2 Si 

4. S. brought an Ox^hide to LeaAenhall in London to fell it, and W 
diftramsic Damage-Feafant, and jullifies as Servant to the MavorV.' 
whom that Place appertained for the Incorporation , adjudged tSat the 
So for' ??^^^^/"'' /°^ '^ was brought there to be fold pfo bono pub. 
Jico 5 for G,ods brought to a Market and expofed to Sale lliall not he 

WUkinfoa ^^ "'• ^"'- '' J^" ^"^^^'^^ C^^^ of Sawder V 

5- A fufFer'dhisC^/r/e to efcape into B. his Neighbour's Ground the 
Fences lejng out of Reparr ^huh^ B. ought to make, and the Gate beint 
there levant and couchant, without any freih Purfuit made -lTd,f 
trained f^r Ren: d^^e from H. and per Cur. the Diltfefs iTnot tZ^l- 
tor though the ^ault v^-a, m B. for not repairing the Fences, v^t Tas 
A. s Fau t to fulferthem to be levant and couchant there w'ithou mak! 
mg any irelh Purfuu atter them , and Rent is due of common R?rht * 

Rent Ld "^ '' '^' ^'^"'' u^''"^^ '^'^ ^-^^°^d muit rcfo^t tor^h | 
Kent, and is not to enquire whole Cartie they are, or how they came 

7\S Y}^'f '^f ^^"'^- '7 h^ B R- Gill V. Gawen.^ 

1. 7 ^ f °^ 1 ^^''^"^'^ '^^""°' ^^ diltraintd, unlefs they were S. C cited 

levant and cotichant, but it mult come on the other Side to LwTat ''X P°- ' J- 

they were not lo; Per Kelynge. Mod. 63. pi. 6. Trin 22 Car BR '^ 

Jordan v. Martin. :s F • "• -^nn. 22 t.ar, iJ.R. ^^^^ 



utw. 

ppendix 
ijb'o. in 



Diftrefs for Rent.- 2 Kcb 660 dI ia S C ^r,A r, n ■ ^ Cafe of a 

Levant and Couchant, bur it not bSi^dvelV averrertha^"^h.''^lP''"-« ^"''^'"' " "^"'* ^' '^'^^'^ 
will never intend it fo. ° poiuiveiy averred ta.it the Piaintifl was a itranger, the Court 



7. If 



124. 



Diftrefs. 



7. It 'fiirves are lying on a Common Damage-Feafant a Commoner may 
diftrain uhem, but he cannot juftily the burning them. 2 Jo. 193. 
Pafch. 34 Car. 2. B. R. Bromhall v. Norton. 



(D. 2) For Rent. 



By whom. In refpecS: of his 

K ft ate. 



Br Gvan-s, 
pi 21. cites 
46 E. 5. 18. 

Br Executi- 
on, pi. 145. 
cites S. C. 
and Fir7.h. 
tit. Avowry. 
237. 



2 Mo(1.i5S 
Cook V. 
Herle S. C. 



I, T N Affife it was faid for Law, that where Rent-Charge defcends 
J^ to a Daughter, and alter the La/id defcends to the fame Daughter 
and to her tivo Sijttrs, nothing is extinft but the third Part of the Rent, 
and yet the Daughter, who has the Rent, cannot d'lfirain for the other 
two Parts of the Rent till Partition be made^ For flie is feifed of the 
Land per my et per tout with the other two Sillers till Partition be 
made. Br. Diltrefs, pi. 37. cites 34. Aff 15. 

2. In Scire Facias upon a Fine, it was agreed, where tipn a Fine it 
it refervd. That for no: peiibrming of Malies by the Prior of B. (the 
Conufor) 'That the Jiijlues of C. B. or Barons oj the Kscheqiter might 
dijirain^ and in this Cafe the Contijce and his Heirs might dijtram. Br. 
Diflrefs, pi. 20. 

3. Where it is referv'd. That for Non-Feafance the Bailiff' of the King 
pall dtjlrain, yet the Bailiff of the Party may dijlrain. Br. Diftrefs, 

pi. 20. 

4. Kent referv'd fipon a Lea fe for Term of Life may be put in Execu- 
tion by Elegit, and the Plaintiff who lecovers may dillrain for the 
Rent, and yet he has not the Reveriion. Br. Diltrefs, pi. 71. cites 
13 H. 4. 

5. Where a Man/^^y^'j/or 20 Tears, and the Leffee kafes over for ro 
Tears rendring Rent, there if he grants the Rent to another Man he 
cannot diflrain ; becaufe he has not the Reveriion of the Term ; Con- 
tra if he had granted to him the Reveilion and the Rent i Note the 
Diverlity. Br. Diflrefs, pi. 45. cites 2 E. 4. 11. 

6. It was faid,. that it the Knig grams a Rtnt out of his M-inor the 
Manor is not charged, but the I'erlon by Petition • The Re.iibn teems 
to be inafmuch as a Man cannot diflrain upon the King, nor h.ive Af- 
l:fe nor other Action againit the King. Br. Charge, pi. 37. cices 13 
E. 4. 5. 6. 

7. Cejliiy que Ufe of a Rent-Charge ibr Lite executed by the Statute^ 
may diflrain as incident to the Elhte, the Power ofDittrei's i.s tranl- 
ferred to him by the Statute. Mod. 223. pi. 12. Mich. 28 Car. 2. 
C, B Bofcawen and Herle v. Cook. 

8. a a Lea fe for Tears be made referving Rent, and then Lcffor ac- 
knowledges a Statute which is extended. Tne Conulee after the extent 
fhall have a Debt or Diftrain and avow tor the Rent. Per Ventris J. 
2 Vent. 328. cites BrOr-tii. Statute Merchant 44. [cites Fitzh. Avow- 
ry. 137. 13 E. 4.] and Nov 74. Bat he that enters by a Power to 
hold Jor an ylrrear of Rent ihall not. Per Ventris J. 2 Vent. 328. 
Trin. i \V. & M. 

9. In Replevin the Delendant avowed, for that W. R. was felled of 
the Place where &c. in Fee, and being 16 leifed he granted a Rent- 
Charge out thereof to IV. W. for Lfe, that IV. IV. is dead, and that he (the 
Delcnilant) v^as his Executor, and dillrained in the Place where, lor 
io much Rent in Arrear, and due to his Tellator in his Lifci but did 
not aver, chat the Place where 6ic. was then in the Seilin ot the 
Giaucur ol tliis Rent, or raiy othtr Perf>n who claimed by, Irom or 

under 



Diilrefs. 125 



under him ; And upon a Demurrer to this Avowry Holt Ch. J. heldj 
that the Executor might dillrain either on the Grantor or any other 
Perlbn, who comes in by_ or through him, and if the Plaintiff is noc 
liable to the Diltrefs, it is more natural for him to ihew it in his Re- 
plication lor his own Defence. Eelides, the Statute which impowers 
Men to diftrain, is a Remedial Law, and therefore ought to be ex- 
pounded according to Equity, and extended accordingly, and the 
V\ ords therein being (Executors ot Tenants for Life) may ex vi Ter- 
mini include all Tenants tor Life, z Salk. 136. pi. 2. Mich. & Hill. 
8 W. 3. C. B. Howell v. BeJl. 



(D. 3) Who may diftrain for Rent, in Rcfpc6l- of the 
Eftate or the Perfon in FolTeirion. Of the King hLz. 

I. rr^HE one 'I'eiiant in covmon may hold of the other, and the 
_j^ other may dijtrain and make Avowry, quod nota. _ Contra it 
feems between Coparceners and Jointenants before Partition^ for Privity. 
Br. Diftrefs, pi. 64. cites 31 E. i. and Ficzh. Avowry. 241. 

2. Where a Man has a Seigniory, and this Land is fetjed into the 
'Hands of .ihekwg by falfe Office., yet rht Lofd canmt diftrain upon the 
Poffejfion of the King, though theOffice be Falfe, this Office being i/i Force, 
quod notai For it appears, tit. Trefpals, that a Mon may traverfe lor 
hisSeignory. Br. Diltrefs, pi. 76. cites 44 E. 3. 13. 

3. A Man cannot diltrain during the Poiieirion of the King, be he 
intitkd by Office ov hot, and if he be intitled by Office or Record, and 
grants the Land over, then he cannot dillrain upon the Grantee. 
Contra where the King enters ivit'hout Office or Record, and grants it 
over, there he may diltrain the Patentee, but not upon the Poirelfion 
of the King. Br/ Diltrefs, pi. 46. cites 4 E. 4. 22. 

4. If the King is intitled to the Ward of the Heir of the Tenant, and 
the Land is charg'd voith Rent-Charge, and the King commits it o^ocr du- 
rante minore jEtate, a Man cannot diltrain upon the FolTeffion of the 
King, nor upon the PoffelTion of the Committee. Per Keble, quod 
non negatur. Br. Diltrefs, pi. 38. circs i H. 7. 17, 

5. li'xhtKingis intitled by Offiice to tke Land out of ii'hich I have a 
Rent-Charge tfjuing, there I cannot diltrain upon the Poirellion ot the 
King ; But if the King grants the Land by Patent, there I may diltrain ; 
For I am not out of PoUelfion of the Rent by the Office. But he vvho 
pretends Title to the Land is out of Poflelfion thereof by the Oirice, 
nota Diverfity. Br. Diltrefs, pi. 27. cites 21 H. 7. i. 

6. The Land fiibjeft to a Rent-Charge isprivileg'd, and difcharg'd 
from Diltrels while it is in the Hands of the King, yet "xhcn it is 
transferred from his Pcfjeffion, then the Diftrefs there is revived i For 
Rent is not extinft by the Poireffion of the ICing of the Land out of 
which it illiies, but the Diltrels is fufpended for the Time ; but 
when the King has intirely difmiffedhimfelf of all the Interelt in the 
Land, then the Land is fubjeft to fuch Charges and Incumbrances a-s 
it was before ; and this fcemed by the better Opinion. Sav, 125. pi. 
194. Mich, 32 & 33 Eiiz.. Bofden's Cale. 

Kk (E) Diftrefe 



1 26 Diftrefs. 



(E) Dlftrefs. In what Cafes a Dlftrefs may bc' of 
common Right by a common Perfon. For 'what Thing. 

Liu s 2T^ I T7SDK Rent-Sefvices a Difftel^ map be toMtn of Couv 
s. p. and ' j;7 man Higljt* 45 ^» 3- 15 i3» 1 1)» 4- i- b. 3 D» 6. 21. 

^T, ^r Vavs that Littleton's Meaning; is, that the Lord may difti-ain for his Rent of Comtnon Right, 
that" is,' by'the Common Law, without any particular Rcfervation or Provdion of the Party. 

Br. Diftrefs, 2. jf mp^eitant 1)0150 Innti to no Suit to my Hundred, 31 mapM^ 
pi 1 5 - cites ^^i^ foe tijijei g)Uit If It lie ai'ccac, s ip* 4. 15. 

Fitzh. Diftrefs, pi. ii. cites SC 

3. ifOt Aid to marry 1)10 DaUgl)ter, or make his Son a Knight, a 

Dt{fccf0 map betaken Of Commoit Kisijt* 39^* 3. 34- tljauijD it 
IDAS obiecteo be oimtjt to ba^e a a^tit to tbe 8)bcctff to iebp it. 
The Lord 4. ^t)e lorn maptiiftram tor Relief, but if be uiess m e,tecu= 
may diftrain, jQ,.g caitiiot, biit Ujall baije au action of Debt foe it* D. 3- 4 ^ii* 

ha^e^Xn ^o- [pU] 37- CO. 4- O^nell 49. b. 

but his Executors or Adminiftrators may have Aftion of Debt, but cannot diftrain. Co. Litt. S5. 
a. b. Ibid. 162. b. S. P. 

Br Hariot, 5. ifot fltt Heriot-Service tiite aftet tbe Dcatft Of cbetP Cenant, 
pi. 6. cites (jjg jLotD map HifftauL 27 sitT. 24. abmitteo. 

o. v.** out 

not for Harint-Cuftom. Fitr.h, Avowry, pi. 177. cites S. C. S. P. admitted, Cro. E. ;2. 

pi. 8. Trin. 26 Eliz. B. R. in Cafe of Peter v. Knoll. Cro. C. a6o. pi. 4. Trin. 8 Car. B. R. Ma- 
jor and Brandwood, S. P. Jones 500. pi. 2. S. C. & S. P. 

6. It was held, that for Suit-Service a Man may diftrain, but not for 
Amercement for fiich Rent, but for Amercement jor Suit-Real ; As at the 
Leet a Man may diftrain ; Note the Diverfity, and it was tor 2d. Br. 
Diftrefs, pi. 15. cites 8 H. 4. 16. 

7. For Rent refcrved upon Equality of Partition the Parcener may di- 
ftrain of Common Right. Br. Diftrefs, pi 92. cites 11 H. 4. 3. 

Ibid. 126. a. 8. If one holds of another by Homage^ Fealty^ and 10 s. Rent^ who takes 
pi. 87. S. P. Wife and dies, his IVtJe Ihall have the third Part of the Rent as a Rent- 
Seek, and yti in Favorem Dotis W\Qjk'xil dijfrain for it. Keiw. 104. a. 
pi. II. Cafus incerci temporis. 
And yet he 9. If tlie Tenant holds of the Mcfiie by 5 s. and the Mefne holds but by 
Jhnll diftrain j2 d. fo as he has more in Advantage by 4 s. than he pays to his Lord, 
feeins th« he pall have the faid \s. as a Rent-Seek yearly of the Lord which pur- 
Fediy is ex- chafed the Tenancy. Litt. S. 232. 

tinft, the 

Law referves the Diftrefs to the Rent ; for, as it has been faid in the like Cafe, feeing the FeaVy is 

extinft, the Diftrefs by Aft in Law may be preferved, Qiiia qinndo Lex aliquid alijui conceiiit, 

concedere videtur & id fine quo res ipfa efle non potcft. Co. Litt. 155, a. S. P for the Rent 

v/as Rent-Service before, and the Nature of the Rent is not changed by the Aft of the Mefne. Keihv. 

104. a. pi. 1 1. And therefore if a Man make a Lcr/e for Life, refcrwig a Rent, and binds hiinli:lt 

in a Statute, and has the Rent extended and delrjercd to him, he fhall diftrain for the Rent, becaufe he 

comes to it by Courlc of Law Co. Litt. H5. a. But it a Reiit-Ser-j'a: ii nude a Rent-Setk by 

the Grant of the Lord, the Grantee fliall not diftrain for it, tor that the Diftrefs rcraains^with tiie 
Fealty. Co. Litt. 15; a. 

10. It 



Diflrefs. 



127 



10. It is a Maxim in Law, that no Diftrefs can be taken for any Ser- 
vices that are mt put into Certainiy^ nor can he reduced to any Certainty. 
For id certum elt quod certum reddi poteft, for opertet quod certa res 
deducatur in Judicium, and upon the Avowry Damages cannot be re- 
covered lor that which neither has, nor can be reduced to a Certainty, 
and yet in fome Cafes there may be a Certainty in Uncertainty ; As 3 
Man may hold of his Lord to fliear all the Sheep depalturing within 
the Lord's Manor, and this is certain enough, albeit the Lord has fomc- 
times a greater, and fometimcs a lefler Number there, and yet this 
Uncertainty being reterred to the Manor which is certain, the Lord 
may diltrain for this Uncertainty ; Et fic de limilibus. Co. Lint. 96. a. 

12. The Lord by Efcheat lliall diftrain for the Rent after the Death 
of the T'enant^ though the Refcivation be to the Lellbr and his Heirs, 
and both Aflignees in Deed and in Law fliall have the Rent, becaufa 
the Rent being referved of Inheritance to him and his Heirs is incident 
to the Reverlion, and goes with the fame. Co. Lict. 215. b. 

13. It a Gift 111 fail^ Leafe jor Life of Lcffee^ or of another, or (or Tears And if a 
be made rendring Rent, luch Rent is Rent-Service, and the Lellor may ^^^j'" rn^kes 
diltrain for it oi Common Right. LitD. S. 214. T/V//' ren- 
dering a 

Rcnr, though the Lcflee fliall not do Fealty, yet the LelTor Jhall diflr.iin for the Rent of Common 
Eight, Co. Litt. 14;. b 

14. It tipon a Partition hetwsen Coparceners a Rent is granted out of ; Rep- -2- 
Part of the Lands defcended for Equality of Partition, the Grantee of ''•,'" ^>"'''- 
Common Right may diltrain lor this. Co. Litt. 169. b. g"" p '^' 

15. So if a Rent be aJJ'igned out of the Lands to a Woman for her 
Do-wer. Co. Litt^ 169. b. 



(E. 2.) Taken. How. And where. 

I. TICTHERE the Lord comes to diftrain and fees the Beafts, and thcg p |,ygjj 

V V Tenant perceiving it chafes the Diftrefs &c. the Lord may pur- the Jufticei 

fue them, and diltrain well enough; QuodNotai and this is where and Scr- 

the Lord fees the Bealts as above, and not otherwife ; for // they arc F^"'"* ^ut 

chafed out before that he fees them, he cannot piirfue and diftrain i nota ul^wTr. , 
• i T, -ft r 1 -T. nave i<eii_iie. 

inde. isr. Kelcous, pi. i3» cites 21 H. 7. 40. bccnnfehe 

h.-i.d not Pof- 
feflion. Br. Diftrefs, pi. 5c. (bh) cites S. C. 

2. One cannot fling open Gates^ or break down an Inclofurc to take a 
Diltrefs. Co, Litt. 161. a. 

3. Horfes yoked to a Phiv may he fevered for Daimgc-Feafant ; but 
per Manwocd J. ihert is a Diflerence in the Books when the Diltrais is 
lor i?e/;r-&m« they cannot be fevered, for they are an intire Dillrcfs, 
and he claims no Inrereft in the Land, but only a Rent or Service with 
which the Lai.d is charged ; but in a Diltrcfs for Damage-Feafmt the 
Party claims the Land itielf, aud he may have feveral Actions lor 
Trefpafs for every Horit ; for every one of thcni does Trefp.ifs. Cro, 
E.7. pi. 6. Trin 24E]iz. B. R. tunbridge's Cafe. 

4. By 2 IF. y M. 5. It is thought convenient that a Conltable lliould 
be prefent, though the A£t does not require it. Sir B.Shower'sOblerva- 
tions on Stat 2 W. Sc M. dp. '5, 

5- If a Landlord comes into a Houfe, and fcifes upon fcf;ie Gords as a 
Diltrcfs ;/; the Name of all the Goods of the Houfe,- that will be a good 

Seizure 



128 Diftrefs. 



Seilure ot all ; but he mult remove them in convenient Time by com- 
mon Law, and now Jince the Stat, of 2. IV. S M. immediately^ excep it be 
Hay or Corn i Per Holt Ch. J. 6 Mod. 215. liin. 3 Ann. B. R. in 
Cafe of Dod v. Monger. 

6. Upon a Queflion about taking a Diftrefs, it was held, that a 
Padlock put on a Barn's Door could not be opened by Force to take the Corn 
by Way of Diftrefs i Per Ld.Ch. JufticeHardwick. Summer Alfifes at 
Exeter, 1735. 



(E. 3) Sold. In Avhat Cafes it may be. 

I. f B ^ HE Lord of a Manor having a Leet may fell DiHrefs taken for 
1 Offence prcfented in Leet as the King may, becaufe it is the 
Court of the King, though it be in the Hands ot a common Perfon, 
and he ftiall caufe a ftrange Man to be fworn as the King may ; tor 
this is for the Advantage of the King. Br. Diftrefs, pi. 39. cites 3 H. 
7. 4. Per Fairfax J. 

2. For Debt of the King Diftrefs fliall be fold within 40 Days. Br. 
Diftrefs, pi. 71. 

3. yf;;rt' per Fairfax, Zor^ 0/ a Ze^? of the King may do the like 5 for 
this Pre-eminence goes with the Leet. Br. Diftrefs, pi. 71. cice^ 
3 H. 7.4. 

Koll Rep. 4. A Diftrefs taken for an Amerciament in a Court Leet may be im- 
"i^^ 77- pounded or fold at the Pleafare of the Lord. 8 Rep. 41. a. Trin, 30 
f^^\ 'p, Elii. C. B. in Griefley's Cafe. 

1 The 

Lord may fell a Diftrers taken for a Fine. Noy 17. Hill. ; J.ic. 

5. Diftrefs taken by a Bailiff of a Court Baron for not doing Suit and 

Service there, being warned, cannot hi fold. Bullc. 52. Mich. j.ic. 

Hewet V. Norborough. 

Yelv. 194. 6. A Diftrefs for an Amerciament in a Court Baron of the King's Manor 

Gomerfall cannot be fold, but a Diftrefs infinite ihali go. Built. 53. Mich. 8 jac. 

vj^ledgjte. j^^^^^j. ^^ j,To,borough. 

J. 255. Gtv 
Eierfall V. Wayts. 

7. A Farm leafed lay in two Hundreds^ and the Conjiable of one Hun- 
dred cnly^ in the Prefence of the Coiijlabk of the other Hundred, fwore the 
Jppraifers and caufed the Goods diftrained in both Hundreds ro /•« /t//(/i 
And per Cur. this is good ; For the Diftrefs is entire being made ac 
one Time, and the Land contiguous ; and then wliere fuch Lands are 
in two Counties, and the Goods are diftrained for one Intire Rent out 
of thofe Lands, this is one Diflrefs, and by the i & 2 Ph. & M. 12. 
ought to be put into one Pound ; and whereas it was urged, that the 
Jppratfement mui\ be made by the Officers of the Parifh or Hundred 
where the Diftrefs is taken, it was faid that the Continuing and Driving 
them to the Pound is a taking. 12 Mod. 76. Walker v. Rumbold, 
cites Lat, 60. [Patch, i Car.J 
The Perfon g_ ^ W. ^ M. Seff. 1. cap. 5. S. 2. Dijlreffes forRent may be fold in five 
muftgivc ^'^y^ "f^^^ ^^^ taking and Notice given if not replevied i 'The Dijhainor 
Notice, but ''^ith the Sheriff, Under-Shcriff., or Confiabk of the Hundred, ParilJ}, or 
it peed'not Place, (jivho are required to a^iji tb.rdn) fhali cnufe the Dijlrefs to be ap;- 
beimmedi- praifcd 



Diftrefs. 129 



praifed by two jlppraifoy^ to be pworu^ and then may felt for the* be fl^^^^', but 
Price towards fattsjytug the Rent Arrear^ Charge of Di/frtfs, yJppraifenieiit^ ^\ '"'">' ^^"^^ 
and Sale ^ leaving the Overplus (if any be) for the. Owner's Ufe^ in the'^j^^Ll'^rf ^^^, 
Hands of the ^Sheriff or Conjlable^ ' then the five 

Days are to 
be computed from the Notice, hot frotn tlie Dfrcfs. If the Party replevy, all this is to no Purpofe ; 
therefore before y«u venture to make any Sale, learch the Sheriffs Ofhce within the five Days 

The Rent may be tendered after tlie five Days if no Appraifement, and a Tender after Appraife- 
ment prevents the Sale, for all is but to have the Rent, and no Property is in the Dilfrainer, but only 
in the Vendee by Sale. 

Avy Perf.iis vuxy be Jppraifors that are of Age and capable of bein^ WitnefTes • but they nnij} be 
fwarn by the Sheriff or Conftable for tli.u Piirpofe. The Jppraijemer.t fhould be in li'ntir.^Z- 

Suppofe the Apprailemcnt is higher than they can be fold for, may they fell theiii notwith- 
ftandin;; ? 

I thmk they may ; for the Words are for the hcfl Price can he ^etten for the fame ; and ir is not 
faid, for what ihcy were appraifed at or above th.it Rate. But .ire they bound to carry them to 
Market or wait for a good Cuapm^n ? For the Word.s of the Adt are {bejl Price that can be e;cttrn') and 
no Time is limited for the Sale, andClurges are allowed for it. 1 do think it moft advifcable, if it 
can be, to }^et the Value fettled by the Apprailcrs, and to fell immediately to the firll Chapman .; 
if not, to Wait fome fmall, rcafbnable and convenient Time, as a Week or the like. If you cannoc 
f,et thdt Price, to fell to the highcif Bidder. And the next convenient Way feems to be by giviiie' 
Islotice at the next Marki-t or Parifli Church, of the Day and Pl.ice, when and where the Goods fliall 
be cxpolcd to Sale ; yet I conceive, that after the Expiiation of the five Days, and no Replevy, and an 
.A;.'prai(en-.ent, the ?;irty may carry any portable nrarkctable Goods and Commodities to the next 
Jii.irket, as Corn or the like, and there lell them, and he fhall have his Charges allowed for fuch 
Carriage, if he could not have a Chapman at Home ; I think it always advifcable for the Buyers to 
have a Bill of Sale of all fuch Goods fo diftrained, appraifed and fold, and the Sheriff or Conftable 
W itneiT-s thereto. As to the !Charges, I think the Expence in Removal of the Goods, Charo-es of 
Food tor living Creatures, and moderate necelTary Expences for Tenants and Officers, will be allow- 
ed within the Meaning of this Claufe. 

For the Owr/j/Mj lif any) to be l^ft in the Sl:riff or Conftable' J Hands, it is advifcable for the 
Landlord to have a Receipt or other Writing teftifying the fame. 

For the Corn or Grain, tlie Law is the fame as to Sale, only there it is not to be removed, if to 
the Dan-age of the Owner, cthcrwife it may Sir Barth. Shower's Obfervations on this Statute, faid 
to be printed from a MS. of his in the Hands of the Author of The compleat Englifli Copyholder 
fol. 160. &c. _ . 

* A Dilfrefs fold at an appraifed Price, fhall be intended to have been fold at the beft Price fince 
the Appraifers were fworn. Ld. Raym. kep. 55. Trin 7 W. 3. Walter v. Rumba]. 



9^ Lands lying m two Hundreds and two Counties conttguckis, wer'e de- 12 Mod 75. 
fed by one Leafe rendering Rent ^ The LelFor for Renc-Arrear dtf- ^^^"' 
trained in both Hundreds^ and the Diftrefs not being replevied in five ^^n^ 



viij'ed by one Leafe rendering Rent , The LelFor for Renc-Arrear dif- Walker v. 
trained in both Hundreds^ and the Diftrefs not being replevied in five ?'l'?'''''?' 
Days, the Conftable ot the Hundred in which the Diftrefs was taken, jud<T'd.^-l_ 



Notice having been given to the Owner, adminiltersd the Oath upon Comb. 556. 

Sale of the Goods tn the other Hundred; and this was held good, it bein"- ^- ^- 

an intire Diftrefs and not feverable, and the Hundreds contiguous, loe^°''' '^^' 
that the Driving was lawful, and a Continuance of the firli Taking mdeed'^I 
I Salk. 247. pi. I. Trin. 7 \V. 3. B. R. Waiter v. Rumbal 12 aL 5:; 

... S. C. ad- 
judged. Ld. Raym. 53. S. C. held accordingly. 

10. Diftrefs /V;^ Leet of Common Right may be fold becaufe it is a 
Court of Record, otherwife of Diftrefles in Courts that are not of Re- 
cord ; Per Holt. 12 Mod. 330. Mich. 11 VV'. 3. 

11. As to Commijfionersof Sewers that is a fpecial Power given them 
and of Confequence of that they may fell j And Callis takes great Pains 
to prove them a Court of Record, and though fome Afts that order 
Things to be levied by Diftrefs have alfo the Words (and Sale) yec 
no necelfary Inference can be made from that, for Statutes very olten 
exprefs Matters more plainly than they need for greater Caution j Per 
Holt. 12 Mod. 330. Mich. 11 W. 3.' 

12. Upon a Diftringas in a Court- lleet Fro Certo Let^ the Officer can- 
not fell the Diftrefs ot Common Right without a Cuftom; Per Cur. 
I Salk, 379. Mich, i Ann. B. R. in Cafe of The King v. Speed. 

Li ' 1^. II Geo: 



10^6 Diftrefs. 



13.11 Geo. 2. eap. i^.S. i. Gcoa's or Chatties conveyed away from thePremif- 
fes to frevetit the dijtraining them for Kent arrear, may be feized any where 
•within 30 Days after ^ and fold^ or otherwifc difpcfed of.^ as if feized tipoft 
the Premi[lh for fuch Arrears. 

Provided they are not fold bona Jide^ and for a valuable Conjtderatiofij 
before fuch Seizure, to any Perfon not privy to the Fraud. 



Sec the Stat- 
uses ardfe- fE. 4) Impoanded. Where. 

veral Pleas V T/ r 

at(H). 



I. 52//. 3. cap. 4. 



NONE floall caufe any Diflrefs to be driven out 
_ of the County.^ and ij any Neighbour do fo to 
his Neighbour of his own Authority.^ and 'ivithout Judgment^ he fjjall be 
puriijhed by Redemption. Neverthelefs^ if the Lord do fo againft his Te- 
nant, he /hall be but grievoujly panijhed by Amercement. 

2. Trefpafs for dtjlraining tn one County and carrying into another ; the 
Defendant was condemned upon Infufficiency ot his Plea, and was con- 
demned in Damages 10 1. taxed by the Court, and that the Defendant 
Ihould be ranfomed, and Capias awarded againft him, Br. Trefpafs, 
pi. 255. cites go All". 38. 
Bi-. Aftion 2_ If a Man holds Land in Effex of a Manor in the County of Hereford^ 
fur k Sta- ^j^^ Lord may diftrain for his Services upon the Land, and bring the 
cites s.C^' Dillrefs into the other County to the Manor, notwithltanding the Stat- 
and nocwith- ute of Markbridge, cap. 3. Quod nuUus duci laciat diilriftiones &c. 
ftanding gj., Diftrefs, pi. 32. cites 1 H. 6. 3. 

the Sta- * 

tute of Weftrainfter i. cap. 16. 

4. Trefpafs for dillraining in the County of Wilts, and carrying into 
the County of Southampton contrary to the Statute of Marlebridge, 
cap. 4. The Defendant laid, that the Place where is a Carve of Laud 
which the Defendant holds of him in the County of Warwick, by 
■which he diftrained lor the Rent arrear,- and vi' as going towards the 
, County where the Manor is, and the Place where the Writ is brought 

was in the County of B. which is the Way to his Manor ot B. in the 
County of Warwick &c. And per HulTey he cannot jullify, becanfe 
the Statute is in the Negative. But per Jenney and Fairlax Jultices 
he mayjullify ; becaufe the Stature Ipeaks, Qiiod li vicin' fupra vicin' hoc 
fecerit puniatur perRedempti(iiiem,&liDuMiinusfuper tenen'l'uum hoc 
fecerit tunc puniatur per gra\em milericordiam, and therelore per Fair- 
fax the Statute is intended of Diftrefs for Damage feajant or Rent-charge, 
and not between Lord and Tenant. But quje.re nide i tor the Statute is tfi 
the Negative -AS Hufley rehearfed i for the Parties demurred in Law, 
and BO Replevin can be made in this Cafe^ for a Replevin Ihall be 
where the taking was. Br. Dillrefs, pi. 53. cites 22 E. 4 1 1. 

•5. It was agreed, that if a Man puts the Dillrefs in h\s fveral Paf- 
ture , this is fufficient Pound-Overt ; and by others, praett- r f airtax, it 
he puts them in the feveral Palture of another, this is a good Pound- 
Overt. Quaere, for per Fairfax it lliaJl be »ihere the Plaintirf niav' 
give them Food without Damage to others, and after Ilfuewas taken if 
they died in Default ot" the Plaintirf, or in Default ot the Defendcuit. 
Br. Diftrefs, pi. 41. cires 5 H. 7, 9. 

6. If Lord or Lellbr dillrain.'^, he cannot make a Yonnd in the fame 
Lewd lor this Dillrefsi Per all the Jufticcs. But per Jullici;irjos, if 
he diftrainj for Damage feafant in his proper Land, he may impound 

them 



Diftrefs. f Q J. 

them there iOuod Nota. And per Keble, when a Man diftrains his ~^~" 

Tenant at W ill lor Rent, and makes a Pound in the llmie Land this 
making Ota Pound there is a Difcharge of the Leffee, Quod non ue^i 
tur. Br. Diftrels, pi. 30. (bis) cites 21 H. 7. 39. °' 

.; "^'/^ ' ? ! cf • ^ 'Yr '''^- ^'t ^^- '• ^^'-/^'^JTes Ihall not he driven nut o/-Ti>c Plain-, 
the Hundred ^c. Hnkfs to a Pound-Overt tn the fame Shire and -,r/.^», "^ d« I,.i-cd 
three Miles of the Place inhere taken, and Jh all not be impounded in ' fcve- "*!' ^■"^'■'''' 
ral Places, whereby the Owner /hall he conftrained to fae federal ReJvins HnnH."'/, 
VI Pain ihat every Perfon offendinrjhall forjeit to the pirty tr^S'^j'SrcZ- 
and treble Damages ; and 5/. jor taking more than ^d. for imponndmir'^^ ^""^'^''^ 
one Diftrefs. ^ -^ he drove it 

f\y. Miles 

County; and becaufe a Hundred may be in divers Counties, and the Starnt- Ic Ti °.1\"^'''^- 
oughtnor^ben.ore than three MileJout of the Hundred; a'nd that k ig b \2", ' Dnr^ 
MM f ^l'"f[?'^!h=/'^« vvherethe Dtft.efs was taken in another Cou.ty and ye noV h e! 
M le.from the Hundred vvUere the takn.g vv.s, for that C.ufc it was no: adjudred a 'ain "the P.rtv 
Anon "''' '" "'■'■' Judgment. Godb. i>. pi. tj! Mich."24 £l,z C. 6.' 

and he .hxh too.< the D,m.. in^poanded the^w^tVin^^'p'/n^i; t^^ 

held; now whether he has incurred the Pcnalf/ of the Statute or nnr ,. ,i A ^v ^ , . , 
caule the Court h ;d nor a Mature- iiocl. there to lee he Pre I'; th"rX e t " wT, ''"'p'''- 
lolution. Anderlon fa,d the Meaning ot the Scacute was beAuN the >!,',? nf^r^ " f ^V 
make Deliverance; AHb I think it's w.rhin the Compals o7 V Stun . h . r ." ;''^ "''"''^ 
County fevered before thi. M.ute .ade. Gold.b. tooTl Vlltch. '0'^!? I^S^t::^^yl PhI! 

It was faid by the Serjeants at B.ar, that the Party may drive the Dirtrp'; -ic f„. . ) mi - , • 
It a Diftrefs be of three Cattle, and thev are drove nboMf rKvpp l\f;i» r t m 

8 P brought an ASion of Debt againft N. upon the Statute of r & Noy 52. 
2P.6.M.cap. 12. iortakmgotaDiilrefsinone County, and driving «<:. and 
It mto another; and the Ca(e was, that three Aden dijlramed a Flock ,"/■'''<= ^"^"'■f 
Sheep and them impounded in fever al Places, and if every of them Hid I T'V^' '" 

divided"; ';/"u"'i^' f^'^i? ''' "^^^^^^^ --• Thi c^u^rtt &£d;;7 

divided or the W ords ot the Statute is, that every Perfon fo offend- but after up- 
ingfhall forfeit to the Party grie.ed for every fuch Offence 100 s and T -'?' 
treble Damages; but WaJmlJey tholight that every one Ihould ibrfeit w°'C h" 
100 s. and he put a Difference between Perfon and Parcy, or n4ny ^^ .^ e" 



a Day for 
Precedent!!. 




9. At Common Law a Man might have driven the Di/trefs into whu 
County he would which was milchievous for two Caules; i/h Eecau c 
PcldTTyj" b-"d JO g.ve the Bealts (being impounded in an open 
Pound) buitenance, and being carried into another County, by com- 
mon Intendment he could have no Knowledge where they werl An- 
other Cauie was, he could not know u here to have a Rep evin, but he 
Party wjs, belore th.s Statute, driven to his Aftion upon his C.fe and 
albeit t IS Scacute be in the Negative, yet if the Tenalcy is « ol b; ;- 

iliirhh f'"V'^^'^''^°""^>'' '^' Lord may dr/ve the Dht e :. 
which he takes in the Tenancy to h,s Manor in the other Counrv fo 
that the Tenant is out ot both the faid Mjfchiefs; for the Tenm by 



doing 



I q 2 Diftrefs. 



doing of Suit and Service to the Manor, by common fntendmenc may- 
know what is done there, and therefore may give his Beallis Smte- 
* Stat of nance ; and to know where to have his Replevy, the Bailift'of the Ma- 
Marlb 52. nor ufually drives the Cattle diftrained to the Pound of the Manor. 
H. 5. cap. 4. j^nj this * A£t extends as well to Goods as to Beafts, 2 Inlt. to6. 
S P. cired 10. Bj Prefcriptian^ if a Manor is one County, and is held of a Ma- 

pei-Walmf- ^q^ jj, another County, the Lord may drive a Diftrefs out of the 
b7ov^.>i" 260. County where it is taken i Arg. Palm. 544. Trin. 4 Car, 

i — PIC. 

9 b, cires it asbeld accordingly ;oE. 5. in the Abbefs of Wilton's Ca[e. Ibid, in the Marg. 

is a Kota, viz Vide the Cafe in Tei-mino H. ;o E ; f )1. 5. in Ti-efpafi upon the Statute abridged 
bv Fitzli in Tir. Diftrefs iC> but nota that it is adjudj^ed conti-ary to what is vouched here. 
Dillrefs was in the County ofU-'iltJl'ire in aPlace which is cvitlin the Honour of irallingjord, which Caftle 
and Court is ^uithin tie Ccnnty of Berks, and drove tliem to the CaiHe, and there Deliverance was 
rnnde, and at the Suit of the Defendant the Plaint was removed by Accedas ad Curiam directed to 
the Sheriff of Oxford into Bank, and there counted ot the taking in WHtfliire, and this was held well 
by the Court. D. i6S.b. 169. a. pi. 20. Trin. i Ehi. Anon. 

II. If Lands in Middkfcx and Hanipfhire are demifed by one Demife, 

referring one intire Rent, the Dijirefs taken in Middlefex cannot be chafed 

into Hampfiire^ becaufe the Counties are not adjoining; Per Holt Ch. 

J. Ld. Raym. Rep. $$. Trin. 7 VV^ 3. in Cafe of Weaker v. Rumbal. 

4 Mod. ;95. 12, Where Land lies in feveral Counties^ and one Dijfrefs is taken for 

r*"' K^' h '^^^ intire Rent of fome Cattle in one County ^ and fome in the other, the 

the Diftrefs Landlord may drive them all together, and impound them in either Coun- 

via% taken in ty, (notwithltanding the Statute of Marlbridge, that a Diftrefs Ihall 

tivo Hitn- not be driven out of the County) and the Officer of either County is 

dreds, tliey y^/jthin the Meaning of the late Acl of Parliament of 2 W. Sz M Re- 

triTi" Solved. Comb. 336.Trin. 7VV. 3. B. R. VVaker v. Rumbal. 

lint one intire 

Diftrefs, efpecially being taken at one and the fame Time, and for one intire Rent, and it ougTit t« 

be put into one Pound. Ld. Raym. Kep. 55 S. C. held accordingly, and that the chafing of 

the Diftrefs over is a Continuance of the taking the Diftrefs, and the Party, fince it was for one intire 
Caufe, cannot fever the Diftrefs, but muft chafe them all together, and impound them in one Pound, 
by the Stat. I Sc 2 P. & M. cap. 12. 12 Mod. 77. S C. & S. I^ held accordingly. 



(F) For an Amercement. 
\Jn what Cafes. ^ 



S.C. cited i.T?f)E amercements in a Court-Leec foe OJencesdorie out of 

^'^%^'>-r Jr Court a Diflccr^ isumoent of Cammoii EiffDt. Co. s. 

iTn^denllo briefly ^u Doctoc ann ^tuncut 74- ^» '^ aa. X% pec Curimn, 

an Amerce- 
ment in a Law- Day, by all the Juftices in C B. Quod nota bene. Br. Diftrefs, pi. 44. cifes 9 

H 7.22. 

^ Rep 4'. 2. So foe ameccemeitts i\\ a CourMeet for ^^z\itz^ done in 
^'' -•" . Court a Diffcefsi lies of Common Kifflit. lo jp. 6. 7- 7 €. 2. aim 
are, sl'p. ^ ^» 2. auoiocp 2 u. 212. upon Default of Appearance. 

a fortiori. 

Quod licitum eft pro minore, licitum eft pro majore. 

3- S)0 



Dillrefs, I'^^d 



3. @)0 foe Fines in n Court a Diffrcf^ 10 itictncnt of Comniott 
lAiffljt. 39 Cf. 3- 35 aQimtteD* 

4. But tljC lOrD cannot titftl'iim for ilU ^UlCrCClllCnt in a Court Biownl. 56. 

Baron luitljjut a Iprcfcrtpnoiu DoaQt aivo ^tmtnt 47. CEo. n.^ ^'• 

•SOUfCP 4i. HClIOlUai) 20 p. 7. 66. 

5. 3ii t'je Lord ot a Fair Ijatlj UfCD tO IJillJC ttUm Toll fOl* CMZt^ 

g«alc ot C:ctie, ano tipan a %iMz tlje Won ts not paiD, tijc lora 
niai.)fcifcauj)oftljc cattle To folo, anu rctamtljeiu ttU ^atisfac^ 
tioiu ^(clj. i3 3iac. oa* bctiuccii aprD ano Liflc, 

6. And m fuel) ir'alr, if a CPan buys one 'Bcail of one iJ0an and 

another ot another ©an, attti fo uian)? Of fcticral ^tu-, aiiD rciiifciS 
to pap Toll for an)) of tOcm, tljcLoco maj? Kife anp of tijc Cattle 
To tiougljt Dp ijim tor all dues ColU >9. 1 3 3ac» 15, pet pabtn, 

7. Replevin. V\,' here, the Lord of a Leet dtftrains fur Ainerccmeut af- ^^ Retom 
/««)-'(•//»<? iff/ for Non-appearance at tiie Leet, the jCaiiant is bound to Ac hvcn, . 
take Notice for what Matter he dijirains j per Finch, but Wich contra, pi- n. cites 
and that it is fufficient for the Tenant to fay, that in QfXt the Defen- ^- ^• 
dant would have notified to him what was amerc'd, that he would 

have paid it. And per Finch, if the tenant offers the Aracr cement, 
and the Lord rejtifes it, and after the Lord diffrains, and he tenant 
offers it again, and rhe Lord carries away the Dijirefs he does tort, and 
yet once it was olfer'd ; For he ought to offer it at the time of the taking 
&c. and then the Lord ihall not have Return. And per Wich, if the 
Tenant comes after the Lord has diftrain'd, and offers the Rent and 
the Lord refufes, he fliall hot have Return. And fo fee that the Dif~ 
trefs is only a Pltdi^e for the Duty, which Duty when it is cff'erdthe 
Lord ought to deliver the Pledge, and alter Iffue was taken upon the 
Notice gratis. Br. Diftiefs, pi. 8. cites 45 E. 3. 9. 

8. In trefpafs the Dejend.mt jujlified for Diftrefs tor Amercement, in Br. Trerpafsj 
which A. the Owner was amerced, and the Iffue was taken if the Property P'' 59- cites 
at the time oj the taking was m the Plaintiff' or in A, who was amerc'd f^\,^'Qjtre 
Br. Iffuesjoines, pi. 46. cites 47 E, 3. 13. of t'hiT ^ 

Pleading at this Day. 

9. It was held that a Man cannot diflrain for Amercement for Rent- Br. Amei-ce- 
Service. but lor Amercement for Suit real as at the Leet, a Man may dil- "]'="f- PJ- ' 5- 
train; Note the Diverlity, and it was lor 2d. Br. Diftrefs, pi. 15. For Suit 
cites 8 H. 4. 16. Kenl no 

' Diftrefs 

can be taken but for Amerci iments for Default ot Suit. 2 Inft. 120. 

10 For Amercement in a Leet no Beajis fhall be diftrain'd but the 
proper Beaffs of the Off'endcr. Br. Diftrefs, pi. 89. cites 12 H. 7. 15. 

11. But it a Man holds of a Leet to be Cryer tempore Curice &c. there he 
may diflrain arty Beajis which are upon the Land, held per Fineux, quod 
nota, and by the beft Opinion of the Court ; et concord' ot the Dif- 
trefs in Leet. 47 E. 3. 13. Br. Diftrefs, pi. 89. cites 12 H. 7. 15. 

12. It was agreed that a Man i/jay prefcribe for Amercement in a Leet, ^f-Oi(irers„ 
to dilirain and fell the Diftrefs, btcaufe it is Curia Regis, and the P'-^'- cites 
Party derives his Interell trom the King, quod nota. Br. Diftrefs, pi. j^^rd^^y 

31. cites 21 H. 7. 40. diftrain/br 

^ bre^iking of 

aLyi-Lnw in a Leet by Cudom Br. Diftrefs, pi. 91. cite.'! 21 H. 7 4.0 See 6 Rep 25. a(. 

Ruddoclc's Cafe Cro E 64S. Rafing v. Ruddock. S. C. 11 Rep. 44. Godfrey's Cafe 

13. A Man may diftrain and avow &c. for Rent due from a Copyholder 
to a Lord ot a Manor ; For this is a Duty to the Lord at the Com- 
mon Law j and theretore an Avowry may well be for it. Cro. Eliz. 
524. pi. 51. Mich. 38 &-39 Eliz. B. k. Laughter v. Humfries. 

M m ij. Sa 



I Q^^ Diftrefs. 



Sav. 95, 94. 15. So he mav for an Anurcemeut of an Inhabitant impofed in a 

P'- '73- Coiirt-Leet lor rcjtifmg to take upon hm the Office of a Conjiable. 8 Rep. 

^■f>f' 38. and 41. Trin. 30 Eliz. C. B.^ Greifley's Cafe. 

^" ^ ■ 16. Acommon Perfon Lord of a Manor cannot dittrain for Amer- 

ciaments in a Court B-iron^ as for Surcharge ot Common &c. ivithout 
Prefcription. But the Queen by her Prerogative may. Cro. £. 748. 
pi. I. Pafch 42 Eliz,. B. R. Rowlfton v. Alman. 

17. Dijlrefs taken/or not doing S/nt at the Leet 7naybe fold, and taken 
in any Land within the Leet of the Beaftsof him that made Default. 
Jenk. 219. pi. 67. 

7 /7. 8. nor 18. Upon an Avowry for an Amerciament in a Court ao Damages 

21/:/. 5. 19 are to be recovered, though found for the Avowant, Jenk. 272 

eives any , „„ 

Cop or Da- Pl- S9- 

viaffcs in this 

Cale. Cro. E. 25S. but adiornatur. Hafelip v. Chaplin S.P. adjudged. Cro, E. * 500. Porter 

V. Grey. Upon producing divers Precedents of Damages and Cofti given fince the Statute, the 

Court inclined to allow them. Cro. E. ^^^o. Hafelop v. Chaplin. 
♦ S. C. cited Cro. J. 28. 

19. A reputed Manor will maintain an Avowry for an Amercement 
in aCourt-Leet, though indeed he had no Manor in Truth. Brownl. 
170, Reynolds v. Oakley. 

20. A Dijircfs is incident of Right to a Comi-Leet, but in a Court 
Baron Prefcription muil be laid to diftrain. Brownl. 36. 

* Aftion of 21. Upon a Prefentment of a A7^/iz/Z(:g in a Court- Leet and a Pain 

Debt was affefled to remove it by fuch a Time it was relblved by All that the 

^' Lord ''^ Lord may dijlrain or have Aftion of * D^bt tor fuch Pain or Amercia- 

af-ai"ft his ment. Cro. J. 382. pi. 10. Mich. 13 Jac. B. R. Pratt v. Stearn, 

Cojyhold _ 

Tenant for a Pain afTefTed by the Homage for an Incroachment on the H\rfle. The Court feem'd to 

ncline acamlf the Adtion. See Carth. 18;. Cudmorc v. Honywood. 

Raym. 204. 22. A Cujlom ivas laid for fitch a 'fownpip to fend cue to be fworn Con- 
Pierfnn v. J}abk at ftich a Leet, which not being done a Fine was fee, and Diftrels 
S c" Twif- taken for it. Exception was taken, becaufe no Cujloin ivas alleged to 
den J. faid warrant the Dijirefs ; For though of Common Right aDiltreis may be 
that when a taken for a Fine in a Court- Leet, that is, where it is impofed for 
Duty is f^j.^ Things as are of Common Right incident to its Jurildiction, as 
Cuftom a f°^ Contempts or the like ; yet where Cultom only enables them to fet 
DiHre's'for a Fine, it cannot be diltrained, for without Cuftom alfo, and cites 
that Duty 1 1 Co. ^Ot!frCP'0 Cilftt And to this Opinion did the Court incline i 
muft be 5g^ Adiornatur. Vent. 105. Mich. 22 Car. 2. E. R. Pierfon v. 
mjintJined -r ; j„^ 
by the like J<-iag«- 

Cufto.Tl, 

Sed adjornatur. 2 Keb. 701. 759. 745 S. C. adjo-.natur. 

s P. or he 23. If the Bailiff (i'//?»"i7/«i for an Amercement for a Nufance upon 
muft/c« out Pielentment in a Leet, he mult/,7y//^'>' by Warrant of the Stcjvard. Short'. 
ofTheSui-t. 61. Mich. iVV.&M. Matthews v. Cary. 

1 Srflk loS. 

S. C. A Dilfrefsfer MandatHm of the Lord of the M^nor is not good; For a Bailiff cannot 

dilh-ain by that Means, nor othcrwife rhan by Virtue of a Precept directed to him by the Steward 

of the Court. Carth. 75. Mich i W. & M. in 3. K. Mathews v Carew.- Show 01. t,. C. 

& S. P accordingly. 3ut in an Avowry he need not fliew any Authority or Precept, but 

then he mull: aver the Offence to have been committed Carth. -4 S. C. ■ Show 61, 62. 

S. C & S P accordingly. ; Mod. 157. S C. relolv'd that lie ought to fet forth the War- 
rant of the Steward, without which he cannot julHfv to diftrain for an Amercement. But in a Re- 
plevin where the Defeidant made Cognixance in the Ri;;ht of the Lord, it mi^ht be well ennu;T|i_ 

i>. P. per Popham accordingly; But per Gawdy contra. Cro E. 6q^. in ("afe of Steverion v. 

Scrog^s. S P per Pophim, but the other Jufliccs conceived otherwile, but afterwards (udgment 

was according to the Opitiiou of Popham. Cro. E. 74S. pi i. Palch 42 Eli/,. B. Jl. Rowleifonv. 
Almiii. 

24. In 



— ^— ^^— ^^^ : ~ «» 

Diftrefs. 135 



24. In Replevin the Dclendant made Coniifaiice as Bailiff' to R. F. and • Salk 1-5. 
faid that the Place where is within S. and that S. is within the Manor .^j\jV M foi- 
otScc. and fbe-n's a Ciifto:ii for the Jury to ele[i one ot" the Reliants to [j,^ Plaintiff 

fer\ e the Office of Coufiablc for a Year, and laid that they clecled fuch If ab- 

a One to be Conllablelor the Year inluing, and to take his Oath un- ^ent the Par- 
der a Penalty of 40s. and at the next Court it waS prcfented that he J^ v."5?'i"° 
did not take the Oath, and tor this 40s. a Uiltrels was taken &c. And ^^^ 3,,^ a 
ih^- Flaintiif demurred to this Avoary, that here is a Duty laid to be Time and 
by Cullom, and it is not like to a Fine or Amercement, and therefore l^'ace ap- 
the Party ought likewife to eiiabh himfelf by Ciiftom to diftrain lor it, po'"'^" 
otherwife no Diftrefs is incident of Common Right ; For the DeteO: of ruif^ ^^.j^^j, ' 
a Cuftom todiltrain, and for want of alledging of Notice, the Court and'whei-e 
held the Avowry to be ill ; for this is a Duty by the Cuftom, and there- '1= i^^" 
fore the Remedy in fuch a Special Matter ought to be by Cuftom like- ^^^^^^ ^"^ 
wife. Skin. 635. pi. 4. Hill. 7 W. 3. B. R. Fletcher v. Ingram. to take the 

Oarh. 5 

Mod. 127 S. C. and the Pleadings- Comb. 550. S. C. adjudg'd, Nifi Sec 12 Mod. S7. 

S. C. the alleging; that Notiriam habuit is too general. Judgment for the Plainritf. Ld. Raym. 

Rep 69. 71. S. C. & S. P. and fir that Reafon, and becaufe the Defendant did not allege a Cuftom 
for taking the Diftrefs, it was adjudg'd for the Plaintiff. 



(F. 2) Pleadings in Replevins, and Avowries for 

Amerciaments. 

I. ^"lUSTOM cannot be that a Man abiding within the Leet fhall Br. Leet-j 
\^ be fX67<j'^ of the Leet, by their coming before the Conjiable and^^\l°'^^'j^ 

Port-reeve. Br. Culloms, pi. 11. cites 2 H. 4. 16. t sfpre.. 

fcriptior, 
pi. 13. cites S.C. 

2. The Lord intitled himfelf to a Leet and a certain Sum Pro Certo 5 Le. 17S. 
Letse by Means of his Hundred i [th -a. good Plea by him that he is?^-'^^^-^-^' 
fetfcd of the Hmidrcd without Jhewiiig the Deed ; Per Periam and Rhodes yj^'^^j/'" 
J. But if the Hundred itfelf had been in (^eft. on, then he ought to 
IhewaDeed; but here the Defendant intitling himfelf to a Leet, and 

a Leet- Fee by reafon of the Hundred, it is fufficient for him to fay 
that he is feifed of the Hundred &c, although it be by Dilliihni For 
if he has PolTeirion, be it Jure vel Injuria he Ihall have all Things in- 
cident thereunto; For the PolfclHon of the Hundred draws to him the 
Leet, and the Leet the Leet-Fee. 2 Le. 74. pi. 98. Trin. 28 
Eliz C B. Lawfon v. Hare. 

3. In Avowry on a Diftrefs for an Amercement in a Leet on a Vill Cro. E.69S- 
as/CT- mt making Ifmnbrcl and Stocks^ it luiift be ailed ged that the Pain is pi. n. Ste- 
mt paid to the Lord, or elfe it might be paid by another of the Vill before. ^^'■;°" ^• 
Mo. 572, 574 pi- 789. Trin. 40 Eliz. Scroggs v. Stevenfon. s"c^^'' 

4. In Replevin, the Defendant a'vowed, for that he had a Leet for all 
the Inhabitants and Rtftants within his Manor ^ and that the Plaintiff' 
beini an lnh:ibitant, was fiwmoned to appear at the heez on a certam ' 
X).?j, and for mating JDeJaalt he was amerced .^ for which he df trained ; 
The Plaintiff ;t/)/m/, that the Place where he dwelt was Parcel of a 
Monaflery., and Land held in Frankalmoigne difcharg'd of all Secular Ser- 
vices ; then he pleads the Statute 31 H. 8. and the Kind's Grant to his 
jincefhrs adeo plene, Itbere S integre, as the Abbot held it before the Dif- 
folution, and conveyed the Land to himfelf by Defcent Sec. The 

Avouanc 



1 2 6 Diftrefs. 



Avowant demurred ; and adjudged lor the PiaincifF; tor the Abbot was 
diftharged ratione ordinis fui as all Churchmen, Women and Noble- 
men &c. were; and this Immunicy Churchmen had ac_ Common Law 
betcre the Statute of Marlbridge, in reipefl: of their Perfons, and 
' therefore it flwU not go to the Patentee oi the King ; but all other 
Perfons above 12 Years old muft do Suit, and it is called Suit Real, 
iilias Reo-al, for though the Lord has the Benefit ot the Couit, yet it 
is the Kmg's Court, aiid the Ser\ ice theie done is Service to the King. 
2 Roll. Rep. 56. Mich. 16 jac. B. R. Dacre v. Nixon, 

5. In Trejpafs the Delendant pleads a Special Juitification for an 
Amercement upon a I'rcfcfitmiit by the jury Jor a Nufance at the 
Court Leet of the Archbilhop of Canterbury ; adjudged lor the Plain- 
tiff tor the Defendant ought to (hcia the Bcniids and Limits ot the 
Leet and over ivhat Pirfoas the Leet has jurildiction, as to fiy de Re- 
fidentibus and Lihabitantibus intra Maneriumde Lambeth &c. for the 
Leet may extend into one Manor or within four or five Manors; or 
there may befeveral Leets within one Manor, and therefore he ought ■ 
to plead the Bounds of his Leet certainly. Skin. 392, 393. pi. 29. M 
Mich. 5 W. & M. in H. R. George v. Lawley. ■ 

Aj d "in 6- The Avowry of the Bailiff of a Manor/or taking the Beafts as a M 
%. C.^a'd- Bijirefs for Breach of a Bye-Law by the Plaintiff' was held ill, becatife he * 

judgM for did „ot plead a Precept of the Steward tor taking the Diftrefs, or levying 
the Plaintiff. ^.^^ p^jj^ . p^j. he can no more do it ex olScio than a Sheriff could exe- 
—S. P. held ludemcnt of B, R. without a Writ. Skinn. 587. Mich 

andaifobe- 7 VV. 3. B. R. Lamb V. Mills. 

nof Pl'-a^d'^an Extraft of the Court, which the Bailiff ought to have for his Wavnnr. Mo. 57;, 

- 1 -80 Trin. 40 Eli^ Scrogf;s V. Srevenfon. All tlie Juftices held, that tiie Imi'iff cannot 

4\tliouts'pecial Authority from th^ Steward diftrain for an Amercement in a Leet. Mo C07. pi. 
859. Sxvenfon v. Scroggs. S. C. 

Skinn. 65 ^ 7. There can be no Diftrefs for a Penalty by Cuftoin in a Leet, as to I 
pi. 4. S, C. forfeit 40 s by the Cultom it one retufes to be IWorn Conltable ifeleft- I 
^\-y \^'^' ed, without alles-in? a Qi/lom for it. 1 Salk. 175. Hill. 8 VV. 3. B. R. -1 

cordingly „' ,t * 

Comb 550. Fletcher V. Ingram. 

s. c. & 

S p. by Holt Ch j. and Judgment accordingly. ? Mod. 127. t;o. S. C Ld. Rayra. Rep: 

60 71. S. C. & si P. accordingly, by the Opinion of the whole Court. 



(G) For fwhat Thing againfl common Right a Diftrefs 

may be taken. 

S. C. cited I . Yif tljCre tic a Cuftom \ n the Town Of ^C'.Ul^<!iblir J> tljitt t\)Z 'Bvlt- 

bvHaieCh. | uff0 nuD ptiucipal 'icumcffcisi Of tlje Coimi fjnDc ufcn'^Cunc 

Rep'^T-' ^C- ^° '■'^'^^ »^"^ ^^^ ^^^'■y Inhabitant lUltljIlt t!)C 'JjCOUlU tor the Repara- 
jn the Cafe lion of any Bridge tDitljill tljC '^QMHW ; if tl Tax bC made according to 

..t Brum* the Cuftom, a Diffixfsi utap lie taUcii for tijis Eatc of t()E ©aotigi of 
|t'° \ aiip Jnljnbltant fo tar'5, ttioiio;!] upon tljc mmm of tijc -QDac it 10 
Souc'h thev not ovtiaiii'ti tljat a Dittrcf^ Ojail be tai^cn for it, inafmuc!) ad l)rrc 
did t^ot no pcrfon can ija^e an $!ction of Debt for tijiS j2Car, inafniudj ass 
allege a t\)t Corpotntion 10 not to ba\3C it, anH ttjcn U a iOifttefs iijoulo not 
Cuftom to {3j f^f ij.^ (jj£,.g fljQmu i^ij; ,10 KcmcDp for it. l^afclj, n Car* 

as'heid 'B. E. smethefden and Jjhton, rcfoiU'D pct totani (turtaui, after a 
good enough ai)cHiift foi tije aijotuant, m unjicij tije Dtarefd ujais mane bp 

i^arrant 



■ ^ ^^^^ 



Diftrefs. 137 




2. 2f a Ronr-charoe iic Krantcn, aiiD tljfstit It be Lircear tljnt lijc 
<?rantcE fijaU Ijauc a penal sum ^ if tOe pciialtp be faricitcD tijc €?i-an^ 
tee urap tsnu-am for it* 1 1 ij). 4 ^j- €lu vue of tijiy. 

3. The Ufcjge at iha Town ot Dale w^s, 'Tb.it when the Church iva.t 
riiinoris the Inhnbitauts affembkd themfelves and taxed every one to a cet- 
tatn Sum^ and if any taxed Sc did not pay they tifed to dijhain fach Per- 
fvn ; This by the Cuftoni is allowable, and the Diiheis taken lawful, 
notwithltanding there is a SLacute which Ays, that nulli Jiceat ex 
quacunque Caula t'acere DillriCtinnes extra feodum fuum nili a Do- 
mino Rege & Miniltris fuis Au6lhoritatem habent ; For the Statute 
does not take away fuch Cultom, Aig. And. 71. in pi. 144. cites 

44 £• 3- 

4. If by Cuftom Time out of Mind there has been paid at a Leet cer- 1 Roll Rep. 

tain Money, called Certr/m Let^, the Lord without a fpecial Cuftom 5 v 55 75, 
enabling him, cannot diftrain tor it, becaufe being againll common '?^.' 77 S. G. 
Right, and for the private Benefit of the Lord, as he muft prelcribe ^ ^" ^^ " 
in the Principal, fo he muft prefcribe in the Diftrefs. 11 Rep. 44. b. 
JVIich. 12 Jac. Godfrey's Cafe. 

5. A Rent-Charge was granted for Tears with a Nomine Pccn<e^ and 
C/.!?«/e q/D//?j'f/i it not paid at the Day, and the Rent is behind, and 
the Years incur, he cannot diftrain for the Nomine Poens, for that de- 
pends upon the Rent, and the Diftrefs is gone as to both of themi Per 
Cur. V\ in. 7. Paich. 19 Jac. Tutter v. Fryer. 

6. It there be a Ctijlom within a Manor, that every free 7'enatit of the Lat. ^7, pf. 
Manor, upon every Alienation ot" their Tenancy, pall pay fo much by ' 5o- S. C— 
Way of Relief as their yearly Rents amount to, this is not properly a | ^ __2^* 
Relief, but a Fine for the Alienation due by Cuftom, and therefore can- 

•not be diftrained for unlefs by Cuftom j otherwife it due by Tenure; 
And it being alleged that the Tenant held by 5 s. Rent, & per Rele- 
vium quando acciderit fecundum confuetudinem Manerii, it was held 
bv three Judges againll Doderidge, that it fhould be intended a Relief 
due ly Tenure ; tor though it was firft averred, that fuch Relief was 
due by Cuftom of the Manor, yet it is after exprefly alleged, that the 
Tenant held by Relief quando acciderit ; Agreed per totam Curiam. 
Jo. 132. Trin. 2 Car. Hungertbrd v. Havyland. 

7. Certum LeCcC cannot be difiraincd for unlefs there is a Cuftom to Roll Rep. 
warrant it. Jo. 133. Trin. 2 Gar. B. R. per Cur. cites 11 Rep. 44. b. pV^vV' + 
Mich. 12 Jac. Builoyne and Godfrey's Cafe. faid'that " 

CertumLetse 
is againft Common Right, therefore he doubred it it might be diftrained for without a Prefcriptiou; 
and the Court feemed to incline to the fame Intent. — Ibid. 76. 77. S. P. accordingly. 

8. Grantee of a Rent-Charge levies a Fine to the Ufe of himfelf and 
Wife in Tail, yet he may diftrain tor Rent Arrear before the Time le- 
vied. 2 Jo. 2. VVitherhead v. Harrifon. 



N n (H) U%n^ 



iq8 Diftrefs. 



(H) prhat Thing may be diftralned. 



1. A 'Di'^t^^'^ foe Ecnt ot $c» ougljt to be of a Thing of which 

J-\ there is a valuable Propercy in fome Perfon, ailD fOl* DOggi, 

Deer, Concp-ei, anti fuel) lifec luljiclj ace Ferae Nature, tljc}? cannot 

2. Furnaces OC CailtIICOn0 fixed tO tljE IredjOlO, Ot tljC Doors Ot 

Windows Of an l^oure oc fticl) like cannot be Dtavauten* ^q, 
3* a ^an cannot cut the Corn growing ant tafte It ais a Diffref0» 

i8 (ic» 3- 4- 
iTreem. Rep. 4. gtUClj CI)ltnff0 of which no Replevin lies becaufe they cannot 

202. pi. 204. ^gain be known ftoui ot!)ec %\)\m^ cannot be l!(ftj:a(n'D foe ^n-- 

^p! ObitU: BlCe0, 30 Money out of a Bag. 22 e, 4- 5°. b* 

. 2 Mod 

6i. S. p. obitei- in S. C. 

a Inft. S2. 5, £)C Sheafs out of a Cart. COntta, 22 (£♦ 4* 50. b* 

S. P. 

Freem Rep 202. pi. 204. S. P. per tot. Cur. Mich, 1675. Wilfon v. Ducket. ■ 2 Mod. 61. 

S. C. adjudged. 

* Fit7.h. 6. SDC Shocks of Corn. 11 I), 7. 14. * 21 ]|)» 7. 39. b* CUtia* 

Avowry, pi 

265. cires S. C. and Trin. 14 H. 7 Br. Diftrefs, pi. 50. cites S. C. —Jo 197. Mich. 

4 Car BR. S. P. admitted in the Cafe of Cowper v. Pollard 2 Mod 61. Mich. 27 (lar. 

,2. C B Wilfon V. Ducket, S. P. per tot. Cur. Freem. Rep, 202. pi. 204 S. C. and S. P. ] 

per Cur. 

r^-^K^^ 7. sinotbet Eeafon 16 gitien tljat shocks cannot be biffrainctr, foe 
Foiu^. x\ysi bp tbe Cattiage tbcrc mania be Damage bi' fljeCDino;* 22 e* 
Yuo6^. 4- 150. 2 1), 4. 15. Co* litt. 47. 

S. P. in 

Cafe of Wilfon v. Ducket. 

8. Grain or Barley camtOt be SiMnU i8 €. 3- 4- 20 I), 7. 
8. b* 

9. jf|30t after it is ground. 18 C* 3- 4- 

10. But fuel) Things of which a Replevin lies, anU tOljtCl) Cvtil bC 

l^noum again, mag be Hiftcaineb* 22 e. 4. 50. b. 

2 Inff. 82. II. As a Cart ot Grain. 22 C* 4- 50. b. 

S P — — 

To 10- Mich 4 Car. B. R. the S. P. per Cur. in Cafe of Cooper v. Pollard. 2 Mod. 6\. S. P. pet: 

Cur Mich. 1675. in Cafe of Wilfon v. Ducket. Freem. Rep. 202. pi. 204. S. C. & S. P. 

per Cur. 

* Br. Dif- 12. Citria, <^t^. jiitt* 47- a Cart of Com. * 2 1|), 4. 15. 

trefs, pi. II. 

cites S. C. • Fitzh. Diftrefs, pi. 9 See pi. 57. 

13. Or a Horfe laden with a lOaH Of Sheafs. 21 C* 4- So- b» 

14. SDc Money (n a fealen 'Bag, 22 c* 4- s<=>- b* 

15. a 90an cannot mitrain Com in the Ear, OC Hay for S)ei;bice!ct. 
3e,2. a^omrp, 189. , ^ . 

16. ^ ^an map UittraiU other Goods befides Cattle. 18 C* 3- 4- 

17- a- 



Diftrefs. 100 

17. a Q9au cannot marnmHviyin a Bam for g)Ci;titce0, bccaufe '» 197- 
tljijs cannot be bnoiun niratu to Ijaijc Deli\)crancc ni a Ecpleuin* ^-f f- 
£i9tcij» 4€ar.'B.E. lictiuecn Coopcr and poiiaru nQjiiDficn upon n^nfro^ 
iDcnuittec ; iDljicfj Jntratiit Cnn. 4 Car. Kot. 457- Hay m 

Cocks, but 
it it be in a Cart it may. Adjudged by four Juflices. Ibid. 

18. 3!fa99anlcarc0rent!ringl\ent, luljcn tijc Citljcs arc fcbcrca 
from tlje mne \dm% \)t cannot Diftrain tljc Tithes tor tljc Hcnt. 
II I), 4. 40. qmrc* Oout X=irooUc Diffrcfsi 81. it iss fain ijc fljall 
not, ticcanfc it iisi tljc COimj Icafco. 

19. J130 C^an can i)c mftramcn bp tlje Ucenins of his Trade. i^Q, Thougi, this 

litt. 47. IS generally 

true, yet it 
muft be intended where there are Goods or other Beads enough to be diftrained ; Arg. 5 Mod ^(Jr, 

— If a Miller has two Mill-pones, the one in the Mill, and the other near it, the f;iare Stone 

may be diftrained. I\lo. 214, 215. Arg. cites iS H. S. 

20. As tlje Axe of a Carpenter caUttOt U niarainell fOC ECllt* ^ii. 
litt* 47- 

21. Nor tljC Books of a Scholar. CO. ILltt. 47. 

22. 3f acporfc be laucn loitlj a 'BitrDoi of ^Ijeafs, tlje Horfe only, 
or t!je Sheafs only, luap be DlfttaineD for a«er\jice0, (E» anmittmij 
tlje ©Ijcafis onip uiap be tiiaraineno 22 e* 4- so. b* 

23. C^ije Materials ior making Cloth in a Weaver's Shop CannOt \it 

jJiffrauietJ, Co* litt* 47- 

24. ccitutimtra boc eft Equus Paifridus or an Dorfe tljat a 99an i^/ ^^^^^ 
Itecpe for 3e.uriiep0 cannot be Dtftranien. Eciiiftrum ©cifiinale, 100 H:rfe"''^hir 
jb* but it n^e0 not appear for itJlj at tljc Diftcefgi uiajs* fhaii riot be 

diftrained, 
but if he has another Horfe upon which he fometimes rides alio, the fpare Horfe may be diftrained 

Arg. Mo, 214. S. P. pei Cur obiter Crp- E. 550. A Saddle Horfe is not diftiaia- 

abk if there are other Goods fufficient or coveiiabie. 2 Inft. 133. 

25 3n it)otre upon which another rides camtot be tiftraineU* 

Co. ittt 47- 

26. an Horfe in a Smith's Shop cannot bc Diffraincti fot tijc Rcnt ? R'l'ft '-'■P- 
imuniroutoftlje^bopi bcca:!fc tljis 10 for tijc Maintenance ofcp u^/St 
Crane or of tijc Commcniucaltij. Co* ittt. 47- if or Ijc isftljere d j. b^t' 

bP aUttjOritP of law he raid that 

■ , there is no 

fuch Reftriftion where it is for a perfonal Duty. Ld. Raym. Rep. 5S6. Mich. 10 W. 3. 

27. So an ipotfe cannot be niff raincn in an inn. co. Litt, ^n. B'- oiftreft, 

P'- 97- (99) 

cites 10 H. 7. 21. S. P. I^id pi. 42 cites 7 H. 10. [1] S. P. Br. Trefpafs, pi. 2S1 

cites 2 H. 7. I. S. P. 3 Bulft. 270. Arg S. P. 

28. @)0 Sacks of Corn or Meal canitOt tZ niffrainCtl in a Mill. Br.Trefpafe, 

Co.JLitt.47- tu'^t'T' 

S. p. Ibid. pi. 42. cites S. C. [but mifpritited for 7 H. 7, S. ic] S. P. 

29. So g)actt?j of Corn or 99eal cannot be niffrainen in a Market. 
Co. litt. 47. 

30. g)0 Cloth or Garments CanUOt bC nilitainetl in a Taylor's Shop. * Br.Diftrefs 
CO. lltt. 47- * 10 p, 7- 21. Stcsl c'i 

Ibid. pi. 42. cites - H. 7. lo. [1] S. P. Br. Trefpafs, pi. 281. cites 7 H. 7. i. S. P. 

31, Averia 



I40 .Diitrefs. 



Thfv a,-e 3 i_ A vcria Ca, ucx talaWt DC tHHtatnCtl. C0» Ittt. 47. 

nor pi-ivi- ' 

Iiwed where there is no other D^Hrefi. Arp;. i Salk. 249. cites z lall. 15; By the Com- 

n:on Law the Plou!;li or any Thinj; belonging to it was not dilhaiiiable To long as any other DiHrefs 
might be taken. 2 Inll 153. ■ Co. Li;t 47 a. b. S. P. 5 Mod. 361. Arg. S. P. 

Things 22. Things diilrained Damage-Feafant CiHtUOt tiC ISillrilillCtl fOC 

Tn't'ofiodia ^^^''' ' lltCaUfC tljCp arc in Cultody of Law. CO, jLltt* 47. 

Legi.v cnniiot he t 'ken ; As a Diflrefs iti a Pound overt cannot be taken out of the Pound upon an- 
other Dill refi. Godb. 51(5 Arg. cites D, 67. Stringfellow's CaJc. 

In Tr-fpaQ 3?. 5 1 H. 3- Stat. 4 Neither Dratight-Cattk nor Sheep flo all he 
on the Sta- dijlraiu.d (except Jor Damage-Fenfunt) fo long as other Goods viay be 

d^ftrlnntr P"^'^ ^° f'^^'^fy ^^^ ^^''^^ ' ^'fl'-''^JJ^^P'^ii '^-^ rcafonahk ; The Sheriff /hall 
per Averi" ctufwer aUDebts received j and -where the Sherijff charged htmfelf, the Debtor 

Carucar !u:e fhull be acquitted. 

contra For- 

niam St.ituti he ou;;ht to rnrmife in his Count that he had other Bcafts; for if there are no other Beads 

he miv dillrain the Bealb oF rhe Plow, Br. A6tion fur le Eftatuie. ph 45. cires 4 H. 7. S. 

InTrel'ial^ o'l ihetir.itutc the Plaintiff declared of taking Contra Formam Ntatuti Ceneratly with- 
out alleging that he had otherwife iedondble Diftrefs, for whicli Caufe Exception was taken, Sed 
non allocatur ; for this muft come on the Part of the Defe idant, viz.. That no other realbnab'e 
Diftrcfs coul.1 be found, and this is iffuable; and Judgmeut with Cofls was given for the Plaintiff. 
D ;ii a. pi 86. Trin 12 Eliz. 

Ibid cites Mich i S E. 2. where it was held that this Aftion lies for the Tenant againff the Lord, 
thouph the Tenant had come to Agreement with the Lord for the Rent for which the Dilfrel.': de 
A vcriis C4riicae was taken ; and cites Pafch. I 7 H. 6. Rot. 93. 

34. A Man may diftrain Sheep if he cannot find other Diflrefs, tho' 
he might have found other Dillrefs belbre. Br. Diltrels, pi. 63. cites 
29 E. 3. 16 and Fitzh. tit. Trelpafs 250 

35. A Manfeifed of four Acres of Land has IJ/he a Son and a Daiightsr 
by one Venter, and two Daughters by another Venter, and granted 100 s. 
cut of his Land to his Son in Fee ; the Son dies without Ijjue tn the Life of 
his Father ; the Father dies, the Land defcends to the three Daughters i 
the eldeft Daughter cannot diltrain for the two Pares o{ the Rent till 
Partition be made. Br. Extinguilhment, pi. 31. cites 34 AlJ' 15. 

S.C. cited ^^ ^ Mdn cannot diltrain the Horfe upon which a Man rides, quod 
- 5)0 j^Qj.^ bene. Br. Diitrefs, pi. 60. cites 6 R. 2. and Fitzh. tic. 
Refcous II. 

37. Note, Tha.t a IP aggofj full of Corn may be diftraincd, contra of 
Grain in Truffes ; per Hank and Thirn, quod nemo negavit. - And 
note, that a General Receiver has no Authority to re-deliver Diftrefs 
without Command of his Mailer. Br. Diitrefs, pi. 11. cites 2 H. 

4- 15- 

Br. Difirefs, ^g. In Debt upon a Leafe of 'tithes le-vied by Dijlrefs is no PJea, per 
pl. 80. cites skrene, becaufe there is no Land in which he can diltrain, and he can- 
, * ■ not diltrain by the I'ithes fevered ^ for this is the Thing leafed, contra 

Till. Br. Dette, pl. 234. cites 11 H. 4. 40. 

39. A Man may diltrain the Beafis of his Tertenant for Rent-Service, 
or for Rent referved upon a Leafe 6zc. immediately when they are pun 
into the Land, but not the. Bea.i\s of a Stranger before they are levant and 
coiichant. Br. Diitrefs, pl 65. cites Lib. Fuiidamentum Legum. 

40. A Garment at a 'Taylor's, or a Horfe baiting in an Inn or Hofiery^ 
flmll not be diltrained i tor they are there by Authority. And the 
fame Law elfewhere of Sacks of Grain at a Mill to grind, or Cloih at a 
Dyers. And per Bryan, the fame Law of a Horfe with a Farrier to be 

pod ; But if he takes off the Saddle and lays it upon the Ground^ the Lord 
may diltrain the Saddle, and yet not the Horle. Br. Dhtrels, pl. 56. 
cites 22 £. 4. 49. 

41. Trefpafs 



Diftrefs. 



14.1 



41. Trefpafs of taking of r-a/o Waggons of Corn ^ The Defendant juf- Br. Diftrefs, 
tilled as Diftrefs lor Rent arrear upon the Seigniory, and lliewed cer- ^^ q' ^"^^ 
tainlv, there he ought as •wdltojajl'ijy the taking the Waggons as the Corn, *'s p per 
and ocherwife it is ill i P'or per iSuliard clearly, a ALm cannot dillrain Brian and 
.Wheals, nor Grain in Shocks, for the Damage of Ihedding in Carriage, Catesby, but 
and a Man cannot diftrnia ALmy tmlcfs it -juere in a Ba? fealcd, for one ^"''-""'^ '-"°"" 

,. , , i L J 1 Ti " 1 • 1 tra, no more 

Ptnny cannot be known Ironi another, and then Keple\in cannot be ^\^^^^ Money, 
thereof made. Per Catesby, our Books are fo ot Sheats unlefs they Br Diilrefsi 
were in Waggons; but I think that a M;in * may dillrain by Sheafs j p'- S8. cites 
and Brian to the fame Intent; for W^rit of Refcous lies thereof; tamea ^- ^■ 
J^ixre. Br. Diltrefs, pi. jS. cites 22 E. 4. 50. 

42. ^i where a Man Lafcs his Sheep, or hails his Goods in Pledge^ 
there they Ihall not be taken and put in Execution, nor taken lor Out- 
Lnvry, nor lor Dillrefs, nor luch like, till the I.eafe be determined, or 
the Money 'paid lor the Pledge. Br. Dilbefs, pi. 74. cites 22 E. 4. ir. 

43. A Alan cannot dillrain G""^//; in iJ^tY:^ for Rent arrear, becaufe 
he cannot have Replevin nor Return thereof, tor it is not certain to 
have thereof Conulance ; but othervvife it is lor Damage feafant ; Per 
all the Jultices. Br. Diltrefs, pi. loo. cites 1 1 H. 7. 14. 

44. A Ftirnace fixed to the Land, and not to the Walls, fior Fatts fixed Br. Chattels^ 
in the Land, Pale,EJlanks,Windoyi's, Doors, Gates, Evidence o/'i^af/, pi. 7. cites 
Poft fxed in the Land, Table Dormant &c. ihall not be diltrained, for ^- '^• 

they are not Chatties which go to the Executors, but the Heir iliall have 
them, per. Cur. Quaere xiGlafs; for it is faid per Pollard, and not denied 
but that the Execuror fliall have it, and not the Heir. Br. Diftrefs, 
pi. 29. cites 21 H. 7. 26. 

45. In Trefpafs of taking a yW/77-^/^ow ; The Defendant jullified for 
diftraining v. tor Suit &c. The Plaintiff faid, that it was fixed to a. 
great Puee oj 1'imber, cum clavibus S ajjcribns. Per Brudnell this is no 
Plea, but hefhall fdy that he had a Horfe-Mill in the Houfe, and annex- 
ed to the Houfe where &c. and that the Mill-Stone was Parcel of the 
Mill; by which he faid fo ; by which the Defendant faid, that it was 

fevered, and was in Picking ; and yet it was held that it Ihill not be 
diltrained. For yet it is Parcel of the Mill ; For a Mill is for the 
Commonwealch ; but if another Mill-Stone, which is none oi them 
which are for grinding, be in the Houfe, this may be diftrained. Quse- 
re of the Anvil oJ a Smith, it feems that this Ihall not hi diftrained, if 
]t be that upon which the Smith ufed to work, notwithftanding thatic 
be taken out of the Stock. Br. Diftrefs^ pi. 23. cites 14 H. 8. 25. 

46. Sooj Doors and Windows. Br. Diftrefs, pi. 23. cites 14 H. 8. 25. 

47. It is a moot Cafe, if a Man dijlrains for a jtift Caiife, and im- 
pounds the Beafls, and after the Lord of the Soil comes and diftrains them 
for Rent again, if his Diftrefs be lawful, and it feems that it is not, in- 
afmuch as they were diftrained before, and were in Ctifiodia Legis. Br. 
Diftrefs, ^pl. 74. cites 4 E, 6. 

48. Si'iff fent to a 'fay lor, Fuller, Sheerman, Weaver, Milter Szc. fhall 
not be dilrained ; for thoie Artificers are for the Commonweal. Arid 
the fame Law eife where oi a Horfe tn a common Inn. But fuch Artificers 
may retain the Stutf for their Wages jor their Labour. And the 
Hoftler of the Inn may retain the Horfe for his Victuals, viz. for the 
Horle-Meat not paid. And Victuals nor Corn in Sheafs cannot be dif- 
trained ; Contra of Corn in a Waggon. Br. Diftrefs, pi. 70. cites Lib. 
Raftel. 

49. If a Knight of the Order of the Garter has feveral Garters, all hue 
one may be diftrained j Arg. Mo. 214. Mich. 27 & 28 Eliz. 



O o 50. Art 



J 4. '2 Diftrefs. 



.o An Horfe which cai ries Corn to Market, and is put into a Friend s 
Houl- tor rhe Time, he is not diftrainable ; Per Beamond and Ovven 
which Walmfley denied. And where an Horfe carrus Corn to a Ml 
andts tied at the Mil-Door dirrw^ the Gnndtng ot the Corn, he Ihall 
no bediilrained, which Walmefley agreed i becaufe it is a common 
PI ce and tor the Publick-weal , but he fod that they be not ahke. 
. Cro E T?o pi 25. Hill. 39 Eliz.. C. B. in Cafe ot Read v. Burley 
51 ^covenable Dillrels is not of ^..m'r, or r#/ or Appare ox 
fLcls fo long as there are other fafficient or covenable, nor ot Sheep, 
££.Horfcs, %ap of the Plough, Poultry or f#. 2 Inll. 133. cites 

^''TlJs' InVt Jttachmnt cannot be diftrained. Vent. 221. 

Trin 24 Car. 2. B. R.. Monk's Cafe. „„,,/-, j /? ■ 

Upon this ^73: '1 Tf. y M. Stat. I. cap. 5. S. 3. It M be la^4'^l todjfiraiu 
Ak >^ ^o-/o/L«^ arrear, as ajorefard, any Sheaves or Loch of Corn or Co.alooje 
bedirt.-ainedi ' ^ ■ ^„yBarn, or upon any Hovel, Stack or Kuk, or 

•r'p''"^" ?/.'4S S;r/W.i^'/'-^ ,,tan, t£ fa., wherejt Jhainejo^^nd, td 
tlcZ n Tenpe^ed-, and tn Default, thereof, wMm the fme aforefatd, to fell 
^.,oJJl%Z^^^^^^ ^s ajorefaid , fo as tt be not removed t the 

by •" lyi"S DaiZe the Owner, but kept where itfiallbe founH till tt be replevied 

on the ^ , ° ■' 

Ground it or fold. 

may rpoil, . ,.„„„„:^„ „f the Com out of the Place where it was, is a taking and carrying 

and every t«l<'"^/"t,T.nTpowell For per Holt the Aft of Parliament is only that ic be not re- 

av^ay in L^^^i ^ •='• "^^i ^'^'^ ^°J' , and as Ion" as >t is not at the Damage of the O.vnerumaybe 

n,ovcdto.heDan^geof theO.^^^^^^^^^ .^^ ^^^^, doubt whether u can be 

c:::ie1 Zf. '"^Stk^^ B.^R. L: Gr.e v. Manning. 

XI Geo 2 cap 19. S.%. Enables Landlords, their Stewards, 

u /T>c Kecerw or other Perfons tmpowered, to dtjham any Cattle or 

l::^ilAZSiZ^ teeding^r defafturing upon any Common .p- 

A fJfZirtenant or any Ways belonging to all or any Part of thePre- 

^'i rJS hh^^^ aid alfo to take find feizc all Sorts of Corn and 

• In I be zrowing on any Part of the EJtates fo demifed or ho den, a, a Dif- 
t s for Z Arrears of Rent, and the fame to cut, gather, make, cure 

trefs F'^Jf f" j^ ^^p t„ fj,, Barns or other proper Place on the 
■ 7rZ£ odk^^^^^^^ ^"d - Cafe there fh all be no Barn or proper 

iiil tZ PremilTes fo demifed or holden, then in any other Barn or pro- 

fiX.t^S'^A--^-'^^-^' ^^ff^'-^ orLanfordsJhallhire or 
per i-iace uurj^^ j j, . ^ ^^^ ^s may be to the Premises, 

"""^t^Zl^^e^^^^'f^^^ or other Jfe difpofiof the fame, 
T Jl Simon the Reni for which fuch Di/trefspall have been ta- 
tf'^^'^^ ^/'ff^^^^^^^ Dtftrefs Jppraifement, and Sale, m the 

tuMaleras^o^^^^^^^^ a.dthlttll,m.y iefeifed^ difiramed and 
%ofd Zand the Jppraifemcnt thereof to be taken when cut, gathered, 

'"''A t:::^l t^uS^^thc Place where theDifirefs ts lodged. And 
Dijirefs of Com t^f . to ceafe if Rent be paid before tt be cut. 

(H. 2) The 



Diftrefs. ^ 14-^ 



(H. 2) Ths Goods of whom may bs diftralned. 

i.T" ESSEEis oufted by a Stranger, the Goods of the Difflifor may 
I J be diftrained ibr the R.enc. Cro. J. 300. pi. 5. Palch. 10 Jiic. 
B. K. Humphry v. Damion. 

2. A. driving Cattle to London to fell, by Agreement with the Mafter ^ "^'e^t 50:, 
of: an Inn puts them into a Ground at lo much a Score lor a Night j ^y ' „ 
The Z^;;rf/on/ feeing them asked whole they were, but conftnted co^j,,_s,'c. 
their Itaying there, and altcrwards the fame Evening dillraiued them Relief de- 
for Rent due to him by the Mailer of the Inn ; and adjudged lor the creed upon 
Landlord in the Cafe of Fowkes v. Joice. 3 Lev. 260. Trin. i VV". & ^^^/'^f' 

M. inC. B. Landlord to 

anfwer the 
Value of the Sheep, and to pay Cofts both in Equity and at Law; Per CommifiTioners, and they 
feemed to think that the Grounds lying to the Inn and ufed therewith, ouf;ht to have the fame Pri- 
vilege as the Inn, and PalTengers Cattle not to be diltrainable there. On the Landlord's 

coming and feeing the Sheep he pretended to be angry, upon which rhe Owner offered to take out 
the Sheep, at which Time they were not diffrainable for the Rem, hiving nor bee levant and cotichant 
upou the Lands; fo that the Court looked on the Confenr as 3 Fraud to get them to be left all Kight, 
by which they became liable to the Diftrefs; and the Plaintiff had his Cofts both at Law and in 
Equity. Ch. Prec. 7. S.C. 

3. A Rent-Charge was Arrear for 20 Years, and Cattle efcaped out ofS C. cite<J 
the next Ground and were dillrained. Ld. Nottingham relieved againlt • '^^ ■"■ 
it; cited 2 Vera. 131. Hill. 1690. as the Cafe of Brodon v. 

Pierce. 

4. Where a Stranger's Beafls efcape into the Land they may be 
dillrained for Rent, though they have not been levant or couchant^ pro- 
vided that they are 'Trefpafors. But if the Tenant of the Land is in 
Default in »o? rfpi2/n«^ his Fences whereby the Bealls came into the 
Land, the Lelibr cannot diftrain fuch Bealts, though they have been 
levant and couchant, unleis he have given Notice to theOivner^ and he 
fulTer them to remain there afterwards. But the Lord of the Fee, or 
Grantee of a Rent-Charge, in this Cafe aiay diltrain fuch Bealts alter, 
they have been levant and couchant, without giving Notice. 2 Lutw. 
1573, 1577. Hill. 7 W. 3. Kimp v. Cruwes. 

5. The Goods o[ an jimba/fador HTQ privileged hy 7 Jnn. 12. and 10 
Mod. 4. Trin. 8 Ann. B. R. Arg. and cites Grotius to the fame Pur- 
pofe. 



(I) The Goods of^whom may be dlftrained. 
\j4fid hi what PlaceJ\ 

I. TiF tllC Cattle of a Stranger efcape into the Lands holden, anQ tIjC ^"t if in 

X Owner fenOUJ0 it and fullers them to continue t^ZU ilftCC lor a Day ^^'^ ^■'^'^ '''« 
or more, tljC jLOCO Uini? Omcnill tijClU tOL* W ©CCl3lCe.0» 27 €♦ and the' "^^ 

3- So. Owner 

freflily fol- 
lows to take therh, it is otherife. 2 Inft:. 296 S. P. admirted per Cur. Palm. 4; Mid*. 

17 Jac. B. R. Lacy's Cafe, and held that there was no Difference be'ween LelTor aid LclTce, and 

the Cafe of Lord and Tenant. 1). C. ci.cd by Pow;ll J. 2 Lutw. 15:0. Hill. ■; \V 5. 

2 [SbJ ■ 




144- Diftrefs. 



Lord n/ay 4- R^c tijE Cattlc of 3 ©■caiipc tijat conies inta tfje LasiH b)? 

diih-ain c,.c- ctope cnnaot be riftrame'o lor a Renc-charge. i8 ci;. 2. i;itiatarp 

tic Services, 210. 



And fohe 2. [So] if tfje Cattle of a stranger efaipe into tijc lanBs Oelti, 

"j'^y "S" though the Owner does not know them to be there, yet if tljeP tlte 

le'v-m/and"' ^^^'-"^ ^nd couchiint ttjetc, ti)c lotti 111*1? tufttaut tijeui far Ijis ^cr-- 

Couchant. WZ9, COnful 27 (£, 3. 80. 
See ( O ) 
Vl. I. 

In Cafe of ^. f^]'^^ (inuit Of H Striiiisct tijJt cfcitpc^ iixto tl)t lann map be 

ananaent 5tftj;aineD ior Services. 
Seignory the vinmmw 

€ 
219 

in'bv £?">' s- Rut tl)c Cattle of a g^trnitgcr tiiap be tJiffraincQ for Rents and 

though they Services, tljOUlj!) tJjCP CfCnpC mtO tije LatlQ of tijC Cenailt if they do 
■were not a Trefpafs to the Tenant, zz C* 4. 49. D. COiltra 27. ^* 3. 80' 
levant and 

coucliatit, although it be in Default of the Fencer, which the Tenant of the Land ought to main- 
tain, bccaufe the Lord has notliing to do with the Repairing or the Fences. Bur in Cafe of Rene 
i-efervcd upon a Leafe for Years the LeiTor cannot diftrain fuch Cattle until they be levant and 
couchant ; for if the LcfTor had had the L ;nd in his own Hands he ought to have repaired the 
Fences ; and wfien he puts in a Leffee he oui^ht bv ("ovenant &c. to oblige him to repair. And 
tlierefore in tliat Cafe if the Law would allow t!ie Leffor to diftrain the Cattle of a Stranger which 
come in by Efcape, before that they be levant and couclK-mt, it would be in Etfc!;f: to allow a Man to 
take Ad'/aiitage of his own Wrong; therefore the Opinion of Coke cannot be maintained fo "cne- 
rally, no Book warranting it unlefs 10 H 7, 2,1. b. Therefore it muff be inten.'ed if ihe Cattle come 
in by Default of the Owner of the Cattle, then they may be dilfiained b_-foie they be levant 
and couchant 7 H. 7. I. 1 5 H. 7 17. but if in Default of the Tenant of rhe Land, there they 
canrot be diftrained until they have been levant and couchant ; that is to fay, for Kent upon Leafes 
for Years. 15 H. 7. 17. And in fuch Cafe the Leflor fhail not tike the Cattle betore that he has 
given Notice to the Owner that they are upon the Land liable to his Duf lefs. And if the Diftrainor 
chafe Chattle in a Place liable to his Diftrefs, and gives Notice to the Ownor of the C.ittle, and he 
doe^ not come to take them away, they are now become dirtrainable. But in Gale of DilVrei!- by the an- 
cient .^eignory aforefaid the Owner may prevent the Diftreii by making frcfh Purfuit, cires 1 5 H. 7. 2 
KoU Rep. 124. Gill V. Gawcn ; per Powell J. But by T'reby Ch. J. where the C.ittle efcjpe acciden- 
tally, there they are not diftrainable, until they have been levant and couchant ; bnt if they 
elcape by Default of their Owner, they are diflrainable the tirft iSli.Tute. Ld Ravm 16S 160 
Hill. S & 9 W, 3. C. B. Kemp v. Crewes. . ■ >- 

6. But tlje Cattle ofa Stranger cannot be liiffraincli bp tlje lorn 
if tljep efcape into tlje lan'o of tije Cenanc if they do no Trcipais to 

the lenant. 22 C. 4- 49 b. 
, 7. As it' tbe Tenant ouiil^ to inclofe againit the Highway by Pre- 

fcription, anD iu tiribnuj HIP Cattle bv Ujeil?ap bv betauk of the 
inciofure tijcp cfcapc luto tijc Laiio Of tijc Cfuaat, ttjc lorD cannot 
Siilrain tlmii. 20 c. 4 49 b. 

8. So If Ije OUgbt to inclofe \}}} ^JrefCltptiCn againlt my Land, anti 

tup C_attle tiCiipc <$u 22 e. 4. .19 b. 
9- :sin tijefe cafcgi aitiT tije Cftapc tf mp Cattle continue in t[jc 

Hantl levant and concn-iu ior Ivui, Ql' tVC, OC U'iOrC i^av.s, Ct fOC 

ijaSf a l^ear, pet if 3! i3aj:sc no Notice tljcrcoftijc Lotii cannot mffmit 
tijcm. 22 c 4- 49- b. 

10. But otbctuufcit i0 if 33 l)aw Notice auu fuffer tfjem to conti= 
iiuc tijcve niter* 22 c 4- 49- b. 50- 

Fitr.h. Dir. II- i^P ©00135 cannot be biftrauVO in aMaiketor Fair for t!)C 

treA, pi. s. prejubice to ti)e pnbUclu 1 ip. 7 2. 

cites S C — 

Goods brotwht to Market and expofed to Sale fhall not be diftrain'd, becaufe it is Pro Bono Publi- 
co. Noy. 19. 15 Jac. Trallel v. Morris 

Br. Dif. ,2. %Q nip (J5oum in a Taviors Shop caunot bc tJiftratn'n bi> tljc 

cite.''7 H t^' ^^^^ "^f t^'J^ ^tiOP tor ©erlnCC0, nor mp none in an inn. lo ip, 7. 
JO s p 2 1, b. t 7 fij, 7. 2 Nor li:p l-Jorle in me Shop of a Snurh who is to 

t Br.Trer- ftoc him ; foi'tfjc )im% gilic me a jlilcctp to put ijim tljcre* 22 e» 

pafs, pi 2S1.4. 39. Ij^ 
cites 7 H. 7 

1. S. C. : — Br. Diftrei;-, pi, 42. cites 7 H 7, 10. [i] S. P. Fitxh. Dift cfs, pi, S. cites S. C. 

13. But 



Diftrefs. i^^ 

J 3. anD in tijcfc Carc5~ti)c lorH cannot niffraiu tljefe *^oon0, 

though they continue there as long as I pleafe ; Jf UC tljCP IWHV retain 

tijcm tiU giatiisfiiction. 22 e. 4- 39- b. 

14- 3f 3 put nip ir)orfc to a €)niitl)'s!i to be fljon, although i)c be 
tijere three or tour Days bcfotc l)c 10 fijoo, >)et tljc lom cannot Dtp 
tram Ijun. 22 c* 4- 50. 

15 Butificomctoitbrni) il^orfctobc (Ijoc, ann tljcrc put tl)e 

Pantile UntJCrt!)eKi5l3t€)iOe of tljC Dorfe, tljC Lord maydillrain 
the Saddle. 22 (£♦ 4. 50. 

16. 31f a S0an rides to any Place, and tljCte IjC is took Sick, UpOU 
tUljiCf) Ije remains there two or three Days, pet his Horfe cannot be 
diftrain'd for Rent. 15 (£» 2. ^llOlUrP 216. 

17. [So] if a £@an put his Horfe into a Common Herbage per 8 * Q.u'^'^ t'»e 

Tours $ * m beijerte fon Cljibal $ lup remote pet tl)i0 IDorfe cannot 'IJ""*"^ f 
be m'rtrain'D for Ecnt tljere* is C. 2 auoiurp 216. atijUDg'D. word', uV 

lc^^ itbsCand 
waters his Horfe, and puts h:;Ti in again.) 

if?. W tf)C Diftrefs Igr tO bC taliCU for any Caufe touching the Soil, r\w^.-xn 

tbe Cattle of a Stranger map bc si^rain'O, beuiff upon tljc lauD Jj}:^ 

for Rent fC» 4^ €, 3- 26. b. kim^ 

pi. 5. cites 
S. C. & S. p. as where it is tor Damage-Feafant, or for Rent-Service, 

19. 31f an Heriot Service tiue aftct tlje Deatl) of a Cenant be ef- Br. Hariots. 

loign'd, tlje lorn map Diftram tljC Cattle of any Stranger manuring P'- J^ <^"" 
upon the Land. 27 ^it 24. abjUnC'D. KitVh. 

Avowry, 
pi. 177. cites S C. Ow. 141^. Anderfon faid, that he agreed the Cafe of Dyer, that the Cat- 
tle of a Stanger cannot bc taken for a Heriot. 

20. CljefameLawifaDiffrCfSbetObetafeenfbraCaufe touch- 
ing the Perfon, as for an Amercement in Frank-pledge tlje Cattle Of 

a gitranttcr map be niftrain'ti being upon tlje JLaitD* 41 c* 3. 26. 
b. 2i)tbe Contra, 47 ^» 3 23. 
21. cije Cattle of a stranger cannot be fold for Debt of the 

King. 41 C* 3. 26. b. 

22. But tijep map be diftrain'd if tljcp atC depaftured m tljC PlaCC Fitzh. 

tDljere $C* 1 1 t)* 4. 2. Avowry, 

52. cite.s 

s. c 

23. Cattle tUljiClj are in certain Land by way of Agillment maP bC 

Diflrain'D for Rent. 18 c» 2. aboturp 219. aDmitten bp'tljc 
3ifliie, 

24. Jt a ^OiUn be nlTefg'tS to 40 0. for tlje Expences of the Knights FirrJi. 
OftljC ©Ijire in Parliament tljl0 map be leUieO upon tlje <J5OOri0 of one Avowry, 
Man in tlje COtUn only, ii p, 4. 2. S c'-fi^Br. 

JJiftrefs, pi." 
94. (95) cites S. C. Br. Avowry, pi. 4;. cites S. C. 

25- 3if tljCre are feveral Jointenants auli one grants a Rent-Charge Br. Difirefj, 
out Of tlje Lanb, llje <Srantee map diltraln the Cattle of the Grantor. P'- .^^ ^^''^ 

11 i^. 6.23. b* 28. 33. g ^.- — 

pi. 59. cites 

s. c. 

26. But Ije cannot Dtifraln tlje Cattle of the other jointenants. Br. Difirefs, 
II 1^» 6. 23.13,28, 33. ,pi.6S.(6Q.; 

cite.s s. c. 
■ Br. Charge, pi. 39. cites S. C. 

P g - 27- But 



I4<^ 



Diftrefs. 



Br Diftrefs, 27. But i)E Hiap utftvatn tlje Cattle of a stranger tfjat come 
pi 68 (69.) ^jijoji tjjg jLaun. 1 1 ii)» 6. 051:0014 Dtftrcf0, 69. -aaiisre. 

cites o. Cj. r -* ^ _ 

and that there is a Quaere ; but Brooke {ays it feems that they may be dlftraitied. Br. Charge, 

pi. -9. cites S. C. and Qu* re, and fame Uplnion by iirooke. 

Crn J; 6ii. 28. 31ftljCrC \}Z ttOO Joincenants, aitl! one leafes his Part to the other 
pt.6^Hill. fo^ 7ears, rendring Rent, ailO tljCp OCCUpj) It aCCOtninfflP, nOlU tlje 

B K ''snei JLclTotmap nifframljis Cattle i for noin Ije fljall occiipp" tlje uiljole 
gar V Hen- loitljoiit tfee Dtitutuance of tlje.leffot, ano Ijecauno't ouftljmu 

Won, S. C. II Ji), 6. 34. SP* 18 3ia. 15. JK. betmeeit ^'/r He/iry Snelgrave and 

adjudged, £)^///c« atjjiiDgeD upon a Deimirrcr tuljere tlje leafc tuajs mane to a 
fenant^n ^jttangct, Uiijo Icafco It to tlje otljec aomtenaiit* 

Common 

may diftrain upon the other, where he comes in under the Leflce 2 Roll Rep, 211 Hudron 

V Snelgar, S. C. Two were Tenants in Common in Fee, and one made a Leal'c for 40 Years, ren- 
dering Rent, a-^d rhe LeiTee alTif,ned his Term to the other Tenant in Common ; and the Court held 
clearly that for Rent arrear the Lcflor may dillrain the Beafts of his Companion; and cited 11 H. 6. 
28. accordingly. 

Br. Diftrefs, 29. 31f tljCtC bC fcijetal Jointenants, aitt) one grants a Rent-charge, 
pl. 68 (69.3 and atter leales his Part to the'other Jointenants at Will, flntl tijep 

c''" s c Of ciipj) tlje ioljole, pet tljeir Cattle cannot be Diffraincti foe tijc 
and^c.tcs II ^^^^^ . j3gj..-j„fg jjjg L^.^fe at Will is void, inafinuclj a0 a 3otntcnant 
uhcrc' it is ousljt to occupp pec mp et pet tout bp tlje latu» up. 6. 28. 34. 

in a Manner 

agreed, that where five Jointenants are, and two charge the Land with Rent, and leafe their Part to 
one of the other three, and the Grantee diih-ains him, chit this is good ; for by the taking of the 
Leafe ot the Part of the Grantors, he fhall be in the fjm; Plight as the Grantors themfclves fliould 
be ; and e coiuta if he had occupied his firll Part only. 

30. But admitting the Leafe at Will to tljCUl tO be good, tljeit 

tljeit Cattle map be tUllcalneti fat tlje Kent ; becaufe tljep come ta 
tlje tljirti pm unUcr tlje Cftarge, antr tijep fljall be m tIjc fame 
pight tbat rlje <J5rantot ijtmfelf uiasj. 1 1 p. 6. 28. a. b. 

31. Ilf a leafes at VVill and alter grants a Rent, (aliUUttinO; tljlSS' 

toe0 not netecmine tlje miU quoD qu^re) tlje (S5cantec cannot 01- 
ftram tlje Caitie ot the Tenant at vv^iii, becaufc Ijc UJn0 in before tlje 
Cljargc, anti tbcretorc tlje 'Wmmt of tljc jfrceljoto Ctiunot cljatgc 
ijmi before tlje t©!ll Oetcrmineb. 1 1 Ip. 6. 2s. b. 

32. Jf a i^an be feifCO of a Rent-durge bv Pr^-fcription ifTuing 
cut of the iManor ol D. pct It fCCm0 IjC CanUOt tlKlralU tlje Cattle o 

the Copyholders Of tljc ^auor, iftijcD lja\3e uot bcctt ufeO to be 
tiiffraineri, becaufe tljcp are In tp 13refcription aifo, aiiD fo as iMy 
a^ tlje SDianec of tijc Ecnt. i]3. i2 3'a. 13. mmiiiCanfmi ancc 

Turner^ tlUbltatUr. 

3^. Buttn tlje faiU Cafe it is clear if the Owner of the Rene has it 
by" Grant, OC OtljerlUlfC, and not bv Prcicription • pct tljC Cattle Of 

tlje Coppljoioeris * cannot tic oidramcti tor it. ^.12 2a. 15, \&- 

tlUeen Camum and Tamer aQ)UOffCD. 

34- 3f a Rent bC gtantCU out of two Parts of certain Lmd, ailH 
atter a Leafe is made of the two Parts to A. ailtl tljC other third Pare 
alio comes to A bv another Leafe of him that has the third Parr, tljC 

Cattle of tlje Icffce map be taUcn for tljis Ecnt. ^pobnrt's Keportis 

1 10 betUlCCn hle-sman and Moor, UlljCtC bUt OMC 3O patt CamC tO tljC 

ILelTceoftljcttoo parts. 

.35. If a Man /)«/! /'/J Beajfs to f.N. to Pajiiire iox 4 d. the Week, 

and alter ^ivts Notice that he will not Pajfiirt; thtm any longer^ and the 

Owi;er will not retaiie them, J. N. may (iiltrain them lor Damage fea- 

fant. Br. Diflrefs, pl. 93. cites 43 E, 3, zi, 

I 36. In 




Diitrefs. 1 4. 7 

36. In VVnt of Mefiic, li the Defendant cofjjcffes the Jcquittal^ the ^r- i''nes, 
Delcndant Ihall be diltrained if he does not acquit him ; Per Belknap. P^'^g ^''?, 
Br. Diltrefs, pi. 20. _ S.c. '^' 

31. Where a Man cigiji Ecajls in his Land for a certain Stim^ he can- 
not diftrain the Hearts lor the Agiftment arrear; But if the Owner cha- 
fes them away belore Payment of the Agiltment, the other may have 
Attion of Trdpaf^; Qu^re inde ; For it feems that Debt lies. Br. 
Diltrefs, pi. 67. cites the Regilter. 

38. So it ktms oi Leafe of 1'tthes, the Leffor camiot diflrain the Sheaf i 
of the 'tithes. Br. Diltrefs, pi. 67. cites the Regilter. 

39. For Fees of Knights of the County for the Parliament ^ a Man may 
dirtrain the Bealts of the Vill, or of any of the Vill. Br. Diltrefs, pi, 
94. (bis) cites 1 1 H. 4. 2. 

40. A JVian put his,B€ajh into his own Clo^'e^ and they efcaped Into the 
Clcfe of another adjoining^ and the Oivner frefbly reto,k thein^ this is good 
.Matter to oult the Lord of the Dillrefs of them, but the other ihali 
have Trefpafs thereof i Quod Nota ; per Cur. Br. Diltrefs, pi. 21. cites 
21 H. 6. 37. 

41. Whether the Sheriff inay dtjfrain the Beajis of a Stranger upon the 
Land of one that has loft Ifjnes in Curia Regis for Non-appearance was 
the Queltion on a Demurrer ; Brook fays it feems to him that he may i 
becaufe the Land is thereof charged. Br. Dillrefs, pi. 40. cites 

5H. 7. I. 

42. In Replevin the Defendant avowed for Rent-Charge ; The Plain- 
tiff faid that the Land where See. was open to the Highway for Default 
of Inclofure, and he drove his Reajis m the Way^ and they efcaped and he 
irejhly purfued them, nnd the Defendant took and diflrained them ; and 
by all the Juftices, if a Man ds f'on tort puts his Beafls into certain 
Lands, the Lord may diftrain them though they were * [not] levant and * The 
couchant upon the Land. Qusere oi the Diverlity between this Cafe Editions of 
and the Cafe of Efcape. And the Defendant faid by Replication, that ^^^"^ro,™^ 
the Beafts were in the Land by two Nights after the Efcape j and per (^ot) b^j it 
Cacesby, he ought to traverfe the Efcape ; But Brian e contra, and that is in the 
upon Irelh Purfuit the Party cannot dillrain, contra where he fufters Year-Booki 
the Bealts to remain after the Efcape, by which (by him) the Defendant 

ought to traverfe the frefh Suit or the Efcape, quod Choke couceffit, Br. 
Dillrefe, pi. 24. cites 15 H. 7. 17. 

43. By Man wood J. there is a Difference -when the Cattle come upon 
the Lands of another in the Default of the Owner of the Cattle, as by 
Efcape or Stray, and where in the Default of another; For in the firll 
Cale the Lord may diftrain them before they be levant and couchant ; 
bat in the latter Cafe not; alfo a Rent referved upon a Leafe for Tears, tS 

' 4 new Rent, and not like unto an ancient Rent due upon an ancient Tenure 
hetwtxt the Lord and the Tenant ; For, for a Rent referved upon a Leai'c 
for Years, or for a Rent-Charge a Man cannot diftrain the Cattle before 
they be levant and couchant upon the Lands although they come upon 
the Land by Efcape, Eftray &c. Dyer laid the Lord cannot diftrain 
the Cattle which efcape into the Land of his Tenant, for want of En- 
clofure of his Tenant, before they be levant and couchant, and yet the 
Seignory is favoured for the Antiquity of it. 2 Le. 7. 8. pi 8. 
7 Eliz. C. B. Anon. 

44. If a Clothier having ptit his Wool to fpin comes with an Horfe to ^^^ ^'^. ^f- 
carry it hack, but becaufe there is no Beam or Weights at the Spinner's forThev^ ^' 
Houfe to weigh it, the Clothier and Spinner with the Lca':e of a Neighbour were 

'who had a Beam and Weights in his Houfe, bring the Horfe thtther, and brought 
enter the Houfe to weizh the Tarn ; the Lord of the Houfe wh'lft they ^'^f^ foraa- 

-' ° •' other Intent^ 

are 



148 



Diftrefs. 



and were in are there cannot diftrain the Horfe for Services ; Adjudged. Cro. E; 
the Poffefli- g Hill. 39 Eliz. Read v. Burley. 

on of the -'^^ ■'^ ' _ "^ 

very Owner. S. C. cited 5 Lev 161. by Lutwich J. 

45. There is a Difference betiveea a Dijirefs for Services, and a Diftrefs 
for Amercements for not doing the Services ; For the firft is by Common 
Right maintainable, the fecond againft Common Right by Prefcripti- 
on. And then for fuch Amercements you muft dillrain the Tenants 
own Beafts, and not the Bealts of a Stranger found upon the Land ; As 
for Services you may, and the reafon of that, as I conceive, is^ tor 
that it is tor a Perfonai Crime j Per Walmfley J. Noy 20. in Cale of 
Pell V. Towers. 

46. Two Hundreds^ viz. L. and M. were adjoining to two feveral Ma- 
nors, viz. D. and E. and A. was feifed of JL>. and B. was feifed of E. 
In a Replevin A. avowed, and prefcribed that all the Tenants of the other 
Manor have ufed to make Suit to the Leet within his Hundred, and that the 
Lord of the other Manor ufed to appear at the f aid Leet, or to pay 4 s. pro 
Anno fatttro, and if not paid, then he prefcribed to dijlratn any Inhabitant 
•within the Hundred for the fame ; and lor 4 s. not paid he avowed the 
Diftrefs within the Manor of the Plaintiff, who was one of the Inhabi- 
tants. Williams J. cited 47 E. 3. that the Cattle of the Lord of the 
Manor might be diftrained in any Land within the Hundred for Suit 
and Services. But it was afterwards agreed by all the Juftices, thac 
the Cattle of a Stranger could not be diftrained. Owen 146. Pafch. 
40 Eliz. C. B. Goofey v. Potts. 

Noy 20. 4Y. If for an Amercement for Default of Suit the Lord prefcribes to 

s P d^^ diftrain the Goods of his Free-'fenant, he cannot take a Diftrefs of the 
not appear. -S^^J of his Under-Tenant, who is not within the Prefcripdon ; Ad- 
judged. Cro. E. 791, 792. Mich. 40 Eliz. Pill v. Towers. 

48. If / let Land for Years, referving Rent, and I command one to put 
his Cattle into the Land, I cannot diftrain them ; For my Commandment 
is a Wrong, and an Aflion on the Cafe will lie againft the Command-" 
er. Brownl. 31. Hill. 6 Jac. Anon. 

49. If one feifed in Fee makes a Leafe for Life, and a.iieT grants to ins 
a Rent'Charge, if the Grantor's Cattle come upon the Ground, 1 may di- 
ftrain them, although I cannot diftrain the Tenant in Pofleilion, buc 
the Grantor cannot avoid it. Brownl. 32. Pafch. 10 Jac. Anon. 

Brownl. 170. 50. The Defendant avowed for Rent referved upon a Leafe for Life. 
S C. and 'j'j^g Plaintiff pleaded in Bar, and conveyed to himfelf Title to 10' 



Court held Acres adjoining, and that he put in his Beafts, and they efcaped into the 

in this Cafe, Place &c. and he freply followed to drive them oat, but before he could re- 

hecau'e the cover them, the Defendant diftrained them. The Cafe had been fome- 

Beaih were ^ij^t; better, if the Tenant ought to maintain the Fence. But no 

the PiVin- Judgment or Opinion. Hob. 265. pi. 347. 17 Jac. Reynolds v. 

titPs Poffef- Okely, 

fion, and in 

his View, the Defendant could not diftrain the Cattle of a Stranger ; but if he had permitted the 

Beafts to have remained there by any Space of Time, though thev h id not been levant and couchant, 

the LefTor might have diftrained the Beafts of a Stranger. S. C. cited Mod. 65. pi. 6 

S. C. cited 2 Lutw. 1580. 



2 Vent. 50. f;i. Cattle driving to T^ondon to be fold for Provifions for the City, and 
s. c. ft- -■- - > - _ J ^ . . . _ /> 

■was ar£ 



^- ^- ^^'"'" being lodged in a Clofe by the IVay, may be diftrained for Rent, though 
thatnofhine they are put into tho Clofe by Confent of the Landlord i Adjudged per 



appeared in tot. Cur. 3 Lev. 260, Trin. I VV. & M. iu C. B. Fovvkes v. Joice. 

the Pleading 

ef a coromun Inn, and fo the Matter did not come in Queftion ; neither was it fet forth that the 

Cattle 



Diftrefs. 1 4.9 



Cattle wcredriving to Marker, bjt only to London, ad Pi-oficuum inde faciend' ; and befides, in the 
Bar to the Avowry the Licence is the only Matler relied upon, which does not conclude the Leflbr 
from takinp; tlie Dillrefs And of that Opinion wds the Co\)rt. And the Court held, that Cattle 
di-ivins^ >o a Markc, and put into Failure by the Way, were not privileged from bcinj^ diftrained ; 
for iti.s by the Statute of Marlebridge, that c)e:.If<; cmnor be diifraincd in the Highway ; and not by 

the Common Law. 2 Vcrn. 119. pi. t iS Hill. 1693, Si. C. Relief decreed upon the Fraud, and 

the Landlord to anfwer the Value of the Sheep, and to pay Cofts botli in Equity and at Law ; Per 
CunimilTtoners, and they fcemsJ to tliink, that the Grounds lying to the L n, and ufed therewith, 
ought to have the fame Privilege as the Inn, and Paffcngers Cattle not be dirtrainable there. 

52. A. is fetfcd of a third Part of a Clofe in ConmiO!}^ and B. of the 
other two Parts in Common with A. — A. lets his third Part^ referving 
a Rent. B. puts in his Cattle, or a Stranger by his Licence. Such 
Cattle are not diltrainable tor the Rent. 2 Vent. 227, 283. Hill. 2 & 3 
W. &c M. in C. B. Kemp v. Cory. 

53. In all Cafes wbere the Land is the Debtor, the Cattle of a Stranger 
areas well liable as thofe of the Owner of the Land ^ As Cattle of a 
Stranger levant and coiicbant are diltiainable for Arrears of a Rent-Ser- 
vice. So if a Neighbour's Cattle elcape into Land, out of which a 
Rent-charge ilFues, and are levant and couchant, (there are good Au- 
thoritieSj r/:7w/^i' they are not levant and couchant) ihty &KA\\\.Ts\nd.\:AQ 
for the Rent-ctiarge, and the Owner fhall not have them again unlefs 
he pays the Arrears j Per Holt Ch. J. in delivering the Opinion of the 
Court. Ld, Raym. Rep, 308. Hill. 9 W. 3. in Cafe of Britton v. 
Cole. 

54. Goods in the Cuflody of a Carrier are privileged from Diftrefs for 
the Carrier's Rent, i Salk. 249. pi. 5. Hill. 8 Ann. Gisburn v, Hurft. 



(I. 2) Grant of Rent out one Manor or Place, with 
Claufe of Diftrefs in another Manor or Place. 

I. T^THERE a Rent-Charge h granted out of an Ox-gauge of Land 
y Y '« -D- and that // the Grantor alien the Oxgange of Land, 
that the Grantee may diflraiii in the Manor of B. and the Grantor aliens 
the Oxgange of Land, yet in Affife the Tenant of the Oxgange of Land 
jhall be narned^ and the Oxgange pall be put in View^ for this remains 
charged. Br. Charge, pi. 17. cites i AIT. 10. 

2. Rent is granted out of Land in D. and for Default of Payment to di- 
Jtrain C. there both ihall be charged, and ftjall be put in View in Affife j 
but //the Lands were tn diverfe Counties, then the firft Land only ihall 
be charged, for otherwife he cannot have Affife in this Cafe i For he 
cannot have Affife in two Counties unlefs the Land be in Confinio Com' ; 
Quod Nota. Br. Affife, pi. 427. cites lo E. 3. 18. and Fitih Alfife 
IJ7- 



Q. q (K) In 



150 



Diftrefs. 



(K) In what Place a Diftrefs may be taken de Jure. 
By the King, ■ 



♦ Br. Di- I. r^'i^iSS; MWZ ttia)' BifTrain fOt Rent-Services in all the Lands of 

ihcfs, pi. 6. j[ the Tenant, a0 U)cil tljofe tljiit acc IjcIO Of oti)cr0 ajs of t&e 
^l.r.h i^tno; * 44 €, 3- 45* Curia. 1 9 1). 6. 9. 44 m, 22. iip aU tlje 

Grant, pi ' SiUttlCC^* 

47. cites 

5 c;. I Fitzh. Grant, pi. 6. cites S. C. Where it is faid |that the King way diftrain 

out of his Fee, that is, in the other Lands of his Tenant, it muft be underftood in fuch other Lands 
as his Tenant has in his own actual PoiTeffion, and manured with his own Beads, and not in the Pof- 
feffion of his Leflee for Life, Years, or at Will, for their Bcafts are not fabjeift to fuch Diftrefs. 
sinft. 132. 

* Br. Di- 2. So tlje jKtng map Hiffrain for a Fee-Farm in an tfje Lanli0 of 
citefs^c^ tbe ifacmei:* * 44 <£♦ 3. 45- s % 6. i. b» 

Fitzh. Grant, pi. 47. citei S. C. 

3. 31f a Town iJE afleffed to a certain Sum, a DtftrCfSl Ittap ^}t W 
^t\\ in any Part fUUjeCt tO tljC DlfttefSi fOt tlje lUijOlC DUtJ?* 1 1 ^* 

4. 35- tl» 

4. 31f a Corporation tJC amerced in B. R. XW Hlitp llC leUlCll upon 
the Viil or Land of the Vill, or tipOll tl)C Goods UlljICi) tljCP IjaUC in 
their natural Capacity. 8 !!)♦ 6. i. a. ll. 

R wni I- -J- 3f a 90an holds of the King by Rent fc» aiiO tlje ^ttcargi nv 

S C but not cut, anti ttje Tenant leafes it to another, tlje i\UUJ Uiaj) Diiltatlt in 

S. P. the Lands of the Under- Tenant fOC tijClC atrCagCjS fU anp Jplace 

out of the Land held. 90, 17 3!a. 15. bCtUJeCU Catjord and Osmond^ 

pet i^obatt. 

6. In Trefpafs for Goods taken for Diftrefs In the Htgh Street^ the 
Statute was rehearfed in the Commencement of the Writ, and the 
Conclulion was Contra Legtm y Confimtiidtnetn Anglic &c. And ad- 
judged good enough and purfuanti For it is made Law and Cuftom by 
the Statute. Thel. Dig. 102. lib. lo. cap. 11. S. 8. cites Mich. £9 E. 2. 
Brief 842. 

7. The King may diftrain for Rent or Fee-Farm as well in Land 
tvhich is not held in him as in other, by all the Jultices ; For the King , 
may grant Rent, Fee-Farm &c. to hold ot htm in which a Man can- 
not diftrain, Br. Diftreis, pi. S7. cites 44 Alf 32. 

8. The King may diftrain in all other Lands of his Tenant for his 
Rent-Charge^ and may diftrain for his Services in all the other Lands 
of the Tenant. Contra of his Grantee. Br. Diftreis, pi. 4S. cites 
13 E. 4. 6. 

9. jind if the King had had a Rent Time out of Mind., and had not tifed 
to levy it by Diftrefs by the fame Time, his Patentee cannot diftrain. Br. 
Diftrefs, pi. 48 cites 13 E. 4. 6. 

Br Barre lo- The King may diftrain for his Debt, and may make levy of the 

pi 49. cites Debt which the Debtor owes to him, by levy 0/' the Tenjius of the 
S. C. Debtor, and take the Rent of them, which fliall be a good Bar tor 

them againft the Debtor who is their Lord ; Quod Noca. Br. Diftrefs, 

pi. 28. cites 21 H. 7. 12, 

u.The 



Diftrefs. 

11. The King cannot diltrain for the Debt of the Baron upon the 
Dower of the Feme, nor in her Inheritance^ nor in the joint Ptirchafe 
which /he has with her Baron ; But if the Baron was indebted to the 
King before the Coverture, there the King may diltrain in the Dower of 
the Feme ; Note the Diverlicy. Br. Dillrefs, pi. 71. cites F. N. B. 

12. C. li-as indebted to the King, and was fcijed of a third Part of cer- 
tain Lands in N. and R. was fifed of the other two Parts as tenant in 
Coramnit, and the Beajls of N. and R. pajlitrcd promifcuoiijly on the Land. 
Upon Procefs to levy the King's Debt the Sheriff took R's Cattle, and 
fold them ; but held that fuch taking was not good, though otherwife 
it v\ ould be it' the Cattle had been levant andcoucliant on the Land of 
the King's Debtor i And if my Cattle are levant and couchant on the 
Land ot the King's Debtor, the King may diltrain them Damage-fea- 
fant, but not for the Debt; Per the Ch. Biron, and two of the Barons, 
but Snig feeined to doubt. Lane 96, 97. Hill. 8 Jac. in Scacc. Clare's 
Cafe. 

13. Although the King may diltrain in any of the Lands of the Te- 
nant, yet it mull be adniitced, that it the 7'enant aliens any Part of his 
Lands, or if he devifcs, nay it he leafcs to a Tenant at a Rent, although 
hat :it Will, the King cannot dijhain upon thrfe Lands, being no Part of 
the Lands originally charged with the Rtnt ; and to it is upon a Recove- 
ry by Elegit, and theretbre even the Crown is precarious in this Mat- 
ter ; The Tenant may at any Time determine that Right of dillraining 
by aliening, by deviling or fetting his Land, It is only liable whilfl it 
is in his own Hands , Arg. 2 Vern. 714, 715. Hill. 1715. iti Caie of 
Attorney-General v. Coventry (Mayor &c ) 



151 



(L) For an Amercement. 
\Jn ijohtt Place the Difirefs tuay he taken.'\ 

I. T?©E an amercement in the sheriffs Toum foe (foppmo; a* Br. Dir- 
1; i©ai>, tijc gtljmff map tauc a DiHrcfs through the whoie":'^^^' p'-'s- 

County. * £ I), 4. 24. b. 8 i\. 2. CiUOlUrp 194- BrLe'cr, "^ 

28. and pi. 

41. cites S. C.' Br. Amerciaments, pi. 15. cites S. C. Br. Court-Baron, pi. 15. cit<?s 

S. C. Fitzh. Diftrefs, pi. 10. cites S. C. 

2. So toljCrC an amercement is vvithin a Hundred tIjC lorn of tIjC * Br. Dir- 
J:)UnUCetl map Olilram through me whole Hundred, aS IDCU OUt Offers, pi. i;. 

tljc lann agi upon tlje lann i Jfar tlje amercement noes not c^^""r^'^- 
tenatotJje LanD [onipj nor imz out of it* * 2$;. 4. 24. \s.'{^"'l\^ 
t II l;)» 4. 89. i)» jf or tl)c Junsmcrion of tlje t)imDceD is mtire pi. 41'. cite? 
tOrouglj tljc iuljole Duuurco. 13 ip* 4 9- b. 8 E» 2. auoiuri? 194- s- ^~^^- 

Amerce- 
ments, pi 15 cites S. C. Br. Court Baron, pi. 15. cites S. C. Fitth. Diftrefs, pi. 10. 

cii es -S . C. 

•f Br. Diftrefs, pi iS. cites S. C. Fitzli. Avowry, pi. 57. cites S. C, 

3 CDe Lorti map tal^c a tiiltrcfd for an amercement in a Leet in Fit^t, oir- 

his own Land which is within the Hundred, if Ije Can fintl tljC CattlC .''i^' 1'' '^■ 
Of Ijim tljat i|5 amerCn i JfOr tIjC Amercement charges only the Per- 
fon iinll not the Land. 47 <i>» 3. 13. 

4- ^0 a DiltrcCs map be talten for it \\\ tije Ipielj ©trcct. Fii/.h.D:r- 

47 ^» 3- 13. "■'='"^. ^'• 

1). cites 
S. C. 
5. But 



1 1 2 Diftrefs. 



Br. Diftreft, ^. Rut (f a £&Ti\ tZ iimCrC'D in a leCt a DiOfltf^ cannot be taken 
pi. w. cites fQ^ jf of the Goods ol the Patty aUlCrC'O'in the Lands which is in the 
H mds of the King^ though It bC within the Limits of the Hundred j 

iFoi'iiurmt); ti)i9 'Q^iine^tt i^mt of tljc Bn^Qiction oftljclcct* 



s. c 

Fii7,li. Dif- 
trefs, pi. I 5 
cites S.C — 47 (Jj, 3'. 13. 

pi. S^cTt'cs 47 E 5. 12. S. P. Br. Kcfeifer &c. pi. 5. cites 47 E. 5. 5. S. P. admitted. 




(M) By a Omimon Perfo}2. In th Houje. 
[Or ivbiU other Place.'^ 

In fuch Cafe r. A DlftrCHS for Rent \\m l3C t^\Z\X XW fl J|)0Ure, if the Doors be 

the Lord J-\ open, eJfc not 46 €♦ 3- 26. 0. 

may enter 

into the Houfe and difa-ain lor Rent or Service; Per Cur. 5 Rep 91.3. cites 58 H. 6. z6 a. and 

-■' E. -. Avowry 256. and he may dillrain in the Houfe though Lands alfo are held of him in which 

he may'diftrain, cites 29 Aflife, pi. 49. 

.^eepi. 7 2. [And] among tlje petitions ofparlianimt of tlje is c» i. 

^"^'^ fl\ 7. it ijS faiD tljat IJC fijall Olftram for Eent per Oitna ec Feneltras 

prout a Difttef!3i for i^ent map be taken in a i^oufc* 29 m, 49- 

Aloris elt. 

3. a S^an cannot BiiTiain for a Renc-Service but in the Land ouc 
of which ltiirUC0. 8 iCi, 4. 18. b. 9 O* 6. 9- 

4. As ijC cannot UiltraiU in other L.ind though it be wuhin his Fee. 
8 fX 4. 14. b* 

5. a Diftrefs out of his Fee for Services 10 nOt Ifl'aJfU!* 17 

<E. 3 43' 

6. a Diftrefs in a Way within his Fee m^ laiUfUi at COliimOll 

lain, 17 C» 3- 43- 
Sec pi 2. 7. a ^an ma)? uiiftain foi* tlje i^ent of an Ipoufe per oftu et Fe- 
neitras; amono; tlje pet!tian0 of parltaracnt of is (£. i. folij 7- it 
is faiU tijat ije* map tJiitcam pec ©ilia ct Jfencllca0 prout mnns 
eit ; It fccms asi if tijiis mm uitenneiJ tijat De misOt go to tijc Ipaiife, 
ann tafee a Difttcfsi, ot take it out of tl)c i^mooius. 
8. 3f a ^an leafes an Advowion fot life, rcnuriiio; Esnt, Ijc 

CiinnOt Dlftrain foe ti)i0 in the Glebe. 1 1 I), 6.5. 

9. 3if a v^an leales a Manor to which an Advowfin is appendant 

renDrms £vent, i)e cannot aiflrain for ti)C E?nc in the Glebe, tt-. 
caufe tlje leffot Ijatlj notijino; to go tijcueiainj. 1 1 p. 6. 5. 

10. 3if a Rent-Service llUtC^ out ol Land U);JlClj tS m 1e>eral Conn- 
ties a Difttefjj fot tlje Wmlc map be tahen iix one Coitntp. i s e, 

?• 32. b. 

11. 3jf a Rent-Charge ilTUCSi out of Land MtllX in feveral Counties, 

a iOiilcefgi fot tlje l©!jole map be taken in one couutp» is c 3- 

32. b» 
12. SoifaKentCljargeiiTuegi out ottbc LandiDijtcb is in the 

Hands of ieveral iVlen, a DlftrefS Uiap bC taUCll fOC CljC l©i)UiC ECilt 
upon the Poilblfion of one ; fOt all tlje ECUt ilTUe.S ClSt Of COCfD 

ipait. 39 air. 4- atDuOffH. 

This is in- 13- 52 //. 3 cap. 2. None /ball (iijhain any to^ come to bis (.curt, 

tended of which is not of his Fee, or upon whom he has no jiirijduiion^ by rea/wt ol-' 

Suit Service /jj^ Hundred or Bailiwick, nor /hall take IMrefes ivithout his Fee or in 

inrefpcd ' ^ •' -^ p/,^.^ 



Diftrefs. 



'f3 



Place where he has tio Jurifdi^iou. And he that offends pall be puut/hed of a iJeigiio- 

f« like Maiiiia\ according to the I'refpafs. ""y- T't.""'. 

^ ^ J^ J of6u'tReal 

in reft'eft of Rofi.ince. idly. Or that he has JtirifdicVion hy Hundred, Waj-entake or Bailiwick. 

c;dly, That he fliall rtot take Diftreffes out of his Fee or Plaje where he has a Uailiwick or Jurifdic- 

tion. :. Inft. 104. 

23. Stat. Marlb. cap. c. is a Declaration of the Common Law, fav- 
ing tor the Penalty hereby infli£led ; and therefore if A. diltrain B. and 
in a Replevy A. avow as Lord for Rent or Service., B. pleads hors de 
fon Fee, and it is found for B. A. fliall not in this Replevy be punilhed 
by Ranfom &c. according to this A£t, but he mult have an Aftion 
upon the Statute Et lie de fimilibus. 2 Inlt. 104, 105. 

14. S2H. 7.. cap. IK. * It fhall he laivfiil to f!0 Mail. This J/;/- 

t ■> J IT ■> J J ? diej bejore 

this Statute was. That whereas the King by hi': Prerogiti'e might diftr.iin for his Kenrs in any oiheP 
Ijands ot his fenant, being in his own sdtua! Pofl'ellion, thoin^li they were out ot his Fe;, and Seig- 
niory divers Lords took upon tliem alio to dillrain ont of their Fee, which was wrong and Opprel- 
fion ; And whereas all the King's Subjoits ought to have free Pafiige in Via Regia, 8c Cominuni 
Strata, as well to Fairs and Markets, as about their other .'Xffairs the Lords uled to diilrain in the 
Highways; both which Mifchief this Statute docs remedy. 2 Ind. 151. 

* This is to be ttnderflood of DiftrefTes by renfon cf a Seignkry, and not for DiHrefTes Jor Reni- 
Charges &c. or by reafon of a Leet. 2 Inft. 151. 

This Branch is but in Jjfi>mance of the Common Laiv, for regularly no Subjeft can diftrain out cf 
his Fee and Seigniory, anu therefore if the Lord do dirtrain out of his Fee the Tenant may either 
have an Aftion of Trefpafs at the Common Law, or an Attion upon this Statute, but in fome Spe- 
cial Cafe the Lord by the Common Law may diftrain out of his Fee and Seigniory ; as if the Lord 
come to diftrain, and the Tenant or any other feeing the Lord come to diftrain them, drive them to 
a Place out of the Fee of the Lord, yet in this Cafe the Lord may diftrain them out ot his Fee, he- 
cauie the Lord had ,1 View of them Kithin his cwn Fee, by realon whereof the Lord <hall be adjudged 
in a kind of PoffeiTion of them ; but if the Eeafts go out of the Tenancy of thenifelves without en- 
chafement before the Lord can diftrain them, there the Lord cannot diftrain them, though he had 
the View of them within his Fee and Seigniory. 2 Inft. 151. 



To take DiftrelTes out of his Fee ; A Hemt 

•^ -" •> Ci'ftom the 

Lord may feife in the Highway, for that is no Diftrefs but a Seifure, but he cannot diftrain for a 
heriot Service there. 2 Inft. i;i. 

Nor i§4he Highway ^ mr in the cmimon Street^ but only to the King or Intliis 
his Officers., having Spectal Authority. f™t\han 

fee taken not fimpliciter to make it utterly unlawful, as to take Advantage thereof in bar to an Avowry, 
iut Jeciwdiim ijuid., thai h to this Purpofe, that if the Lord diftrain in the High Street, or in the 
common Way, the Tenant may have an Aftion againft the Lord upon this Statute; and the Retfoii 
hereof is, that whenfoever any Thing is prohibited by a Statute, the Parry fh.ill have his * Aftioa 
upon the Statute, and the Offender fhall be for his Contempt fined and imprifoned ; And (o it is de- 
clared by Aft of Parliament, as hath been always obferved. Now if tihe Tenant fhould plead it ill 
bar of the Avowry, the King lliould lole his Fine ; for in that Nature of Suit he cannot be fined, 
and therefore the Tenant is to take his Remedy by Attion upon the Statute, wherein the King fh.ill 

have his Fine &c. 2 Inft. 151, 152 * S. P. cited per Cur. 3 Lev. 4S. Mis:h. 55 Car. 2. 

C B in Cafe of Woodcroft v. Tompton 

This Statute does not extend only to Diftrcfles between Lord and Tenant, bur alio to all other 
Diftreffes whatfoever, as well at the King's Suit, as at the Suit of the Sub]etf, fo there be other 
Goods fufificient ; alfo to all mannerof Executions, as well at the Suit of the King, as of the SubjeA, 
■with the like Caution as is aforefaid. 2 Inft. 155. 

In Writ upon this Stature he need not put the Price of the Chattic taken. Thel. Eig. 109. Lib, 
10. cap. 19. S. 1. cites Mich 19 E. 2. Brief 842. 

15. In Trefp:ifs Qj^iare Vi et Armis San&iiar' fregit c^c. et Aveii.i 
cepit, the B^iiliif juitihed for l)ilhrels/t;c //^rttj-yi/r the King, and could 
hotjind Eeajis nor Chatties of the Plcuiftff in any other Ptace^ and well. 
Br. iJiltrels, pi. 34. cites 27 Alf 66. 

16. The Party cannot diltrain in one County and drive it into another^ 
ty Reafon of the Scutuce of Marlebridge, cap. 4. but Ihall make Ran- 

R r fom, 



154 



Diiti-efs. 



fom, and this for Rent. But it is doubted there if a Man may do it 
for a Fee, or an Honour, or for Suit, or Cafik-Gitard. Quaere for 
Homage il he diftrains, and chafes into another Cdunty. Br. Dillrefsy 
pi. 36. cites 30 Alf. 38. 

17. A Man cannot diftrain in a San&uary. Per Skipwirh. Br. Dif- 
trefs, pi. 63. cites 29 H. 3. 16. 

Of Common Right a Man cannot diftrain for Rent bat in the 



Br. Diftrcft, 
pi. I . cites 
S. C 



Land out of which the Rent is ijfning ; But if the Tenant grants to me 
that if lam not paid the Rent, that I fhalldiftrain in other Land, this 
is good per tot. Cur. and there this is no new Rent. Br. Rents, pi. 
1. ci'tes 9 H. 6. 9. 

19. And ^ix Cand. ifa Man^mw/j to me that if I am not dnnaally 
iaid 10 J. Rent at Miehadmas, that I fljall dijiram in his Land in D. 
this is a good Grant of the Rent, and it is a new Rent. Contra in the 
Cafe above. Br. Rents, pi. i. cites 9 H. 6. 9. 

20. Note for Law, That he who dillrains Beafts may put them in a 
Chfe Hotife if he •will give them Food; For the Diltrefs in Pound overt is 
only to the Intent that the Owner may give them Food. Br. Diltrefs, 
pi. 66. cites 3,3 H. S. 

21. The Stat. Marlb. cap. 15. did not intend but fvr Dtjlrejfes for Rent 
or Services, and not tor thofe Things whereof no Diftrefs can be but m 
the Highway ; as Toll-thorough due by Cultom. Per Cur. Cro. E. 710. 
pi, 34. Mich. 41 & 42 Eliz. C. B. in Cafe of Smith v. Shepherd. 

22. A Heriot Cuftotn the Lord may feife in the Highway, tor this 
is no Diftrefs but a Seifure i but he cannot diftrain for a Heriot Service 
there. 2 Inft. 132. 



(N) In what Places it may be taken for a coUaieral 

Caujs, 



[Frelli Suit.] 



Co. 
161 



Litr. 

a. S. P. 

■ And fo 

It is if any 
other Per- 
lon does it. 

Ibid If 

H. 4.7- 



r. T7lTlE>Ci9 tI)£Lord is in view of the Cattle iftlje Tenant tO 
V V 3\30Ill tlje DlftrerjS chafes them into a Place not within his 

Diftrefs, pet tfjc LotD map tafee tijem frcdjlp ■■, ifoc ijc fljall not 
l)aijeari\jantan;eofl)t!5oU)nl©ronD;» 44^* 3- 20. 0^ 



a Man chafes them out the Lord may diftrain them. Bi*. Diftrefs, pi. 98. cite': I r 
• S P. For when they are in his View they fliall be adjudged in Law in his Poflcffionj 
the Reafot) feems to be becaufe they are TranGtory. 13r. Trefpafs, pi. z^6. cites z fi. 4. 6. 



Co. Litt. 2. But if tlje Cenant, nftct tljc Lorn \m tfte ©teto, cfjafcs tljc 
s p-!_s QC^ttle for otijcc lauiftU Caiift out of ijiis Jfee aitO not on purpofe to 

if the Lord Si void the Diftrefs, tDC tOtD CanilOt taUC tljeiU. 44 €♦ 3- 21. 

had no View 

of them within his Fee ; Or if the Cattle aftei- the View go out of the Fee, the Lord cannot diftrain 

them out of his Fee. Ibid. If they go out without chafing, the Lord canaot diftrain them. Br. 

Diftrefs, pi. 9S. cites u H. 4. 7, , - 



U 



' f 



Diftrefs. 



'^^ 



3. If a Mail comes to dillrain for Damagc-Feafajit or for * Services^ * Co. Litr. 
and the Diltrefs goes into other Land by chaling, he may take them '<5i-a. S. P. 
in the other Land. And per Jenney if Bealls taken lor Dillrefs efcape, ^^^ ^°^^l 
he who diftrains may retake them when be zvtll. Br. Diltrefs, pi, 49. '^^r\nc ml 

cites 13 E. 4. 8. dirtrjinthc 

, Cattle, and 

IhcTennnt cannot make Refi;ou>;s tlioiif^h the Place wlicvein the Diitrers is taken is but ot his Fes ; 
For now in Judgment of Law tl.c DilUdJi li uken within his Fee ; and lb fl'.all the Writ of llelcous 
fuppofe. 

4. If a Mat^comes to diftrain for Refit or Service and fees the Ecajls * If a M-«ti 
in the Laitd hM 8<.c. and ihs Tenaat chafes them otit the Lord may '\°.'7'"■'",- 
purfue and take them, but contra lor * Damage-Feafant cienTly. i'er Damat'e- 
Brian Ch. J. Br. Diltrels, pi. 50. cites 16 £. 4. 10. Fcifaiuard 

Ices the 
Beafts in his Soil, and t!ie Owner chafes them out of Purpofe before the Dit^refs taken, the Owner 
of the Soil cannot dilhain them, and if" he does, the Owner of the Cattle m:iy re cue them, for the 
Hearts riuft be Damage- F'eaf'int at the Time of the Dirtrefs, and fo note a Diveifity. Co. Litt. 161. A 

5. jind per Brian Ch. J. where a Mart cotnes to dijlraiu for the \^th 
granted to the King by Parliament^ and fees the Beads, and the other 
chaiiis them out oi the Yill, ,tl*e Colleiior ca?inot diftraiu than in another 
Vtll, quod nota. Br. Dillrefs, pi. 50 cites 16 E. 4. 10. 

6. If a Man comes to dtftrain, and the Par^y chafes the Difrefs out S. ? though 
cf the Land, the other may frejhly ptirfue, and cake cae Bealla tor Dif- ^^ '^^'?'" 
trefs. Br. Avowry, pi. 13. cites 34 H. 6. 18. jf^^-^La'T 

of another. 

Br. Nu'ance, pi 14 cites 9 E 4. 55. If a Man ch;ircs them out the Lord may dillrain rherh, 

Br. Diftreft, pi. 9S. cites 1 1 H. 4. 7. Br. Diftrers, pi. 90. cites 44 £. 3. 20. 

See Stat. S Ann. cap. 14. S. 2. at Tit. Rents. ( W. b). 

7. If Beafls efcape into my Land the Lord may dijirain thetn^ contra 
if he retakes them before that the Lord dijirains them, and though they 
were levant and couchant by ^o Days it the Owner takes them betore 
the Lord, there the Lord Ihall not dillrain them, but it he finds them 
there, if they were there but an Hour the Lord may dillrain them. Br.- 
Diftrefs, pi. 97. cites 10 H. 7. 21. 



(O) [Whefe the Cattle cpdpe &c. into the Land 

liable.] PI. i to 8. 

I- T Jf tIjC Cattle of a Stranger efcape into the Land holden tIjCJ? See pi 2. 

1 map be DlCtrtlinCO though tiieu arc not levant and Couchant'.' Contra ^^^ — 
Co. Lltt/47- ^ See (I) pi. 2. 

i. JftljeCattleof a Stranger efcape into tl)e tiMtOS f)3lDfll $t» 7^>f^ 

tljep * cannot ht tiiftram'u* 48 €,i. 34- 2CX4. ^6. u» contra 
7 l|). 7- I. U* Citrta. 

3- But tIjC Cattle of the Tenant himfelf mil? U DiftraUt'l! if tl)t\> 

efcape tijcre. 48 <£♦ 3- 34- 

4 ^olfttjerebe Arrearages, anO aftCC t\)Z Tenant aliens, anU af- 
tec tl)e Cattle of the Alienee eicape there, pet tljCJ? Uiai> faC DUlCam'O i 

for tljiri 10 not nnp Cfcape. 2 $)♦ 4 ^^ ij. 

5' Jf a Sc-anger kfCp0 OC caules his Cattle to be kept in a Place 

nhcre $c. tt)ep nuip lic tnKviim'?! i ifof t\}iff 10 not anp Cfcape, 

6. So 



156 DiPcreis. 

6. So if CI ^trnnSCl* hath Notice that his Cattle hath ulually, Ot 

arc ncctiaamen to bt in the Place where fc. tljcp map be Dtftram'Q ; 
jfcrtiiis 16 not an (Efcnpc. 2 1). 4. 16. ij. 

7- Clje Grantee of a Rent-Charge CailllOt DiflUcim tljC Cattle of a 
Stranger which COJHC tljetC tl^ Efcape, ailtl iltC fl'Cnjl^ ptirfUCtl ijp 

t?jc ©iynet, Oemucitr* Crin* i7lia* 'B* bctusccn Reynold and 

Cakchy. 

[ ^O. 2) At what Ti?7ie it may be taken. PI. 8. to 
the End of Roll pi. i6.j 

^ Rep. (?4- 8. 3f a i|5an icafos for Years tciilirinij Kent nun tlje Ecnt I3 be- 
b.s. p per jjij|0^ ant) alter tljc Term expires tijciciToi: canuct afteru;acri0 Oif 
ci^e'siTAff. ti^'^^i" ftic tlje laiD iUnt* cit Iccnijs to be intenOeO tijatljc tjclo ober* ) 

II. accord- 14 £)♦ 4. 3'- 

ant. 



Kcilw 9<J. pi- 5. ^^icll 22 H. 7. Anon, S. P. All the Court of C. B. held cTearlv that the LefToi' 
may diftrain loi" the Rent, notwithftanding the Term is part; And that if the LeiTor will he may 
rliftrain the Beaft.s tor Djmage-Feafant, but fays Hankford and Hill held Contra. 14 H. 4. ;i, 

IdeoQiJxre, and fays, fee n H, 7. fol 12. Tiefpals Where Rf rt is refevvV M—m a locale 

for Years at Eafter and Michaelmas for one Year ending at Michaelmas, there he cannot diltrdin 
atrer Michaelmas; For thcTermis expired. Br. Dilhels, pi. 75. cites Doctor and Studc:it. lib 2, 

9. fat Rent due the laft Day of the Term, tI)C ILcfTat CanttOt 

atftram -, becaufe tijeCerm i& enbcO before tlje Ec!it i3 bue i Jfoc 
tije lelTce fjato tije luljole ^a^ to pap it* €o. litt. 47 
cro. J.442 10. 3if a ^an learesi Lanb for ^eargi rcnbrnifl; iRa;t, anb aftct 

pi. 15.S C. (jjf Leliee holds over tfte Term, ti)£ Lelibr cannot oiltrain tjpon ti)C 
hat"?" J^i'^l''^' ^""^ the Rene incurr'd during the Term bCCatlfC t!jC ICuie lOaiS 

that the catieb before, anu tlje leffcc not in pribitp of tije leaic. 140* 4. 
Eftate.out 31 ]per ]|)tU ann Ipankforb* Si9tcl). 15 3ac. 15, K. bctuiccn n^r- 
of which ,.^fo^j and Metcaif, pet Curhim tbi9 being niob'o in aricfr of 5tUjQ;= 
l^a's<!ranted Hieiit, anD tlje J'^ottea ftap'D accotDtnglp* Contra 23 1)^1- 96. 
was deter- ' Iper Curiam H^cUeiuap. 

mined long 

before the Diftrcfs taken, fo that the Defendant had no Title to avow, Judgment was given for t!ie 

Piaintirt". I 

S C cited II. 3if a Manbefeifed in Fee Ot fOt JLi^e of a Rent-ch«rg?, attU 

bvVaughan jjffet fljC ^rrfarageS) UlCUrt'D IjC grants Over the Rent to anocher, tjC 
y'^' l" himfelt cannot alterwards diltrain tor the Arrearages incurr'd before 

.1'"° '^°' the Grant, bccaufc notu tOe atrcaraaxiS are bibitieri from t!je ifrec- 
Ijalb of tlje Eent, anb fo tlje Duhcl^ goiie» Co» 4 ^mcW 50 b» 
jsrcr Curiam* 

12. '2blje fame JLHU) f0 of a Rent-Service. C0» 4. OgneU, 50. b- 

per Curiam* 

Lat 2ti. ij_ SfLeffee for 20 Years makes a Leafe for 10 l^eatS IXrerbing 

Ibked^ner ^Ellt, 3115 Arrearages incur, aUb aftet Leifcc for co Years dies, bjX 

Cur _i — luljiclj tlje Kevierfion anb Srrearaecs bcfcenb to bus Crecutoig, tljc 

Seethe Stat. Cj^CCUtOrjSi 3110 Executors ot Executors may diltrain tor the Arrear- 
52H.8.cap. a^es jj^^,^^red in the Lite of the Teltator, becaUfe tljlTC QrrCaraJi'Ciet 

RenTsfs bi toerc neuer febereb fromtljc Rebcrfion, but tbefe Citfuterd ijaue 
tlje Eeberfion, anb Kent is annercb tbereto, nnb m tl>c fame 
l^liffljtajs tije Ccftator Ijimfelfijabit, mas mucl) a^ t!Ki>veprc- 
fent tbe l^erfon of tbe €:eftator, nnb it 10 not like a Ucbinfioii 
UJijiclj bcfcenbgi totbeOcir, anb tbe arccarases ija to tlje €%mi- 



DJitrefs. 



1^7 



tocs. '2Crm. 3 Cat* betiuecu n^'ade afut Marjh aDjiiOgeD in a Hcple^ 
liiu 

14. '^.W Attachment by Cattle in flit 3(TiOtt Of Trefpufs Otlffljt ItOt 

to EC niatJC in the N'igiu. t)\\i 37 iQ\\y, per Ctinauu 

15. So a Diitrels tor Rent-Service, Oi' ECtttChargc CiinilOt bC HI Fo.- the Tc 
t|)Ci^i0l)t» Co. Lift 142- nam is to be 

. attendant 

upon the Lami all the Day to pay his Rent ; but he is not compellable to attend in the Night. 

S) Kep 60. a. Pafch. 9 Jac in M ickally's Cafe. — ■ 7 Rep. 7 a. Trin. 29 Eliz.. C B. in Milborn's 

Ca'e, S. P. cites 12 £. 9 Tir. Dilbefv, 17. and 11 H. 7. 5 a. acconlingly. S C cited 4 Le. 

21S.pl. 551. Br.Diftrels, bl. 99. cites 11 H. 7. j. Brow nl. 176. S. P. as to Rent-charge' 

in Cafe cf Read v How. 

16. But a ^nit map Utltram Cattle Damage feafant III t!)e BisDt, 9Rep.<S5. 

forotljmuife ycrljap9 tlje Cattle irnll be gone tiitocc ije can take a/,^„*? 
tljem. Co.litt. 142. are!l^' 

7 Rep. 7.3. 

in Milborn'sCafe, S. P. and cites 10 E. 5. 21. accordingly. Br. Diftrets pi 00 cites It H 7 

5. &. P. ■ ' 

17. It a Man leafes for Years rendering Rent, and the Rent is ar» 
rear, and the I'erm expires, he cannoc diftrain, but Ihall have Adioii of 
Debt; Quod nota bene. Br. Diftrefs, pi. 19. cites 14 H. 4. 31. 

18. In Per quts Servitia, if a. Mun grants a Seigniory for 'Term of Life:^ 
the Remainder over by Fine, and the 7'enant attorns to the Grantee for 
Life, Javing his Acquittal, and the Grantee grants the Acquittal, and af- 
ter dies, he in Remainder cannot diltrain till he has granted the Ac- 
quittal likewife ; by all the Jullices, in a Note. Br. Conlelfion, pi. 
54. cites 18 E. 4. 7. 

19. Ifs Mzn grants a Reverfion depending upon a 'Term, rendering Rent, 
he cannot dillrain till the particular filiate be determined, and then 
he may diltrain for all the Arrears, but by fome he may diltrain imme- 
diately if the Beaits of the Grantee come uprm the Land ; Qusere ; For 
per Moyle, he has nothing to do till the Term be expired. Br. Di- 
flrels, pi. 47. cites 10 fi. 4.4. 

20. So upon a Leafe for Term de aiiter Vie, and Ceftuy que Vie dies ; for 
in thofe Cafes the Reverfion is determined. Br. Diftrefs^ pi. 72. cites 
Doa. & Stud, lib 2. 

21. II the Tenant offers the Fealty, and the Lord reftfes, there he can- 
not diltrain aiici heiore a new Reqiiejl, and this to the Per/on, and not 
upon the Land. Br. Tender, pi. 24. cites 21 E. 4. 17. 

22. So ot Homage i the Realon is, in as much as it fhall be done by 
the Tenant in proper Perfon, and not by Deputy. Ibid. 

23. It the Lord dif rains for Rent arrear at a certain Day his Te- 
nant's Cattle, and he fues a Replevin &c. and the Lord avows for the 
Rent &c. and the Tefiant pleads Hors de (on Fee; if the Lord (pendant 
ihat Plea') dtfrains for Rent behind at another Day after, the Tenant 
Ihali have a Writ of Recaption, becaufe the Lord's Title lliall be tri- 
ed by the firlt Plea. But otherwife it is if the Tenant in the tirlt 
Replevy pleads Riens arrear, or levied byDifirefs, then (pendant that 
Plea) the Lord may diltrain for the Rent behind at a Day ati:er, be- 
caufe that the Seigniory is there confefled, and the Tenant Ihall not 
have a Recaption. F. N. B. 71. (jS\) 

24. In Replevin the Cafe was, the Defendant avowed for a i?f«?- Lev. 4?. 
charge due in the \ ear 1660, and afterwards he dtjiramed and avowed for P.lmer v. 
other Part of the Rent-charge due a Tear bejore, viz. Anno 1659, and this^^^^S*^' 
Diftrefs was taken of the Cattle of another Perfun who was then Te- gcc^rdi^n'*! 
rant of the Lands; and upon Demurrer the Queftion was. Whether he by'^aU the ^ 
was eftopped to avow for the Arrears of the Rent-charge before the Court, pr«-- 

S s Year 



ic;7 Dilb-cfs. 

ter Mallet, Year ift&o ? And adjudged that he' was not ; but that if he had given 

and Judg- ^^ Jcqiiittaiice to the Lift Day of Payment he could not claim the Kent 

Conu'-int^'^^ due before, becauie that was"his voluntary Ad and Deed, and lliall be 

iNi"ri"&c. received to claim againft it ; but in an Avowry for Rent he may avow 

— Raym. lor all, or part, athis Pieafure, and the firft Avowry Ihall not bar him 

21. Palmer jy^,^^ avowing tor Rent betoie. Sid. 44. pi. i. iMich. 13 Car. 2. B. R- 

ed for the . _,, . t> j 

Defendant. Tbe Reafon that Mallet went tjpon was, beciufe an Avowry is a Thng upon Kecoid, 

and more than an Acquittance. Keb. 95. pi 84 Palmer v, Strotv-ick, S. C. adjornatur, — 

Jhid 11; pi. !•;. S.C. adjudged accordingly S. P. by Powell J Comb 59. Trin. 5 Jac. 

B R. in Cafe of Fountain V. Gnales. Aid he fiid, that there is a Diverrity as to an Acquittance, 
that where the Arq-iittancc for the lafl Onarrer is u-Hei- the PI liirift's Hand und Seal, and where ic 
is under his Hand only ; For in the firft Cafe it i;s an Elloppel, but in the latter it is only Evidence. 

I Salk 209. 25. A Leafe was made for one Tear^ and fo from Tear to 7'eai\ ^iiam- 
S.C.but (iiuambabHS Partil'iisplaciurtl, JdidQung 12 1. a Year Rent fo long a.s 
S. P does ^1^^ Leflee fliould occupy the Premifles. The Lelfor dilbained for a 
""' Tmv! Year and a half due atter the making the Leafe. Exception was ta- 
215,214. ken that he could not diftrain lor the Rent after the Year was deter- 
S C. & S, P niined fince it was but a Leale at Will ; fed non allocatur ; For it was 
adiudr,ed ac- ^ ^^^ j^^^^^ ^-^^ ^^^^^ Years, and after that at Will. Ld. Raym Rep. 

_"3^6;ik. 170. Hill. 8 & 9 W. 3 Bellalls v. Burbricke. 

fays the Reporter tells us, that the Law is contrary. S. P and that the Leffee entered, and 

■was in PolTclTion tor two Years and an half, and the Kent bein^ in arr.ar the LelTor diftramed ; and 
adiud<Ted that he could not by Law, becauie by this Acrreement there was an Eft,ire for two Years 
create'd, and no more ; the orher was a growing Inrerelf, or El*ate at Will, which being a diltmtt 
Eftare from the firlf, cannot be fubjedt to the Arrea. s of thv firit 5 Saik i ; 5 pi i . g ^V . ; . C. B. 
Staifitv Hicks. Ld. Raym. Hep 280. Stai-fill v Hicks, S. C adjudged per tot. Cur that the 

Diflrefs was unlawful ; For the Interei^s are different, and therefore the (econd Ellate cannot be an- 
fwerable for the Debts of the former Eltate, which was before determined. 

26. II Geo. 2. cap. 19. S.i. Enables the Landlord^ or any Perfon 
by him impcwered, m Cafe of Rent arrear^ to dijtrain Goods fraudttkntlf 
■ carried off the Premijfes by Tenant for Life, Lfvcs, Tears, at IVill, or at 
Sufferance, within 30 Days after Jiich currying off, and to fell, or other' 
wife dtfpofe of the fame, as if dejiramed ttpon the Premijfes, unlefs fold be- 
fore bona Jidcj and for a valuable Co»Jideratioa, to any Perfon not privy to 

the Fraud. 

S.z. Provided that HO Landlord /hall feize Goods fold bona fide, and for a 
ibahiabk CoiiJ^deraHon, to any Perfon not privy toftich Fraud. 



(O. 3) At what Time for Rent after their being taken 

in Execution. 

i. ^^ASE by an Executor agaihft W. Bailiff of the Liberty of the 
\^ Dutchy of Lancafler in Norfolk, and declared that D. C. on 
6 June, i'ji2.took an Efi-ate of Tefiatrix from Mich, for one J'ear, and fo 
from rear to Tear as long as both Parties fhould pleafe, at 70 1. Jl Tear's 
Rent being due 6 0£}ob. 1713. ^. cepit Bona S Catalla D. C. in & fuper 
Sc. Terr' esijlen ad valentiam 200 /. The Executor poll captionem 8c 
ante amotionem Bonorum & Catallorum &c. and the Teftiitrix in 
Vitafua dedit W, notitiam de reddit' prasdift' fie debit', and Ihe then 
Remanded of W. the faid Rene out of the faid Goods and Chattels, 

which 



Diftrefs. 



15S 



which he refufed topav, but carried oij", and removed the fame from 
the Premiiles contra Formam Statuti in eo Cafu edit' & proi'is'. 
Upon IS'ot Guilty there was Verdi6t, and Judgment for the PiaintiflT 
in C. B. and Judgment iiffintied in B. R. Hill. 6 Geo. per Powis, Eyre, 
and Fortelcue. Relolvcd ilt. The Action may be maintained by the 
Kxccutor or Adminillrator, there being a Right velhd by the Statute 
8 ylnn. cap. 17. in thefe Goods. The Aft is a general Prohibition^ that 
m Goods &<-. lying, or beitig upon- any .McJJttage &•. /ball Ic liable to be 
taken hy Virtue oj c.n Execution 8ic. on any Pretence whatlbever, u/ihfs 
the Party at I'jhofe Suit &c. Jhall before the Rem0v.1l ^c. fay to i^c. all 
fuch Suvis &c. as pall be due {or Refit ^ provided the faid yirrears do not 
a'.nount to more than one 2'ear's Reiit^ or if more^ on Payment oj one blur's 
Rent &i.c. and the Sheriff iiSc. is required to levy and pay to the Plaintiffs as 
•well the Money fo paid j or Rent as the Pxeculion Money. And iht -Di-iiy of 
the Officer is when he has Notice to keep the Goods till Payment, 
but it he removes he tranfgrelles the Aft, and he is liable to an Aiiftiou 
by the Party who is injured and aggrieved ; The Sherift'has Power to 
levy the Money, as well tor the Landlord as for the Plaintitfin Execu- 
tion. Where the Injury is to the Perfon, all fails by the Death of the 
Party ; but when it is to the Eltate, in any Manner whattoever, the 
A6lion furvives it the Eftate furvives. Thele Goods are not to be re- 
moved, but to remain as a Pledge, and it is a fort ot Poileffion in the 
Landlord, and this Aft of the Otiicer not only injures this Pofleffionj 
but the Intereft and Property of the Landlord It is ftronger than au 
Aftion for not letting out of Tithes, becaufe there is only a Demand 
lor a particular tenth Part, but no particular Property ; for till Sever- 
ance he had no Right but to an undivided tenth Part. A Year's 
Rent is fecured againll all Events. 2dly, That the A6tion was well 
founded, and the Officer well charged ; tor the Notice was to him 
ot what was due, and then it was incumbent upon him not to have 
removed the Goods till Satistaftion had been made. Notice to the 
Plaintiff in Execution was no Notice to the SherilF; but if it were to 
him, and not to the SheritF, ihould the Sheritf be liable ? As to what 
is realonable Notice, it is not appointed by the Aft. Eyre J. laid, 
that without Notice he could not tranfgrefs the Aft, but if he has No- 
tice the /^ftion is reiilonable. But pei Fortelcue, when the Law does 
not determine it, the Party muft take Notice, efpecially here, when 
the Aft lays he Ihall not remove &c. When there is a Condition in 
a Will, the Parfy muft take Notice in Law and Equity, but here 
was Notice according to the Equity of the Thing, and the right Per- 
fon had Notice. \\ here no Perlon is direfted to give Notice, ic is at 
his Peril. Hill. 6 Geo. B. R. W yndham v. Palgrave. 




(P) Pomid. [What it is, and] how he fliall demean 

/j/;;//^iy^ towards the Dilirefs. Trefpfs 



1 

I. A Pound overt is 3 pinfOlD f.iatiC fCt fUCi) pUrpOfcS, Ot tJjC 

X\ Clofcofijim tl)nt maramc', cc t^^iMz i^t a gjttuinscc, 
toittjljis; Confcnt tuyere tljc 'Diftms isi taUcn. Co, Litt. 47- 

2. a Four.tl -Coven, CtCiCtC, is Uiijlil lOCiOllUtlSt 10 lUlpQUntietl 

in an imxsz, Co. Lut. 47- 

3- W 



(G.a)i^cir 
totum. 



1 60 Diftrefs. 



3. ipitljiUClftrainganp thing that hath Lile, OUgljtta impound 
it in a lawlui Fouud, within three Miles, in the fame County. t£o^ 
Litt* 4-7- i)* 

4 BuL ifai?9ainiiai:aingidead Goods, ag iitcnfi!0 of an l^^oiife. 

Or fuel) Sll^C, wnich may take Damage by V\ ec or v\ eather, QilO tljU 

Iti^c, !jc oufrSjt to mipounti tljcm nt an l^Jiifc, or otijer Pound-Co. ere, 

witnm three Ahles, in the lame Couniy ^ jfor if IJC lUipOlUtDS tijElU 

m a ii5ciuiO=olicrt, Ik oiigOt to anftDcr for tljcnu €0. Litt. 47. 0* 

5- 3f a ^aU lS:nrant0 Cattle, ann pUtlStijCm in a Pound-overt, 
tl;r Owner ought to keep them at his Peril. (IttS. ILttt. 47- b. JfOt It 

If lauiful for Ijim to carac tljerc foe tSjiss i3iuporc» 

6 But tf i)E puts tiJC CaitiC in a Pound-CoNeVc, or ClOfC, tfjtU l)t 
OUfJiUt to UCCP tijCul at- his Peril, and J)Ct ijC fij.VH n.,t have any Sa- 

tis;aCtion l>.'r It. QuO* ILtlt. 47- b, 

v\'^.fctl ''• 2t' a C0an tnlicsi a £)ifircf0, aiiti puts it into a l^ounti-oucrt, 

S.c, auD tlje ipOde lUlJlCi) ly: 'mliXHim leaps three times over tije POlHlD, 



punidjcti in an Action of Crciparg. ?.7 Siu 04. aOjunscD* 

Yeiv 96. 8 iif a yi5an taues a Cow fcir a OiSrcfii, Ijc cannot miik her i jfor 

s. c. but tijouui) toe COiU be tIjc better for it, m i)e ouirljt not to Do gooo to 

tije Ciluner uutljout m Conrcnt, ano pprtjaps tijc S)iD:ia* luouID 



.S. p. does 



not a 



cro .ijcilic come before anp tuaaiaw bp ti/is car.c ta t!ii' Coiu, ano if jt 

.1 '47. pi 6. perifij bp ti)t3, pet be tijat taou toe Diitrefs ma}.' Datraui aijatn, aati 
BaRfhawv. ij-Q jjp 13 -It noiDaaiaLXc. p.^%\ "B* E/ betmeeii 

s. c^but i^^^y/-^«i« ^«'^ Gaiiiard, pcr Cutiaai* 

S. p. do-s 

not fully appc.if ; but it is faid thar a Dilt-ers may not be uTed, becau'e he hath it by Law only as 3 

Gage. Noyii9 S C & S. P. relblved, and Nov cited S. P. refolved in one Prideau^'iCafe^ 

becaufe it is a Punillinent to the Owner, and in Cuftodia Legis, It was argued per C^ur. thac 

if a Man takes a Dillrefs, he cannot work it ; For it is only the Aft of rhs Law that gives him Pow- 
er to the Dirt reft ; For he has no Prooerty ii u, nor PoficfTion in Jure, Ow. 124. ^lich. 7 Jac 
C B. in Cale of More v. Conham. See Tit. Ellray CE) pi. 2. S.C. 

10. Writ of Beafts taken in one County, and carried into another 
County, up.in the Statute of Marlebridge, cap. 4. and W^ellm. i. cap. 
16. was maintained without making Mention of the Statute in the 
Writ. Thel. Dig. 118. lib. 10. cap 2a. S. 4. cites 30 All'. 3S. 

11. Diftrefs taken ior Dcwiage Jeaf/int caiimt be converted to his ow>t 
Ufe, but lliall be ufed as a IJiftrefs. Br. Diltrefs, pi. 81. cites 28 
H. 6. 5- 

12. If a Man takes .^(tick-Chattks as Diftrefs, he ought to put them 
in Pound-overt, io that the Ow ner may give them Sultenance ^ But oi 
Chattte dead a Man may put it where he pleafes^ but if they are cor- 
rupted in bis Default, he fnall anfwer lor them. Br. Dirtrefs, pi. 25. 
cites 9 E. 4. 2. per Choke J. 

13. Trelpafs of taking Sheep, and detaining them till he paid 54 s. 
for Deliverance of them, the Defendant jultiHed for Dilfrels ior Re- 
lief, and that he took the 54s. for cheiir eating, abfque hoc that he 
took ic for the Deliverance, and by the Juftices it is no Plea ; For if he 
did give them Fiifuals, he cannot compel the Party to pay J or it i For the 
Diitrainor is not compellable by the Law to give them Sultenance. And 
if they agree after the Diftrefs upon this Sum, yet it is no Excufe, but 
that it is lor the Deliverance. But if they agree at tke Time of the Di- 
ftrefs taken, that he Ihall give to them Vi6luals, and that he Ihall have 

20 s.- 



Diftrefs. 1 6 1 

20 s. tor it, this is a good Bargain. Br. Diftrefs, pi. 52. cites 21 E. 

14. If a Beaft be put into a Place in which there are/barp Spikes, hy 
•which the Beaft tsjiiick, though it be a publick Pound, the Diltrainer 
Jhall anfv\ er for ic, tor it is his Pound ^ Arg. 12 Mod. 660. in Cafe of 
Vafper V. Edwards, cites Doft. and Stud. c. 27. 

15. A Pound overt is every Place where the Ozufier of the Dijfrefs may 
cane and give them Food, and be no ^/refpulfor lor there being there. Br. 
Diltrefs, pi. 72. cites Doft. and Stud. lib. 2 

i6. Beafts taken Damage- Feafant drove into another Country and fold 
there is an Abufer, And. 65. pi. 139. Mich. 23 & 24 Eliz. Pleadal 
V. Knap. 

17. If the Lord takes a Di/lrefs for an Amercement in a Lcet, he may 
either fell it or pui it into the Pound at his Plealure. 8 Rep. 51. b. 
Trin 30 Eliz. C. B. Griefl y's Cafe. 

18. Bealts taken tn Withernam may be worked. Le. 220. pi. 302. 5 Le. 25^, 
Mich. 32 & 33 Eliz. C. B. Chamberlain's Cafe. ^^ Pj;^^ 
S. P. Becaufe they are delii;erd to him in lieu of his own. Arg. 1 2 Mod. (j5o. Hill, i j W. J. 

19. If there be a 0/y?o»; within a Town that if a Butcher kills any 
Beajts within the Town, and fells the Flejh within the Market he Jhall pay 
ad. Jor every Hide, and that the Bailiff may dijhain the H.de for the 2d. 
if denied i admitting the Cultom good, and the Diftrefs ot an Hide 
well taken, yet the Bailiff cannot Ian the Hide to prevent its being 
rotten, tor theCuftom ro diftruin the Hide does not enable them tan it, 
for the Property is quafi altered thereby, the Marks by which it 
might be knowFi being taken away from the Owner fo as he cannot 
have it again i adjudged. Cro. E. 783. Mich. 42 Eliz. Duncomb v. 
Reeve and others. 

20. But by P^pham, in fome Cafes a Man may meddle with and 
ufe a Diltrefs wnere it is for the Benefit of the Owner i as if one dif- 
irains Armiurj he mav caufe it to be fcoured to avoid Rufl ; Or it one 
diftrains Rau-Cloath, he may caufe it to be fulled. Ibid. 

21. Ir a I\jan pu.s Cattle in a Found Covirt or Clofe, there he ought And \fthey 
to keep them at his Perilj and yet he fhaJl not have any Satisfa£tion ^e ra"id a 

for ir. Co. Litt. 47. b. Treipaflbr 

ab initio. 

Hct 76. Hill. 5 Car C. B. Perkins v. Butterfield. 5 1 Hen. 3. enaffs that the Owner pall mi 

fay Jor keeping the Cattle, but may feed them himfelf. 

22. 'U'here one diitrains rf^a^Goorfj, or Things inanimate, he muft 
put them in a Pound Covert within three Miles of the Place &c. and 
in the fame County, tor it he put them in another open Pound, and they 
be llolcn, or receive Damage, the Perfoa dillraining will be anfwerable 
for them. Co. Litt. 47 b. 

23 A Diftrtfs of live Cattle may be kept in any open Place in the 
Landlord's own Grounds, or in the Grounds of another by his Con- 
fent, as well as in the common Pounds, if he give Notice to the Owner 
of the Cattle whire they are; but it he gives no Notice, and the Cattle 
die for want ot Food, the Landlord mult make Satislaclion for them. 
Co. Litt. 47. b. 

24. Cittle t-iken as a Dillrefs cannot be worked ; For it is only the Cro. J. 148. 
A£l of the Law that gives Power to the Diltrefs i For the DiltrainorS. P. but :* 
has no Property in the Dillrefs, nor Poff Ifion in Jure cites 21 H. 7. ^^"^^.J^^^" 
Replevin. A Man has Return irrtplevijable he cannot work them ; For ^-aufe for the 
the Judgment is to remit them to the Pound there to remain. Ow. Owner's 
124. Mich. 7 lac. C. B. in Cafeof xMoor v. Conham, cites S.C. Ee;icfit. — 

^ ' •* ' It one has 

Brails dcliver'd to him in If'ithernam he may work them; becaufe he has them in lieu of hi.s owri 
Beall.s, and it is reafonable that he fhall have their Labour and Ule tor tlieir Failure. D aSo. *= 
Marg. pi. 14. cires ic as agreed for Law by the Julliccs Hill. 33 Eiiz. C. B. 

T c S.5 In 



l62 



Diftrefs. 



25. In Trefpafs for taking two Horfes from his Cart loadm with Corn, 
the Defendanc juftified as a Diftrefs for Rent-Service ijjnittg cut cf the 
Land where &c. The Court were of Opinion after feveral Debates that 
the Diftrefs was well taken. Sid. 440. pi. 9. HiJI. 21 Car. 2. B. R. 
Webb V. Bell. 



Vent. 56. 
Welfh V. 
Bel). S. C. 
and favs it 
ap'.icar'd 
alfn in tVie 

that there was a Servant in the Cart, and therefore it was infilled that the Cart and Horfes were pri 

vilecM- Et Adjornarur. Ravm 218. vS C but S P does not appear. 2 Lev. 

S. C but not S. P Freem. Rep. 106. S. C. but not S. P. 



73- 



Wood. In ft. 
191. 



* See (H) 



S. P Arg. 
Ld. Raym. 
Rep. 720. 
cites z-j ACT. 
^4- 



£6. 

were Things of 
mage . 



Defendant dilbained ;) Trunk, and being informed that there 

Value in it he c.iuled it to be corded to prevent Da- 

and'for that he uas adjudged a Trcfp-dlbr ab Initio ; Cited per 



I'wifden to have bjcn fo adjudged belcreRoll Ch. J. Vent. 37. Trin. 
21 Car. 2 B. R. 

27. li Turves lie tipcn a Connnon Damage-Fcafant^ though for this a 
Ctimmonermay dilbain them, yet he cannot burn them. 2 Jo. 193. 
Pafch. 34 Car. 2. Bromhall v. Norton. 

28. One cannot break open the outer Door to diltrain for Rent per 
Ch. j. But per Pollexten, If the outer Door be open one may break open 
the inner Door. Comb, 17. Palch. 2 Jac. 2. B. R. 

29. If a Landlord come into a Houfe and feifes upon fbme Goods as a 
Diftrefs in Name of all the Goods in the Houfe that will be a good 
Seifureof Alii ^\xt hs miijl remove them in convenient Time at Common 
Law ; and now fince the late Statute of * W. S M. immediately, except 
it be Hay or Corn ; and here for that the Seifure was on Monday^ 
though of Barrels of Beer not ealily removeable, if at all without 
Damage, and no Removal till Wednefday when the Defendant too.k- 
them by Virtue of a Replevin, in which the LelTee and not the Dif- 
trainant, was made Detendant, and befides the Plaintiff quicred Pof-j 
feflion of them the two intervening Niglus, and had not the Polleflionl 
•at the Time of the Taking by Virtue of the Replevin, without which! 
there could be no Refcous, the Plaintiff was nonfuitedj In this Cafel 
it appeared alfo, that the Dijlrainant drew Beer oat of one of the Bar' 
rels i which per Holt Ch. J. made him a Irefpaflbr ab initio as to thacl 
Barrel only. 6 Mod. 215. Trin. 3 Ann. B. R. in Cafe of Dod v.| 
Monger. 

30. li' Lands in dijfant Counties are demifed by one Demife, referving otie] 
iptire Rent, the Diftrefs taken in the one County cannot be driven into 
the other; Per Holt Ch J. but otherwife if the Counties and Hun- 



Ld. Raym. Rep. S5 Trin, 7 \V. 3. in 



Per Holt 
. 12 W. 



he 



, ..^ may put I 
3. B. R. Vafpef 



dreds are contiguous ; Per Cur, 
Cafe of Walter v. Rumbal. 

31. A. diftrained an Hof Damage feafant ; 
him in a Pound-Covert, i Salk. 248. pi. 3. Pafch 
V. Eddowes. 

32. K common Pound is the Pound of the Dijiraitior for the Time^ 
and if he will ufe it he muft take Care to keep it fo, that if it be in aj 
broken Condition, or an improper Pound for the Thing to be impound-] 
ed. As a Pig &c. and the Diftrefs efcapes, the Diftrainor (hall not takej 
Advantage of his own Neglefl: fo as to bring Trefpafs afterwards. 12 
Mod. 664. Hill. 13 W. 3. Vafpor V. Edwards. 

33. Common Pounds rtrt; either ^)' Ca/lom, Tenure, or Agreement, a- 
mong the Inhabitants of a Vill or Manor, and not by Common Lawj 
Per Holt Ch. J. 12 Mod. 664. in S.C. 

34. A Ti'i&.xtk may not betted^ for that would be a Mifufer, and a-j 
mount to a Converlion 
Vafpor V. Edwards, 



Per Gould. J. 12 Mod. 661. Hill. 13 W. 3. 



35. Diftraines 



Diftrefs. 



163 



35. D'i&.i:ii\ner annot titn raw Hides though it be for their Preferva- 
tion, cites Cro. E. 783. Nor fHilk Ccws to preferve their Milk, or fave 
them I'rom Hurt, cites i Roll Abr. 673. though it be allowed, Cro. J. 
148. that Kine may be milked to prevent their being (polled 3 Per 
I'owis J. who laid that he took Roll Abr. to be Law. 12 Mod. 662, 
"Hill. 13 W. 3. in Cafe ofVafpor v. Edwards. 

36. It xht Plaintiff fiitfers the Dijinfs to cfcdpe by his own Confent^ 
this is a Difcharge of the Trelpafs, but then it mult be ihewn in the 
Bar ; Per Gould. J. 11 Mod. 21. pi. i. Hill i Ann. U.R. in Cafe of 
Jafper v. Eadowes. 

37. If a Landlord diflrains for Rent, and keeps the Goods on the Pre- 
nnffes longer than a reajonable T'lnie, which the Law allows him to re- 
move them in, be is a Ti'efpaffor ah initin^ cited by Fortcfcue J 2 Ld. 
Ravm. Rep. 1427. as a Cafe betv\een CiirtlDtigOt aUO COmblt ac 
Kill Prius, tried before the Earl of Macclesfield wnen he was Cn. J. of 
B. R. 

38. No Juftification can be good for deftrvying a Thing diftrained ; 
For all Diltrelies ought to be falely kept. 8 Mod. 330. Mich. 11 Geo. 
Sparks v. Keeble. 

39. In 1'refpafs for entering his Land Defendant pleads an Entry and Although 
Diftrefs for Rent. Plaintiif replied, that Defendant continued upon the ^^e Party 
Land 6 Days., and had eight Bailitfs there. On Demurrer Judgment "^if,!,^"^^'' 
was lor the Plaintiff j For the Couit faid, that by the Common Law a HoVfe^and 
Perfon that diftrains was obliged to carry off' the Diftrefs immediately., and diftrain the 
put it into a Pound-covert., or a Pound-overt, and not detain it on the Land Goods, yet 




not be carried otf without Damige to the Tenant, which implies that "»''?«' them 
a carrvingoff the Diitrefs is neceifary. Barnard. Rep. in B r' ^ ^ ^„"'''='' '" « 
Mich.'i 3 Geo. Griffin v. Scott. ' "' ^' ^^ctfe'"'' 

inon Law no Diftrefs could be impounded on the Premises, ard for that Reafon Sheaves or^Shod« 
of Corn were notdiftr.iinable forRent, hecaufe nothing could bd diltrained but what min-ht hf re 
turned in as gcod a C(.rd:tion as it w;.s in when the Diftrefs w.ist.iken, bur after a Removal Sh-aves 
of Corn cnuld not be rertored in the fame Condition circs Co. Litt. 47 . a. and therefore rlie Statute 2 /K 
&PM. Se/. l.cjp 5. gives the Leffor Power to difirain Sheaves ot Con, &zc. and to hck. „p onddetam the 
fame upon the Place where it was fcund; but that is only in the p'.rticular Cafes mentioned in that Ait • 
Per Cur. 2 Ld. Raym. Rep. 14^6. Mich. 15 Geo. in Cufc of Griffin v. Scott &. al". ' 

40. II Geo. 2. cap. 19. S. 10. Perfon s lawfally diftraining fr any 
kind of Renty may impotmd the fame, of whatever kind, in fuch^Place or 
m ftich Part of the Premiffes, as fhall be muft convenient for faunnp the 
fame, and to appraife, fell, and dtfp(fe of the fame upon the Premiffes, a<: 
in like Cafe may be done ojf from the Premiffes by the 2IV.& M. or the 
4 Geo. 2. And any Perfous may come and go to and from fuch Place or 
Part of thefaid Premtfjes, -j)here any Diftufs for Rent fhall be impounded, 
andfectired as aforefaid m order to view, appraife and buy, and alfo in or- 
der to carry oft' and remove the fame on Account of the Purchafor thevco' 
and that if any Pound- Breach, or Refcousftmll be made of any Go-ds and 
Chattels, or ^^ock diftrained for Rent and 'impounded, or ouherwife fecund 
hy Virtue of this A tt, the Perfon or Perfous aggrieved thereby (hail have 
the like Remedy, as m Cafes of Pound-Breach or Rifcoiis ts given and 
provided by the j'aid Statute. 

(P. 2) What 



1 64. Diftrefs. 



(P. 2) What fhall be faid a Refcous of ths Diftrefs. 

S. p. But he I, TTf THERE a Lord comes to dijtrain and fees the Beajis, and the 
^d take"" V V ^^"^"^ pcrcerjing it, chafes the Difirefs out &c. the Lord lliall 

them which """^ '""-^^'^ Writ ot'Reicous i lor he never had Pollelfion of the Bealts i 
fee in N.<t. Per all the Jultices, itx. Kclcous, pi. 13. cites 21 H. 7. 40. 
Brev. in tlie 

Writ of RtTcOTis. Br. Refcous, pi 24. cites 14 H 4. and 44 E. 5. ^ Virh^LovA At grains Qsx- 

tle out of his fee in Lsrds not held uf liim, the Tenant mav make Refcous unlets in feme Special 
Cafes, as if the Lord come ro diftrain his Cattle v, hich he feej then iirthin lis Fee, ar.A the Tenant 
or any other to prevent the Lord to dilbain, Arive the Cnith ci't of the Fee of the Lord into fome other 
Place out ot his Fee, yet m.iy the LcrA freply jcllow and diltiain the Cattle and the Tenant cannot 
make Relirous; Al!-eit the Plare where the JJ ftreis is taken is out ot his Fee. For nov. in Judgment 
of Law the Diltrefs is taken within his Fee, and fo fliall the Writ of Refcous fappofe. Co. 
Litt. 161. a. 

2. Refcous is when the Lord in the Land held of him dijlrairis for 
his Rent arrear, if the Diftrefs is refcaed from him. Litt. S. 237. 

3. So if the Lord comes on the Land to difirain, and the 7'enant or an- 
other will not fuffer him. Litt. S. 237. 

Refcous is 4. Refcous is a taking away and fetting at Liberty againfi Law a Di- 
>iot hut where^rcfs taken, or a Perfon arrett d by the Procefs or Courfe of Law. 
hehasPof ^^^ ^jj j^ ^^^ as to the Point oi' the Di/feifm to refcue the Dittrefs 

jelhon of the ,. , i , i i j ra j • i /i i i i • 

Cattle or after It .'s taken, and bejorehaiid to rejtft 3.na withltand the taking ot it j 

the Thing but yet it is no Refcue till it be diftrained. Co. Litt. 160. b. 

ot which 

the Fc'cous Is fuppofed to be made; For if one comes to arrcft a Man, or todiftrain, and he is 

difturbed to Co it, he fhall not have a Writ of Refcous, but an Action on the Cafe. F. N. B. 

102. CFj. 

5. If the 'Tenant refcues the Difirefs^ and after is diffeifed of the Tenan- 
cy, yet the Affife lies againft him for the Dilfeilin done of the Rent by 
the Refcous. Co. Litt. 160. b. 

5. When a Man has a Dillrefs, and the Beajlsy as he is driving them 
to the Pound, go into the Houfe of the Owner, if he that dillrain'd them 
demands them of the Owner, and he delivers them not it is a Refcous 
in Law. Co. Lite. 161. b. 



( Q^) Refcous of a Diftrefs. IPIjo may make it. 

[And what Remedy ths Diftrainer has where the Dif- 
trefs was with Caufe. Roll pi. 6.] 

Tf T ,1 I Tjf a ®itUrii<l^rains nip cattle without a Caufe, P£t a Stranger 

diftrainrhis \ cannut of i)!0 0^11 ioctio tcrciie tljem from Ijmi ; ifoc ije 
Tcr.ant-s ij^tl) gooD Caiifc tfl ijA^c tijciu asauift l)inn 39 ^» s- 35- b. 

Cattle, and ^ 3if a 90311 diltrains my Cattle tOgCtijeC with the Cattle ot J. S. 
CatTkfor'' without Caufe | S. or J may juftily tl)C ECfCUE Of alU 39 €. 3- 
Kent or° 35- l3» W- CtjOtp* 

behind, when there is not any Rent or Service behind, the StJarger may refLUe his own Cattle, but 
not the'Tenant's as it feems. And that as it feems by the Stature of Marlbridfje cap. ^. which wills, 
Non ideo puniatur Dominus per Redcmptionem, yet the Opinion of Thorpe. jM. ji E. j.is contrary ; 

' tnr 



■1 



Diftrefs. 1 6 ^ 



for he r.ys, the Stranger n,.y .efcue as well tlie Tenants Cattle as his own * Qnxvt. F. N B. 102. 
£) and .n Marg. cites s. C * Ibid, .n the new Notes there (b) fays and note 4 E,^ Dif- 
trefs 74. contra See 6 E. 4 "• 5 E. 4- 'o. n- 19 H. 7. 4S E. 5. 5?. 3 H. 4. "• " H. 6. 37. 
contra, 2y E 3. 35. 4^0. 11. b. BeviU s Cafe. 

3. jfaDiftrcfs betal^enof Goodstnitljaut UCaufe tljc <^«'ner s.j.^er 
m.iy itfcuc tijcm. Co* LltU 47- b. R"/y„ ,0^ 

Jilich. 8 W. 5. in Cafe ot Cotfworth v. Betifon. i Salk. 247. pi. z. S. C. & S P. in a 

I>Jote there. 

4. But if a DiaceHj be taltcn luitljout a Caiife iinn put into tU ^"''^V p'- 

PaUnU, tljC Owner cannot break the Pound, aUD tuUC tljCUl OUt i i^ h S 
UCCaUfC ti)Zj> are tit t!jC Cullody ol the Law. Co. £ttt. 47- t>» s. P. inC. B. 

Bendl. 

30. pi. 48. S. P. accordingly by the Juftices of C. R and feems to be SO. S P per Cur. 

I^d. Ravni Rep. loj Mich. S VV. 3 in Cife of Cotfwonh v. Eetifon. i Salk 247. pi. 2. 

S. C. & S. P. 

5- 3if a ^nn takes Cattle Damage-Feadint ailtl pUtS tijCm illtO ^>r^:^^ 
a PwUllH, ailO tljC Owner that hat.i Com mm th.;re makes Frelh Suit J^Ll^l^^ 
and llnd^ thi Doors unlock'd IjC lliap jultity tijC taktltn; OIL" tl)C CattIC ^-^^'^ 

in a l^arco Jfracro. Co. litt. 47 b. 

6. But it tijC W)m\tt breaks the Pound attn tHW OUt I)!0 <35OOb0, 
ije tljat DtftraUl'U tijein map Ija\)e IjiSS Action de Parco Fraao, and 
map aU'O take again the Goods diltrain'd \3)\}tXt i)C fillD^ tljeill, and 
impound them again. CO. JLltt* 47- [bj. 

7. Refcous l^y Guardian of the Land and Heir of IK B. for T>ijirefs 
for Aniircenient ^ and the Deiendant made Refcous, and there it was 

agreed, ihai h a. Man di/hains tortictz/Ij the Owner ol the Bealts may 
fuake Rejcciis. Br. Relc(>us, pi. 12. cites 39 E. 3. 35. 

8. But it was agreed Pafch. 4 E. 6. that (/a Man diltrains tortkujly 
and p/its thmi in Potind^ that the Owner cannot break the Pound and take 
them outi For they are in Culiody of the Law. Ibid. 

9. li ^ Mdti diffrains tortiou/Jy, the Owner of the Bcafts may make R**- I^<^'"^°>^S 
Refcous. Br. Diftrefs, pi 26. cites 39 E. 3. 35. But P. * 4 E. (>.f^l;^^^Z 
it was agreed that z/ /fee diftrains tortioufly, and hnpounds thtm the * Br Dif- 
Ov\ner cannot take them out i For they aie in Cultody of the Law. trefs pi. 74. 
Er. Liillrefs, pi. 26. c'tes s C. 

' ^ & P by 

the Juftices for Law. 

10. If the Lord dijlrains without Catije^ yet he 'Tenant cannot make Ref- 
cciis per Mombray. Br. Refcous, pi. 25. cites 40 E. 3. 32. 

II It a Min dijfrains my Beafts which come into his Land by Efcape S. P. Rr. 
I may relcue them, but if I keep or put them there, or if I have No- y''''^'s 
tice that they ule to go there, this is no Efcape. Br. Refcous, pi. 5. ^ 
cites 2 H. 4. 16. 

12. Jn Cafe ot a Diflrefs/flr 2 d. a Score of Sheep of any Stranger paffing Mo. 574. 
;pfr ^ t>ans the fatd Vill^ and it it was denied on Requelt that they Tp"!'?' 
^ufed todillrain, it was inlilted that a Man cannot prefcribe to dijfrainforit ;^^^^„eJ t^,at, 
¥ia Rtgia^ tor that it is againft the Stat, ot Marlebridge, cap. 15. and that Pre- 
cired 17 E. 3 1. 43 E. 3.40. n R. 2. Avowry 87. 17E. 3.43. that fcription is 
where a Lord diftnnned in an Highway the Tenant might ha\e Trcf- "^"^ K"""? 
pais or make Reicous ; and that againft a StaLute one cannot prelcribe, gj,|g ,„ oi^g 
and cues 9 H. 6. 56 and Dyer 232 and 273. But this E.\cepLion w;.s Toll for 
not allow'd ; tor it was htld that this Statute did not intend but ior^^^^^^\^ 
D'tji')-tf]ts for Rents a>/d Services y and not lor thofe Things whereof no ^'^ Kegia, 
Diltrelscan be but in the Hignway. Cro. E. 710. pi. 34. Mich. 41 &: heritince"of 
42 Eliz. C. B. Smith v. Shepherd. everyMan 

in Paffaire in 
Viis Regiisis precedent to all Prefcriprion<!. Eat ifthe Party fhews Caufe for the To!!, as if he is 

U u bound 



1 66 Diftrefs. 

bound to repair the Bridge or Caufev See then it may be reafonable Caufe for the Commencement of 

the Toll and Prerjription ; But for Toll Traverfe it is clear that a Man may prefcribc. Sec 

Tit Toll (A; per cotum. 

Where a 13. The Rent muft be behind, or elfe the Tenant may make Ref- 

Man di(- j,,-,,jg . Pqj if f,Q ^g„^ be behind when the Diftrefs is taken, how can the 
trams ihe Refcous amount to a Difleilin of the Rent when none is due \ Co. Lite. 

rot make 160. b. 

Refcous though no Rent be arrear, quod nota bene. Br. Refcous, pi. 16. cites 9 H. 7, z. 

14. And/o it is if the 7'enant rcfijls the Lord to diftrain when there is 
ro Rent behind, this can be iki DilFeilin of the Rent for the Caufe a- 
bovefaid, and this (as it appears by Littleton) holds as well in the Cafe 
of a Rent-Service between Lord and Tenant, as in Caie ot a Rent- 
charge &c. And fo I heard Sir Chriliopher W'ray fay that he had ad- 
judged it. Co. Litt. 160. b 

15. And that which the Tenant may do when there is no Rent behind, 
may a Stranger do^ if his Beafts are diltrained. Co. Litt. 160 b. 

16. If the Tenant tender the Rent to the Lord when he is to take the 
Dijlrefsy if notwithllanding the Lord will diftrain, the Tenant may- 
make Refcue. Utfupra. 

If the Rent ot the Lord be behind, and the Lord dijirains the Cattle 
of the Tenant in the Highway within his Fee, the Tenant may make 
Refcous ; lor that it is defended, by Law to diftrain in the Highway. 
Ut fupra. 

17. And by the fame Realbn, if the Lord will diftrain Averia Ca- 
rrico', where there is a fujficient Diftrefs to be taken bejides ^ Or if 
the Lord will diftrain any thing that is not dijlratnable^ either 
by the Common Law, or by any Statute, the Tenant may make 
Refcous. Co. Litt. 160. b. 161. a. 

18. If the Lord coramg to diftrain had no View oi the Cattle within his 
Fee, tho' the Tenant drives thill ojf purpofely^ or it the Cattle theinfehes 
ajter the View go out of the Fee^ or il the Tenant ajter the View removes 
them Jor any other CanJ'e thin to fTevent the Lord ot his Diftrefs, then 
cannot the Lord diftrain them out of his Fee, and it he does the Tenant 
may make Refcous. Co. Litt. i6i. a. 

1 Salk. 247 19. Where Goods are difiratned without Caufe, the Owner may refcue 

pi. 2. Mich. i\\tim before they are impounded, but he cannot afterwards break the 

c B Cotf- Pound and take them out, becaufe they are then in the Cuftody of the 

worth V. Law. Co. Litt. 47. b. 

Bettifon, 

S. P. aocordingly. Ld. Raym. Rep. 104. 105. S. C. & S. P. held accordingly. 

20. If the Lord diftrains his Tenant's Cattle, and a Stranger's Cattle^- 
for Rent or Service behind, where there is not any Rent or Service be- j 
hind, the Stranger may refcue his own Cattle, but not the Tcaanc's, as ■ 
it feems. And that, as it feems by the Statute of Marlcbridge, cap. 1 
3. which willeth Non ideo puniatur Doniinus per Revicmpcionem ; ' 
yet the Opinion of Thorp. M. 31. E. 3. is contrary i lor Jie fays, the 
Stranger may refcue as well the Tenant's Cattle as his own. Quaere. 
F. N. B. 102. (E). 




Diftrefs. 



167 



omesj 
cites 



(Q. 2) RefcouS. Writ and Pleadings. 



I. T N Writ of Refcous made of Goods and IVlerchandizes refcuedj 
j[ lor which Toll ought to be paid, the W^rit was, that the f hat- 
ties were t^ken at C. for the loll, and would have detained them ac- , 
cording to the Law &c. and that the Defendants refctted the fame 
Chaitleszvhhotit faying where the Refcous was made, and yet held good ; 
For it fhall be intended at the Phtce where the Taking was. Ttiel. 
Dig. 99. lib. 10. cap. 9. S. 6 cites Mich. 30 E, 3. 20. 

2. So in Trefpafs for taking an EJiray. Thel. D;g. 99. lib. 10. cap. 
9. S. 6. cites Briet 333. 

3. Refcous, becaule the PlaiHtiff diftrained in his Fee in B. in Land Br. General 
held of him, and the Defendant made Refcous ^ and the Defendant Ja/d^Brkf, pi. 4. 
that he held two jlcrcs there of the F/ai'Jtiff., and three jicres there of N.'^^^'^^ ^ C. 
and the Plaintiff would have dtffrained in the three Acres which are out~^^^ \ j 
of his Fee, and the Defendant made the Refcous. The i'Lnutiff /^■V/5pi. 45 citi 

that he came to the two Acres to have diff mined, and faw the Beajts there, S. C. 

and the Defendant perceiving it chafed them into the three Acres, which Thel Dig. 
are out of his Fee, and the Plaintiff came there frefhly and would have di- . g' , j' ^^^' 
Jlratned, and the Defendant made Refcous Vi & Armis. Cand. demand- cites S.C. 

ed judgment of the Mm, which is, that he diftrained wirhin his Fee, 
and now he contelies that it out ot'his Fee, and in this Cafe he ought 
to have Writ accordingly i but Thorp [awarded him to] anfwer; For 
there is no other term oj IVrtt in this Cafe ; and alfo when he came to the 
two Acres to diltrain, and you perceiving it chaled them into other 
Land, it is lawlul tor him to purfue and diftrain there, and this taking 
reters to the firlt Place j by which the Plaintiff faid, that be was har- 
rowing in the two Acres, and when he had Jiniped it, went to the three 
Acres to perjorm his Overa/gne proui 8ic. abfque hoc that he chafed for 
this Catife, and the others e contra, and lo the Caule in Iliue. Br. 
Refcous, pi. 3. cites 44 E. 3. 20. 

4. Where a Man avows for Rent, and after dijlrains and avows for 
Homage, and the Plaintiff flies Ricaptwn, and afiir in the Avowry dtf- 
claims to hold of the Defendant, by this he has not abated his Recap- 
tion ; and fo lee that a Man may have Recaption agamft hnn who has 
not Tenure if he diflrains twice for one and the fame Caiife, but if he di- 
ftrains for Rent ot one Day, and alter, pending the fame Replevin, 
diftrains for Rent of another Day, Recaption docs not lie. Br. Re- 
caption, pi. 4. cites 4*7 E. 3. 22. 

5. And alio it feems there, that where a Man diflrains for one Caafc, 
and after jor another pretended Catife which is not true, yet Recaption 
does not lie, and the llfue was, if he took the lecond Diftrels for the 
firft Caufe or not ? Ibid. 

6. In Refcous of Diftrefs it was awarded a good Plea, that be had a Br. Refcous 
great Wafle adjoining to his Manor, and he fut his Beajis there, andthty?^- 12- cites 
efcaped into the Place where 8<.c. and the Plaintiff took them, and he made ^ p- ^^^ 
Refcous; Nota. "^r. Diftrels, pi. 12. cites 2 H. 416. 

7. But it was faid, that it a Alan keeps his Beafts in the Place, or has Br Rercou?< 
Notice that they u/ual/y came to this Plate, thfs is not an Ellape ; Q_t.iod pi i i- cites 
iS'ota. Br. Diitrefs, pi. 12. cites 2 H. 4. 16. ^-^ ^nd 



S. P. 
8. Writ 



1 68 Diftrefs. 



* 



Bi-. Ref- 8. Writ ot Refcous upon Diftrefs taken for Rent arrear ; it was faid, 

cous pi. i8. jj^^j # Rietts Arrear^ and || Ne unqiies feifte^ are good PJeas in VN'rit ot 

s'^and^E'^ RefcGus, quod non negatur, tamen quaere inde. Br. Refcous. pi. 6. 

4. I0.2O cites 2 H. 4. 22. 

Contra that 

it is no Plea ; For he tray aid himfeU in Replevin and fufFer the Diftrsfs, Per Choke ; Qiia?re inde. 

S. P. Br, Refcous, pi. 20. cites 6 E. 4. 1 1. || Nf ungues feifie after the Limitation is no 

Plea, per Yelverton ; Contra in Avowry. Br. Refcous, pi zo. cites 6 E. 4. 11. 

9 In Refcous the Plaintiff Was compelled to Jbeiv for "whnt Rent he 
diftrained^ and for what 7'erm being in Arrear and otherwife ill, by 
\\ hich he fliewed the Tenure, and for 20 d. arrear luch a Feall he 
diflrained, and the Defendant made Refcous j the Defendant took Ex- 
ception becaufe he (y/f/ «o? ^//e^i 6V.y7//, e: non allocacur. Br. Refcous, 
pi. 7. cites 8 H. 4. 2. 

10. By which he fa'id that where A. B. granted to the Plaintiff the 
iSeigniory, the Tenant did not attorn by "which he made Refccmt, et non al- 
locatur ivithont pewing that he is fertenant or other Authority. Ibid. 

11. And therefore he faid that he as Servant to the Tertenaiit, and by 
his Command made the Refcous. Ibid. 

12. In Refcous the ZJf/^W^^^ to the Vt et Armis pleaded Not Guilty., 
and to the Refcous fiid that the Plaintiff's Servant took the Defendant's 
Sheep in his Several in C. and he made Refcous, abfque huc that he took 
them in A. Prift &cc. et adjournatur. Br. Refcous, pi. 9. cites 
7 H. 6. I. 

13. In Refcous the Vlsiinn^ counted that R. was feifed of two H^ufes 
and held them of hint by Fealty and two Shillings Rent payable at Rafter 
annually, cf ivhich Services he was feifid by the Hands of the faid R. 
as by the Hands of his very Tenant, and hir the 2 s. Rent- Arrear fuch a 
Feall he dillrained, and the Defendant made Refcous j The Defendant 
pleaded Unques fdjie per my les mains, Prift, and the others e contra ; 
Per Newton this is no Plea tn this Atiton, Ipr here the Tnurc is only 
traverfable and no other Thing. Br. Refcous, pi. 10. cites 22 H. 
6. 27. , 

14. And from hence it follows that i?iif«.J Arrear is no Plea in this 
A£lion, by v/hich Prifjt imparl'd, and the like Palbhae hoc Anno. 
Ibid. 

15. Refcous that he difirained T. in D. for Services &c. and he made 
Refcous, it is no Plea that the Plaintiff diftrained in S. abfque hcc that he 
dijlrained in D. for he ought to jujlify the Refcous, per tot. Cur. By 
which Pole faid he diftrained in four Acres in S. which was the Frank- 
tenement of the Defendant, by which he made Refcous, abfque hcc that he 
dillrained in D. but after he faid that he was feifid in Pee of the four 
Acres in S. and the Property oj the Beafts were tn hitn, and the Plaintiff 
diflrained, by which he made Refcous, abfque hcc that the Plaintiff 
diftrained in D. Prift, and the others e contra. Br, Refcous, pi. 11. 
cites 22 H. 6. 54. 

Br. AfTifc, 16 Rclcous may be and yet not Fi et Armis. Br. Refcous, pi. 2. 

pi. 27. cites ^,i^(.3 33 H. 6. 

20. S. C. 

17. In Ref^-ous Hors defon Fee is a good Plea, per Cur. Br. IflLes 
joines, pi. 26. cites 38 H. 6. 26. 
Thel. Dig. 18, Fvefcous bec.iufe he diftrained for Rent- Arrear jcr three Days, and 
25S. Lib. fi^g liclendant nude Refcous, and /; appeared that the third Day was not 
S**s9^citcs ^"'"'^ ^'^ ^^^ "^""^ ^'f ^^^ Taking, by which the Delendant demanded 
Trin! 9 H. Judgment vj the Count and that the Writ abate, atid per Cur. the Count 
7. 4 S. p. IS g(.)od i for ;/ he had any Caufe to dijlrain the Deiendant cannot make 
and that it Rffcous, and the Matter is only to the Action lor the third D.iy. Br. 
rHt'-^''^i^elcou^, pi, 14. cites 39 H, 6. 7. 
'^ ■'■ 19. Ill 



Diflrefs. J 69 



19. In Relcous it is no Flea that he held by other Services or the like, 
for if he holds of him it is not lawful for him to make Refcous. Br. 
Refcous, pi. 18. cites 5 E. 4. 8. and 7 E. 4. 19. 20. 

20. Rien Arrear is no PJea in Refcous, but he may fuffer theDiftrefs 
and aid himfeif in Replevin. Br. Eftoppej, pi. 162. cites 5 E. 4. 7. S. 
and 7 E. 4. 19. 20. 

21. Refcous, and alleged 'tenure and Seiftn by the Hands of his Tenant Br. Seifin, 
as his very tenant^ and that he dijirained and the tenant made Refcous ^P'- '9- cites 
The Defendant faid that Ne tinqiies fei/ie per my les mains after the Limi-l^'^ ^" 
tation of JJife, and the belt Opinion was that it is no Plea ; lor if he has 
Seigniory there he may dillrain, fo traverfe the tenure and net the Seijin^ 

for HO Limitation is given in Refcous^ but in Replevin^ and Jijftfe^ and * It ihould 
Writ of Right. Br. Refcous, pi 17. cites 5 E. 4. * 52. be 6z. 

22. In Refcous the Defendant pleaded Hors de fon Fee, and per Cur, InReTcousif 
this is no Plea in this Atlion nor in Trefpafs ; but hn fball fay that it is ^^'^ f^iiof'S 
held of a Stranger, and fo Hors de fon Fee, and then a good Piea, and io ^^f^j/^l^j^fj 
he did. Br. Refcous, pi. 19. cites 6 E. 4. 4. tvuLi hu 

Fee, and the 
other made Refcous ^ there Hors de fon Fee is a i^ood Plea, per Ciir. Brooke lays, ^i^re if he may refly 
for Rent-Charge ; tor it feems that there is no other Form of Jf^rit. Br. Refcous, pi. 22. cites 5S £. 5. 

23. And per Choke and Danby Ch. J. the fame Year Fol. 87. where 
the tenant holds by 2 d. and the Lord mcroaches 4 d. the tenant may aid 
it by Refcous and fpecial Pleading^ and jhall not be drove to Ne injujie 
VexeSf or contra formavi Feojfaiueuti. Ibid. 

24. So in AJ/ife. Ibid. 

25. Contra in Avowry. Ibid. 

26 In Refcous the Defendant pleaded always feifed after the Limita<= 
tion, and the Plaintiff would have demurred, and the Defendant durji not 
demur, the Realon leerns to be that a Man may dillrain that never was 
feifed, QuGPre. Br. Refcous, pi. 23 cites 5 E. 4. 6. 

27. It a Man fends his Servant to dijiram tor Rent, or Service, or 
Damage-Pealant, and Refcous be made upon the Servant, the Matter 
ftall have the Writ ol Refcous and not the Servant, tor the VV^rong is 
done to him who ought to have the Rent or Service, or is damnified 
&c. F. N. B. ici. (F) 

i:8. If a Colleifor or Suh-CoUeEior dijfrains for Fifteenths, and Refcous 
be made, he fhall have a Writ of Refcous &c. F. N. B. loi. (F) 

29. It the King's Eaihjf dijlrains for Rent, and Refcous be made, 
the Bailiff fhall have the Writ of Refcous and not the King. F. N. B. 
102. (B) 

30. If the Sheriff' fend to the Bailiff of the Liberty to levy Fines and 
Amerctments for the King, and the hailitf dittrains certain Cattle, 
and the Refcous is made. Now the Lord of the Liberty fliall have a 
Writ of Refcous of the Refcous done to the Bailiff, and for the Battery 
and AJfault made upon him, and for the Lofs of his Service, and all in 
one Writ. F. N. B. 102. (B) 

31. In Refcous &c. the Plaintiff declared that he had didrained 40 2 Roll Rep.^ 
Sheep of the Defendant's, and So at R. S.'s Damage-Feafant, and that '^^ ^ C. 
the Defendant took, chafed, and refcued all of them- ; the -^^^'^^^^"^ f'J^''^^f^\^°f\^ 
jidd the putting his 40 Sheep in the Place wiiere, as for Common, and that Trefpafs thi 

the Plaintift' de injuria fua propria chafed them, and that the Defen- Defendant 
dant would have taken them iiom him, but they ran amongft the t^Atr iiis;ht j'lft.fy 
80 Sheip of R S. and flocked wich them, and becaiifc he could not fever^Y Sh^''"of 
them he chafed than &ic. qu^ ell eadem Refcuffio. Upon a Demurrer j^ «■ ,„ fg. 
the Plaintiff had Judgment, for though the Defendant had fume Colour ver them 
to refcue his own Sheep, he had none to refcue the Sheep of a Stranger *'<"" 'i''' 
who appeared not CO have any Right of Common. He lluuld ha\e fa id, "*"'.''.'^'^^* 



in 

e 



1 70 Diftrefs. 

them away that he chiied them al! ro fuch a Place to fever them. Cro. J. 568.- 
he could not I ^ Pafch. 1 8 [ac. B. R. Jennings V. Playftoe. 

do 10 by any " ' •» 

Means, Quod Doderidge conrefiit, but faid that if Defendant had put the Sheep of •<.. S into the 

Common ap;jin, it had been good, [udpiment for tlie Plaintiff. Palm 172. Genin;'; v. Pliifto, 

S C adjudged for the PlaintiiT, But Doderidge faid that Defendant might have aided himfclf »» 
Pleading, if he laid after, that he had fevered the 40 Sheep and had reltored the Soto the PlainiiiF. 

32. It was agreed in a Cafe by Hobart, that where a Man brought 
an Aftionde parcofrafto, and declared upon the Breach ot a Pound, 
and alfo of the taking out of Bealts ; and the Defendant as to the 
taking out of the Beaits, pkiided Not Giciltx, and as to breaking of the 
Pound he faid, that he was Lord of the Soil upon -which the foiotd fiocdy 
and that he brake off the Lock and put a Lock of his own ; and Hobart faid 
in this Cafe, that he ought to plead the general llfue, for in Verity this 
is not any Breach of the Pound, except the Beaits come out of iti And 
Jones J. was of Opinion, that it he put out the Beafts this Atlion would 
not lie, becaufe the Freehold was in him, but he ought to have a fpecial 
jicfion tifoit the Cafe. ^ Win. 80, 81. Paich. 22 Jac. C. B. Anon. 



(Q. 3) Pound - Breach. What is. And how 
punilhed. 



-w 



HERE one breaks the Pound and takes the Diftrefs., yec 
he who diltr.iined may retake them and put them iv again, 
notwithllanding that he may have Parco Fracto j quod nonneguur. Br. 
Avowry, pi. 13 cites 34 H. 6. 18. 

2. The Dijirainor may have Parco FraBo for the Breach of the 
Pound, and not the lord. Arg, 12 Mod. 660. cites Dr. and Scud.- 
c. 27. 

3 A. brought Parco Frafto, and declared upon the Breach of a 
Pound, and alfo of the taking out of Beaits ^ As to the taking out of 
Beaits the Defendant pleaded Not Guilty, and As to the breaking the 
Pound he faid he was Lord of the Soil on which the Pound Itood, and 
that he broke the Lock and put a Lock ol his own. Per Hobert, He 
ought to plead the general llfue, tor in Truth this is not any Breach 
of the Pound except the Beafts come out. And per Jones J. If he 
put the Beaits out he may not have this Aftion, becaufe the Freehold 
was in him, but he ought to have a fpecial Atlion on the Cafe. Winch. 
80. Pafch. 22 Jac. C. B. Anon. 

4. If the Door of the Pound be open, it is no Pound- Breach to take 
the Diltrefs out of it i per Powell J. 2 Lutw. 1262. Trin. 7 W. 3. 
Alwayes v. Broom. 
Thiiis only j. 2 W. ^ AL Stat^ I. cap. 5. S. 4. Upon any Pound-Breach or Refcoiis 
mcint feblep^-fjgg^^ dijirained for Rent^ the Perfon grieved pall in a fpecial AH ion 
finel'e Cofi" • "Z"^'' ^^^ ^"■'^ ri;«wr treble Damages and Cojls againjl the Offenders, or 
and he miy ' againji the Owner of the Goods tf they come to his Uje. 
fue cither 

the Owner or the aftual Oftcnder in all Cafes, and the Owner if the Goods come to his Ufe or 
Pofl'elTion, but if he recovers aainll the Offender he (hall not fue the Owner afterwards. Sir Barth. 
Shower's Obfervations, ut fupra, fol. 162, 163. 

6. It the Owner breaks the Ponnd and let the Diftrefs go, the Dil- 
trainor may have a Paico Frafto, or may retake the Diflrefs i per Gould 
J. 12 Mod, 661. Hill. 13 W. 3. Vafporv. Edwards. 

(Q^ 4) Efcape 



Diftrefs. 171 



(Q^ 4) Efcape. What Remedy lies. 

J. T F a Man difrains Bea/fs and they go hack to the Owner of their own 
\^ Accord, he who diltrains cannot retake them by Reafon of the Jirft 
Dijtrefs unlefs he comes fre/hly; For there is Negligence in the Diftrainor ^ 
per Dauby J. Br. Diftrefs, pi. 25. cites 9 E. 4. 2. 

2. Where the Perl'on diftrainiiig puts the Diftrefs in a broken Pound, Ld. Raym; 
or ftich as cannot keep the "Thing inipnnded, and the Diftrefs efcapes, he Rep. 719. 
cannot maintain an A6tion for the fame Trefpafs, and its being a com- ^'F"^' 
mon Pound varies not the Cafe. 12 Mod. 6j8, 663 664. Hill. 13 W. ^" ^^ ' 

3. Vafpor V. Edwards. 

3. If Dijlrcfs taken Damage feafant efcapes, the Diftrainer cannoc 
bring Trefpafs nn\tk hejhezvs that the Efcape was without his Default, 
and faying that it was without his Content and VV^ill is not fufficienc. 
12 Mod. 6jS. Hill. 13 W. 3. Valpor v. Edwards. 

4. Beit if they efcape without his Default he has other Remedy; be- 
caule he cannoc otherwife fecure them than by impounding ; For he 
cannot tie them; Per Powis J. 12 Mod. 662. in Cafe ot Valper v. 
Edwards, cites 27 Aff pi. 64. 

5. So if they are Jtole cut of the Poand-oven he is not anfwerable for 

them, nor remedilefs unlefs the Things ftolen were not proper to be ' 

put mto a Pound- overt j Per Powis J. 12 Mod. 662, cites Co. Litr. 
47 b. 



(Q^ 5) Death of Beafts in the Pound ; At whofe Lofs 

it Ihall be. 



1. T F the Beajs die in Pound after Off'er cf fiiff.cient Amends, this is at 
\ the Peril of the Owner if they are in Pound-overt ; But if they 
are not in Pound-overt, this is at the Peril of the Diftrainor. But if the 
Writ of the King comes to deliver them, and the Diftrainor rejijis it, there 
if they die, this is at the Peril ot the Diftrainor, and the Owner ftiall re- 
cover his Damage by AS^tion upon the Statute for difobeying the Writ. 
£r. Diftrefs, pi. 72. cites Do£t. and Scud. lib. 2. 

2. It Cattle dijirained be put in Pound-overt, the Owner at his Peril *if the Dj- 
muftteed them, and if they die the Diftrainor Ihall bring his Aiiion, ftrsrswasfor 
or* dijirain again ; Per Powis J. 12 Mod. 662 cites D. 280. Co. Litr. Rent; Per 
47. Dr. and Stud. 102. and laid, that the Keafon is becaufe he has loft ^°^'* J* ^. 
his Pledge without any Fault in him. i^ S. C. ^ 



(Q.6; 



172 Diftrefs. 



(0,6) 



Actions and Pleadings. 



O" 



4. TTCTRIT of Trefpafs for Diftrefs taken in the High Street^ contra- 
y \ ry to the Statute of Marlebridge, was without faying contra 
facem, and yet adjudged good. Thel. Dig. 114. lib. 10. cap. 24. S. i. 
cites Mich. 19 E. 2. Briet 842. 

2. [SoJ Writ ot Diilrefs taken in the High Street, contrary to the 
Statute ot Marlebridge, was was without yiti grave danipnum^ and yec 
held good. Thel. Dig. 115. lib. 10. cap. 25. S. i. cices Mich. 19 E. 2. 
Brief 84s. 

3. It feems by the Argument of a Recaption, that where a Man di- 
ftrains, he /hall Jhewfor what Caufe he diflrains^ or at leaft if he Ihews 
Caufe this is material as to the Recaption^ though he avows tor other 
Caule. Br. Diftrefs, pi. 61. cites 28 £. 3. 92. and Ficzh. Tit. Recap- 
tion 6. 

4. It was granted per Cur. that of Rent, if the Tenant tenders upon the 
Land, the other cannot diftrain. Br. Diftrefs, pi. 36. cites 30 Alf 38. 

5. If a. Man takes Beajis Jar one thing, yet when he comes into Courc 
of Record he may make Avowry for what Thing he plea fes ; Per Cur. 
3 Rep. 26. cites it as adjudged IVIich. 34 E. i. Tit. Avowry, 232. 

6. Of taking in the High Street a Man ihall not have Replevin 
■hut Writ upon the Statute. Thel. Dig. 117. lib. 10. cap. 27. S. 8. cites 
Trin. 11 R. 2. Avowry, 87. 

7. But othcrwife it is of Oxen of his Plough, or Sheep, taken againft the 
Statute. Thel. Dig. 117. lib. 10. cap. 27. S. 8. cues Trin. 1 1 R. 2. 
Avowry, S7. Qiiaere. 

8. It the B.enr of three Terms be arrear, and the Lord dijlrains for the 
Rent ofthejii-jl Term, and the Tenant fues Replevin., and the Lord avows y 
and the Tenant pleads Hors de fon Fee, or other fuch Thing which brings 
the Seigniory m Debate, there the Lord cannot diftrain tor the Rents of 
the other Terms till the Seigniory be tried ; Per Brickhill tor Law, 
quod conceditur per all the Juftices. Br. Diftrefs, pi. 14. cites 7 H. 4. 4. 

9. In Trefpafs oetween Lord and Tenant upon Diftrefs, the Tenure is 
only traverfable. Br. Traverfe Per &c. pi. 360. cites 10 H. 6. 24. 

•10. Contra in Avowry, note the Diverlity. Br. Ibid. 

II. In Tref'^^fs xht Defendant faid that he leas'd to the Plaintiff for 
10 Tears, rendnng annually 20 j. at twoFeafts &c. and for 10 s. arrear 
he diftrain'd, and the Plaintiff was not permitted to fay, that De 
fon tort Demefne without fuch Caufe ; But /ball fay that De fon tort 
Demefne abfque hoc that he leas'd, or abique hoc that any Rent was 
arrear. £r. De fon tort &c. pi. 29 cites 10 H. 6. 3. 

12. Trefpafs of three Horfes taken , Suiiard fuid, Aftionon ; For J. S.. 
was feifed of the Clofe where &c. and held of him by Fe;tky and los. 
&c. and for the Rent arrear he came and found the Horfes levant and 
couchant by which he took them, and within his Fee ; the Defendant 
laid that they efcaped in default of Inclofure of the Tertenant, who ou^-hc 
to inclofe it, as he was chafing them in the Highway. Suiiard fiid 
they were levant and couchant there by fix Days after the Efcape. 
Per Brian he may well diftrain them. Per Choke when the Bcafts of 
a Stranger enter in default of Inclofure of the Tcn.iiu of the Frank- 
tenement, there il the Owner has Notice of them and does not take 
them away, the Lord may diftrain them. Per Catesby j. where the 
Beafts enter in delault ot Inclolurc, the Owner of the Land cannot 
diftrain them Daniage-Feafunr, cliuugh they are there by halt an Vear, 

and 



Diftrefs. 173 



and therefore the Lord cannoc diftrain. But where the Tenant ot the 
Land is not bound to indole ic, there if Beafts enter the Lord may 
diftra-n. But iee Brian Ch. J. above made the belt Reafon, as ic 
feems Br. Diltrefs, pi. 56. cites 22 E. 4. 49 

13. liDlAvtisbe Jhle or fet at lar^e I/}' ^. Stranger he (l^M not be an- 
fwerable for it; but even in that Cafe li Ripkvin be brought, and an 
Ehugatur return'd, as ic muil be, there lliall be a Withmiam^ and the 
Diltrainer lialle till he/6ex'fto yl/rtfrtr, which being no Detaulc of 
his will excufe him. Per Holt Ch. J. 12 Mod. 660. Hill. 13 VV. 3. 
Vafpor V. Edvvards. 

16. If Diltrefs bo 7?o/e? out of Pound, and FJongat' be returned, the 
Diltraii.er to frevcnt a Witheriiaui nay Jhew that they were itolen. 
Per Powis J. 12 Mod. 662. in Cale ol Vafpor v. £dv\ards, cites 
32 H, 6. 27. b. Br. Rer. brev. 135. Nat. B. 74. and fome Books 
(ay the Sheruf may return it. 



(R) What fhall be fald ExceJJivs, and what not. 
I. T jf 40 Sheep atC tftl^Clt for 2d. antl 16 Oxen for 9 d. tW 10 

1 €]CtefQVie. 4' •^^ 3- 26. 

2. %i iwi Oxen tor lour Pair ot Glove.<!, ten Sheep for one Pair, 
and ten lor another. It 10 HU £]CCeffilie DtlltCflS, 29 ^* 3- 24. an- 

3 But if a?I5an tiU'f^ fi\e Horfes join'd in a Cart for 3d. Rent Cheynie faid 

tljijs isi not Cjcccinnc tot tljc Jntierti'* 8 1), 4. 15. cemveS' 

quod non fuit refponfum. Eut Biooke iays that it is not becaufe they were join'd in one Plough, 
and ioMrwt befez^er'd Br. Dillrels, pi. i 5. cites 8 H 4. i6. 

A ISian cannoi/ftfK a Diltrcf., and therefore in Tome Cafes a Diltrefs or great Value, as a Cart and 
//(if/fj may betaken for a ('mall Matter beeaufe not feverable ; Admitted Arg. 2 Vent. 1S5. Trin. 
a W. 8: M. in C. B. in Cafe of Clark v. Tucker. 

4. jeo Diffreris for Homage fljall be fatts Cmiriic for tlje IjiuIjHe^ho 
Cftccir tljcitot ill tljc laUJ> 42 €. 3- 26. co* 4 ^^^/z s. b. f,^T'^ 

S. ©iJClameluUJ of Fealty. CO. 4- ^^^'^^- 8- b» 29 €* 3.24. {uytakeis 

many of the 
Beafts as he can find npon the Land ; For, for Homage the Diftrefs p>all not he faid ExceJJive. Per 
Belk. Quxre ; For Finch was contra, but ic was not adjudged; therefore OuEere. Br Diftrefs, pi. 

4. cites 42 E. 5. 26. ^ Though the Lord diftrains the Tenant fo that he is not able to m.inure 

his Land Ibid. In Aflife it was faid for Law, that if the Tenant holds of bis Lord by Homage the 

Diftrefs cannot be Exceflive, nor for Suit of Court nor Fealty, but it was laid thic the Law is not 
■very clear for Suit nor Fealty. Br. Diftrefs, pi. 55. cites 28 Afl. 50. 

6. a Diffrefjj of more tljaii tije aDaiiie fljall not lie faio Crceffiije b; Diftrefs, 

for the Expencesot Knights of Parliament, fceCtUlfe tlje femS 10 lU a ?'■ ^9- ^"^^ 

fanner l^artp* 13 5). 4- iFit?lJ. aijoiurp 239. s. ?:±1' 

Diflrefs 
Ihall not be faid ExcefTive where the Kir^g is Parly, As for Fees of Knights of the County for thii 
Parliament, and no Milcliicf; For by Payment of it they fhall re-have the Beafts. Br Prernganvej 

pi. 95. cites II E. 4 2. S. P. 2 Inft. 107. but Lord Coke adds that the Statute of Mari- 

bridce is General and extends to All. 

7. No Diftrefs can be Exceflive for Homage, Fealty^ or Sitit^ and 
Aiiife l.es not lor too often diltraining or tor exceflive diftraining for 
thofe Duties. F. N. B. 178. (I) in the new Notes there (b.) cites 
28. All'. 50. and 42 Ed. 3. 26. 

Y y 8. Avowry 



1 jA Diftrefs. 



8. It" a Man diftrains a Load of Grain and four Horfes for z s. this is 
cxcefTive Diftrefs ; Contra if they are annexed to the IVaggon ; for then 
it is a Thing intire, which cannot be fevered. Br. Diftrels, pi. 88. cites 
20 E. 4. 3. 

9. And it was in a Manner agreed, that a Fold of Sheep in the Field 
may be diftrained for 2S. and fhall not be faid excelfive^ tor the Di- 
Itrainer cannot fever them, Br. Diftrefs, pi. 88. cites 20 E. 4. 3. 



(R. z) Caufelcfs and excefllve Diftrefs. Remedy 

for it. 

IftheLoi'd I. ^2 H. $. cap. 4. f~T^HE Difireffes Jhall he reafonable, and mt toa 
diftruin/ao J^ great', and he that takes great and unreafon^ 

fV^iTd^^o" Me Dijreffes [hall be grievoiijJy amerced for the Excefs. 

tlie like 

fmall Sum, and the Owner brin;; a Replevy of the Oxen, and the Lord avow the taking of them for 
the lid. t>^c. of his own fhewing he ihall make Fine &c. or the Party may have his Atbon upon the 
Stitutc iliill. 107. 

If the Lord diftrain an Ox or Florj'e for a Penny, if there were no ether Dijlrefs upon the Land holden, 
the Dilirefs is not exceflive ; but if there were a Sheep or Swine &c. then the taking ot the Ox or 
HoiTe is excefTive, beeaufc he miglit have taken a tieaft of lefs Value. 2 Inft. 107. 

JMod 71 pi. 2. An Information was brought againft a Lord of a Manor for taking 
25. The nnreafonable Diftrelies upon feveral Tenants ofhisManor^ but Judg- 
King V. Le- jy,gjjt ^as ftaved ^ for the taking unreafonable Diftrefles is f>tintJhaLi& 
s"c &"^S P h -^^io'^ <^>^ '^^^ Statute of Marlebridge^ and not by Injorvtalion. Lev. 
byTwiiden, 299. Mich. 22 Car. 2. B. R. The King v. Lefingham. 

fed adjorna- 

tu^ _ Ibid. 2S8. pi. 54. Trin. 29 Car. a. B. R. The King v. Ledgingham, S. C. held that it 

will not lie. ■ Raym. 205. S.C. and by Twifden Information lies not for Diftrellcs, bccaufe 

they are private Offences ; And fo [udgmsnt againlt the Defendant was ftaid. Vent. 104. S C. & 

S. P. held accordingly; For excefuve Diftrelles were not punifhabic until the Statute of Mailb cap. 
4. which fays, that he who fo dillrains fhaU be amerced, whereas upon an Information hemuftofc 
Neceiity be fined; and cites 2 Inft. 107. 

3. Avov/ry for 2d. and for 9d. and that he took two Sheep for the 
2.d. and 15 Oxen for the gd. and therefore he was amerc'd to 20 s. for 
the exceffive Diftrefs; quod nota. Br. Diftrefs, pi. 2. cites 41 E. 3. 26. 

4. 2W.SM. Stat. I. cap. 5. S. 5. If any DiJlrcfs or Sale fhdll he 
made jor Rent "where no Rent is diie^ the Owner of the Goods, his Execu- 
tor, ^c. may by ARion of T'refpafs, or upon the Cafe, recover double the Va~ 
hie of the Goods difirained with Cofis, 

5. Trefpafs does not lie for entering and taking an exceilive Diftrefs i 
and (o a judgment in C. B. was reverfed. Gibb. 85. Trin. 2 & 3 Geo. 
2, B. R. Lyne v. Moody. 

(R-3> 



Diftrefsi 175 



(R. 3) Remedy by Affife of Souvent DlftrcG. 

i. TN AfTife, the Defendant f aid that the Plaintiff him felf is fti fed Sec. 
£ to which ihQ Plaint iff faid, that the Dejendant claimed Set j^niory 
tn bis Land., and had diftraiued him by Ecafis of his Plough., and by Son- 
vent Dtjirefs., io that he could take no Advantage of the Land ; The 
Defendant faid^ that the Land was held of hini tn Jure Uxoris by Ho- 
jnage^ Fealty, and Efcuage, and Suit of Court and Rent., and tor the Fe- 
alty and Suit he diitrained. Br. Alfiie, pi. 274. cites 27 MY. 51. 

2. yf/z^ it was faid there bv roine, th.ic Alfiie don not lie by Soiivent 
Difirefs., but where the Lord dijirains ; For if another difirams he may 
viake Refcous ; And it was held, that it is a good Plea lor the Plairi- 
tirt", in Cafeot Souvent Dillrefs, to fay that he does not hold of him, but 
then the Alfife ot" Souvent Diltrefs does not lie, by Ibme. Ibid. 

3. And it was faid, where Lord Afefne and Tenant are., and the Lord 
difl rains jor the Services oj the Mefne., the lenant may fay that Riens Ar- 
rear in the Aflife ; Contra in Replevin ; Quaere ot'the Souvent Diltrefs j 
for the Plaintirt dared not demur. And hence it feems that he thought 
that the Affile did not lie of Souvent Dillrefs but where the Lord of 
whom &c. diftrains. Ibid, 

4. For Suit the Souvent Diltrefs is maintainable^ for this cannot be In Affife, the 
extended to any Value, Quaere of Fealty i For by fome the fame Law y"^"'/'^"^, 
of Fealty, but Rent is valuable in certain. Br. Diltrefs, pi. 33. cites pl'Jj'/flfj! ■ 

27 All" 51. himfelj ii 

filfed ot lie 
Franktrnement 5 Judfjnient of the Writ 5 The Plaintiff faid, that the Defendant had difii-.tined him by 
Souvent Difirefs, lb that he could not plough his Laud, and prayed the h\T\\c ; to which tlie Defen- 
dant f.iid, that the Plaintiff held of him by Homage Fealty, and Suit of Court, foi- which Services he had 
diftralned ; Judgment it Aflile ; For, fjr Homage the Difirefs cannot he faid exceffiie; And tlie Plain - 
tift laid that he held of J. who held over ot the Defendant by 12 d. and as to this Riens avrcr: 
and prayed the AlFife, and the Aflife awarded, and by the Opinion of fome of the Juflices, Jjp.fe does 
mt lie for Souvent Difirefs <iL-here tie Lord diflraiiis for Homage Fealty or Suit Br. Affile, pi. 2yi. citC'i 

a8A(T. 50.- 4Kep. S. a. Mich. 17 8c 18 Eliz. C.B. flevil's Cafe, S. P. held accordingly, and 

cited S. C. and ii H.4. i- a. 4i E 3- 46. a. and Br. Diftrefs, So. 

5. If the Lord, or other Man who has a Rent ifTuing out of the 
Lands, do often difirain for the Rent or Service where none is behind, 
th'e Tenant may have Affife for this Diltrefs by the Common Law i 
and that Affife lies between the Lord and the Tenant, or between 
the Loid Paramount and the Tenant Paravail, as appears 27 All'. 51, 
But it feems reafonable, that the Tenant have the Affife ot Souvent 
foits diitrained againft him who claims a Rent-charge out of the Land, 
tamen quaere. F. N. B. 178. (I) 

6. Affife of Souvent Diltrefs lay at Common Law, in which the Writ 
pall be general, and the Count fpecial, that the Lord Souvent foits di- 
itrained &c. and Judgment Ihall not be that the Demandant recuperet 
Seifinam, for he has that, but quod teneat abfque inultiplici Dtjiri&ioue. 
8 Rep. JO. a. b. Mich. 6 Jac. C. B. 

(R--t; 



176 



Diftrefs. 



(R. 4) Several Diftreiles for the fame Thing. 
Lawful in what Cales. 



-w 



HERE the Lor^ comes to dillrain, and t^kes an Ox, which 



and therC' 
fore mif- 
printed. 



The Word 

itted in V V '■* \_»ot'] Sufficient for the Rent arrear^ and then there are no 

the Editions '''"'"^ Beafis there^ he may come at another Time and take a Cozu^ and af 
of Brook, another Time and take another Cozv^ and at another Tirue another CciW, till 

he has f'ufficient Dillrefs. Br. Diftrefs, pi. 96. cites the printed A- 

bridgment oi: Affiles, Tit. Bar. 

2. In Replevin the Defendant avowed j the Plaintiff pleaded Hon de 
fo» Fee &c. and pending this IJpie the Defendant cannot diftrain again ; 

Quaere ; For it is iaid elfew here, that pending an Alfi(e, it a Man di- 
Itrains he ihall abate his Alfife ; But contra of Replevin. Br. Dillrefs, 
pi. 62. cites 18 R. 2. and Ficz,h. Recaption 3. 

3. Where a Man takes Diftrefs for Rent, and upon Avowry has Re- 
turn irreplevi fable, if a Beafi dies in the Pound, now he may diftraia 
anew ; lor the Sam ot Rent, or Valuation of the Damage, is not ad- 
judged to the Avowant in the Replevin, and then the Beaft taken by 
him in Execution, but where he had taken the Beafts by Diftrefs, and 
that is replevied from him. Now upon the Right of diftraining ap- 
pearing the Beafts are reftored unto him in that State as they were 
before, to remain with him as a Diftrefs lawluUy taken by Judgment 
of the Court, and not to be replevied, be it in Rent-Service, or Rent- 
Charge, or Damage-Fe.ifanc, that he may diftrain and retain till the 
Rent or Damage be fatisfitd, fo that even as if the Beaft had died before 
Judgment he might have diftrained again. So after Jtidgh/ent, for it is 
alike in both Cafes ; Per Hobart Ch. J. Hob. 61. cites 14 H. 4. 4. 
15E 4. 10. 

4. In Relcous, where Return of Beafts is adjudged to a Man this is. 
no Payment of the Rent, but only a Pledge, till he be fatisfied or paid 
the Rent ; For if the Beafts die in the Pound he may diftrain de novo jj 
per Brian, quod nota. Br. Diftrefs, pi. 22. cites 15 £. 4. 10. 

Br Avowry, ^ Lord and Tenant by Fealty and -^d. Rent, the Lord dies, the I 
^'■q'^" "''^^F^w/s ij eWox'e^ of the Seigniory, the Feme ot the Lord may diftraifA 
for I d. and the Heir for 2d. and {o now the Tenant is cherged with 
two Diftrelies where he was charged but with one before ; but this isi 
not inconvenient, tor he pays no more Rent than he paid before. Br. 
Diftrefs, pi. 59. cites 24 H, 8. 

6. So where a Seigmory is divided by Partition between Heirs Female &:e.j 
Br. J3iftre(s, pi. 59. cites 24 H. 8. 

7. If for 10/. Rent due at one Day, a Man diftrains Goods of thel 
Value of 405. only, and at the Time of the taking the Diftrefs there arA 
Goods of a fiifficient Value upon the Premiles, he cannot for tlie fimej 
Rent diftrain again j for it is his Folly that at the firft he diltraioed na] 
more ; adjudged. Mo. 7. pi 26. Mich. 3 E. 6. Anon. 

8. But if there be Rent in Arrear at feveral Days, a Diflrefs may he 
taken for what was due at one of the Days, and after a Diitrcfs mav be| 
taken yor what was due at the other Days ; Per Brown. Mo. 7. pi. 26. 
Mich. 3 E 6. Anon. 

9 In a Repleg' the Plaintiff is Nonfuit, and the Defendant bad\ 
Retorn, and the PLnntiff fued a fecond Deliverance, and is alfo Non'uiA 
upon that, by which the Deiendant is to have a Retorn irrepreviia[)le ;l 
but whether the Defendant outiht to avow, fliewing the (-ertaintv or 



D. 2S0. a. 
M.irg pi In- 
cites \t as lb 
a<^reed per 
Cur 7 |ac. 
C B. For 
tht;y are to 
be impound- 



, Jiewing tne t-ertainty 
the Place, Day, and Beafts, in order to h.i\e a \\'rit oi Ir.quiry 
Damages, ' 



was doubted. Divers thought he need not, 



01 
bu: than hel 
mighc 



Diftrefs. 177 



might jullify the detaining till the Plaintiff offered fufficient Amends ed again, 
for his Damages, others held he might work the Beads, but others j"'^£'^""p 
e contra ; becaufe he had not a Property in 'em but as a Gage ; And he pievin'26. ^' 
may put them a;^ain tnto the common Pounds and if they die there he may 
tiTke another Dijtrefs for the firli Caafe^ inafmuch as he was never fa- 
tisfied. D. 280. pi. 14. Mich. lo&iiEIii. Anon. 

10. If one takes Trop petit DiJ} re fs for Rent, and after takes another Mo 7. p!, 
Diftrefs for the fame Rent, this is not good, tor he cannot avow two ^'^c'^"^''" 
Diltreffes for the fame Rent ; for it was his Folly that he took not a Anon. S. P. 
better Diftrefs at the firft ; But Nota in the Abridgment of the Alfifes held accord- 
it was faid. That // there he not fufficient Dijhefs when he diftrained Jng'v And 
he may d^irain again. Cro. E. 13. pi. 8. Hill. 25 Eliz." C. B. P'^'/k"-*' 

Anon. caption lies 

for the fe- 

cond Diffrefs. 2 Lutw t;;5 cites fame Cafes and S P. adjudj^ed accordingly.; And the 

Reporter adds a Qiixve if the Iccond Diftrefs had been juftifiable, admitting it had been pleaded 
that at the Time of Caption of the firft Diftrefs there was not fufficient upon tlie Land demifcd 
and that the firft Diftrefs was not but of fuch a Value &C. 

1 1. By A0 of the Party the Tenant fhall not be made liable to two 
Diftrefles, though by Aii in Law he may. Cro. E. 742. pi. iS. Hill. 
42 Eliz. C. B. in Cale of VVotcon v. Shirt. 

12. 17 Car. 2. cap. 7. .S". 4. Where the Diftrefs fhall not be found to By 19 Car a. 
be to the Value of the Arrears, the Party, his Executors or Adminijlrators^ ^^ ?■ ''^'^ 
may dtjtram again for the Rejidue. t„ ^^,^1 ^l 

Wales and 

Counties Palatine. It was a Mifchief befcre this Statute, that in Ca^e a Diftrefs was too little 

one could not diftrain again (be the Demand never fo great) bur the oth^r mif^ht plead Levied by 
Diftrefs which fliews that DiftrelTes could not be fplit ; Per Holt Cii. J. Comb 546. Mich. 7 W. 5. 
B. K. Johnfon v. Bane. 

13. In Trefpafs for taking 10 Beafts i Apr. and alfb for taking 12 ^ Lutw. 
more on the faid firft Day of April ; The Defendant pleaded, that '':^ 'J5j^r 
the Plaintiff had a Leafe granted to him rendering Rent, and that ,/v\ral]y 
there was 70/. Rent /« Arrear, and that he (the Defendant) did take and Savil 
th Jirjt 10 Eeajls for do I. Parcel of the faid 70 1. and the other 12 S P ad- 
'he.z'iiz afu'rwards far 10 l.Refidue of the faid 70 1. and upon a De- P^gf'^/'^^'' 
murrcr to this Plea it was adjudged ill i for one cannot avow for two i5fft,^ei^"wa» 
Diftrefies made for one and the fame Rent; it was the Defendant's no^ lawful. 
Fault to diftrain too little at firft. But the Reporter tells us, that if 

the Defendant had pleaded, that at the Time of the taking the Jirfi 
Diftrefs there was not f^jjicient to be taken for the whole Rent upon the 
Land, and that the firft Diftrefs was but only of fuch a Value, it 
had been good. 3 Salk. 1^7- p'- 6. Mich. 8 W. 3. C. B. Anon. 

14. If Diftrefs for Damage- Feafant dies in a Pound or Ffcape the Party * S. P. per 
fhall not retake them, but if it were for * Rent^ in either Cafe he may Pow'u J. or 
■diftrain de novo ; and Efcape ot Cattle out of Pound is not like Ellape ^^ing^^^^, 
of Prifoner out ot Gaol; For it Pound be not good, the Dill:raiiiant ,2 Mod. 
*nay be his own Keeper, and put them in his own Pound, but he can- 663. 

noc be Keeper of his Prilbner, and every Pound-Keeper is the Servant 
of him who impounds the Cattle pro hac vice; per Holt. 12 Mod. 
.397. Pafch. 12 VV. 3. Anon. 

15. If Cattle diflrained die in the Pound the Diitrainor may diftrain 
again it the Diftrels was tor Rent, Arg. Ld. Raym. Rep. 720. cites 
Dr. and Stud. cap. 27. 



(S) How 



178 



Diftrefs. 



(S) How it is to be taken. 
Kothe for what a Diftrefs is taken. 

I. T Jf tIjC Lord 5(f!ram6 for Rents or Services IjE ttecH llOt gtbC 

1 Batitt to tljc Ccnant foe iuljat 'SrijinD; It is Ijc tJifttaing it; 
fot tljc Ccnant bp Intendment ot tljc Inui kmm^ luljat ijs m !:it= 
rear from Ijis ILanO. 45 €» 3 9- 

2. Clje tame laUJ is if tlje lOtO DiffrainiS for an Amercement in a 
Leec. 45 ^* 3. 9- . . 

3. A ii^///i/ who diftrains cii^bt to pew inwhofe Right he diftrams. 
Br. Diftrefs, pi. 77. cices 7 H. 4. 28. 

Br. Cove- 4. The King may diftrain Jur his Debt or lor a T^^^/;/^ granted by Par-- 

nant, pi. ^o. Haffiefit, though HO Clatife &/ Dijirefs be exprejfed in the Acl ot Parliament: 
cites S.O thereof. Br. Diftrels, pi. 51. cites 17 E. 4. 6. 

5. If the Bailiff upon the Diftrefs lliews the Caufe and Reafon of ic 

he cannot afterwards vary from it, but the other Party may trick him 

by Traverfe. But if he diftrain'd generally without lliewing Caufe, 

he may Ihew what Caufe he will, and the other Party Ihall anfwer ta 

it. And when a Bailili diftrains, he ought, if he be requir'd, to Ihew 

Caufe of his Diftrefs, but it he be not reqtind then he is not tied to do 

it. Le. 50. pi. 64. Paich. 29 Eliz,. C. B. Bullet's Cafe. 

Tl^ePetfon 6. 2 Ji • ^ M. Sejf. I. cap. 5. S. 2. For felling Di/reJJes for Rent in/vff 

diftrainhig J)ays if not replevied, nqtiires five Days after the Diftrefs taken^ and 

muft give ^^ff^g thereof wtth the Caufe of taking left at ihe Man/ton H-jiife or other 

S'no" be mojl notorious Place in the Premifes. 

but^«/i'i"y 5^'"'e after the Dill lefs But then the five Days are to be computed from the Notice 
The Notice ouaht to be in Writing, though the Aft doth not in exprefs Words requwe it, yet the 
Nature ot the Thins; doth, for Notice is to be left at the moft notorious Place, which can never be 
intended a Parol Nouce. The Kotice ought to contain the Party's Name, from -whom luch Diltiels is 
made the Name oj the Und or Farm, or iome general Difcnption of the Thing out ot which the 
Rent'iffues and the Quantity of Rent in /irrejr and iihen due ; and it is advilabic to name the Time 
^■hen the Dtflrefs ivaTuxke^y and the Place v;here it it earned, That the Tenant or Owner may know 
where to tcfbrt to aake his Replevin. (All which (eems to be the Intention ot the Aci:, in requir- 
ing Notice, with the Caufe of taking.) Sir Harth. Shower's Obfervations on this Statute. 

Pevfonal 7. Perfonal Notice is ftifficient for Notice is the Thing required. No- 
Notice an- tice to the Owner is futlicient againft him in Trover ^ but iftheTen- 
fwcrs the j^^j brought Replevin, that would not have ferved as to him, buc 
fheSte, he muft havl had Notice alfo. Per Cur. i Salk. 247. pi. i. Trin. 
though it ' 7 W. 3. B. R. Walter v. Rumball. 

lo -TNotice ; For Perfonal Notice is better ; Per Holt Ch J. Comb 356. in S. C. Norice 

Vhe Owner is lufficient, but if not it feems to be fupplied after a Verdift by the Words J uxta For- 
°am Statuti Notitiamdedit&c. And it feems to be at the Eleftion of him who diftrains to give No- 

Hce either to the Tenant or to the Owner of the Goods; Per Car. 4 Mod. 590. ^595. SO 

I- Mod '6 S C. and per Cur. the Intent ot the Statute was only to give a certain Notice, and 

feeine ihat'in this Cafe they have gone further than the Letter of the Act a Perlbnal Notice muft 

eeds be fufficient. And though the Notice was given to the Owner only of the Goods, and not to 

t'he Tenant in Pofl'effion, the <- ourt held Notice to either fufficienr, the Words, of the Statute are 

in the Di.sjunaive. Ld. Raym. Rep 55. S. C. and fame Points held accordingly. But if the 

Owner had fueda Replevin then the Notice mull h.ive been given to him. 

8. The Notice may be to the Party, or left at the chief Ma nfion-Hotife ; 
if no Perfon there affix it on the lure Door of the Houfe^ if more Houles 
than one, at the Chief or Bcft. If wo Hoiife^ hut Barn or Stable, at the 
Door thereof i At the Gate or nio,^ ccmnon Entrance into a Field or 

W^ood. 



Donative. ij^ 



Wood. If in a common FieU, where neither Hedge, Gate or Treej 
then affix a Stick at the molt ufual Entrance, with the Notice on it. 
Sir Barth. Shower's Obfervations on the Statute 3 W. & M. 

9. Upon the 2 W. & M. cap. 5. Notice of the taking the Diftrefs 
is fufficient when it is given to the Party hiniftlf^ as if he be met with at 
any Places and fuch 'Notice fajif/g that the Dijirefs was taken for Rent 
/iuc at Michaelmas laji without 'particularly mentioning the ^iantuni was 
held fufficient per Trevor Ch. J. C. B. at the Sittings. Mich. Vac. 
1 1 Ann. Chefterfield (Earl) v. Farringdon, & al'. 

For more of Diltrefs in General, See i^^tlOtOrp, HCllt, and othb 

proper Titles. 



Donative. 



(A) Original. 

I. T^ONATIVES /^eZ'/tw only by the Foundation and Ereftion oflc began by 
Jl^ the Donor, and as the Incumbent comes in by the Donor, fo ''^p- S-j"!!^^"^ 
he may rejign it to him, and this determines his Incumbency. Cro. f^^^ ^\^^' 
J. 63. Pafch. 3 Jac. B. K. Fairchild v. Gayer. hidanv 

J»lanner of 

Intereft, viz the Ordinary and Parifhioners. Per Popham Ch. J. Yelv. 61. It is a Laf 

Foundation as it is faid z Roll. :5.}5. It is of the Foundation and Erection of the Doner not by 

the Ordinary. Per Eyre J. Show. 499. 

2. Donatives are either hy Royal Foundation or by Royal Licence, or by 
original Agreement with the Ordinary. 3 Salk. 140. 



(B) Confidered How. 

I. T^ENEF'ICE Donative by the Patron only is a Lay 'thing and the 
fj Bipoy Jhall not vijit, and therefore Ihall not deprive, and then 
ij he meddles in it he is in the Cafe of Premuntre by fome. Br. Premu- 
nire, pi. 21. cites 8 Alf. 29. And in this Cafe was Barlow Bilhop 
of Bath in the Time of E, 6. and was compell'd to obtain a Pardon, 
inafmuch as he had deprived the Dean ot Wells, which was Donative 
by Letters Patents ot the King by A£t ot Parliament made thereof, 
but 8 E, 3. above is not adjudg'd. 

2. Donatives ufually pals as Lay Fees, and the palling of them as 
Lay Fees alters not the Nature of the Chapels. Arg. Sty. 81. Hill, 
23 Car. in Cafe of Rawfon v. Barguc. 

(C) Power 



i8o 



Donative. 



(C) Power of the Patron. 



I, rri H E Donative Patron when the Church is void may take the 
X Profits to his own Ufe if the Parilhioners will pay them,' till a 
new Incumbent is made, Arg. 2 Roll Rep. 100. cites Fitih. Aide 
103. 6 H. 7. 14. but he has no Remedy to compel them to pay the 
Tithes to him. 

2. A Donative cannot fall in Lapfe^ but the Patron may lofethe Pro- 
fits if he will, but if any take the Profits from him, he cannot main- 
tain the A£lion; but he ought to put in his Clerk and he maintain the 
Aaion. Arg. Cro. J. 518. cites 33 E- 3- Aid 107. 6H.7. 14. 17E. 3, 45. 

3. Incumbent ot a Benefice Donative may re/ign to his Patron, and 
it being of the Foundation of his Patron is alio of his Vtfnation and 

two Patrons Coreftion, and the Ordinary has nothing to do with him. Mo. 765.- 
l^tfT pi. 1062. Pafch. 3 Jac. B. R. Fairchild v. Gayer. 

For it enures to both as a Surrender Ihall do, efpecially where they both confent thereto and grant 

it de Novo as here they did. Cro J. d;. S. G. Refignation by the Word of Ecclejia is fut- 

ficient, and extends to all the PofTclTions. Cro. J. 64. S. C. 



And where 
there arc 



4. The Patron cannot prefent a 
PophamCh. J. Yelv. 61. Pafch 



Layman. Per 
3 Jac. B. R. 



3 Juftices againft 



(D) Power of the Ordinary. 



. I. 'VTr THERE it is Donative by the Founder and his Heirs the Or- 
W dtnary cannot Vijit it, and "when a Free-Chappcl Donative is 
void the Founder may retake it and not appoint another Incumbent, contra 1 
of a Prefentative. Br. Prefentation, pi. 43. cites 6 H. 7. 14. Perl 

Keble. 

2. Note, that the Ordinary cannot vifit a Free Chapel Donative. 

King E. I. had divers Chapels which his CommilTioners Ihall vifit and! 

not the Ordinary, tut thofe which have Cure of Souls jhall be vifited by the\ 

. . Ordinary ; Per Keble. Br. Depofition, pi. 9. cites 6 H. 7. 14. 1 

Contra if It ^ If the Patron of fuch a Donative will not collate there is no Re-| 

of Souls "'^'^medy to compel him; and he may in Time of Vacation take all the 

Arg. fays Profits and fue for the Tithes in the Spiritual Court i per Popham, buci 

theBifhop denied by the reft. See Yelv. 61, Pafch. 3 Jac. B. R. Fairchild 

may comijel q : 
Pari. Cafes ^- '^^''^'^• 

176. cites Cro. Car. 530. 2 Roll 551. It was faid by Counlel that in Cafe of a Donative the 

Ordinary might compel the Patron to put in a Clerk. But Holt Cii. J. iaid. He cannot. Holt's Rep. 

659.— The Bifliop may compel the Patron by Eulejl.iftical CenjHres, to nominate a Clerk 

Wood Inft. 265. 

TheParfon ^ The Parfon of a Donative is privileged from the Jurifdiftion of 
of a. Dona- the Ordinary in refpe£t of the Place, but if he preach Herefy the Patron 

tiveisliible „ .■',,. ", , .,' . •" , '■' ,, , , 

totheEccle- ^^'^Y Commilhon and examine the Matter, and thereupon oult and de- 
fiaitical ju- prive him, and to it happened in COVlCtt'0 CtlfC, as Gawdy and Wms. 
rifdidtion, as J. faid, wherem the Bilhop of VVinchelter was the Donor of fuch a 
J=;*^^j^J^™- Donative. Brownl. 202. Pafch. 3 Jac. B. R. in Cafe of Fairchild 
Ecclefiafti- V. Gayer, cites 13 £.4. 

cal Body, 

for perfonal Offences, though for Matters relating to the Church he is exempt; and therefore the 

Spiritual 



Donatives. i8 



Spiritual Court ought not to deprive him ; but for Drunkennefs pr , preachinj; Herefy they mij^hc 
cenrure him, 2 Ld. Raym. Rep. 1206. Mich. 4 Ann in the Cafe of Colefatt v. Newcomb, faidby the 
Keportet in'a Note at the End of the Cafe to have been told him by Mr. Mead and Mr. Salkcld, 
that they liad known the Tame Diftinftion taken by the Ch. JulHce, and the Reporter Jays, that that 
Teems upon the Confidcration of the Cafe in Yolv. to be the better C)pinioij. 

5. The Rviiory only is exempt from the Jurifdiftion of the Ordinary; 
nmi not the Patron, and this ^oes as well to the Charges to be taxed 
upon the Church by the Ordinary, Attendance in Vilitations &c. 
Per three J. Yelv. 6i. Pafch. 3 Jac. B. R. in Cale of Fairchild v. 
Gayer. 

6. Ordinary may feqtiejier a Church Donative if the Patron does not 
frefcnt, and the Incumbent thereof may be depri-ved. Arg. Roll R.cp. 
453. cites 3 Jac. Gaer v 

7. The Incumbent of a Donative of the King is not vifitable or de- 
privalle by any Ecclefialtical Authority, but hy the Chancellor or by 
Commiffioners tinder the Great Seal. 12 Rep. 41. Mich, 5 Jac. in the 
Exchequer, in Nich. Fuller's Cafe. 

8. It the Biihop go about to vt/it a Donative this Court of B. R. will 
grant a Prokitttwn i JPer Hale Ch. J. Mod. 90. pi. 56. Mich. 22 Car. 
2. B. R. Anon. 

9. The Incumbent of a Donative was cited in the Spiritual Court to TheOi-di- 
take a Licence Jrom the Bifhop to preach, and the Pretence was that it "^''v i" thij 
was a Chapel, and that the Pailon was Scipendi;iry ^ And per Cur. ifC'fecannoc 
it is a Donative and the Biihop will vifit, a Prohibition ihali be granted. fo"p,eac™ 
3 Salk. 141. pi. 3. Anon. ino; without 

a Licence, 
but he may proceed to cue him, to convift him for fo doing. If he pi-eacn any Thine ai^ainft the 
Doftrine of the Church, or marry without Licence, the Ordinary may proceed to punifh him ■ 
A Probthition -was granted as to the Sufperifiov, .uid the Spiritual Ce/ijmrs, and putting him out of Prilelli. 
on; but not as ft certifying to the Juftnes for preaching without a Licence ; Per Hoi: Ch. J Holts 
Rep. 659. Mich, in Cafe of Bewick v. Twifden. 

10. As to Ley's Opinion in Davis 47, that a Sentence of Deprivation Donativej 
i>y an Ordinary was elFeftual in Law till reverfed, it is not Law i Pq,- which «rc 
it is all Coram non Judice, cites Br. Praemunire. 21. F.N.B 42. The Or- bv"r"a' meti 
dinary cannot v/Jit a Bonefice Donative. Arg. Pari. Cafes 53. in Cale arc Sine- 
of Philips V. Bury, Cure.?, Vent, 

15. per Curiam obiter. Pafch. 21 Car, 2. B. R. 

11. Though Donative be exempted from the Ordinary's J art fdi8 ion 
tile Clerk ot it is not, who may be punilhcd by Eccleliaftical Cen- 
iures, but not to Deprivation. 12 Mod. 640. Hill. 13 VV. 3. Finch 
V. Harris 

12. Lihel in the Spiritual Court ^ for that J. S. being the Parfori of &c. 
did make himfelf drunk at the Sacrament, and that he was a VVhorc- 
mafter i and upon Suggeltion that they would proceed to Deprivation, 
and that the Benefice was a Donative, a Prhibttion quoad the Suing in 
order to deprive was granted, but not quoad the other Matter. Faru 
31. Trin. i Ann. B. R. Anon. 

13. The Ordinary has a Power as tothe Parfon of a Donative, tho' notto 2 Ld. 

the Place j For it the Parfon marries without a Licence, or commits any ^^y^ R«P- 
Mtfdemeanor, the Ordinary may pump htm in that RefpecV, but he can- '^^nn^^"^''" 
not regulate the Stats in the Church. And //' the Patron will not prefentCz\hli *" 
the Ordinary may compel htm ; and the Parfon ts exempt from Attendance Colefatt v. 
/nt Vifiiations ^ Per Holt Ch. I. 3 Salk. 140. pi. i. Anon. Newcomb. 

' P 1 1 T 

faid he had known Prohibitions denied frequently to Suits againft Parfons of Donatives for marrylnZ 
wiihout Licence. 

A a a i^, ^ 



1 82 Donatives. 



5. A Miniiterot'a Donative vjis ftted in the Ecclcjiajiical Court ^ be- 
caufe when he read Prayers he did did not read the whole Service^ but left 
out what Parts of it he thought fit, and for preaching without a Licence. 
Powell J. (abfente Holt) took a Difference where the Suit in the Ec- 
cleliallical Court is i/i order to the Deprivation and where onlyjor Reform- 
ation of Manners i that tn the firji Cafe the Court will prohibit, but not in 
thelajl; and theretoie in this Cafe it the Spiritual Court proceeded to 
Deprivation, the Court would prohibit them but not till ther. 2 Ld 
Ivaym. Rep. 1205. Mich. 4 Ann. Colelatt v. Newcomb. 



(E) Right of the Patron preferv^ed ; In what Cafes. 



'■A' 



Dmiflion and Inftitution of a Clerk prefented to a Donative 
_ vacant by a Stranger is no Uftirpation to the true Patron, but it 
is all utterly void. Co. Lite 344. 
Show. 415- 2. In Cafe of a Donative, if the King makes the Incumbent a Bi/hopj 
^ p' ^"^ __ he Ihall not prefent, for they are not incompatible. Cumb. 302. Mich. 
ArR P^hT" 6 W. &M. in B. R. Obiter, in Cafe of The King v. Dr. Birch. 

Cafes 1-6. 

S. C. • A Donative with Cure of Souls will be void by Promotion of the Incum- 
bent. Arg. Show. 415. cites Yelv 61. and z Roll. 541. that the King fhall not prefent to 
a Donative on the Promotion of the Incumbent, was admitted by all in C.ife of the King v. Dr. 

5iy(;h. In the faid Cafe it is given as the Reafon by S. Eyre J. That a Donative makes no 

Fisrure in the Order and Oeconomy of the Church, and a Bifhoprick and a Donative are compati- 
ble Show. 499. 



(¥) Deftroyed. 

Cited Pari. I. A Dmiffion and Injlitution is not requifite in cafe of a Donative, 
Cafes 181. jr\ but if to fuch a Donative the Patron prefents to the Ordinary^ 

inthe^fe ^^^ fuffers Admiffion and Inrtitution thereupon, he thereby has made ic 
t Doa^r"^ always prefentable. Cro. J. 63. pi. i. Pafch. 3 Jac. B. R. Fairchild 
Bii'ch. V. Gayer. 

2. Prefentation may deflroy an Impropriation, but not a Donative,, 
becaufe the Creation thereof was by Letters Patents, whereby Land is 
fettled to the Parfon and his Succeffors, and he to come in by Donati- 
on i Per Holt and Powell. 4 Salk. 541. pi. 3. Mich, i Ann. B. R. 
Ladd V. Widow. 

For more of Donatives in General, See PreCentatiOtt, and VVatfon's 

Compleat Incumbent. 



Double 



i8 



Double Pleas. 



(A) Double Plea. What is. 



E. T N Account, the Tenant fatd that he is withia Age^ afid was "within 
j[ Age at the Time oj the Receipt, and held double, but this is to the 
Allien. Thel. Dig. 214. lib. 15. cap. 3. S. 6. cites Pafch. 16 E. 3. 
Accompt 52. 

2. InWntu^on the Statute of LabourerSiy the Defendant y^/W, that he 
was the Apprentice of the Plaintiff, and the Plaintiff isooald not injlruti 
him tn his Myjiery, but beat htm ; Judgnient of the Writ, and held 
double, by which he held him to this, that he was his Apprintice, 
and not his Servant &c. Thel. Dig. 215. Jib. i$. cap. 3. S. 20. cites 
Mich. 39 E. 3. 28. 

3. Prior would have avoided the Fine of his Predece^or^ bccaafe he was 
dative and removeable i The Defendant /aid, that he had the A^oiety of an 
Advowfon for the Annuity in demand, and aljo that he had a Common Seal, 
and is perpetual. And per Thirn, this is double, viz. the Moiety of the 
Advowfon, and that it is perpetual. Br. Double, pi. 128. cites 11 H. 

4- 69. 

4. In Writ upon the Statute fuppofing the Foreflalling to be in the 
Port of Cice/er ; The Dd'cnddnt faid that the Port of Cicejier is no Fill, 
mr Hamlet, nor Place known Sc. hut a Place which extends itfelf into di- 
verfe Vills &c. and held double ; by which the Defendant held himfelf 
to this, that it extended itfeit into divers Vills, and this kit Plea held 
good. Thel. Dig. 215. lib. ij:. cap. 3. S. 19. cites Patch. 7 H. 6. 

2437-, 

5. It the King confirms W. N. in the Advowfun of D. and wills by the 
fame Patent that hefhall not be thereof vexed nor troubled^ and he pleads 
it accordingly, yet this is not Double ; Per Cur. Br. Double Plea, pi. 
117. cites 32 H. 6. 21. 

6. If a Man pleads Devife of Goods, and that he took them by Command 
tfthe Executor, this is not £)oublei For the one cannot be without 
the other ^ For the Devifee cannot take them without Command to 
take, or by Delivery of them to him made. Contrary of Gilt ot 
Goods; For the Donee may take them. Br. Double Plea, pi. 140. 
cites 37 H. 6. 30. 

7. Several Caufes of Stifpicion x)f Felony are not Double ; For it is only 
^Conveyance to prove the Catife to arreji him. Br. Double, pi. 148. cites 
2 E. 4. 8. 

8. Note, per Brian, if a Man makes two Attornies in one and the fame 
AQion conjiintlim S divifim, they ought to join in PJea ■■, For if they 
ftyerin Plea it Ihall be faid Double ; Qusere. Br. Double, pi. 156. 
cites 12 H. 7. 10. 

9. In Cafe againfi a Sheriff ; The Plaintiff declared that an Execution 
•was dtreHtd to hitn, by Virtue whereof he had taken Goods to the Value of 
the Debt, and had fold them, and had not returned the Writ. Defendant 

demurred. 




Double Pleas. 



As to 

.'ie.yei'menl- 



demurred, alleging that it was Double i but per Cur. \i the one Matter 
is depending on the other ^ the Declaration fhall not be Double, and here 
all is for not returning the Writ. Gouldsb. 96. pi. 13. Trin. 30 Eiiz, 
Matthew's Cafe. 

JO. Inducement does not make a Plea Double, Goldsb. 88. pi. 13, 
Pafch: 30 Elii. White's Cafe. 

11. VV^hether, where the Words in a Deed are ftifficient to pafs a 
Thtn^ by fevtral Alcans^ and thev are pleaded generally without /hewin'r 
any EleSicn which way the Thing palles, this be a Double Plea waa 
doubted. Skin. 63. pi. 7. Mich. 34 Car. 2. B. R. in Cafe of Pauling 
and Hardy. 

12. Where Matter of Faif and La'ju is aOigned lor Error it is Double,, 
and Plaintiff may have Advantage ot it on aDemurrer, but after In nuU 
lo ellErr.ituni pleaded it is too late, Carth. 338. Hili. 6 W. 3. B. R, 
Edmonds v. Probert. 

13. Note, by the beft Opinion, that where a Man fuppofcs that he 
retained a Carpenter to make a Hoiife^ and that the Carpenter ajjamed to do 
It &c. or that he retained ftich a Servant to ferve &c. to which &c. the 
Servant agreed, this is not Double ; For it is no Bargain unlels both 
Parties ali'ent. Br. Double, pi. 116. cites 1 1 H. 6. 18. 

14. And per Newton, a Man may aver all Matters agreed in an Af~ 
ftimpticnin one and the fame AB ion. Br. Double, pi. 116. cites 11 H, 
6. 18. 

15 As a Man may declare of all the Covenants in one and the fame 



Indenture^ and it is not Double ; Q_uod non negatur. 
116. cites II H. 6. iS 



Br. Double, pi. 





16, Annuity was granted pro Confilio S Aiixilio habend' ; The De^ 
fendafti Jhewed that he had demanded Counfel and Aid of the h'laintiff^, wha 
was a Ph)fictan, and he would not give it ; and it was held that the De- 
mand de Conlilio & Auxilio is not Double ; For the one depends upon the 
other. Br. Double, pi. 20. cites 41 E. 3. 6. 

17. In AfTife the Tenant pleaded Fine tipou Grant and Render of the An- 
cejior of the Plaintijf to two with Warranty, and that the one releafed to 
the other ^ who infeoffed the Tenant ; Judgment &c. and relied upon all 
the Fine and Warranty, and admitted, Br. Double, pi. 38. cites 38 E. 



So of a Deed with Warranty. Br. Double, pi. 38. cites 38 E. 



3- 34- 

18. 

3- 34- 

19. Contra it is faid eKewhere of Fecfment with Warranty ; for the 
Feoffment may be without Deed, and the Warranty by Deed. Br. 
Double, pi. 38. cites 38 E. 3. 34 

20. In Affife, the Tenant pleaded the Deed of the Great Grandfather 
with Warranty to W. P. who injeoffed J. who tnjeoffed the Tenant ; judg- 
ment &c. The Plaintiff f aid, that after this his Great Grandfather was 
feifed, and died fei fed, and his Grandfather entered^ and died feifed, and he 
entered as Heir, and was feifed, and diffetfedby the Defendant, and relied 
upon the dying feifed of his Great Grandfather, and neverthelels well, 
and otherwife Double. Br. Double, pi. 37. cites 38 E. 3. 21. 

21. Afftfe of Rent i the Tenant faid, that A. brought Affife of other 
Land agatnff B. Father of J. which Deed of Grant of the Rent is now 

Jhewn, and recovered the Land and Damages, and took Elegit for Execatioit 
of the Damages, and had the Moiety of the Land put in View m Exeeutton, 
and pleaded all in certain^ (as he ought) and after A. who recovered leafed 

his 



Double i^Ieas. 1B5 

his FJiate to the now 'Tenant^ and after B. granted the Rent charge now 
in Plaint to the Plaintiff his Son and Heir apparent^ and after B. granted^ 
ratijied^ and confirmed to the noia Tenant for Term of their Lives ^ and af- 
ter E. by his Deed fheiai Sic. re leafed all his Right to the Tenant, and 
•warranted the Land to him and died, and fo demanded Judgment, becaitfe 
the Plaintiff as Heir of B. the Grantor is bound to warrant the Land dif- 
chargcd, if againji the Deed of your A/iceJlor Jiffife ought to be, and averred 
that Execution is not jet incurred, and it was held Double, viz. the Exe- 
cution before the Charge, and the Rekafe with Warranty, by which he re- 
lied Hpon the Releafe with Warranty, Br. Double, pi. 87. cites 31 
Air 13. 

22. In Alfife, Leafe for Term of Life, and Rekafe of the Leffor with 
JVarrantv, was admitted for a good Plea, and it was not excepted lor 
the Doublenefs; For it kerns that it is only Conveyance, but the Plain- 
tiff' was not Heir to the Warranty ; For this countervails Feoffment with 
Colour. Br. Double, pi. t42. cites 37 H. 6. 16. 

23. In Alfife, the Tenant pleaded a Gift in Tail, and Confirmation in 
Fee, this is Double. Br. Doable, pi. no. cites 30 H. 6. 9 £. 4. 4. 

24. In Alfile, the Tenant pleaded in Bar that J. S was feifed, and leaf- 
ed to A, for Life, and after granted the Reverfion to his Father, and the 
Tenant attorned and died, and the Father entered and died, and the Tenant 
entered as Heir, and gave Colour ^ and per Cur. this Grant of the Re- 
'verjion, and the Entry of the Heir upon this Title are Double, though 
he does not ple.id it as a Dying Seiled ; For it the Father was difleifed 
and died, and he re-entered, he is in as Heir, and the Entry of an- 
other toU'd, and io Double, by which he relied upon the Grant of Re- 
verlion. Br. Double, pi. 29 cites 9 H. 4. 4. 5. 

25. And tiicre it was agreed, that where tiie Plaintiff alleges a Dying 
Seifed alter, and the Tnant alleges a Continual Claim in his Father, and 
another in hiviflf after the Death of his Father, it is Double, by which 
he held him to the Claim of his Father. Br. Double, pi. 29. cites 
9 H. 4. 4. 5. 

26. So ot -d Leai'e for Life and a Releafe, it is Double i for the one of 
the Matters with Colour to the Plaintiff makes a good Bar ; So of a 
Grant of the Reverf/on in Affi{e, and after the Tenant furrendered, and the 
Grantee died jtifed, this is Double i For the dying feiled is fufficienr. 
Br. Double, pi. 1 10. cites 30 H. 6. and 9 H. 4. 4. 

27. But wirere the Contention is between the Heir of the Donor or Grant- 
rr, and the Tenant upon the Execution of the Fee fiinple, there he may plead 
both, and it is not Double ^ For he cannot do. ocherwife. Br. Double, 
pi. no. cites 30 H. 6. and 9 H. 4, 4. 

28. In Affife, i?«i/ divers other ABions of Trefpafs two Defcents are 
Double ; But it is faid there, that in Formedon it is otherwife ; for 
there the Giir only is traverfable, and not the Defcents. Br. Doable, 
pi. 16. cites 33 H. 6. 32. 

29. in AJfffe, the Tenant pleaded Fine levied ly the Anceftor of all in 
Demand, and concluded to the Moiety, and pleaded Recovery' or Rekafe of 
theAiicefiorofthelVhole, and concluded to the other Moiety, Judgment if 
Affife, and it uas challenged tor Doublenefs, and the belt Opinion 
was that it is not Double, unlefs he concludes his Plea to the Whole, 
quod nota, by which the Plaintiff pafs'd over and made Title. Br. 
Double, pi. 139. cites 37 H. 6. 23. 

30. Affife by two of the Office of Clerk of the Crozvn in the Chancery^ and 
to one the Defendam faid that he was an Alien born, and to the other, that 
there was nofiich Office, and per Cur. the Lift Plea g.jes to all, and there- 
fore both make it Double ■ for the lalt Plea goes to both the Dcten- 
dants, and therefore he has pleaded a Plea' to bath, and two Pleas a- 

B b b giinlV 



i86 



Double Pleas. 



Br. Affife, 
pi. 582. 
cites S. C. 

■ fenk 

182. pi. 68, 
cites S. C. 
by the 
Judges in 



gainfl the Alien born, by which he amended his Plea. Br, Doublcj 
pi. 152. cites 7 E. 4. 29. 

31. In Affife, the Tenant [aid that he himfelf was feifed till by the 
Plaintiff dijfeifed, againji whom he br ought JJ/ife and recovered, this Plea 
is not Double, per HuiFey Ch. j. and Fineux, and tot. Cur. conceffit, 
and yet he alleged Sei/m and Dijjei/in, and alfo a Recovery ; but the one 
is Conveyance to the other. Br. Double, pi. 95. cites 9 H. 7. 23. 

the Exchequer Chamber. 



Audita ^le- 
rela. 

S^^^^^^y^ 32. In Audita Querela, the Conttfor put two Releafes, the one general^ 
fitice by In- and the other of the Sum in the Statute Merchant, and therefore was 
denture, and compelled to keep to one^ For each grows to all. Br. Double, pi. 63. 

Rekafeofall j,jtgs ^^ E. %. 27. 

JBions, IS t J I 

Double, and therefore he held him to the Indenture, and yet it feems that the Releafe is not good ; 

For Releafe of Aftions fliall not ferve for Execution. Br. Double, pi. 125. cites 44 E 3. 56. 




♦ S P. Br. 
Double, pi. 
121. cites 
5H.6.45. 



33 Avowry for Rent referved between three Sijlers for Equality of Par- 
tition, and the Plaintiff faid, that the Place where the Diflrefs was taken 
Was not Parcel of the Land put in Partition, and that this is in the Seijin 
of the King,aiLnd therefore Double , Per Cur. by which he took the Seifm 
oj the King by Protefration, and the other Matter by Plea. £r. Double, 
pi. 2, cites 2 H. 6. 14. 15. 

34. Avowry for Homage and 20 s. Rent, the Plaintiff prayed Aid, and 
the Plaintiff and the Prayee joined and faid that one A. was feifed of ihe 
Seigniory whofe Effate the Defendant has, and one B. was feifed of the Te- 
nancy and of other Land, whofe EJtate the Prayee has in the Tenancy, to 
which B. the faid A. then Lord, releafed all his Right that he had in 
the Land, rendering i d. for all Services, and demanded Judgment tf for 
feveral Services &c. and not double, per Martin, viz. The Releafe and 
the Tenure of this Land and other by one entire Service, becaufe he relied 
upon the Releafe, Judgment if for feveral Services &c. quod admittitur 
&c. Br. Double, pi. 4. cites 3 H. 6. 28. 

35. In Avovvry the Defendant avowed becaufe J. Lord of the Manor of 
D. was feifed of the Services &c. and Fine fe levavit between him and one 
P. upon Conufance of Right come ceo 8z.c. which P. granted and rendered 
to the faid J. for Life, the Remainder over to the Avowant, and alleged 
Seijin in the Tenement for Life who ts dead^ and in him in Remainder who 
now avows, and the Avowry was held double, becaufe he alleged a 
Seijin in the Lord of the Manor in Fee and two others, the one in the Lord 
for Life, and another in him in the Remainder, where one Seifm in the 
Conufor and another in the Grantee for or in htm in Remainder fuffices ; for 
they two are as one and the fame Lord, and therefore lliall not allege ic 
in both &c. and therefore he amended the Avowry. Br. Double, pi. 
14. cites 20 H. 6. 7. 

36. Avowry of a Rent-Charge the Plaintiff faid, that after the Grant 
the Avowant and J. were feifed in Fee, and enfeoffed A. B. who enfeoffed 
the Plaintiff, and this islingle Plea and is not double, viz:. The*&^» 
and Feoffment ; for a Feoftinent cannot be pleaded without Seilin, Br. 
Double, pi. 89. cites 4 H. 7. 17. 

37. So m Writ of Aiel, to fay that ajter the Death of the Grandfather 
the Demandant himfelf was feifed and enfeoffed him; Per Townfcnd, 
Brian and Haughes J. B. Double, pi. 89. cites 4 H, 7. 17. 



38. Avowry 



Double Pleas. 187 



38. Avowry for los. due for ivo jlcres of Land of the Defendant, the 
P hunt if [aid that he had of him thefe two Acres and two other Acres 
M' 4 -f. abfqtie hoc that he held the two Acres by lo s. and therefore dou- 
ble ; per Keble ; For he ought to take the one by Protellation, Contra 
per Brian, and that the Plaintiff cannot do otherwife j for the talfe 
Avowry of the Defendant fhall not prejudice the Plaintiff Quaere. Br. 
Double, pi. 93. cites 8 H. 7. 5. 

39. The Cafe on the Pleading to an Avowry was thus ; A. fcifcd of 
the Place where &c. and other Lands grajtted to the Plaintiff 20 /. fer 
Ann. in Fee out of the other Lands, wtth Clatife of Dfhefs, and after 
fold the Lands charged to the Defendant, and to free them of this In- 
cumbrance granted a Rent of 20 /. per Ann. out of the Place where &c. 
to commence from the 'Time that a Difirefs for the 20 /. fbould be taken 
in the Lands charged, and pews how that at ftich a Day a Difhefs was 
taken ^ and thereiore &c. in Bar of the Avowry they come and tra- 
'verfe abfque hoc that any Dijlrefs was taken for Rent - Arrear &c. 
to this they demur fpecially, for that \t is a complicated Traverle, 
whereas it fhould be a Point lingle, and that Riens-Arrere &;c. and 
of this Opinion was the Court, and ordered} udgmenr, Nifi they re-plead 
and pay Colls. Skinn. 63. pi. 8. Mich. 34 Car. 2. B. R. Amias and 
Chaplein. 

Cha niperty. 

40. In Champerty the Defendant fa id, that the Plaintiff in the firfl '^-"^^'^^'^'^ 
Suit for whom it is fuppofed that he maintained was an Alien born in Eur- g^ cham- 
gundy out of the King's Allegiance, and can neither fpeak Englifhor La- perty, pi. 6. 
tin, and prayed this Defendant who could fpeak his Language to obtai u d^s S.C. 
him Men of Law to be of his Counfel, and where the fame Alien was in 

Debt to this Defendant he granted him that if he recovered in this Suit, 
that he fhould be paid of the Sum fo to be recover' d &c. by which he gained 
him Counfel, which is the fame Maintainance &c. and a good Plea, 
and is not double; quod nota. Br. Double, pi. j8. cites 15 H. 7. 2. rV^A^^O 

Confpracy. 

41. Confpiracy againft two becaufe they procuried A. to ouji the Plaintiff 
of his Land, againfi which A. one y. N. recovered by Scire Facias, by 
which the Plaintiff loji his Warranty, and the Procurement, and the Re- 
covery was not adjudged vitious for doublenefs j For the Procurement 
without doing more does not give Caufe of Aftion. Br, Double, pi. 
157. cites 42 E. 3. I. 

42. Covemnt for oujlingvf a Termor, the Defendant jujtified by Clatife of ^ . . , 
Re-entry for Rent arrear, and the Plaintiff faid that there being a J3'/- Edicions of 
courfe between him and the Defendant that the Defendant fhould be at Table Brook are aj 
with him and fhould recoup his Rent fectindum ratam, &c. and that he was 'i«''e> ^^} 
at Table for fo long Time which amounted to 40 s. of the Rent, and as to 4 s. '^' ^'^"'Vd 
he tendered it to the Defendant ana he refufed and enter d, and this Difcourfe "" ^' " ' 
and the Tender was held good, and not Double ; For the one gees to part 

tf the Rent and the other to the Rejl. Br. Double, pi. 27. cites *47 E 3. 77. 

4:^. In Writ of Covenant a Man may allege as many Covenants 

broken as he will, and it is not Double. Br, Double, pi. 94, cites 

9 H 7. 13. 




44. Cuflom to tax a Sum for Reparation of a Church by Affent of the L-> 
Pari/lioners was not held double ; but the Affent is the Effecl, and the ^'■• 
Cujlvm fliall entorcej Per Thorp. Br. Double, pi. 24. cites 44 E. 3. 19. P % 



Cufioms, 
6. cites 



18, 19. 



45. T)t\it againji Executors who plead Plene adminijlravit S3 kiens en- 
ter ■wains the Day of the Writ putchafed nor ever aker, this is not a 
Double Plea ; For Affets anfwers all ^ quod nota ; Per Cur. Br. Double, 
pi. 3. cites 3 H. 6. 4. 

46. \Vhere 




i88 Double Pleas. 



Br, Taile, a6. VVhurc a Maftpcws Bill of 40 /. tc the Cclleffor of 'Tenths, and he 

de Exche- Yejiifes to pi'j, by which be brings Debt, the CoUe^or pall plead tb'at Writ 

S"^""' P^5- ^^^ dircticd ncitmg the jjif of Parliament, becaufe the Mayor of the 

accordingly. Staple had lent to the King 1000 /. the ivhtch fiall be Jirjl paid, and that 

the Writ commanded him to pay to him 300/. and another Bill came to him 

hy another of lool. befon the Billofthe Plaintiff poeivn, and beyond 400/. 

he has not any Thing in his Hands to pay ; Judgment &c. and the Plain- 

tiil'demurr'd and therefore was barr'd, and brought Writ of Error, and 

per Cur. the Plea fhall be good and not double as the PlaintifFalfigned, 

viz. the Atf of Parliament, and that he had only 400/. For the 400 1. 

is the Matter, and the other is only the Recital and Intrcdticiion ; and 

alfb ic is a Particular A£t whereof Strangers to it ihallnot be bound to 

cake Conulance as of a General Aft. Br. Double, pi. 74. cites 

37 H. 6. 15. 

47. Debt ttpoH Obligation, the Defendant faid that he is Lay and not 
krter'd, and the Deed was not read to him by other Days of Payment, and 
alfo that he feakd It and delivered it to T. N, as an Efcrow, to the Intent 
that if J. N. named in the Obligation would feal it, then to deliver it 
as his Deed, and if not, to retain it, and faid that J. N. fealed it, 
and yet T. delivered it to the PlaintilFaWyo Not his Deed, and is not 
double, viz, the Nient literaf, and the Delivery as an Efcrow, becaufe 
he concludes Non eft factum, which is only the Plea, and the other is 
but Evidence; and a Man may allege 20 Matters to avoid a Deed when 
he concludes Nou ejl faff unii qQodnota, ^etCui. Br. Double, pi. 80. 

cites 38 H. 6. 13- 

48. In Debt the Plaintiff counted that the Prior of J. Parfon of O. in 
■ proper Ufe leafed to him for f(>i Tears, and he leafed to the Dejendant for 

four Tears rendering Rent, and for the Rent-Jrrear &c. The Defendant- 
faid that before this the Prior leafed to W. N. for 10 Tears the fame Tear; 
and after he leafed to the Plaintiff, and after W. N. ftirrendered, to which 
the Prior agreed, and after leafed to the Defendant for ten Tears, and 
that the Vicar is endowed of the [mall Tithes, and leafed them to the De- 
fendant alfo, and the Plaintiff would have taken them, and the Defendant 
would not ftiffcr him, and this was held double, viz,. The old Leafe and 
the Endowment of the Vicar, by which he relied upon the old Leafe, 
and took the other by Proteftation. Br. Double, pi. 34. cites 
9 H. 5. 8. 
Bi'. Count, 49. The Plaintiff comes and counts upon an Obligation of an Allot, 
pl. 10. cites Prcdecejf or fealed with his Seal only, and counts how the Thing came to the 
^•^' . Ufeof the Houfe, and yet well and not double. Br. Double, pl. 10. 
cites 9 H, 6. 25. 

50. Debt upon Obligation againfi Executors ; Per Danby, the Deceafed 
' made the Defendant and A. his Executors and died, after whofe Death 

Alice adminijiered as Executrix, to whom the Plaintiff by the Deed &c, re- 
leafed, and after the Defendant married the faid Alice ; and per Pafton, 
Afcue and Port, the Plea is not double, viz. l^\\<tReleafe, and that he 
\\z?, another Executor ; for it is not alleged that A. is alive, and he con- 
cludes upon the Releafe to the ABion ; and per Cur. he may anlwer 
without abating the Writ, by which the Plaintiff' faid, that not his 
Deed &c. Br. Double, pl. 52. cites 22 H. 6. 59. 

51. Debt «/)oa Obligation which had a Condition that if the Defendant 
was ready when hefhould be warned at D. at the Coffs of the Plaintiff to 
account and to pay, that then &c. and faid that he was not warned to come 
at the Qjfls of the Plaintiff, Judgment &c. per Perfey the Plea is 
double, viz. the Garnipnent and the coming at the Cojls &c. & non al- 
locatur. For if there are divers Conditions in one Defeafance, he ought 
to anfwer to All. Br. Double, pl. 124. cites 46 E. 3. 16. 

52. Debt 



Double Pleas. 



189 



52. Debt againfi an Abbot ttpon ait ObligatloH fcaLd * with the Covcnt * (-^^ig. 
Seal^ the Defendant [aid, that the Abbot imprifuned the Prior, and me- ^'^ p"''-^- ~ — 
naced all the Monks to make the Obligation by which they made it iy^t the"lm- 
Judgment. And it was held double, the Imprtjonment and the Menace ; priibnment 
by which he held him to the Menace by Award ; tor this goes to ail oFthe Prior 
by reatbn ot" the Menace of all ; for the gteater Number futfices. Br. •'';"o.Pl=a ; 
Double,pI.54. cuesijE.4. 1.2. ,^--- 

againll the 
Abbot-Succcflor of him v/lio made the Obliga-ion, and fo Tee that two Matters IThI! be double, though 
/ic owe ie w P/f(r, as a Feortment with Warranty in AfTile •, For a P'eofimec.t only is no Plea, ami 
therefore it is ulual to rely upon the Warranty to avoid the Doubiencfs. Br Double, pi. i;:,. 
cites S. C. 

53. Debt upon ObUgaiion of 10 /. with Condition to pay 5/. the Defen- 
dant pleaded Payment to the BaiUjf of the Plaintiff by his Command^ 
which came to the life of the Plamtijfj this is a double Plea, by whicn 
he relinquilhed the coming to the Ufe of the Plaintiff, and then a good 
Plea J quod nota. Br. l3oub]e, pi. 107. cites 22 E. 4. z$. 

54. Debt upon Obligation of 40 /. againll D. who faid that he had paid 
the 40 /. and the Plaintiff had re-delivered the Obligation in lien of Ac- 
quittance, and after the Plaintiff re-took it with Force and Anna, Judg- 
ment li A£lio. Per Vavifor the Plea is double, via. the Payment and 
the Re-delivery of the Obligation in lieu of Acqiuimnce. Per Colow^ 
No; For it is purftiant, as to fay that J. N. Wdsfetfdin Fee, and en- 
feoffed him, this is not double, viz.. the Sei/in and Feoffment are not 
double. Per Keble, it is linglej For it lliail not be laid double, but 
where the Court Ihall be inveigled to give Judgment where the one 
Part is tound with the Plaintilf, and the other with the Delendaiit, or 
tor the Mifchiet' where the Plaint anfwers to one Part, and the Delen- 
dant concludes to the other, and here there is not any ot' chefe Points ; 
For the Payment is only ior one conformity ol the Plea, and the one 
may depend upon the other, and that Payment and Acquittance is not 
double i quod luit conceflum. Townfend and Brian ad idem; For 
here the Payment is not iffltable nor contranant to the Re-delivcry of the 
Obligation, and lb by All, it is not double, but becaufe the Re-dilivery 
is no Plea, therefore the Plaintirf"recovcr'd. Br. Double, pi. 88. cites 
I H. 7. 14. 

$S. Debt upon Ohligaticn which was upon Condition to (land to th$ 
Arbttrement of J. N. fo that he made it and deiroered it to the Parties 
by fiich a Day, the Defendant faid that no Arbttrement was made nor de~ 
Jivered before the Day, and this is double, per tot. Cur. For it is a good 
Plea that he did not make any Arbitrement by the Day, and it is a 
good Plea that he did not deliver the Arbitrement belore the Day. 
Br. Double, pi. 90. cites 5 H. 7. 7. 

56. And the fame quod non delivetavit arbitrimn in Script' &c. where 
the Submiliion is to be in Writing. Br. Double, pi. 90. cites 5 H. 7. 7. 

57. And ibid in a Note, Debt upon Indenture, the Plaintiff' counted 
of feveral Covenants broken, and not double; For the Detendant pie ided 
all performed, and the Plaintiff Ihall Ihewone broken only upon which 
the Iffue fliall be joined. Br. Double^ pi. 90. cites 5 H 7. 7. 

58. Debt againfl a Succefjor if an Abbot, he counted of the Obligatiori 
of the Predeceffor, and oj a Contra^ which came to the Ufe of the Hotift, 
this is double. Br. Double, pi. 161. cites 10 H. 7. 21. 

59. One Action of Debt was brought on two Bonds, and the Defendant 
pleaded Non funt fa^fa, or per Minas; and adjudged good by one Plea. 
Noy. 132. Dencon's Cafe. 

60. Where a Man pleads two Deeds of the Anreflor of the Plaintiff'^ 
though none of them lliall be a Bar by itfelf, yet it Jhall be double and 
infufficient. Br. Double, pi. 78. cites 21 H. 7. 10. 

C c c 61, Xoce 




]C)6 Double Picas. 




6r. Note per Brian & Cur. that two Defcents of one Tail Ihall be 
^;-^^]^j^!f~^, double; For a Man cannot traverfe the Gik where there was fuch Gift 
and'i'fae J" Fu£t ; and if he traverfes the one Delcent, the other may rely 
all the Ldi- * upon the Other. Bf. Double, pi. 154. cites 20 E. 4. 3. 



tions. 




62. Detinue of Charters, the Plaintiff' counted of a Bailment made hy 

his Fathur to re-bat} to him or his Heirs, and floewed hoi<o the Land was 

given iy his Anceftor^ whofe Heir he is in Tail, and that the Reverjion is 

reverted to him as Heir by the Death oj the Tenant in Tail without Ifue ; 

and this is double by three Jullices, viz. the Bailment 10 re-bail to him 

or his Heirs, and the Tttle to the Land, by which he relinquiped the 

Defcent of the Reverjion. Br. Double, pi. 7. cites 9 H. 6. 4. 

* c p n . 63. Note, that;« Detinue of Charters the Plaintiff' counted how the 

Newton. ^'' Deed was delivered to the Defendant to enftie the EJiate of the Land, and 

Br Double, faid that he ts Heir to the Land &cc. This is not double. * Contra if he 

pi. 45. cites h;i(i faid that theDeed had been delivered to re-deliver to the Plain- 

19 H, 6. II. jj(|- ^,^(j ti^jjj he is Heir to theLand; For rhis is two Titles, Nota differ 

entiam. Br. Double, pi. 8. cites 9 H. 6. 14. 

64. In Detinue the Garnifhee came and faid that the two Obligations ift 
Demand were delivered to the Defendant upon Condition, that if the Plain- 
tiffs and Garnifhee ftood to the Arbitrement of the Defendant, and if &CC. 
thit then each Jhould have his own Obligation, bat otherwife if any broke 
the Award, and the other performed it, that he who performed it Jhould 
have both, and that they awarded that the Plaintiff Jhould recover the Pro- 
fits of a Manor from Midfummer to Michaelmas, and Jhould pay 10 Marks 
to the faid Garnipce, and that the Plaintiff fhould make Partition of the 
fame Lands and fuffer the Garnilhee to chafe his Moiety, and the Plain- 
tiff' pall have the other Moiety, and faid that W. the Plaintiff did not 
make the Partition, nor did he pay the 10 Marks, and prayed delivery 
of the Obligation. Per Newton, Pafton, & Cur. the Plea is double, 
the one that the Piaincitf did not make a Partition, the other that the 
V\a\i\iiii did not pay to the Garnifhee the lo Marks ; For both entitles the 
Garnifhee to the iVritings. Br. Double, pi. 48, cites 21 H. 6. 18. 
D.-)!. ^o. 6j. In Detinue for Goods bailed the Defendant pleaded, that after 

PI.9.S. C. jf^^ Bailment Plaintiff married f. S. who during the Efpoufals releafed to 
cordingiy the Defendant, and held by all the Juftices not to be Double, for he 
—S.C cited could not plead the Refufal without jliewing the Marriage. Mo. 25. 
2 Lutw. nl. 85. Pafch. 3 Eliz. li. R.. Audiey's Cafe. 
149Z. — 



66. In Dower the Tenant faid that he had nothing but in Ward with 
JV. N. of the Grant of G. of whom the Anceffor of the Infant Son of the 
Baron held m Chivalry &c. Per Hals, the Plea is double, one that he 
has nothing but in Ward, and the other that he held jointly, and bccaufe 
it he flrall be compelled to hold to the one, he at another Time Ihall 
lofe the other, therefore for the Mifchiei, he Ihall have the Pleai Per 
tot. Cur. Br. Double, pi. 33. cites 9 H. 5. 4. 

67. Entry fur Difjei/ln made to C. his Coiijin, whofe Heir he is, viz C. 
was the Daughter of T. Sifier of the Demandant, the Tenant faid that J. 
Brother of the Demandant, whofe Heir the Demandant is, was I'eifed in 
Fee, and gave to T and A. in Tail between whom C. was iffue, and 
C. died without Heir of her Body, and J. your Brother entred as in his 
Reverjion and enfeoffed the Tenant and after by his Deed releafed to 
us. Judgment il againlt the Deed comprehending Warranty &c. and 
becaufe he relied upon the Deed with Warranty, theretbre good, not- 

wuhliindiug 





Double Pleas. jpt 




withi'.uiiding that he alleged Tail where the Demandant demanded 
Fce-SimpJe, and the Feofiiiienr, uud Releaie with Warranty. Lt. 
Double, pi. 6s. cites 24 K 3. 75. 

68. Entry /» Nature uf yi^ffe, Dcjeiidaut ftlcaded that he is /«/!>• Tla-l. Dig. 
Lea fe for 40 Tfiirs of the Leafe oj the Pyedecc[Jor of the Plaimiff by In- 215. Lib. 
denture^ and jo hus he nothing btit for 7'erm of }ears, and that the £)i?- ' 5- "P- ?• 
mandant hhnfelf is feifcd vj; the b'ranktencment. Judgment of the Writ, ^^."'■g'^jf' 
and per tot. Cur. this is a double Pica, viz.. Leafe by Indenture^ and 
that the Plaintiff hunfelf is fetfed oj the Franktcnement. For if the Plain- 
tiff anfwers to the Lcale, the other may demur becaufe he does not de- 
ny but that he himfelf is Tenant ol the Franktenement ; and if he an- 
fvver^ to the Fr:\nktenement, the other may likewiie rely upon the 
Lcafc by Incicnture, which isElloppelj by which he was azvardcd to 
hold bimto the one^ and \'o he did, viz. that the Plaintiff himfcll' is 
Tenant. Br. Double, pi. 68. cites 4 H. 6. 27. 

70. Entry in Nature of AlJife tn loo Jicres of Land ^ the 'Tenant fa'id 
that he had Common there appendant to his Manor of B. by which he put his 
Beajls in, abfqtie hoc that he claimed any thing but the Common, and abfque 
hoc that he had other Poffe(]ion or EJlate in the Land, and that W. N. was 
tenant the Day of the Writ purchafed^ and yet is, not named m the Writ ; 
Judgment of the VV^rit ; and per Cottefmore J. it is a good Plea, and 
not Double ; For the Common is nothing to the Purpole, and the Plea 
is zfp£'~.al Nontenure, and the Common is mentioned to prove his Entry in- 
to I he Land to uj'e his Common, and not to have Franktenement in the Land, 
by which the Plaintiff iniparled. Br. Double, pi. 44. cites 8 PI. 6. 33. 

•71. E [cheat upon Seifen of A. Juppojing that he died without Heir ; the 
Tenant faid that A. had Iff tie K. vjho entered and endowed the Feme of A. 
and af.er rekajed to her, wboje Releajc the Tenant has ; judgment &c. 
And by the belt Opmion the Plea is Double ; For the Sei/ln of the Heir 
goes to the Writ, and the Rt leafe conveyed the Right, and goes to the Bar^ 
by which he relied upon the lall Seilin of K. the Heir of A. to whicli 
the Demandant laid, that the laid A. had no fuch Daughter as K. who 
furvived &c. Br. Double, pi. 159. cites 11 H. 4. 10. 

Forcible En- 

72. Trefpafs of Forcible Entry i the Defendant faid that J. was feif- try. 
ed, and gave to his Father in Tail^ who died feijed^ and the Land dcfcend- ' ^''^ 
ed to him, and he entered and was feifedtill by the Plaintiff difjeifed, upon 
whom he entered; Per Littleton, the Plea is Double, viz. the Gift and 
Defcent, and Laicon and Prifot contra ; For it is furiicient to fay that he 
was feifed till by the Plaintiff dill'eifed, upon whom he entered, and 
cannot fay feifed in Tail wiehout /hewing How ^ and therefore the KtJidue 
is only Conveyance to it. Br. Double, pi. iS. cites 3 H. 6. 15. 

73 Contra in Affife^ and then if Y\t jhews fpecially How he was feifed 
hy Tail^ as here, the Plea is not the better, and one Anfwer may make 
an End of all, \ iz. Ne dona pas ; by which the Plaintiff replied, and the 
Defendant imparled &c. Br. Double, pi 18 cites 3 H. 6. 35. 

74. In Forcible Entry, the Defendant jufiifui his Entry by Gift to f. 
for Lije, the RcnLunder to his Father m Taif who was f'eifed, \ind died 
fi'fui, and he entered as Heir in Tail ; the Gift in Tail and the Dt- 
fcent is Double, theretore he ought to take the one by Proielta- 
tion, ;!nd the other by Matter in P'a£l, Quod luitconcellum ; Per Ho- 
riy and Pafron, but it is not argued. Br. Double, pi. 129. cices 9 H. 
6. 13. 

75. Trel- 



192 Double Pleas. 




75. Trefpals 14x11 the Statute ot Fcrtd/e Entry ; the Dejttidant a'tit-, 
ged Bar, and the P I aitit if alleged Defcent to him to avoid the Entry of the 
Defendant^ and he avoided it by continual Claim made by his Predeceffor^^ 
and by htmfelf y Per Port, the Pica is Double ; For if the Ancellor died 
in the Lite of your Predecellor, then your Claini is void, and if he 
died in yuurTinie, then the continual Claim in the Time of your Pre- 
deceffor is not good ; by which he alleged continual Claim in his Time 
only, and that the Ancellor died in his Time, aod then well ; Quod 
Nota J and otherwife Dotiile. Br Double, pi. 50. cites 22 H. 6. 37. 

76. In Formedofjy the 'Tenant pleaded a fine of the Ancejlor upon Contf 
fame of Ri^ht with Warranty, and not Double, nor was the Tenant 
compelled to rely upon the one by Award ^ For it is only one intire 
Deed. Br. Double, pi. 25. cites 46 E. 3. 14. 

77. In Formedon, the Tenant faid that the Donee was feifed itt Fee tilt 
hy the Donor diffeifed, and after the Donor married the Donee to his Daugh- 
ter, and gave to him in Tail, and compelled hitn by Menace to take the Gift, 
whofe EJiate the Tenant has, and fo remitted to the Fee Simple ; Judgment 
&c. and per Culpepper and Martin, the Plea is Double, vir. the Dif- 
feifin and Remitter by Reprifat^ and the taking by Menace ; Contra per 

Hank, and that the Difleilin and Reprifal is the Efieft. Brook fays 

Contrarium videcur Lex. Br. Double, pi. 3 recites 12 H. 4. 19. 

S. C. cited 78. In Formedon in Delcender the PlaintilF declared ot a Gift in 

2 Lutw. TitW to his Father who died, and that the Land defcended to Demand- 

of PelU^*'''' ant's elder Brother, who alfo died without Iliue. The Tenant plead- 

Garlick- ed that the elder Brother had Jfue a Daughter, who levied a tine to 

12 Mod. 507. him, and he relied upon the Fine and the Proclamation. It was objecl- 

cites S. C. gfi jha^ this Plea was Double, that the one is the Iflue, and the other 

is the Fine. But per Cur. lince he cannot come to the one w ithouc 

fliewing the other, it Ihall not be Double ; belides, here he relies upon 

the EHoppel. Gouldsb. 88. pi. 13. Palch. 30 Eliz. White's Cafe. 

Giifrnjhment. . i i i i n r t^ n 

79. Where a Plea includes double Matter, as Garnipntient by the 
Sheriff to levy a Fine, and Garnilbment by the Party, this is Double, tho 
one fhall not be material. Br. Double, pi. 127. cites 11 H. 4. 18. per 
Thirn and Cnlpeper. 

80. In Juris Utrum the Tenant faid, that his Father was feifed and 
died fei fed, andthe Predeceffor of the Plaintiff abated, againji whom he re- 
covered tn Mortdanceflor and entered, and fo this is his Lay-Fee^ and not 
the Frankahmigne of the Plaintiff'; and this is not double, per Cur. 
viz. the Recovery and the Lay-Fee &c. for he ought lb to conclude, 
becaufe it is a Writ of P«.ight in its Nature, and lb in Writ ot' Right 
if he pleads a Recovery he ihail concludes and lb has he more mere 
Right. Br. Double, pi. i. cites 19 H. 8. 7. 

81. la Maintenance, th^ Defendant jujlified as Attorney of the Plain- 
tiff, and the Plnintiff faid, that he gave 10 s. to one Jury, and 10 j. 
to another, to give Verdict for his Client, and it is not Double, per tot. 
Cur. Becaufe all does v\oi prove bat one fpecial iMatter ; Quod 7?iiror J 
Br. Double, pi. 114 cites 11 H. 6. 10. 

runt. g2. In Monftravcrunr, iheDefindant faid that he held of a Maiicr in the 

^'^"'"'^^'''^^■^ fame Villj whie t is fill- Tit:i!o Terrx F.pifcopi de E. tempore E. Regis B Coiifejjo^ 

riSy 



'Jur'ti Utrum. 




Double PkcLS. 



193 



ris, and not in the Adanor of the fame Name contained in the Book vf 
Docmfday ftib T'ltulo 'ferrcC Regis, and that the Pldintiffs held vf him at 
Will, and it was held double Matter j /«• each of than is a good Bar. 
Br. Double, pi 19. cites 40 E. 3. 45. 



Jieple-'jiii. 



83. In Replevin, y^'DOWrv is iTiade foy Rent "tfcri}ed upon F.qit.ility of 
Partition made betivcen t'^vo Coparceners i the Plaintiff' faid that thcreiverc 
three Coparceners, and the third was Extra Patriam Tempore Partitionis, 
and returned within ji^e and entered, by which they made new Partition 
&c. and the Re-entry, and new Partition were fuliered by Award, and 
the Plea fingle ; Nua. Br. Double, pi. 62. cites 24 E. 3. 52. 

84. In Replevin, the Delendanc laid, that tlie Property of the Bcafts ;.f Thel.Dig. 
in anoi/ or, und that he t'-:k I'-^r: -h .ni'.ikcr Vill ; and this is Double ; ^.''^- ''^- ''^ 
Quod Nota, Br. Double, pi. 21. ciit.042 E. 3. 18. citeslVf;' 

; 19 S C. 

that the Defendant was compelled to holdhimlclf to the one. But in Replevin, ai to o?/f Or.The 

Defendant /rt/t/, that the Property was to a Stravprr, iiih{ ns to another 0,v, thai he took it in amther Place, 
onA in another I'lll&tic^ And this laft Plea was licM Dmible ; For the one Parr of the Plea g<jes to the 
Place, and the Other to the Vill. The!. Dig. 214. lib. 15. cap. 5. S. 16. cites Mich 9H.(S. 59. 



85. In Replevin thfe Demandant avowed hy two Avoivries upon the Bf. Avnwiy, 
Plaintiff for two feveral Tenures of two Jcres 3cc. as upon Tenant of Fee- ^' ^ '^"^■' 
Sin/p/e, and the Defendant fatd ihat the Father of the Defendant, whofe ' 

Heir 6i.c. g^ve them to hini in Tail, to hold hy one and the fame Tenure i 
Judgment of the Avowry fippoftng two [ever al Tenures, and it is not d(5u- 
ble, viz.. The Tenure of Fee Tj:1, and the tnttre Tenure ; becaufe he re- 
lied upn the lafi. Br. Double, pi. 12. cites 9 H. 6 26. 

86. In Replevin it' a Aian pleads two Matters to the Avowry, of which 
the one goes in the Abatement of the Avowry to prove that they ought to 
have made another Manner pt AvOwrv, and the other Matter goes lit 
Bar of the Avowry, this is double. Br. Double, pi. 158. cites 35 H. 
6. SI. 

87. In Replevin w^ffT the Defendant ought to have gaged Deliverance^ 
he ft^id, that the Beajls died in Default of the Plaintiff' where the De- 
fendant diflr anted for fuch Caiife and put them in open Pound &c. the 
Plaintiff jaid thit the DeUndant ejloigned them to a Place unknown, 
and there they died in Dejaiiit of the Defendant ; & non allocatur ; Foir 
it fuffices to fay that he efloigned them only, vjh'\c\\pall be intended out 
cf the County &;c. and it i^ futficient to fay that they died in Default of 
the Detendanti quod nota per Cur. therefore tvvo Matters. Br. Dou- 
blej pi. 91. cites 5 H. 7. 9. 

88. In Replevin the Tenant in Tail of a Rent purthafed the Land and 
7nade a Feoffment in Fee of Land difcharged with Warranty, and died, and 
Affets is def aided, the IJJ'ue in Tail was vouched jor the Rent, and thi.'? 
Matter is pleaded in Bar ol the Avowry i and becaufe he did not fhew 
whether the Anceficr who made the Feoffment with Warranty was Anceftor 
Collateral or 'Lineal, therelore per Cur. the Bar is ill, and it fhall be 
intended Anceflor Collateral ; Per Vavifor J. and then this and the Affets 
is double, and he ought to have rehcarfed the Warranty or upon one of 
them. Br. Double, pi. 78. cites 21 H, 7. 10. 

89. Refummons //po« Writ of Ward againjf E>cecutors, whofaid thai 
the tieir was of full Age in the Life of lejiator, and that they have fully ad- 
mtniflercd ; and Wilby awarded the Plaintiff to anfwer to the lall Pita, 
and awarded that the Plaintiff Ihould recover the Ward, and that they 
try the IH'ue ot Fully adniinillcred for Damages. Br. Double, pi. 6i\ 
citQs, 24 E. 3. 49. 

D d d ■ 93- ■^'i'-trs 




194- 



Double Pleas. 





Scire Facial. 




90. Qiiare Ejecic infra termiiium againft B. th^^t C. was feifcd and leafed' 
to him for 10 /ears, and S. ejctled him j Port, faid, thac C. leafed and 
entered, and enfeoffed r/J, and after the Plahitiff made a Regrefs^ and after 
furraidcrcd to us, and ive enUred, which is the fame hfdluuiit. And" 
per Newton and others, the Plea is not double, viz,. The Lcafe, and 
the Feoffment, and the Regrefs of the Tenant, and after the Surrender ; 
For he cannot come to plead the Surrender without conveying the Rever- 

fion to hinii quod nota. Br. Double, pi. 45. (bis) cites 19 H. 6. 

SS' 56. 

91. In Recordare the Le [for avowed for aFine for Alienation made by his 
Tenant; the tenant pleaded that the Lord was feifed of the fame Land 
within I'mie of Memory, and by Deed aliened to R. whofe EJlate the Plain- 
tiff has, to hold to him by certain Rent and Services pro omnibus Serviciis et 
demand' ; and this held double, viz. The Unity of Pojfcffion, and the 
Deed to hold ut fupra ; and yet he cannot plead the Gitt, but he ought 
to allege the Seilin in the Donor or Feoftor i nor can a Man plead a 
Deed of Fcofiment with Warranty, but he Jhall mention both, but he 
CLtght to rely upon the W^arranty only, or rely upon the Deed of Gift 
in the Cale Supra only, and then this is not double ; quod nota ^ Per 
Hank. & nemo negavit. Br. Double, pi. 32. cites 14 H. 4. 5. 

' 92. Scire Facias out of a Fine by which W. and K. his Feme gave to Ad. 
in 1'ail, faving the Rever/ion to K. and his Heirs, of whofe Inheritance 
the Land was, and that W. died, and K. married R. and [■M.'] died 
without Iff lie, by which R. and K. brought the Scire Facias to cxtciite the 
Fine, the I'enant faid that IV. and K. were ftifed as in their Reverjion 
after the Death of M. and enfeoffed 7". whofe Fjlate he has ; Judgment 
li A6tio i Per W/ch. the Plea is double, vizj Seijin by the Reveriioii 
after the Tail determined, which is Execution, and alfo Fenffuicnt al- 
ter ; Per Thorp, the Feoitment is the Subltance, and the Seilin is only 
Conveyance, by which anfwer Br. Double, pi, 36. cites 38 E. 

3. 16. 

93. By which the P/<^///^;jf' y^/W that another Time, he recovered upon 
Scire Facias upon the fame Fine againft the fame Tenant, and after the 
F.xecntion he enfeoffed the fame T. upon Condition, and for the Condition 
broken he entered, and the now Tenant brought Writ of Difceit and rcverjed 
the prft 'Judgment and Execution, after which he was not warned and en-- 
tered and now the Plaintiff' brought other Scire Facias ; Per Belk, the Plea- 
is double, one that the Feoffment is undone by the Condition^ and another 
that his SeiJin is undone by Writ of Difceit i Per Finchden, the Concluli- 
on is all upon the Fcoliment by which the other palled over. Br. Dou- 
ble, pi. 36. cites 38 E. 3. 16. 

94. In Trefpafs the Defendant faid that the Franktsment belonged to ^ 
Stranger who hafed to him for Jive Tears, which yet inditre, by which he 
entered and did the' Trefpafs ; Judgment &c. Godred faid the Plea is 
double, viz.. The F/anktenement is in a Stranger, and he has a Leafe for 
five Years, but tot. Cur. contra eum j For the Leafe is only Conveyance. 
Br. Double pi. 6. cites 3 H. 6. 50. 

95. Trefpafs upon the Statute of Fore flailing at the Pert of C. Pallon 
faid there is no ftich Vilf Hamlet or Place known out of the Vill and Ham- 
let, but is a Place which extends into divers Vills, viz. into A. B. and' 
D. Per Strange, this is double, viz. No fuch Vili or Place &c. and 
alio that it is a Place which extends into diwrs Vills &c. Br. Double, 
pi; 40. cites 7 H. 6 22; 

96. In 



Double j-^leas. 195 

96. In Trefpafs t\it Defendant pkadc:d jirbitremeut S<.c. who awarded 
that he (hotild pay lol. 1o the Plaintiff' in Satisfaclioii of the 1'refpafs^ 
•which he has paid ; Judgment and the Plea good, and not double, viz. 
The Jrbitremefit and the Payment ; for the one is piirfaant upon the 
other ; for per Martin, Arbitrement is no Plea if he does not plead it 
performed, or fays that he has been at all Times ready, and yet is &;c, 
Er. Double, pi. 43. cites 8 H. 6 25. 

97. In 'Trefpafs rlie Dcjendant pleaded his Frauktenemetit i the Plaintiff 
pall not fay that bijore this J. N. -was feijed and enjeoffed A. who en- 
feoffed the Plaint'ff i^ For it luliices to fay, that A. was feilcd ia 
Fee and enfeoffed the Plaintiff 6ic. Br. Double, pi. 131. cites 19 11. 
6. 32. 

98. Trefpafs ^uare FUitt:ii fiiii:-ii et H<ercdem rapnit et abdaxit apnd D, 
Defendant lhe''xed by Protefaticn that he hdd re-delivered ihe Infant^ and 

for Plea^ that the Plaintiff married June P. and had Iffae the Son, and 
f. died, and after tt -was not fed tn the Country that the Plaintiff was dead, 
and that the Defendant as Prochein Amy of the Infant faw the Infant ift 
hard, fell, ill-governed and out at good IVard, m Negligence of N. his 
Nurfe, by which he took the Infant as lawfully he might &.c. and it is not 
double, fcil. that he is Prochein Amy, and that the Injant was Hl-go- 
"jerned j for the one depends upon the other, but it he had not taken the 
Re-delivery by Protellatioa but for Plea, then it had been double. 
Er. Double, pi. 47. cites 21 H. 6. 15. 

99. Trefpals of a Clofe broken and Grafs fpoiled, the Dsfandant 
pleaded his Frankteneiiient ; the Plaintiff faid that to this he Ihall not 
be received i For the Father if the Plaintiff whofe fi.ir &c. enfeoffed him 
with Warranty by the Deed which he Jkewed Sec. Judgment if againlt 
the Deed of his Anceflor which comprehends Warranty he Ihall be re- 
ceived to lay that it is a Ffankcenement. The Defendant faid that 
R. N. was feifed tn Fee, and enfeoffed hn;z and his Father and to the 
Heirs of his Son, and the Father enjecffed the Plaintiff, by which be en- 
tered into the one Moiety in the Lfe of the Father by Alienation to his 
Difinberitance, and into the uthtr Moiety he entered after the Death of 
of the Father fer the Diffeifin of this Moiety j Per Newton, the Plea is 
double ; for if any oi the Iffues are found tor the Defendant the Plain- 
tiff ihall be bari'd i for if he enters into a Moiety only then the 
Plaintiff i>s Tenant in common with the Defendant, and one Tenant in 
common or Joint-tenant cannot have Attion againlf the other. Br. 
Double, pi. 51. cites 22 H. 9 50. 51. 

100. i^)■ which the Defendant pleaded as above, and alleged the Entry 
into the J]' bole in the Life of the Father, and the Plaintiff alleged the Fe- 
offment of the Father with Warranty as above, abfqtie hoc that R. enfeoffed 
the Defendant and his Father Alodo et Forma, and fo ad Patriam. Br. 
Double, pi- 51. cites 22 H. 6. 50. 51. 

97. In Trefpals, the Plaint ff counted that a Lcafe for lears, and c 
Deed indented of tt was dtvifed to him by the Leffce, and he died, and the 
F.xecutors bailed to him &i.c. and it is not Double, viz. the Devtfe and' 
the Bailment o\ the Executors, for the one is Conveyance to the other ; 
Quod Noca, per Cur. Br. Double, pi. 15. cites 27 H. 6. 8. 

98. In Trelpafs, the Defendant prefcribed in a Way to the Market of 
£. and to the Church of D. and held Double ; Quaere inde j For ic 
iecms that he ought to cl<4im the Way as his Title is i Quaere j for it 
is only the Opinion of the Repurier in a fliort Note. Br. Double, pi, 
128. (bis) cites 28 H. 6. 9. 

103. Tixi'p-ii':^ of ylf/ault and Menace, thefe Words di.sit, retnlit, ^pub- 
licavoit &c. make not any Plea double or treble, per Cur. Br, Double, 
pi. 72. cites 37 H. 6. 20, 

^04, I'ref 



196 



f^ Double Pleas. 



104. Trefpafs /H Z^;;^, x.\\q Defendant jujiificd for the third Part for 
one Catife^ and for the two Parts ]or another Canfe, this is not Double ;^ 
For it cannot be that the third Part is m Severalty, and then the Plaintitf 
and Defendant Ihall not be Tenants in Common ; tor if they were Te- 
nants in Common, Jultification for the one Pare undivided luiiices. Br. 
Double, pi. 141. cites 37 H. 6. 38. 

105. In Trcfpais, where a Man ■pleads a Recovery and pews Title, by 
•which he recovers alfo, this is Double ; Per Littleton, which Danby J. 

denied; For the one is fnhfeqiient to the other. Br. Double, pi. 75. 
cites 39 H. 6. 24. & concordat 9 H. 7. 

166. In Trelpafs Abatement and Intrufion are Double, and yet ic 
feems that both lliall be of one and the fame Nature, and where a Man 
pleads Double Plea, and relies upon the one, then it is not Double. 
Br. Double, pi. 147. cites 39 H. 6. 27. 

iQi. Treipafs upon the Cafe eo qtwd liberavit Obligation'' defend' adfal- 
vum Cajiod' & retiberand' cum &:c. and that the Defendant has broken 
it. The Defendant faid, that it was bailed to him by the Plaintiff' to de- 
liver to W. N. the which he has done, abfqite hoc that he broke it ; Per 
Prifot,' the Plea is double - for it is a good Plea that it was delivered 
to him to deliver to W. N. which he has done; and then [ifj he breaks 
the Obligation, Aftion is given to W. N. and not to the Plaintiff, 
which is another Matter of Bar; by which Coke /^z/^ for the Defendanc 
■ ntfiipra, abfqiie hoc that he broke the Obligation before the Delivery made 
to W. N.. and per Cur. now he ought to Jhew what Day he delivered it to 
W. N. and fo be did, and traverfed ut fupra ; then the Plaintiff demur- 
red, and the Defendant fimiliter, and it feems th,it this Traverfe is 
pregnant, viz. the Breaking before the Delivery to W. N. Br. Double, 
pi. 84. cites 39 H. 6. 44. 
Bt-.Tvefpars, 108. In Trelpafs a Leafe at Will, and a Licence to cut the Underwood, 
pi. ;o2. cites jg j^Qj £)Q^b|e . p-Qr Tenant at Will cannot cut Underwood without 
^•^' Licence. Er. Double, pi. 149. cites 2 E. 4. 22. 

*AlltlieE- 109. Trefpafs of a Clofe broken, viz, two Acres, and the Defendant 
ditions are jiijlijicd the breaking of one, and the Entry * [into one] for one Matter, and 
without ^.j^Q ji^g Other for another A-latter^ and therefore double, per Cur. for he 
tfiofeWords. j^^^ j^^^j^gj two Breakings; .^ii^re ^ For contra in Trefpafs upon 
5R. 2. Br. Double, pi. 153. cites 18 E. 4. 11. 

no. In Trefpafs where Defcent is pleaded, the Plaintiff' pleaded D'lf- 
Ceifm to his Father by him who died fet fed, and that his Father made Con- 
tinual Claim and died, and after he made Continual Claim, and the Dif- 
feifor died fei fed within the Tear &c. and per Cur. he fliall plead the one 
Continual Claim only, viz. of him in whole Time the Delcent came. 
Br. Double, pi. 53- cites 15 E. 4. 22. 

111. In Trefpafs it was agreed, that where a Man ?w«^ffj ^ Ear m- 
^itie by Gift in Tail of Land or Advowjon, and alleges divers Defcent s or 
Prcfentations, this is not Double; For the Traverfe of the Gift anfwers 

to all. Br. Double, pi. 104. cites .19 E. 4. 4. And yet contra per 

Brian and Cur. 20 £.4. fol. 3. But Qusere tliereof Ibid. 

112. In Trefpafs, if a Man makes Avowry or Replevin or Jufti/tcation 
in Trefpafs for Homage, Fealty, Suit, Rent &c. this is not Double ; For 
this is all one and the fame Tenure. Contra it it be lor a Rent-Charge and 
Rent-Service in one and the tame Avowry. Br. Double, pi. 94. cites 

9 H 7. 13. 

113. Trefpafs again (i fever al of a Clofc broken ; the Defendant faid that 
. each of them has Common there appendant to his Franktenement fever.illy, 

by which they entered and broke &^c. to u fet heir Common, and a good Plea, 
per Cur. and not Double ; For it (kail be intended that each jujhfied for 
his owu Inter fl, and none for the intertifl of his Companion. Br. Double, 
pi. 59. cites 15 H. 7, 10.^ 

II4.U/;; 



Double Pleas. 197 



114. But in Trefpais of a Clofe broken, //" the Dejetidant fayx that A. 
has Common tbere^ avd B> fimiltte\\ and C.jimihter^ and he as their Ser- 
vant, and by their Commandincnt put in the Beafis, this is Double, per 
Cur. Br. Double, pi. 59. cites 15 H. 7, 10. 

1 15. But if he fays that he pat in t-juo Beajfs for A. and three for B*' 
andthe reji for C. this is a good Plea, and is not Double, per Cur. 
Et. Double, pi. 59- cites 15 H. 7. 10. 

1 16. In Trefpafs it was agreed, that where one intithd himfelf that 
A. was feijed in Fee, and injeoffed B. who infeiiffed C. who infeojf'ed D. 
whofe EJfate the Defendant has, and gave Culoar to the Plaintiff by the 
firji leojfor^ this is not Double j and the reafon feems to be, becaule 
all thefe are only Conveyances. Br. Double, pi. 60. cites ij H. 7. ii, 

117. Defendant pleads ten Outlawries againft the PlaintifFj this is 
Double ; for he is as much d ifabltd by one as by the other nine, to 
which feveral Anfwers are required. Carth, S. Trin. 3 Jac. 2. B. R. 
Trevillian v. Secomb. 





T18. In Wird the Plaintiff counted that he held of hiiJi by Homnge. 
'Efcaage and Servage^ which gives Ward by Ufage of the Country, and 
therefore double ; by which he was compelled to keep to the one. Br. 
Double, pi. 26. cites 46 E. 3. 25. 

119. If the Deleiidaiit in Raviihment of Watd traverfe the Titk of Br. Ravtfh- 
ihe Plaintiff', and makes J'nk to himfelf, this not double ; tor he "^^'" ''"= 
ought fo to do ; nota. Br. Double, pi. 28 cites 2 H. 4, 12 ^^''*''s c' 

120. Ward of Land and Body, the Defendant pleaded a Feofment, ' ' ' 
and the Plaintiff alleged, that it was by Collujion, and it was upon Con- 

ditim to infccff the Heir at jail Age to toll him of his Ward, and there- 
fore double, viz. The Cctlufton and the Condition^ by which he omit- 
ted the Condition and held hnn to the CoUufion, to which the Defen- 
dant faid that it Was Bona Fide, and nor by Collufion ^ but per Cur. 
Trin. 4 H. 6. Fol. 29. the Plea pleaded in Bar is not good if he does 
not traverfe the dying in his Homage. Br. Double, pi. 5. cites 3 H, 
6. 32. 

121. In Ward the 7'enan't pleaded Jointenancy by Fine to the Anceffor S-P But 

pnd to him, and that he is in by Survivor ^ Judgment &c The Plain- ?{?°'^ '^^^'f , 

tiff faid that the Conufor enfeoffed certain Perfom to enfeoff the Heir at his f^r b"v the^' 

full Age by Collufion to toll him of his Ward, abfque hoc, that thofe who Travei-fe he 

«Y!V Parties to the Fine had atiy Thing at the 'Time levied, and it was held relied upon 

double, viz. The Collufion and the Voidance of the Fine, by which he ''"^> ^f^ . 

held himfelf alone to the Voidance of the Fine. Br Double, pi. 39. fecms beV 

cites 7 H. 6. 20. tHathe 

plead the 
tlie Feoftmcnt without fpeakin^ of the Collufion, and traverfe the Scifin ac the Tiine of the Fine. 
Br. Double, pi. 150 cites 4 H. 6 14. 

\ir • /^i_ J , , , U^arranti/t 

122. >\ Airmna K^hixiiS. quod de eo tenet et tinde chart Rm fuam habet. Charts. 
this is not double Lien but ancient Form of the Writ j quod nota per 
Cur. £r. Double, pi. 64. cites 24 E. 3. 74. 

123.. Scire Facias upon a Fine, the Plaintiff conveyed himfelf by De- 
fccnt to two Ccparceneus, and from them io him, and the Tenant pleads 
Releafe with Warranty of thrfe two Parceners, Judgment if contrary to the 
Deed oj his Anajiors, which comprtfes Warranty, A^ion &c. the Plain- 
tiff faid that it was double by reafon of the two Warranties, and there- 
fore he held him to the one, notwithlhinding that he pleaded accord- 
ing to the Fin?. Br. Double, pi. 35. cites 9 H. $• 12. 13. 

E e e ,24 It 



iqB Double Pleas. 



124. If a Man pleads Rekafe with Warranty and relies upon the Whole, 
this is not double j for one Anfwer may make an End of all. Br. 
Double, pi 117. cites 32 H. 6. 21. 

125. But Feoffment with Warranty is double if he does not rely upon 
the Warranty i for Feoffment may be without Deed, and [palles] 
by two Gircumftances, Br. Double, pi. 117. cites 32 H. 6. 21. 

126. But Rekafe zvith Warranty^ or Confirmation and Grant that he 
ttoall not he vexed as above, all this pajjes by one Deed or Patent. Br. Dou- 
ble, pi. 117. cites 32 H. 6. 21. 

IFafl. 

L-^VW 126. Waft in Grange as to a Moiety the Defendant Decay before the 
Leafe, and as to the reft it was uncovered by Tempejl^ and before the De- 
fendant could repair it the Plaintiff^ entered, and was feifed the Day of the 
Writ; Judgment &c. and per Hank, this is double, The Tempe_ff and 
the Entry of the Plaintiff, Contra per Hull, for the Entry is all the 
Matter j for the Tempeft is not Wall unlels the Defendant permits the 
Timber to putrify after the Tempeft. Br, Double, pi. 30. cites 
12 H. 4. 5. 

127. Waft in cutting 10 Oaks the Defendant fa id that the Plaintiff 
granted the 10 Oaks to R. C. and commanded the Defendant to cut and de- 
liver them to the faid R. C. which he did. Per Markham, the Plea 
is double, viz,. The Grant and the Commandment. Per Newton and 
Pafton the Plea is good ; for it is purfuant, by which the Plaintiff re- 
plied and denied the Commandment ; quod nota. Br. Double, pi. 49. 
cites 21 H. 6. 46, 



(B) Allowed in what Cafesi 

r. T N A/fife of Rent the Tenant cannot plead Mifnofmer of himfelf.^ and 
X if it be found^ Hors de fon Fee &c. for the firft Plea is waived 
by the other. Thel. Dig. 214. lib. 15. cap. 3. S. i. cites Pafcii 3 E. 
3. 78. 3 All 9- 

2. In fur Cut in Vita of a Houfe and 2 s. Rent^ the Tenant faid' 
that the Dernandant had put in View only a Houfe., and fo he fiippofes that 
the Rent is ariftng from this Houfe, in which Houfe he has nothing unlefs- 
jointly with fuch a one not named -^ Judgment of the Writ, and held that 
he fhall have the two Pleas. Thel. Dig. 214. lib. 15. cap. 3. S. 2. cites 
Trin. 5 E. 3. 192. 

3. In Writ of Wafie as to Parcel, the Tenant falftfted the Demife,, 
fuppofed by the Ifrit, in yibatement of the Writ, and as to other Parcel he 
faid that it was within the Vill fuppofed by the Writ &c. and had 
both the Pleas. Thel. Dig. 214. lib. 15. cap. 3. S. 5. cites Palch. 
8 E. 3. 402. 

4. In Writ of Entry the Tenant pleaded that one 'Tho. was feifed and' ' 
died feifed, frorii whom the 'tenements defcended to three DaughtcrSy and' 
the Tenant is IJfue of one of them, and he has the EJiate 0/ the other by 
Purchafe, and one Ro. has the EJlate of the third by Ptirchafe, and fo ht 
holds in common pro indivifo with Ro. not named &c.\ And held that 
he fhall not have the two Pleas, fcil. the Nontenure of the third 
Part, and the Tenancy in common of the Whole. Thel. Dig. 214. 
lib. 15, cap. 3. S. 7. cites Trin. S £. 3, 218. Qiiaere. 

?. In 



Double Pleas. 




5. In I'refpafs for a Clcfe broken brought by two^ as to one cf the Plain- 
tiffs the Defendant faid that he was Tenant tn Common of this Clofe ivtth 
the Plaintiffs Judgment of the VVrit, and as to the other Plaintiff' the 
Defendant pleaded Not Guilty &CC. Thel. Dig. 215. Lib. 15. cap. 5. S. 
21. cites 8 E. 3. 436. in Iviortdanceiter. Qusere. 

6. In .^uare Iinpcdit, the Defendant may plead Darrein Prefentment 
to the VN'rit, and mah Title ofR\ght alfo to the Prcfentment, and his Plea 
jhall be taken according to that which he concludes to the Writ by 
the Darrein Prelentmenc, or Adion by the Title. Thel, Dig. 215. Lib. 
15. cap. 3. S. 22. cites iViich. 8 E. 3. 426. 

7. In Debt by two Femes as Executrixes of the Teftament of fach a one, 
the Defendant as to ons. fa id that pe was Covert of Baron the Day of the 
IVrit purchalcd, and yet is Sc. And aj to the other that pe has taken 
Baron pending the Writ &c. and had both the Pleas, but the lllue 
was taken upon the one, Thel, Dig. 214. Lib. 15. cap. 3. S. 8. 
cites Mich 8 E. 3. 441. Mich. 9 E. 3. 477. 

8. In ^Jfife uf Rent the Tenant pleaded Mifnofmer of the Fill, end if 
it be found &c. That another is Tenant of the Rent not named &c. Thel. 
Dig. 214. Lib, 15. .cap. 3. S. lo. cites Mich. 15 E. 3. Alhfe 95. 

9. The Tenant pleaded Non-tenure of Parcel and peuj'd who was 
Tenant, and as to the other Parcel pleaded Non-tenure alfo by rcafon of Re- 
covery, and Execution fued againji him pending the Writ^ and had both 
the Pleas. Thel. Dig. 214. Lib. 15. cap. 3. S. ii. cites Trin. 15 
E. 3. Brief 285. 

10. \n Trefpafs of Bea.(ls taken, the Defendant cannot plerid That the 
Deliverance is made by RcpUvin tn the County, and alfujullijy as Dijlrefs 
Bic. Thel. Dig. 214. Lib. 15. cap. 3. S, 12, cites Mich. 17 E. 3. 
585. 

1 1. In TFrit of Aiel the Tenant was received to plead Laji Seifin in his 
father who was Sun and Heir to the Grandfathw, and that the Demand- 
ant was Son and Heir to the younger Son oj the Grandjather, and fo he 
could demand notbing. Thel. Dig. 214, Lib. 1$. cap. 3. S. 9. cites 
cites Hill, 10 E. 3. 483. 

12. In Jfftfe the Tenant faid that he had another Surname^ and pleaded 
Jointenancy with one not named &c. And held good without faying that 
he is the iame Perfon &c. and the Plaintiff cannot reply to the Mif- 
nofmer but to the Jointtnancy. Thel. Dig. 214. Lib. 15. cap. 3. 
S. 4. cites Mich. 5 E. 3. 215. and fays fee 22 Aif. i. 

13. A Man ihall plead Nontenure of Parcel of which another is Te-- 
tiant, and alfo that the Demandant himfelf ts feifed of Pared. Thel. Dig, 
214. Lib. 15. cap. 3. S. 13 cites Mich. 19 E. 3. Brief 244. And 
that a Man lliall plead 20 Nontsnures to the Writ, but the Tenant was 
fiot received to plead Nontenure oJ Parcel and Jointenancy of Parcel alfo. 
Pafch. 22 E, 3. 6. 

14. In Writ of Jielh is faid that the Tenant may plead lajl Seiftn in 
the Demandant, and alter waive this and plead laji Seifin in the Father of 
the Demandant. Thel. Dig. 214. Lib. 15. cap. 3. S. 14. cites Pafch. 
32 E. 3. Nuper Obi it. 2. 

15. in JJ/ife of Common, iht Defendant faid that the Land in which 
&c. is 60 Jcres^ and that the Grantor had nothing in the Land unhfs m 

five Acres at the Time of the Condition, and 10 the five Acres that the Gran- 
tee 0/ the Common who granted his Inter efl to the Plaintiff had nothing in 
the Common at the Time of the Gift, and had both the Pleas; For the 
one Plea goes to the five Acres, and the other Plea to the rell, Contr;* 
if each Plea had been pleaded to the Whole, Br. Deux plees, pi. 31. 
cites 37 Air 14. 



16. Debd 



2 00 



Double PJeas. 



Br. Conu- 
fance, pi. lo 
cites S. C. 



But fee 4 
R 6. 29 
the Plea is 
not good if 
he does not 
travevfe the 
dying in his 
Homage 
Per Cur. 



16. Debt agamji Executors ■who pleaded Acquittance as to Parcel, and 
fully adminijitred as to the Reft ^ and both were futfered, quod nota. Br. 
Deux plees, pi. 27. cites 28 £. 3. 91. 

17. Three Iffues were permitted in alleging that the Bailiffs of the Frati- 
■ chife ajter Conufance of the Plea granted had failed of Right to the Plain- 
tiff inafmuch as ic confirms the Jurifdiifion oj the Court of the King, and 
the King is as Party to it, the Plea of which ihall not be challenged for 
doublenefs. Br. Double, pi. 119. cites 40 E. 3. 11. 

18. In Dower the Tenant f aid that Baron had nothing unlefs in Special 
Tail to him and his firfl Feme, the Remainder to J. N. in Tail, the Re- 
mainder to the Baron in Fee, the Baron died and he in the Mejne Remain- 
der furi'iv'd, the Demandant [aid to Parcel Nient comprife, and to the 
ReJ} that he in Remainder did not furvive the Baron, by "which the Baron 
•was feifed m Fee; For he had no Ifjue by thejirjl Feme, and he had both 
the Pleas, and yet il the Baron furviv'd flie ought to have Dower. Br, 
Deux plees. pi. 34. cites 46 E. 3. 16. 

, 19. In Ward of Land and Body, the Defendant as to the Body pleaded 
Delivery by the Plaintiff himfelf upon certain Conditions perform' d to re-de- 
Irjer, and othewife to retain him &c. and ?o the Land that the Ancef- 
tor in his Life mfeoffed J. N. ^le EJiate he has, and becaufe this laft 
Plea goes to all, theretore per Cur. he was drove to the one, by which 
he held him to the Feoffment. Br. Deux pleea, pi 2. cites 3 H. 6. 32. 

20. In Dower again/} one Jo. he faid, that he and one Ro. not namedy 
held the T'cnements jointly as Guardians in Chivalry by the Nonage of fuch 
an one Heir d^c. Judgment of the! Writ &c. And adjudged that he 
iliould have the Plea &c. noawithftanding that it is Double, viz. that 
he was Guardian not named Guardian, and the Jointenancy, Thel. 
Dig 215. lib. 15. cap. 3. S. 17. cites Pafch. 9 H. 5. 4. 

21. In Dcwer, the Tenant faid, that he hadnothingbut in Wdrd with 
W. N. of the Grant of G. of -whom the Ancefior of the Infant, Son of the 
Baron, held in Chivalry &c. Per Hals, the Plea is double, one that he 
has nothing but m Ward, and the other that he holds Jointly ; and becaufe 
if he Ihould be compelled to hold to the one, he at another Time 
should lofe the other, therelore for the Mifchief he fhall have Plea i 
per tot. Cur. Br. Double^ pi. 33. cites 9 H. 5. 4. 

22. It is held, that in Appeal of Death, the Defendant may plead that 
there is another Appeil pending, and Nul tiel Fill ^c. alfo, and Mifnof- 
vier of himfelf , and Nul tiel Vill ^c. and pray Allowance of them &c, 
and as to the Felony plead Not Guilty. Thel. Dig. 215. lib. 15. cap. 3. 
S. iS. cites Hill. 4 H. 6. 15. 

23. h. Rule is laid down, that when a Man has two Matters, he may 
plead either ol them, and it he cannot come at one without alleging the 
other, the alleging it will not make his Plea double ^ Arg. 12 Mod. 
507. in Cafe of Pell v. Garlick, cites 5 H. 7. 38. 

24 In Scire Facias oat of a Fine, the Tenant pleaded that it was once 
executed, and alfo that he is in by "Tail made before this Fine, and held 
that he Ihouid have both. Thel. Dig. 214. lib. ij. cap. 3. S. 15. cites 
Pafch 32 E. 3. Scire Facias 102. 145. and i8 H. 6. 3. 

25. AJftfe by the Mafier and Confreres of the Fraternity of the nine Or- 
deis of the Angels in B, in the County of Middlelex, the Defendant 
faid that there is not any fuch Corporation by the Name ut fupra in r he fame 
County, and if S^c. nul fort &c. and was not fuffered to have both, Ibr 
the hrll: Plea goes in Bar, and he pall not have the Bar and alfo a gene- 
ral Iff ue. Quod Nuta, per Cur. Br. Barre, pi. 91. cites 22 E. 4. 34. 

26. \\'here Double Plea is pleaded, and the Demandant relies upon 
the one Article, and foto Iffue, there no Party ihall have Advantage of 
the Doublenefs altetwards. Br. Repleader, pi. 18. cites 22 H. 6. 14. 

27. V\ here 



Double PIqcls. 20 i 

27. Where there is[>ict: one 'Tenant, and one Defendaiit, he cannot have 
two fuch Pleas as each of them do go to the whole ; But "where there are 
divers, each ot them may plead fever al Pleas, which extend to the 
whole. Co. Litt. 303. a, 

'28. Thi: Pica ivhich contains Duplicity, or Multiplicity <;/ rt?(/?;;;i? 
Matter to one and the fame Ihtng whtruuito fveral. Anfwers (udiniiting 
each of them to be good) are required, is not allowable tn Law ; And 
this Rule extends to Pleas Perpetual or Peremptory, and not to Pleas 
Dilatory j For in their Time and Place u Man may ufe diicrs cf them. 
Co. Litt. 304 a. 

29. Double or treble Pleas are allowable in an Affife of Novel Dtffei- 
fn^ MortdaKceJlor, Juris Utrttin, Attaint^ or Ctrtt/icate of Affife, which 

would have Juries returnable on the firlt Day belore any Plea pleaded j 
For tnele are FelHna Remedia ; But Double Pleas are not allowable iu 
other A6tions ; For there is. an original VV^rit, Plea, and lllue, and 
upon this a Venire Facias &c. and a Trial. Jenk. 75. pi. 43. cites 
3H.4. 2. 

30. PrefcriptioH h.y Freeholders, and Ctijlom by Copyholders, may be 
joined in one Plea. Lev. 269. Trin. 21 Car. 2. B. R. Potter v. 
iSorth. . . , ,. 

31. Duplicity is not a good Exception to a Plea in Abatement -i, But in ibid, cites 
Plea in Bar Duplicity of Matter makes the v\ hole void ^ admitted. But Co Lin. 
the Couit took a Difference between a Plea ot Outlawry in Df<^^Jiiity^ 5^-r- '^"'^ 
and ether Pleas m Abatement, and that a Plea of ten Outlawries is ''^ ^■'^" "^' 
double, because a Plaintili'is difabled as well hy one as by the other 

nine. Carth. S. Trin. 3 Jac. 2. B.R. Trevilia.n v. Secomb. 

32. One pctoodantcouid not plead ,tv/o Pleas that went to the whole, 
rbut now by 4 ^ 5 Ann^t lor Amendment ol the Law he may.) 1 
Salk. 218. pi. 3. Mich 5 VV. & M. in B. R. Combe v Talbott. 

3 3- 4^5 yin'n-i'i t-'^ip. 16. S. 4. Enacts, that it pall be lawful for Plaintiff 
any Defendant , or Tenant, or Plaintiff, tn any Replevin, in any\ Court &/"'''"Rsa 
Record, with Leave of the Court ^ to plead as many ftveral Matters ^^ ^|r"°f "* 
arcnecefary, vTrfe^actm- 

' mon Reco- 

very. Defendant rroved for Liberty to plead Double. The Motion was oppofed, bccaufcthe Act for 
l+>e Ameiiiltnent of the Law, vvhereby a Defendnnt, by the Leave of the Court firfl obtained, may 
plead Double, was not lo he underllood of a Defendant in a U'rit of Error, but a Defendatit in an ori- 
ginal Attion i But it was infilled \iuon by the Counlel on the Side with the Motipn That this Ad: 
«iid extend tothe D^efendant in a Writ oi Error, as well as in an original Adtion ; that the one mighf 
have as great Occafioti of plejdinjr double as the other ; That it had lately been refolved, thataWrit 
of Error did not abate hy ihe Death of one of the i?laintifFv, whereas, as the Law (Vond before that 
Aft of Piilianient, it would ; That by the fame Reafon by ir.hich the VVord Plaintiff, in that Part 
of the Act ot Parliament; was to be extended to a Plaintiff in Error^ the Word Defendant ihould 
iikewilc. It was further urged, that the pleading Double was at their ov/n Peril ; for if the Court 
had not Power by this Act ot Parliament to grant them Leave to plead Double, the other Side may 
demur ; And to this Opinion the Court inclined ; But ilie Court made their Motion fruirlefs, by de- 
claring, that one of the Things tfiey defigned to plead, did tapon the Record fepp;ar to be fa'lfe. lo 
Iilod. 3zrt. Pafch. 2 Geo. fJ. R. Hurt ton v. Agltonby. 

The Court was moved for Leave to plead and demur, but refufed the fame,; For demurring is not 
pleading. loMod. 280 Hill. 1 Geo B, K. Hayfon & al' ( AfTignces) v Jeffreys. 

An Heir fhali not have Leave to plead R'.-rns per Defcent with another Plea, except he make yM- 
aaiit th.it he has Riens per Defcent ; nor fiiall an Jdrnivipralor have Leave to plead fkne Jdmim- 
firuiiit, and No Jffets, ¥/ithout an Aifidavit that he has no AlTcts. 10 Mod. :;4. Trin. 2 Geo. B. R. 
Carringtcn v. Waircn. 

34. Upon a W^ric of Error brought upon a Judgment in C. B, m ijComyns's 
Formedon tn Remainder for Lands in Lincolnlhire, the Cale was this, ^^P 269 pi. 
viz.. Sir Edward Huiley the Demandant counted of a Gift by Sir Thomas ^^'^ ^' ^' , 
■Hujfey to J. B. R. M. and T. L. Elqj in Fee, to the Ufe of the faid ^l^" ^''' ^' 
Sir Thomas, and the Heirs Male of his Body begotten upon the Body of S. 
his Wife, and for Default of fuch IfTue, to the Lfe of the Heirs /Wale of 
the Body of the fatd Sir Thvmas^ and for Default ul fuch Illue, lo the 

F 1 f /;/; 



202 Double Pleas. 



life of iVilliam Htiffey, Efq; for Life^ and aiter his Deceafe to the Ufe of 
the firji and every other Son of the /aid IVilliam tn 'Tail Male^ and Ibr De- 
laiilt of fuch Iffue, and it the faid Williams's Wife Ihould be with 
Child at the Time of his Deceafe, and fuch Child fhould be a Son, 
to the Ufe of fuch poflhtimous Son, and the Heirs Male of his Body, and 
lor Default of fuch Iffue, to the Ufe of Sir Edward the Demandant, and 
that the faid William H. died in the Life-time of the f aid Sir ^hotnas -with- 
out Heir Male of his Body, and that there was not any pjihinnons Son 
o} the faid William, and that afterwards the faid Sir 'Thomas died with- 
out Heir Male of his Body, fo that the Right remained in the faid Sir 
Edward the Demandant &c. 

The Tenants, having obtained Liberty to plead Double, pleaded ill. 
That the faid Sir 'Ihomas being fei fed of &c. in Fee the 8th. Decemb. 1682, 
by Indenture of Bargain and Sale between the faid Sir Thomas of the 
one Part, and the laid J. B. R. M. and T. L. by the Name of T.L. 
of London, Merchant, of the other Part, bargained and fold to the faid 
J. B. R. M. and T- L. the &c. for one Tear, from the Day next be- 
fore the Date of the faid Indenture, by Virtue of which Indenture of 
Bargain and Sale &c, the faid J. B. &c. were poffeffed &;c. and 
that on the gth of December 1682, by another Indenture made between the 
faid Sir Thomas and federal others (naming them) of the one Part, and 
the faid J. B. R. M. and T. L. by the Name of as above, o/ the 
other Part, the faid Sir Thomas releafed his Revafion of the &c. to the 
faid J. B. R. M. and T L. and their Heirs, to the Ufe of the faid Sir 
Thomas pr Life without Impeachment of Wafte^ and after his Deceafe to 
the Intent that S. his Wife jhoiild receive 600 I. per Annum for her Life j 
and as to the faid &c. charged with the faid 600 1. per Ann. after the 
Deceafe of the faid Sir ^Thomas, to the Ufe of the faid J. B, R. M. 
and T. L. for 500 Years, upon Trull &c. And after the Determina- 
tion of the faid Term, to the Ufe of the Heirs Male of the Body of 
the faid Sir Thoma?, begotten upon the Body of his faid Wife, and 
for Default of fuch Iffue, to the Ufe of the Heirs Male of the Body of 
the faid Sir Thomas, and lor Default of fuch Iffue, to the Ufe of Wil- 
liam Huffey of London, Merchant, Brother of the faid Sir Thomas, 
for Life, and after his Deceafe to the Ufe of the firit, and every other 
Son of the faid William in Tail Male, and for Default of fuch Iffue, 
and if the faid William's Wife fhould be with Child at the Time of 
his Death, and fuch Child fhould be a Son, to the Ufe of fuch pofthu- 
mous Son, and the Heirs Male of his Body, and for Default of fuch 
Iffue to the Ufe of the faid Sir Edward the Demandant for Life, 
(with divers Ufes over by way of Remainder) and that by the fame 
Indenture of Re leaf e it was provided, that the faid Sir Thomas might re-' 
•voke, or alter all or any of the Ufes or Efiates in the faid Rele^fe, and de- 
clare and limit any other Ufes or Eftates, as to the faid Sir Thomas fhould 
feem meet, and that on the iz Feb. i Jac. 2, the faid Sir Thomas, in 
Ptirfuance of the faid Power, by a Writing ftgned and fealed^c. revoked 
the (aid Ufe and Efiate lifuited to the faid Sir Edward the Demandant, 
and that afterwards, viz. 1 May 1701, the faid Sir Thomas, by another 
Writing Jigned and fealed Sc revoked all the Ufes and Efiates limited by 
the faid Releafe concerning the Lands in ^lefiion, and limited the Ufe 
thereof to himfelf tn Fee, and died fo feifed, upon whofe Death the Lands 
defended to the Defendants as his Heirs &c. abfqtie hoc that the faid Sir 
Thomas gave the Lands in Queflion, Modo £5* Forma as the Deman-dant 
has alleged ^c. 

And the. faid Tenants for their fecond Plea pleaded the fatne Matter in 
Bar, concluding with nn hoc parat' wrijicare &c. 

The 



Double Pleas. 20C5 

The Demandant averred, that the faid VV^illiam Hulley, Efq; and 
the faid William Huffey of London, Merchant, Brother of the faid 
Sir Thomas, are the lame Perfons, and demurred to the Pleas', and 
lor Caule faid, that the feveral Matters pleaded by the Tenants were 
inconiiltent and repugnant in themfelvcs, and every ot the fiid Pleas 
are either ContradiiSlions to itfelf, or to the other, (vii) the fecorid 
Plea was repugnant to the firlt in this, that the (econd fuppofed and con- 
lefled the Gilt ot the Lands in QuelHon as the Demandant alleged, 
and upof> that Suppolition it was ibunded, otherwife it was fuperduous, 
and to no Purpole, and the Inducement to the Traverfe in the firil Pica 
fuppofed the Gift to be made to the fame Erte£l contained in the VV'ric 
and Count, though not in the fame Words, and upon that Suppolicioii 
the laid Power of Revocation, and the Revocation of the life and 
Eftate limited to the liiid Sir Edward, were in both the Pleas (though 
infufficiently) pleaded, yet the laid Gilt, as alleged by the laid Sir 
Edward, was by the firll Plea traverfed and denied, and fo the firlt 
Plea repugnant to itfelf, and to the fecond Pleai and where in the faid 
Pleas after the Pleading of the Indenture of Bargain and Sale it was 
faid, By Virtue of which Indenture of Bargain and Sale &c. whereas 
it ought to have been faid. By "Virtue of which Bargain and Sale &c, 
and not By which Indenture &c. Alfo the Tenants did not produce 
nor allege to have produced the Writings mentioned to be fealed with 
the Seal of the faid Sir Thomas, whereby the Ufes aforefiid were al- 
leged to be revoked. Moreover, if the firlt Plea was not repugnant as 
atorefaid, it at the belt only amounted to the General IlTue, and fo 
ought to have been pleaded Generally 5 and chough it was lawlnl for 
the Tenants with Licence to plead leveral Matters, no one can plead 
feveral iMatters which are inconiiltent, or the fame Matter feveral 
Ways. 

Laltly, that the Pleas were infufficient, becaufe it did not appear 
whether William Huliey named in them, and William Hufley named 
. in the Writ and Count, were the fame Perfon or divers, nor whether 
the faid William, at the Time: of the firlt Revocation, was dead with- 
out Heir Male 01 his Body, or leaving fuch IlFue, or was then alive. 
The Tenants joined in Demurrer, and in C. B. the Pleas were held 
good, and Judgment given for the Tenants. 

The Demandant brought Writ of Error, and affigned the general 
Error, and alfo the faid Matters fhewn for Caufe of the Demurrer, 
and upon Argument the whole Court held the Pleas good, and as to 
the Repugnancy of the faid Pleas which was the chief Point infilted 
upon, held that the faid Pleas were conliltent; tor both the Pleas con- 
filled of the fame Matter though it was pleaded with divers Views, 
and to divers Intents, the Reafon whereof was, becaufe the Tenants 
doubted whether the Deed, being Ibmething various in its Limitati- 
ons from the Gift counted upon, would be adjudged the fame Gift, and 
therefore got Leave to plead Double, to the End they might be fafe, 
whether the Deed was adjudged the lame, or not the fame Gift where- 
upon the Demandant counted. Judgment affirmed. MS. Rep. Hill. 
3 Geo. B. R. Hulfey v. Huffey. 

35. Double Plea was allowed on a Promife of Marriage, \h. No» Sn in Cafi 
Jffitmp/h and Infancy. Gibb. 175. pi. 23. Pafch. 3 Geo. 2. B. R "f"" fi-"""*' 
Holt V. Ward. Fromife,, 

V17. AW; Af' 
fumfijit a>i^. 
the Statute of Limitations. Gibb. 189. pi. 1. Hill. 4 Geo. 2. B R. Decofta v. Carteret. 

36. A Motion was made for Lit)erty to njoin detibk^ as being with- 
in the Equity of the A6:, which allows pleading double. But the 
Court faid, that they thought that this would be intirely inconvenient 

and 



20 A Double Fleas. 



and out ot the Reafon ot" the AcV, and theretore relul'ed it. 2 Bar- 
nard. Rep 6. Trin. 5 Geo. 2. Anon. 
Cafes of 3»7.' A Rule to plead double, viz Non Jfump/it^ and a General Re- 

^-.'■"r • *" Icafe was diichnr^cd becaufe thefe Pleas are cofitradtdorj. Notes ia 
s/c accord- C. B. 228. Hill 6 Geo. 2. Giblbn v. Cole. 

ingly. ' 

38. In 'irefpafs lor entering of PlaintifF's Clofe and pulliug down a 
Prla^in Weare. Defendant moved to plead double, viz. Libertm 'J^enementim 
C 8.154. and a Jiiffificatioa ol" pulling down the Weare as aNtifaiice^ and a 
S.C accord- Rule Nili was obtained ; but was afterwards on hearing Counfel on 
i"gly- Sides difcharged bv the Court, the Matters prayed to be pleaded be- 

ing inconliltenc. Notes in C. B, 229. Trin. 6 & 7 Geo. 2. Halfey 
V. Felthani. - . 

Cafes of j^ Dekndant obtained a Rule Nil! to plead double, Non jijjnmpfit 

C^B^ M' ixvid Nou yijjnmjit injra fix amies. Plaintiff lliewed lor Caule, that 
S.C.'accord- the Rule to plead was expired before the Motion to plead double was 
ingly. made; but Court held that Defendant was prefer to move to plead double 

any Time bejore Judgment Jigmd. Notes in C B. 229. Mich. 7 Geo. 2. 
King V. Bofwell. 
Cafes of 40. Action was hvQughl againft an Innkeeper for detainif?g two Horfes 

Pwa. in of the Plaiiitiri's. It was moved to plead double, viz.. Not Guilty, and 
^■^■l^^^^^i'o .iccord and Satisfadion^ arid would have compared it to Non Af- 
Motioii de-' fumplit and Non Aifumplit infra fex annos. The Court denied to maice 
nied. any Rule, the Matters prayed to be pleaded being contradi^ory. 

Notes in C. B. 230. Hill. 7 Geo. 2. Durfley v. Cole. 

41. A Rule was made for Plaintiff to Ihew Caufe why Defendant 
fhould not plead doable, viz. Non Jffampftt and Non Affttmpjit infra 
fex annos. Plaintiff on Ihewing Caufe, produced an Affidavit that De- 
fendant had not appeared^ and confequently not being in Court was not 
proper to make the Motion, and the Rule was difcharged. Notes in 
C. B. 233. Mich. 8 Geo. 2. Benn v, Geary. 
Cafes of 42. It was moved to plead double, Non Affampfit and Plene Admi-, 
Pi-aft. in fujlravit, which was denied by the Court, no Affidavit being produced 
s'c fa's ^'^'^^ Defendant had fully adminijiered. Notes in C. B, 234, Mich. 8 
that thc^^ Geo. 2. Heathficid v. Allen. 
ISlotion was 
granted. See the Note at the next Plea. 

Cafes of 43- On Motion to plead double, Schit adDiem and Riens per De~ 

Pratt, in fcent, it was objeflied that an Affidavit of the Fa^ as to Riens per De- 
C.B. 155. fcent ought to be produced from the Heir, as from an Executor or 
f ^i^'^'^he Adminiitrator in a Plebe Adniiniftravit, and the Objection was held 
Motion" as good. No Rule. _ Notes in C. B. 234. Mich. 8 Geo. 2. The Burgelfes 
granted. — of Wisbctch V. Frier. 

Ibid. I, -4. -rt , I 

The Reporter adds a Note that Affidavit muft be made by the Executor or Admimftrator that he 
hath fully adminillered and by the Heir that he has nothing by Defcent, before Motion. 

44,. Defendant Non AJfumpfit infra fex Annos., and Plaintiff demurred 
to the Plea ; The Matters in Q^ueftion being AcJions between Merchant 
and Merchant ; and Defendant thereupon moved to add to his former 
Plea a general Non AJfumpfit upon Payment of Cojis i but this was denied. 
Notes in C. B. 234. Hill. 8 Geo. 2. Peirfon v, Ives, 

45. Motion to plead double, viz. Non Affnmpjit., md fevcral Matters 
fctofagain/l Plaintiff's Demand was denied per Cur. as contradiHory. 
The general IlFue mull be pleaded with Notice to fet oft' purfuanr td 
the Statute. Notes in C. B. 236. Pafch. 8 Geo. 2. Jarratt v. Ro- 
binlun. 

46. A 



Double FJeas. 2o<J 

46. A Motion to plead double, viz. Ni! debet and Nil habtttt tn Te- ^"■'<es of 
inmenUs. was refufed. Per Cur. The ktter may be given in Evidence ^'"'"'^'c^^" 
upon the ibriner. Notes in C. E, 236. Trin. S & 9 Geo. 2. Marlhal v. cltdinHy. " 
Lawrence. 

47. In a Prohibition it was moved to plead double, viz,, 'that J. C. 
^c. fiajitcd in the Dularatioi! at a Mcetifig -^c. dtd not make tip a true 
and jnji Account &c. and that the Account mentioned in the Declaration 
•xas not examined^ allo'ued and approved by the Vejiry ; and the lame 
was granted on hearing Counfel on both Sides. Caies ot' Piaftice in 
C. B. 122. Mich. 9. Geo. 2. Coates v. Smith and Midgtley. 

48. In Treipals it was moved lor Defendant for Leave to plead j;^'"^^"f 

doubly, viz. Non ail' and Liberum I'cjieiiientum ot the Liberty oi St. <-;' g \!l 

Catherine's, and obtained a Rule to Ihew Caufe, which was atterwards s. C. the 

made abfolute upon an Affidavit ot Service, no Caufe being Ihe-An. Motion was 

Notes in C. B. 241. 10 Geo 2 Snbbs v. Neeves. 5?'-^^nted and 

^ notoppolcd. 

49. In Replevin the Court gave Leave to ple.id doubly, viz. i'hat Ca^c;^ oi 
Plaintiff' tn Replevin had not Property^ and a Jiifttficatton as a Dijhefs ^'''''^''•' "' 
for Rent. Notes in C. B. 244. Micft. loGeo, 2. Bird v. Spinclcs. sc-accord- 

ingly. 

50. After a Judge's Order for Time to plead, pleading an ifjtiable Pka^ Cafes of 
Delendant moved to plead double Matter, and the Queition was, Pia^^t in 
Whether a Rule for that Purpole ought to be granted or not.? TheS' '^- '54- 
Court took Time to coniider, and aher conferring with the Judges ot"[ ,',''^'^°'' '■ 
the other Courts, gave Defendant Leave to plead doubly, pleading 

illuable Pleas, and taking Ihort Notice of Trial. Notes in C. B. 244. 
Mich. 10 Geo. 2. Leighton v. Leighton. 

51. Deiendant had pleaded Non AJfii/ip^t infra fex annos, and moved f^sf"" of" 
to add 10 th-dt Flea. Non ylfrnnp/ujrc/ierally, which was denied. Alter f!"^|'- "^ 
Defendant hath pleaded a lingle Plea, he cannot have Leave to plead s. C. accold- 
doubly. Notes in C. B. 245. Hill. 10 Geo. 2. Nevil v. Filher. ingiy, af- 
ter .1 finglr 

Plea of Non Aflumpfit. 

52. In Trefpafs it was moved to plead doubly. Not Guilty, and a^'iesol 
'fiillijicntton, which was denied as contradictory. Notes in C. B. 245. ^'^.^ '" 
Hill, 10 Geo. 2. Barnett v. Greaves. S C. ac* 

cordingly, 

53. Allumplit.' Defendant paid 10 1, on the Common Rule, and a^iCT-d^es o( 
wards obtained a Rule to plead double, Non Afjiinipjit and Non A/- ^^^^^- '" 
fiimpfit infra fex annos. Plaintiff moved to fet alide the double Plea j;' (^' a^J*" 

with Colts, and had a Ruletoftew Caufe, which was made abfolute. coi-dingly. 
Plaintitfby the Rule to pay Money into Court is confined to plead the 
General Ilfue, and no other Plea. The Motion afterwards to plead 
Double is an Impolition on the Court. Notes in C. B. 245, 246. Ealt. 

10 Geo. 2. Buck v. \\ arren. Attorney, in Cafe. 

54. It was moved to plead double, viz. Damage-Feafant , and under Cafes of 
, a D e mi fe from Defendant to Platnttjff. Ch. J. faid he thought them in-Pra^-'n 

confiltent ; but as Defendant obtained a Rule to ihew Caule, and Plain- 5 ^ accoVd- 
tiif did not oppoie it, it mull be abfolute. Notes in C. B, 246. Lalt.ingiy. 

11 Geo. 2. Church v. Fendail. 

$$. The Court gave Defendant Leave to plead doubly, viz. a Z)//^ Cifes of 
trefs for Damage-Feafant and j or Rent in arr ear. This is not llronger J!^'^^^ '" 
than Not Guilty and Liberum Tenementum, folvit ad Diem and ^^s C accord- 
matttal Debt, which have been granted. Notes in C. B. 247. Trin, ir,giy. 
II & i2Geo. 2. Baynes V. Lutwidge. 

56. Defendant having obtained a Rule to plead doubly ( Non Affunip- 
Jit- S Non A[f amp/it tnjra fex annos) Plaintiff mov'd to difcharge u. 

, G g g ialilUni: 



•2o6 jDouble Picas. 

in/lfting rhat Defendant who was a Prifoncr in the Fleet at the Time of 

bis being thaig'd with the Declaration before this Rule obtained was dif- 

charged at the ciiJJt>)Hs of the Pence, by the compulfory Claqfe in the /;/- 

fohvnt Debtors Ail lo Geo. z. end being at large cov.ld not regularly apply 

jor the Rule to plead doubly^ withotittfirji e^itenng a common Jppearatice^ 

which was not done. The f^uellion was never determined, buc by Con- 

fent the Plaintiff had Leave to diJcortinue without Colb. Notes 

in C. B. 274. Trip. 11 & 12 Geo. 2, Cock v. Kerredge. 

Cafes of 57. Rule made iiWolute to plead double, Nbii aj[nmp/it^ and Defen- 

Pi-aft. in dim's Difcharge tinder the Infolvent Debtors AQ:. 10 Geo. 2. Notes in 

s"(f accord-^- ^' ^^^- ^^^^- '^ Geo. 2. Jones V. Body. 

ingty. 

Cafes 6f 5S.' A Rule the fame Term in Cafe of JLtfle ft. 31eitj>lt<S, had been made 

Piaft. in to Ihew Caufe, and abfblnte on Affidavit of Service (no Caufe being 
S (f '^'d ^^^^") ^° plead Nf)n ejt fafliuii, and Defendant difcharged under the faid 
jngly,^""*^ ' Aft. Notes in C. B. 252. Jones v. Body. 



(C) Allovv'd in what Cafes, where there are feveral 
Defendants. And where the one pleads one Plea^ 
and the other another. 

1. T N Writ againji Ro. and W. ^0. made Be fan It dfter Default, and 
X f^ w-'^^-J received to plead Sole Tenancy of Parcel, and Jotntenancy 
of the Rcftdue. Thel. Dig. 214. Lib. 15. cap. 3. S. 3. cites Mich. 
5 E. 3. £09. 229 

2. In a Writ ot Error it was faid Arguendo that where Precipe is 
brought again/I two Jointenants, Parceners^ or fuch like, each mav plead 
tn Bar by him f elf of his Part, and it the one pleads a Plea which goes to 
dll, and it is found for hini and the Plea of the other is found agaiiiji him^ 
yet he pall loofe his Moiety. Br. Deux plees, pi. 4. cites 9 H. 6. 46. 

3. But Qusere \i Eaflardy be pleaded by the one in Action Ancejirel, and 
another Plea by the other, and the Eafiardy is found for him who pleadi 
It, and the other Plea is found againjt the other if this Ihall not ferve 
both. But it was faid that all is one, and that each may lofe his Partj 
but Quaere, becaufe it was not adjudg'd. Ibid. 

1. But if the one pleads to the IVrit and the other to the Aifion, there 
the Plea to the Ikritjball be firjf try'd i For if it be found for him all 
the Writ fhall abate, and this fliall ferve both. Ibid. 

5. But in Trefpaj's in Perfonal Adion agamfi two, and the one pleads 
cHe Plea, and the other another Plea which goes to ally there this fhall 
ferve both; Qutere in Aftion real. Ibid. 

6. And in Affinn brought again/} one if he pleads one Plea to Parcel^ 
and the other Plea to the Refi, which goes to all, there the Plea which 
goes to all fjall be accepted only, and not the other be it in Aftion Real 
or Perfonal, becaufe it is pleaded by one and the famePerfon. Ibid. 

7. QuiEre where two Pleas are pleaded by two in Pracipe quod reddat 
whether the one goes to all. Ibid. 

8. Former de Faits againfi three, the one made Default, and two ap- 
peared, and the one pleaded the Death of the Third, who did not come, at 
D. in another County before the IVrit purchafed, and the other pleaded Not 
Guilty, and Ven. fac. ijftted upon both, and after the Plaintiff prayed two 
Ntfi Prius^s upon thofe t-:vo Iffues, and triable in two Counties. Per 

Moyle 



Double Pleas. 207 

Moyle he cannot have both, but if the IfTue of the Death betry'd then 
the other Ilfue is void, though it be try'd alfo. But per Prifot the 
Plea of the Death goes to the Writ, theretbre the other fhaJI have 
thereof Advantage, J^usre of fcveral Pleas to the yl^fion^ and therelore 
here the one may make an End of all, and therefore this ihall be firlt 
try'd, and if it be Ibund ag.unli the Dclendant, then the other Plea 
Ihall be try'd lor the other, but if it be found for the Delendant who 
pleaded the Death, the Writ Ihwli abate in all, by w^hich Niji Pritts 
WAS grantt-J only of the County where the Death is alk^d. Br. Deux 
plees, pi. £o cites 37 H. 6. 37. 

9. In Pvcecipe againji two, if the one pkads Bajlardy and the other 
Releafe of the Demandant, both lliall be tried, and if the Baftardy be 
found i\\Q other Ilfue is void becaufe the Bailardy goes to all j Per 
Moile. But Prifot denied it, for in Plea of Land every one m.ay five 
or lofe his Moiety, therefore if Baftardy be found tor the one, and Re- 
leafe againll the other, the Demandant fliall recover one Moiety and 
ihall be barr'd of the other Moiety only, and of no more. Ibid. 



(D) Allowed in what Cafes, where one lliall be (a,id to 

go to the Whole. 

1. T N PrsEcipe quod reddat the Tenant as to Parcel faid, that he had 
X nothing nnkfs as Baron of his Feme not named in the IVrit ; Judg- 
ment ot the >\ ric, and as to the rejl he pleaded Nontenure ; Per Birconj 
he has pleaded two Pieas wherte the one, fcil. the Nontenure goes to 
all, and prayed to be dilcharged of the one ; and per Cur. he Ihall an- 
fwer to both, and fo he did, that is to (ay, to the one Parcel that hc 
is fole Tenant, and the Feme has nothing, and to the reft Tenant as 
the Writ fuppofes, Prift &c. Br. Deux Plees, pi. 12. cites 21 £. 
3. 28. 

2. In Dowtr tYiQ Tenant to Parcel pleaded Jointenancy, and to the reft 
Ne unques jicconple in lawful Matrimony ; and per VVich, he ihall not 
have both, becaufe the one and the laft t'lea goes to all; but Finch 
contra, lor it he has a Join:-Feoffee it is no Reafon that he Ihall render 
the entite Damages, and alfo he cannot vouch without his Companion j 
but Wich contra. Br. Deux Plees, pi. 7. cites 40 E. 3. 31. 

3. ./^W that he cannot \^\t^d Releafe to Part, and another Anfwer to 
the rcfl, tor the Releafe goes to all ^ Per Wich. Ibid. 

4. But 43 E. 3. 39. it is adjudged that a Mefne Tenant (hall not plead 
tffie Plea which goes to all, and another Plea to the reft. Br. Deux Pieas, 
pi. 7. cites 40 E. 3. 31. 

5. But it was faid 9 H. 6. that "johere two are impleaded in a real 
Aliton the one may plead a Pled which goes to all for his Part, and the 
other another Plea to the rejl, and each Ihall lofe or fave his Part ac- 
cording to the Trial of the Plea &c. and fee 15 E. 4. 25. a Diverlity 
of thofe Matters between real Aftions and perfonal. Ibid. 

6. In Dower the Tenant pleaded that the Demandant detained Evidences 
ivhere he is Brother and Heir to the Baron, and the Demandant faid that 
(he detained two Deeds becaufe Eft ate was made hy them to her and her 
Baron, and to the refi that /he is En/ient by her Baron j Per Cand. the 
laft Plea goes to all, and vet Ihe had both. Br. Deux Plees, pi. 8. cites 
41 £• 3- II- 

7. In Formedon the Tenant pleaded Nontenure to Parcel and that tfie 
Demandant is a Bafiard to the rejl, and could not have both the PleaS 
becaufe the laft goes to all. Br. Deux Pleas, pi. 9, cites 43 E. 3. 29. 

S. Debf: 



2o8 Double Pleas. 



8. Debt 0/20/. again/} i'xeciitors, and to 10/. they pkadid jlcqvit- 
tancc of the riatn'ip made to the Ttjiator^ and to the rrji fn/Iy admini- 

Jiercd. Perfey iaid the laft Plea goes to all, but alter he palled ,over. 
Br. Deux PKes, pi. 35. cites 48 E. 3. 18. 

9. In Ward the Deleiidant pleaded Nontenure to the Body, and as to 
the Land, that the Aucefior did not die his Tenant, and had the one and 
the other by Award, and yet the lall might have been pleaded to both. 
Br. Deux Pleas, pi. 10. cites 7 H. 4. 12. 

Br, Replica- ^^ ^p(^ p^r Hank, in Praecipe quod reddat the ^eimnt pleaded to one 
"°"'s^V* -Aere A^ontaiare-, and to the n/t Rcleafe of AStons real and perfonal, and 

had Loth, and yet the laft goe.s to all j the Realbn feenu to be inafmbch 

as they are pleaded to feveral Parcels. Ibid. 

11. Debt upon an Ohligation oj 20/. to pay 10 I. at two Days, and the 
Defendant for the frfi Day Jheivcd jicqiiittance, and /or the laji Day that 
he has been always ready, and yet is, and brought the Money into Courts 
and the Plaintiff to the Acquittance demurred becaufe tt had no Seal, and to 
the other Pica faid that he bad not been alwa^'s ready, and was not fuflered 
to have both by Replication becaufe if the Condition be broken in Pare 
it is broke in all, and therefore he was compelled to hold to the one, 
and fo he did, Icil. That he has been always ready &c. Br. Deux Pleas^ 
pi. II. cites 14 H. 4. 30. 

12. In Ward the Defendant as to Body faid, that the Anceflor of the' 
Infant held Land of A. who held over of the Demandant ^ue Eflate he 
has in the Ward, and as to the Land that he and the Aucefior of the In- 
fant held jointly, and he furvivcd, and it was determined that he Ihould 

hold him to the Jointenancy, lor this goes to all, by^ which he faid 
that IV. leas' d the Ward of the Body to the Defendant, and vouched him to- 
Warranty, and as to the Land pleaded Jointenancy by Fine as above, and 
it was awarded that he Ihall have both, by reafon of excufing the Da- 
mages and to put it upon the Voucher, hx. Deux Pleas, pi. 13. cites 
^ . 7 H. 6. 14. 

l\ 13. Debt upon a Leafe for lo ^ears rendering Rent, and for Arrear of 

th7 mher eight Ttars &c. Fullthorp faid Green Acre is Parcel of the Premilfes 
Editions arc which was alielTed to * 3 s. at the Time of the Demife, into which the 
35- Plaintiff entered three Tears after the Leafe, before which Entry as Par- 

cel nothing Arrear and as to the reft he owes him nothing, Prift, where 
one mtire Rent was referred for all, and the Opinion ot the Court was, 
that the Entry into Parcel goes to all the Writ. Br, Deux Plees, pi. 
14. cites 7 H. 6. 26. 

14. In Wall the Defendant pleaded to Part that the Plaintiff had ait 
elder Brother who furvived the Father and died, after whofe Death no Waft 
done, and to the reft that the Plaintiff had another Coparcener in full Life 
not named i Judgment of the VV^rit, and by fome the firft Plea goes to 
all, but by the bell Opinion the lall Plea goes to all clearly. Br. Deux 
Plees, pi. 3. cites 9 H. 6. 11. 

15. Forger de Faits of] Land in four Fills See. the Defendant as to 
three Fills faid that the Platntift never any 'Thing had, and to the Reft 
conveyed Fftate to himfelf, abfque hoc that he forgd Modo et Forma. Per 
Newton this lall Plea goes to all, but the Court was againlt him. Br. 
Br. Deux plees, pi. 29. cites 10 H. 6. 24. 

16. And ^ti Cur. it in Precipe quod reddat the Tenant pleads Releafe 
to Parcel, and Baftardy in the Demandant to the Reft this Ihall ni>t be 
futter'd ; For the lall -Plea goes there to all ; note the Diveriicy. Ibid. 

17 In Annuity xht Defendant pleaded Acquittance of two liars, and 
to the Reft that he offered to the Plainttjf a competent Benefice which was 
the Condition of the Grant, and he refus'd, and becauie this Plea goes to 
all, the firll Plea was oufted ; For Debt lliall lie ol the Arrears belbre. 
Br. Deux plees, pi. 15. cites 19 H. 6. 54. 

18. lit 



Double Pleas. 209 



19. In Trefpafs of a Vilkiii in his Service heitig taken, Frank and 0/ Bi-. Rb- 
Fraiik-F.Jidte goes to all, v. ithouc anfwering to the Service i Quaere by P'ca<lc;, pi. 
others. Hr. Deux plccs, pi. 16. cites 22 H. 6, 30. S^C^"" 

20. And in 'Trefpafs de AInltere abdntia cum boms viri. Never his 
Feme is a good Plea to all, per Fulthorpj but Afcue contra j For he 
Ihall anfwer to the Goods alio. Ibid. 

2 ! . 'trefpafs of Trees cut and carried aivny, the Defendant as to the 
Trees pleaded Gift of the Plaintiff before the Trcipjfs^ and to the c tit ting 
and earring away Not Guilty , And per Littlfton the lall Plea goes to 
all, but Prifot laid No, but in Trelpafs agaiiilt two it the one pleads 
Releak:^ and the other another Plea, thel^e the Releafe goes to all it' 
it be firll try'd. Br. Deux plees, pi. 5 cites 33 H. 6. 12. 

22 l^ Baron and Ferae plead Alifnofmtr of the Feme, it goes to all the Br. Mirnof- 
Writ it it be Ibund, and )ec the Baron Ihill plead another Plea lor fnei", pi. S. 
hinifelt alfoj and fo he did, qUod nota, and ^o two Pleasj and yet '^'^^' ^ ^ 
the one goes to all. Br. Deux plees, pi. 6. cites 33 H. 6. 22. 

23. In Dower, the Tenant pleaded Nonten are to Parcel, and to the Refi 
that the Demandant detain d from htm certain Evidences which concern' d 
the fame Land, and had both ; For the lalt Plea goes biit to this Parcel 
of which the Tenant takes the Tenancy. Br. Deux plees, pi. 36. cites 
33 H. 6. 51. 

24. Trefpafs in three Acres of Land, the Defendant jiiflified for the 
third Part by one Title, and in the other two Parts by another Title, and 
well i For It may be that it is in Severalty, the third Part trom the 
two Parts ; For otherwife, the one Plea goes to all. Br. Deux plees^ 
pi. 30. cites 37 H. 6. 39. 

25. In Debt upon arrears of Annuity granted pro Concilio impenfo See. R'' D.-uk . 
againft the SuccclFir of an Abbot, the Defendant ; as to the Arrears be- P^es,pl 22: 
tlvemfuch a Feaft and fiich a Feafl, faid, that the Predeceffor required Coiinfel '^^^^l ^q ' 
in ftich a Matter at D. andhethere^refus'd to give Coiinfl; and to the 

Arrears before, that he did not give Counftl &C. and had both Pleas j 
For though the Annuity was determin'd by theRelufal, yet Debt lies 
cf the Arrears betorc, and this Attion is Debt, but in Adion ot An- 
nuity, there the Retufal goes to all of this Nature of A6tion Note 
the Difference in Annuity, and e contra in Debt upon arrears of Annui- 
ty. Br. Annuity, pi, 28. cites 39 H. 6. 22. 

26. Jifion of divers Trefpajfes, the Defendant to fame pleaded Not „ /^o- 
Gttilty, and to the Rejl Arbitrement of all Trefpajfes^ and were at Ilfue jj] &* "l 
of this, and found for the Plaintiff, dnd by foirie this lail Plea goes to 25. cites^ ' 
all, and by feveral none Ihall have Advantage ot the lall Plea but the 5>' C. 
Party, but any as Amicus Curiae may Ihew to the Court that the one 

Plea goes to all, and the Court ex Officio lliall difcharge all biit that ; 
and alter it was faid per Cilr. that it is better for the Plaintiff to releaie 
Part of his Damages and to have Judgment of the Reft- For where 
diverfeTrefpalfes are, and divers Pleas pleaded, and found lor the 
Plaintili; and the Damages are lever'd, the Plaintiff may releafe his 
Damages for Part, and pray Judgment tor the Reft; and fo is fure. 
Br. Deux plees, pi. 23. cites 5 E. 4. 124. 

27. In AJ/ife by B. and S. the Dejendant pleaded againji B. that he is 
an Alien horn, and agatuji S. that he had never ftich Office of which the 
A/Jife is brought, and it was held that the laji Plea goes to all agatnfi both j 
For if there be no fuch Office, no Allife lies. Br. Deux plees, pi. 24. 
cites 7 E 4. 29. 

28. K Mm f hall not have two Pleas where the fiji goes to all Br. Br. TrefpaQ, 
Deux plees, pi. 25. cites 12 E. 4, 10. pl. lij;. cite- 

ij C. 

For more of Double Pleas in General, See other Proper Titles. 

H h h Dower. 



2IO 



Dower. 



What it is, and the feveral Sorts and Incidents. 

At this Day i. T~*\OWER is Propter onus Matrimonii & ad fuilentationem 
Dower IS j__/ Uxoris & Educationein liberorum cum tuerinc procreaci, li 

by the Pro- ^'^ prsemoriatur. Et hoc propria dicitur Dos Mulieris fecundum Con- 
feflbrs of the fuetudinem Anglicanam. Co. Lite. 30. b. 

Common 

Law, either for the Land which the Jflfe brings with her in Marriage to her Husband, for then it is 
cither called in Frank Marriage or in Marriage, mr tor the Portion of Money or other Goods or Chattels 
which Ihc brings with her in Marriage, for that is called her Marriage-Portion. And yet of 
antient Time Dos Mulieris, the Dower or Dowry of the Woman was alfo applied to them ; but it is 
now commonly taken for her third Part which flie hath of her Husbands Lands or Tenements. Co. 
Litt. 51. 

2 Littleton divides Dower into 5 Parts, viz. Dower by the Common 
Law. By Ctijtom. Ad OJlium Ecclefi^. Ex AJfeftfa Patris. And 
De la pints Beak. Litt. S. 38. and S. 48. 

3. Three Things l^eku^ to Dower, viz.. Marriage. Seifm. Death 
of the Husband. Co. Lite 31. a. 

4. Concerning Seijin, it is not Jieccjffary that the fame fhould continue 
during the Coverture ; For albeit the Husband aliens the Lands and 
Tenements, or extinguiflies the Rents or Commons &c. yet the Wo- 
man ihali be endowed. Co. Litt. 32. a. 



jr^>f^ (A) fHoat IVoman fhall be endowed. 

Br. Dower, r Tlf a $19i:in llWracS il Woman of an hundred Years of Age, ))Ct 

pi 56. cites 1^ flje iijall l)a\jc Doiucc, tljouijlj bp pofliUiliti' of fXmxt %z 
_<*„/• cannot ijauc Jiffuc. 12 ly. \. 2. b* 

Litt. 40. a. , ,, ^ 

S. P. cites X2.H. 4. 2. and -y H. 0. u, 12. 

Feme of the 2. !J|f tl)E |)U0bantI dies before his Wife is of the Age of 9 Years,- 

Age of^ievenfijg ^.^^ j|£,(- ^^ CUDOUJCn. jLttt. 8. 12 lp» 4. 3. 
Years mall -* -' ..-en 

not have Dower. Br Dower, pi. ;6. cites iz H 4. I And 11 J7je is ef nine 7 ears, and tfje 

Baron is net of /even Years of Age, fte (liall not have DoWer ; Contra if he is /even at the li/ne of hi. 
Death. Br Dower, pi. 88. cites Doft. and Stud. lib. 1. cap. 7. fol. 15. and Paiva >i.i. Br. fol. 7 
. if ftc be nine Years old at her Husband's Death, flie fhall have Dov.er. 2 Inlh 254. So 



his 

7- 
See 



(E) infra 



3. Eot* paciiauicnti s iy, 5. Jl^iimero 15- tlic Comniong ptnp= 
eU, €t)nt an c^annet of women Aliens tljat fljoulD be nirimco to 
englifljnien bp tlje jClopa! Itccncr, fljOiUH bz cnnaiycB ^c, 

CB) 



Dower. 2 1 1 



(B) A N S W t: R, 

[4] Let it be done as delired iJJ) tIjC PCtltlOlt^ J^^j 

as in the Original. 

I. Til Rot ll^arliamciiti, 9 ?!>♦ 5- iEJtinicro . a petition 
iua0 ncItueucD to tljc Mimr in tijijs i^arliamciit foe TBcatrice, ui!)o 
mas tIjc HDifc of C-Oomng, late Carl ot ^runnel, fljcuitno;, ^Dat 
infjcreais (ijc uins bom in Portut^ai, ano took to DnjsbanD tije fain 
Carl, U)l)0 inajs feifeo in lee, anD Jfee-Cail, of mum CaiTlc0, 
3LantiiS $ c» 'clCije rpcirs anQ Certcnants nou) Difturbcr! Ijer of ijcr 
rcafonable Dotner, became iljc ism born ann begotten in tljc faiD 
JLann of portuixal, tljat it uioulo pieafe bim to Declare anD oruatn 
t^ autljocitp of i^arliamcnt, tljat fijc fljoulo ija^c Ijcc IDoUJer* 



(C) x\ N s w E R.. P""J^1^' 

in the On- 



I. [6.] Cljci^ins, of tIjc saiTent oftlje lorng in tind parUa=^ 
ntcnt, Ijatij ncclarcQ opcnlj?, ana ordained m tije fame l^arliauicnt, 

as flie hath deiired. 

2 [7] In fome Cafcsi a HBoman fljall be ennoUicD, tljoutjlj 
tljcreisj a Divorce betujcen Ijcc ano ijec ipu^baao. 39 C, 3 33. 
•BiitqUisrc. 

8. In 28 Eliz itl Cafe of one Serle, it was argued by the Jaftices 
or C. B. ii the Ifnes of Pnejls were legitimate, and Pophani Attorney 
lays, when he was Serjeant, it was adjudged that the iVife of a Pritfi 
ftould have Dower. D. 1&5. pi. 65. Marg. 

9. The Policy of the Common La'w may make a Quoad, as in 22 El. 
D. 274. a A-famage infra yin/ios nubiks is perfcB Quoad Dotem, but as 
to other Purpofes it is only Inchoatuni & Imperfe6lum. 6 Rep 40 b 
Mich. 3 Jac. B. R. Mildmay's Cafe. 

10. It a Freeman took a Nief to W^ife, fhe fliould have been endow- 
ed ; but the Wife of an Idcot^ Nbn Compos, oatlaived, or attainted of 
Felony or Trefpafsj attainted of Hercfy, Praemunire, or the like, 
Ihall be endowed. Co. Litt. 31. a. 

11. £/;f if the Husband be attainted of Trcafon^ though it be for 
Treafon done after the Title of Dower, llie Jliall not be endowed. 
Co. Litt. 31. b. 

12. If a common Perfon takes an JHeu to Wife^ and dies, fhe lliall not 
be endowed ; But if the King marries ait Ahm^ llie fhall be endowed 
by the Law of the Crown. Edmond, the Brother of King E i. mar- 
ried the Queen of Navarre and died, and it was refolved by all tne 
Judges, that Ihe lliould be endowed oi the third Part of all the Lands 
whereof her Husband was feifed in Fee. Co. Lice. 31. b. 

13. It is neceli'iry that tne Marrmge do conUmie, lor if that be dtf- 
fohed the Dov\er .„e,deth, Ui>i nalluni Matrimonium ibi nulla Dos ; 
but this is to be uncieritood when the Husband and Wile are dirorced 
a vi^iai/o Matrimonii, as in Cale ot' Pre-contra6t, Confanguinity, Aiil- 
iiity &c. and not a Menft ^ Thoro only as for Adultery. Co. Lict. 
32. a. - 

14. If a Jew born in England cake to Wife a Jcia born alfo in Eng- 
land, and ihiHusband IS converted to thiChriffiMi Faitb, andpurchales 
Lands, and inleotf^ anocher, the Wife lh.ill not be endoTved. Co. 
Litt, 3t. b. 32. a. 

IS- If 



This is 
Printe 
in the 

cina!. 



2 J 2 Dower. 

15. If a Marriage de Faffo be voidab/s hy Divorce w rcfpeci of Cun- 
fangiimity Sic. whereby the Marriage might have been diilblved, and 
the Parties I'reed a Vinculo Matrimonii, yet if the Husband dies bejore 
any Divorce then for that it cannot no';V be avoided, this Wife in Fa6ta 
lliall be endowed, tor this is legitimum Macrimoniunii and {o in a 
Writ of Dower the Bifliop ought to certity that tliey were Legitrmo 
Mairimonio copulati, according to the Words of the VVric. Co. Lict. 
32. a. and fays that herewith agrees loE. 3. 35. 

16. If a Man talces a Wije of the Age of [even Tears ^ and after ali- 
ens his Land., and after this Alienation the VVite attains to the Age of 
nine Years, and after the Husband dies,' the Wife fiiall be endowed i 
for although fiie was not abfolutely dowable at the Time of the Mar- 
riage, yet ihc was conditionally dowable, via. If fhe attained to the 
Age ot nine Years before the Death of her Husband ^ For fo Little- 
ton here fays, fo that ihe pafs the Age of nine Years at the Death of 
her Husband ; for by his Death the PolTibility of Dower is confum- 
mate. Co. Lict 33. a 

17. If the Wite be paji the Age of nine Tears at ihe Death of her 
Husband ^Me. fhall be endowed, of what Age foever the Husband be, 
although he were but four Years old. Quia junior non potelt dotem 
promereri neque virum fuftinere, nee obltabit Mulieri potenti Minor 
aetas viri, wherein it is to be obferved that though Confenfus non Coh- 
cubitus lacit Matrimonium, and tha't a VV^oman cantiof confent before 
twelve, nor a Man before fourteen, yet this inchoate and imperfeft 
Marriage (from the which either ot the Parties may difagree) after the 
Death of the Husband Ihall give Dower to the Wile, and therefore it is 
accounted in Law alter the Death ot the Husband Legitimum Matri- 
monium, a lawful Marriage, quoad dotem. Co. Lictl 33. a. 

18. The Wife of a Man who is baniped fhall have Dower in his Life- 
tfme if ihe has not a Jointure; if fhe has a Jointure Ihe iliall enjoy 
it in the Life-time of her Husband. Baniiliment is by Abjuration of 
by Parliament. Jenk. 4. pi. 4. Weyland's Cafe. 

19. If a Man take an Alien to Wite, and then fells his Land, and 
his Wife is niade a Denizm, Ihe fhall not be endowed by Virtue of the 
Denization; but it is otherwife if Ihe be naitiralized by A£l of Parlia- 
ment. Co. Litt. 33. a. 



(D) Ofwhaf T}ywgs fhe Ihall be endowed. 

Br. po;v^r, I. Qm<Q, fljaii uot u citaotucti df tljc Goods of Ijeu i^Jugbann. 7 1&. 
pi.^51. cues ^5 4. 13 t,^ jr)ctugi Bat. OBceDiiim ?• b* 



Br. Dower, 2. But by the Civil Law Ihe fhall tie euDOtOCtl Of tIjC (S>OOUl£(* 

that the Law^ of England is contrai-y ; aud that the Civil Law does not give it of the Land. 

3. %\)t fljall be CnHOUlCtl of Villeins regardant. 2 J^ 6. 1 1. b* 

s, P. and> 4. So flje fljall be cnOomeD of ©iHeiniS in Grofs, foe tljijs isi an 3In= 

Vv'Zu anrf 6C"t«"Cf • 2 % 6. I r. b. mi. J^flt. loU 7. b. 

xhcJVrit pall he De Libera 'fevernento. Br. Dower, pi 91. cites 2 H. 6. II. She fTiall 

be indov.ed of a Villein, either the ihird Day's Work, or every third Week or Month Co Litt. 

52. a. Ibid i(>4 b. S. P. Ibid. 507. a. S, P. for in him a Man may have art 

Eftate in Fee, or Fee Tail, or for Life or Years. 

5. €>lje 



Dower. 



'3 




5. %\)t fljall not be enUOlDCn of a Common f^ins Nun ber, IttiUHt <^° Litt. 52. 

tijcn t\)t lanu luauio be ooublp cljargetJ. Co. 1 1. Ri^k G^Jfrj 45. ^^j, '"; p- j-"*^ 
Pfr,fe.//j, ^. 34:. a3cr» Bat 15. K. 7. b. 13. 9 Car. 15. K. bc^mone.rain 
tiDCCit * pynvetr <u,ri Drake^ pec Curlam affrceo in a iDnt of (£rror f>c ihaii be 
upon a Juiin,nicnt inDotucr, but ^iiaijmcnt nffirnicD, bccaufcit^"'^";^^'^- — 
fljail not ttjcic be intcnocD to be Common lanjs JQumttc, but .^^ ^',°, • 
appcniiant. s.cthe'" 

Demand was 
of Dove- in a Mefl'uai^e, Land, Meadow, Pafture, and of Common of P.iduie, pro >Dmnihus Ave- 
riis cum Pcriii-entiis in (i. and the Ju>igment being alter s Vei-di£t which finds th;it the Husband 
■was fcilc'l, iiuod Dower &c. a-id bv Intendment it appeared Ufon the Evidence thrn it was flich 
a Cnmm n as went witii 'he Land wiiereof file was dov;able ; and if ir h:id been Common in Grois 
witho'H >''iin,ber the fudge before whom the Trial paffed "Aould have diretted it to be found 

agai ft the Defendant. Jo 515. pi. 2. Breewood v. Drake SO adjudged. And a Nor.^ 

isaddjd that A Precedent was flicwn of 4 Jac. where a Demand \j&s of Dower inter alia of Com- 
inon Generally, and Judgment given for the Plaintiff. 

6. %\)t njall be eilUOUietl of tlje office of Marftalfea it IB* E. 21. 

"€. 3- 57- b. aomittcD. 

Co Litt. 52. a. S. P. and foasto the Proftts arifinp; from the Cuftody of the Gael of Wcltminder- 

Abbey, a-, d lays thj.t tlierewiih agrees reverend Antiquity. Tht.1 ai Dig. 67., lib, 8. cap. 

5 S. 2. cites Trill. 21 £. 9. 5) S P. F. N. B. S. (K) in the new Notes tiiere (b) 

cites S. C. 

7- '2rijC iitlCC'u I^ail not ^e entlOiUCU of the Crown. libet g)llC= 

8. a moman ffjall not be entjoteeu of tbe Cafties of bcr ii^u^bann Yfl^JiM'' 
tul)icb arc iie 05uerra. i e. i. Eot. I^atcnttuiu Q^mbrana 17. fol. l,;'i ^ni 
J, reColbna^.ttappear.sbpail^nttotbc^tciDarn of jrelauo ta«w^«j>»j- 

reform lUfb.CifrnbOlDmentgi tljete* Other wife of the Queen. 2 eJ. I. -"^"'^ 'nd the 

Eot.l9at.,Q9.3. Dorfo. _ ^tJ^u 

Or Hoiije, the Feme of the J-ecjg-or brought Dower and reccvertd in Jnhie by Award, hctt not the third 

Part Br Dower, pi 8i. cites :50 E I. Co Litt. 5 1 b. S P. But where they are 

nor for the necelTary Defence ot the Realm the Wife may be endowed thereof. Co Litt 16,- a, 

at the bottom • 2 Inft. 17. S. P. accordingly in the Espofition of the Word Ca'ftrum in the 

Statute of Magna Charta. eap. 7. 

9. a ttaoman fljaU not hi ennotueti de Homagiis of Dcr OugbanU 

qus funt de 'Guerra, i C. U JROt. Pat. ^. 17- refOlUeO. 

10. "SCOe tlBifc (ball not be enoomeo of tije capital Meifuage, cbe ^^ ^^IP'^'T 
Lau) of ©cotlanD agrees uittlj tljtis. ^Ucnc Eegiam ^ajeffatem 'H, camrai 

41. b. ©erf. 62. JMefTaage a 

Woman 
fhall he endowedj fi no nfit Caput Comitatus vel Baironiae, for the Honour of the Realm. Co, 
Lict. 31. b. 

It. Writ of Dower was rhaintain'd of the Profits of a Market. Thel. 
Dig. 68. Lib. 8. cap. 7. S. 2. cites Hill. 12 E. 2. Dower 157. 

12. It was faid that a Feme might bring Writ of Dower of Common F- N. B. 
of Pajiure with a certain Number of Bealts. Thel. Dig. 67. Lib. 8. '^^ <^^^ 
cap 5. S. I f . cites Trin. 4 E. 3. 146. and that fo it is faid by Lit- 
tleton Pafch. 4 E. 4. 2. and fays lee 12 £. 2. Dower 161. accord- 
ingly. , . 

13. Andi o^ Stalh.ge arifing from a Fair, rhaking the Demand deCo.Lut;2. 
tertia Parte Stallagii avenant &(;. and not of Prohts ariling from the^ >j ^~^ 
Stallage (^c. Thel. Dig. 68. Lib. 8, cap. 7. S. 2. cues Mich, n £. i-^Yi) in the' 

Dower 85. new Notes 

there (b. ) 
cites S. C, For the Stallage is the Profits. 

T j « 14- Dower 



2 1 4 Dower. 



As of the 14. Dower of the Profits of an Office ■wis niaintain'd without de- 

n "^-a °D manding of the Office itieif Thel. Dig. 67. Lib. 8. cap. 5. S. 3. cues 
l«r&c. 12 L. 3. Dower 90. 

■withour 

demand ing the third Part of the OfSce of itj which cannot be^ becaufe the Office is intire. But 

Quaere of the Office ot Tentury F. N. B. S. {YL) in the new Notes there (b.) cites S. C. 

15. A Man fnall not have Affife of the Fartn of a Fair ; for it is not 
in loco certo capiendo, as in the Statute, and yet the Feme was thereof 
endow'd. Br. Aifife, pi. 471. cites 14 E. 3. Fitzh. Sci. Fa. 122. 

♦ Co. Litt. 16. And Dower was maintained of the Profits ari^ fig from a * Fair 
3^- 3j.S- P- and from a Market, and from the Court of the fame Market &c. But the 
8~(K') in i^emand was not of the third Part of the Fair or Market. Thel. Dig. 
the new 68. Lib. 8. cap. 7. S. 2. Mich. 15 E. 3. Dower 81. 

Notes there. 

(b.) cites S.C. And Ibid, cites Lib. Intrat. 2^4. de tertia Parte Exituuin & Proficuorum de 

quolibet Mercato quolibet Die Martis & Unius Feriae quolibet Anno in Fefto &c 

S. P. 8 Mod. 17. Writ of Dower lies of a Garden, Crafty or Cottage ^ by the Opi- 

3.55- Arg. nion of the Court. So Affife lies of it, but Praecipe quod reddat does 

cites S.C. ^^^ jjg Q^ j|._ gj. Do^yer, pi. 92. cites 8 H. 6. 3. 

» S. P. and 18. A Man leafed jor * Lije rendering Rent, and took Feme and diedy 

yet the Heir j.j^g Femefioall not be endowed of this Rent. Contra of a Rent referved upon 

k ' Fo^rT ^ ^'P "* ^^'^ i ^^^ J"^"^- ^^' ^ower, pi. 44. cites 7 H. 6. 3. 

is incident 

to the Reverfion ; For the Rent is tio Inheritance, and is determinable hy the Death of the Lejfee. Br. 

Dower, pi. 89. cites M. 1 E. 6. 

19. If A holds Lands of B. by Homage, Fealty and 10 s. Rent, 
and B. dies, B's Wife Ihall not be endowed 0/' the Homage and Fealty^ 
but fhall have a third Part of the Rent as a Rent Seek. Kelw., 126. a. 
b. pi. 87. Cafus incerti Temporis. 

20. A Writ of Right of Dower lieth of that Thingv/hich is appendant 
purtenant unto the faid Land which a Woman holdeth tn Dower. As of 
fo many Loaves of Bread, of fo many Flagons oi Ale &c. a Day or a 
Week (Sec. which fhe claims to pertain to her Tenement which fhe 
holds in Dower &:c. F. N. B. 8 (K) and 9 (A). 

21. A Wife ihall be endowed oi AdvowfonSy Villeins, Common of Paf- 
or aptiire, and of other Profits or Liberties of which her Husband had any 
Ell ate of Inheritance; which Eftate the Iflue betwixt them by Poffibi- 
lity may inherit &c. F. N. B. 148. (C). 

22. Dower may be oi Rent-Corn. Per Curiam. Ow. 32. Palch. >/ 
Eliz. in an Anonimous Cafe. 

23. Dower may be of a third Part of the Manor. But then it muji 
Gouldsb. 57. ^g claimed by the Name of the third Part of the Manor and not of certain 
Brook's Cafe. Mcffii3g^s certain Acres of Land and certain Rents, for in the laft 
S. C. & S, Cafe it is only a Demand as of a Thing in Grofs, and a Recovery ia 
P. held fuch Cafe is not of the third Part of the Manor. Godb. 135. pi. 156. 
acco^dmRly. ^-^^^ ^9 Eliz. C. B. Bragg's Cafe. 

Bragg V. Brooks. S. C. refolv'd clearly. 

* F. K B. 24. A Woman may be endow'd of the third Part of the Profits of a 
140. (K) * A'lilli And of the Profits ot keeping a Park ; And ofthe Profits of a Dove- 

jg'j J p N. ■^o/(/t' ; and of a Pifchary; And ot the f third Prefeutation to an Advowfon ; 

B. 8. (K) in So ofthe Profits of Courts, Fines and Heriots ; And oi 'tithes. Co. Lict. 3 2. a. 

the new 

Notes there (b) S P. cites 4s E. ;. Fit7,h. Dower, p\. 50. and that f!:e had thereby the Free- 
hold of tlie. third Part of the Mill verted in her. 

t F. N. B. ijo. (.G) S. P. ci'cs I E i. Dow?r 176. Ibid. 14S. (C) S. P. 

25. Wives 



Dower. 211; 



25. Wives ihall be endowed ot"!r/?^ifj or other Ecckftajiical Duties 
that cnme to the Cro\£u by the .Statute 27 //. 8. 31 H. 8. cap. 13. 37 
H. 8. 4. and i E. 6. cap. 14. Co. Litt. 159. a. 

26. Ot" Franchifes Parcel of an Honour Dower may be afligned^ and 
they may be Parcel and appendant to the Honour though they are 
not belonging to a Manor which is of an inferior Narure. Cro. j. 
622. pi. 12. Mich. i8jac. B. R. in Cafe ot'Howard v. Cavendilh! 

26. Of an Aivowpj/i, whether it be //; Grojs or Appendant, the Feme 
is dowable ; Per Cur. Cro. J. 621. in pi. 12. Mich. 18 Jac. B. R. 

27. Of a Rent-Service, Rent-Charge, and Refit-Seek, jfhe ihall be en- 
dowed J but of an Annmty that charges only the Perfon, and iilues not 
out of any Landi or Tenements, flae Ihall not be endowed. Co. Litr, 
32. a. 

28. ^iit if the freehold of the Rents, Common &c. were fttfpended be- 
fore the Coverture^ and fo continue during the Coverture, fhe fhall not be 
endowed of them. If after the Coverture the Husband does extinguifh 
them by Releafe or otherwife, yet Ihe Ihall be endowed of them, tor 
as to her Dower they, in the Eye of the Law, have Continuance. Co, 
Litt. 32. a, 

29. The Widow of the Lord Was decreed at the Rolls to be endow- 
ed of the third Part ot the improved Values of'tre Copyhold^ but reverfed by 
Ld. Keeper as to that. Chan. Cafes 247. Hill. 26 & 27 Car. 2. Hol- 
land v. Blandy. 

30. Dower i The Tenant pleadsj| that Sir Thomas Gei-rard was feif- 1 Salk.i^^. 
^d of the Mejfuage now in Demand, called B. in his Demefne as of Fee,'?^- 5- ^- ^• 
and being fo feifed, Jac. i. by his Letters Patents tinder the Great Seal^^fJ^^'^^.^ 
if England, created the fa-id Sir fthomas Gerrard Baron of B. and fo the in Error in 
Meffnage in Demand became Caput Baronies, and he prays Judgment, ifB. R.tjer 
the Demandant ought to be endowed thereof The Demandant de-^°^^"^"'~ — - 
murredj and Judgment was given for her in C. B. Tenant alfigns ti)r^f'^^"Lf/" 
Error, that the Demandant ought not to have Dower of this Melfu- Gerrard's ^ 
age, being Caput Baronise j That it would tend to the Diihonour of Cafe, S.C. 
the Dignity, to have the capital Melfuage divided and difmembered ^""^ J"''-- 
but it would be more lor the Honour of the Realm that it be kept '"/"^ aff"'fr- 
intire ; and tor Authority cited Co. Litt. 31. b. Fitz.h. Dowel- 180. CuV^!!^^ 
Braft. lib. 2. 170 b. Pafch. 4H. 3. Rot, 7, But Serjeant Wright and 5 Mod.tf^. 
Mr. Northy contra, of which Opinion was the whole Court; PofLd.Ge- 
thefe Authorities mult be intended of Feodal Baronies, of which there ^^'^^^1*^' 
are none at this Day except Arundel ; and this Privilege was allowed judo-m"nr 
to them, becaufe they ought upon Necefficy to defend the Realm, to iffi'-med m 

which they are bound by Tenure j For the King at the Creation ot the ^, ^- " 

Barony gave to the Baron Lands and Rents, to hold of him by the o°p^' y*' 
Defence of the Realm -, But then this cannot be a Feodal Barony, lor itjudgmcnc 
was in the Seilin ot the Gerrards before, and therefore was not given affirmed ,ii 

to the Gerrards by the King at the Creation of the Barony, to hold of '^ ^- ■ 

him; and Rokeby J. faid, that this was the reafbn of the judc^ment c r'^' '*°^~ 
in C. B. Ld. Raym. Rep. 72. Hill. 7 VV. 3. C B. Gerrard v. Ge'rrard. judgme"n''t 

, . , _ 1 . T^ n afnrmcd ifi 

B. R. upon which Error was brought in Domo Procernm, (which Levins fays was the Thin^d"-. 
fif^red at firlt) hut afte-- wards the Parties agreed, as the Reporter fays he heard- without havin<^ 
the Judgment of the Houfe of Peers. ' *" 

31. Dower does not lie of a ^Tenement, it being a Word of an uncer- S Mod. 355. 
tain Signification, and therefore the Sheriff cannot give Seifin of it ;^'^"' v- 
And fo a judgment was reverfed. 2 Ld, Ravm. Rep, 1384. Pafch, 1 1 F^''^' ^ ^- 
Cko, B. K. Kerry v. Kent. ^ "^^^^ 

and (o a 
T'ldgmsnt reverfed 

(E) 



'A 



2 T 6 Dower. 



(E) Dower ad Oftlum Ecclefise. 
Of what Things he may endow her. 
[And How.] 

9^^B canrtbt entiouj W u^tfe ati ©if mm Ccclefise of 
lji0 Capital Houfe t)aiiin5 otljcc jLauDiQi fufflcicut foe ijec 
Dotucr* . . 

2. i©itl) tijijs agtccjS tlje lato of ©cotlauu* ^itcne Leseis Xm^ 
gotuiii, cap. 3- 

3. In Eje6lione Cuftodiae by the beft Opinion, and in a Manner per tot. 
Cur. that if a Man endows his feme at the Church-Door oj H. in the 
County of E. bf Land in the County o< L. this is 'a. good Allignmenc of the 
Dower, though it was in another County than where the Land lies, 
and without Deed, but contra of AlTignment of Dower Ex alfenfu Pa- 
tris, this Ihall be by Deed ; For otherwife the Franktenemenc of the 
Father cannot pafs, and Aflent does not lie in Averdient but in Speci- 
alty, and in both theje Dowers Fraaktenement pajfes without Livery cf 
Seijin j Quod Nota. Br. Dower, 9I. 7. cites 40 E. 3. 43. 

4. If a Man tnarries a JVomdri in a Chamber^ Dowment ad OJliunt Ca^ 
mer<£ is not good. F. N. B. 150. (M). 

5. ^he youngeji Son cannot allign Dower Ex aflenfu Patris, becaufe 
he is not Heir apparent. F. N. B. 150. (E.) 
If a Man (,. None may endow his Feme ad Ofiiam Ecckjta; unlefs he be of full Age 

feiied in Fee ^f f^g I'lme &c. and then pe may enter after the Death of her Husband^ 
b™^' within ^"^ '" "^^'^ ^^'^^ Franktenemenc palles without Livery ; but if the Ba- 
A^eef endows ron was within Age at the Time of Dower, the Heir may enter and 
his Wife at ouil the Feme, and contra where one within Age endows his Feme Ex 
the Monarte- ^/^g^y^j Patris, the Father then of full Jge ^ this is a good Dowmenc 
DoorfanT^^f- Dower, pi. 80. cites Lict. fol. 8, 9. 

dies, and his n , r ■ o 

Wife enters, in this Cafe the Heir of the Husband may ouft her. Litt. S. 47. 

7. It feems that Dowers made Ex aflenflu Patris, or Ad Oftiuni Ec- 
fclefias, are good, though the VV^ife be within nine Tears of Age ; For 
Confenfus tollit Errorem. Co. Litt. 37. a. 

8. Dowment ad Oftium Ecclefise is where a Man of full Age feifed in 
Fee-Simple, who ihall be married to a Woman, and when he cot?ies to 
the Church-Door to be married, there, atl:er Affiance and Troth plight- 
isd between them, he endows the Woman of his own Land^ or of the Half^ 
or other Leffer Part thereof, and there openly does declare the Quantity and 
Certainty of the Land which Ihe Ihall have for her Dower, m this Cafe 
the Wife, after the Death of her Husband, may enter into the fiid 
Quantity of Land, of which her Husband endowed her, without other 
Alignment of any. Litt. S 39. 

9. Dower is ever after Marriage fblemniied, and therefore this 
Dower is ^00^ without Deed i, becaufe he cannot make a Deed to his 
Vy^ife ; For no AJftgnment of Dower Ad Ofiium Fxckji^ can he made before 
Marriage; for that before Marriage the W^oman is not inticled to have 
Dower. Co. Litt 34 a. 

10. Ad 



Dower. 



217 



10. An Aliigment oi' Dower either Ad OJiium Ecckfi£^ or Ex ^Jfeufu F. N. B. 
Patris may be made of ir.ore than a third Part. Buc it was the ancient ' 5°- (^^J 
Law, That no greater Alfignment could be made in thofe Cafes but of ' ' 
a third Part, but lefs he might, as appears in Glanvill. Co. 
Litt 36. a. 

II Dower JdOJUum Cajirl five MefiiagH is not good; But ought 
to be made Ad OlUum Ecclelise ; Non enim Valet fa£ta in Leiio mortali, 
vei in CiiiHcra, vel alibi ubi Clandeftina luere Conjugia. For the Law 
requirts that this and like xVlatiers be done pablickly and fokmnly. Co. 
Litt. 34 a. 

12. li Tenant in Tail endiivs his Wife Ad OJiiitm F.ccle/i^.^ this Hiall The Reafbti 
little or nothing at all avail the Wile, becaule alter the Deceafe of her of this is for 
Hupband, the IlFue in Tail may enter upon her PolTeffion, and fo may F'^'i,T!^."^°' 
he m the Re\ erlioh, if tliere be no lHue in Tail then alive. Litt. reftrai'„ed (,? 

tvite of J 3 
E. I. de donis Conditionalibus. Co. Litt. 38. a. 



(F) Of what Ellate fhe ILall be endowU 

I. T Jf 9« feiftO in .fee of Lanl3S, Covenants to ftand feifed thereof SC. cited, 
1 to the Ule of himfcit and his Heirs, till C. his middle Son "j^ y^*^;'^*'^='» 
ta!<es a Wile, and after to the Ufe of C. and his Heirs, anil ilftCL* ^^''y^ and 
tl(C0, tip lUijICtj ttdefcends to B. the Eider Son of A. who has a Wile fa'id that the 
and dies, nilO aitCt C. takes a Wife, \t feCniiS tIjC l©rf€ Of B. fljC '^"^ P"'"c 

eicrt %m fliall not lie cnDotu'D of tije fmo Cftatc of Oec ]f>it0biinQ -, "^'Zst^' 

tecaCifC his hliate is ended by an exprefs Limitation^ atlO tljCrCfOCC Queftion 

tfieCftiiteof tl3C iSife bciUQ; ticri^ D out of it tJjig cannot continue in arape-^ 
lonijcc tljnntlic oniTtnal ^^^itz. \d. lo 3ia* 'B. betuieen Fiaviiiandfs.ii <.f 
Vtntnce, DubitiUui* iipon a ©pecwl 3i)etmct; ifoc upon Argument ^idir""' 
tlje Cciut iuns DiisioeD, ^ilicet, Crainlej) anD aDerndn tljat flje adiudKed w 
flwU not lie EiiODiu'ii, anD |)utton ann Jipeatl) c conttn* Inttatur* be the and- 
Crtn* sci^r, Eot, 1343- ent ure.— 

2 Sid. 66. 

cites S C. If a FeolFmeni be made to the Ufe of J. S. and his Heirs until J. D. has donh 

■ fucii a Thirg, and then to the Ufe of J. D. and his Heii's, and afterwards the Thing is done and 
■J.S. di;s, liti Wife Ihall be endow'd ; Per Anderfon. Le. idS. in pi. 235. Mich. 51SC32 Elii. 

2. li Land \s granted to a Man and his Heirs for the Life of J. S. his 
\Yife after his Death Ihali riot be endow'd ; Arg. Built. 135. cites 22 
3E. 3. lol. 19. pi. 6 

3. In Dower it was agreed that v/here the Baron before the Coverture 
acknowledges by fine come ceo 8lc. and the Conufee grants and renders to 
the Baron for Ltfe., the Remainder to W. in Tatl., the Remainder to the 
Baron m Fes, and he takes fetue the new Demandant and dies ; and be- 
caufe the Fee is only expendant, and not executed in his Life by Rea- 
fon of the tntfne Remainder^ therefore Ihe is not dowable. Bi. Dower, 
pi. 6. cites 40 E. 3. 15. 

4. Memorandum that in Feoffinents to make FJlate over or to re-in feoff 
the Feojfer^ this ihall be made To a Man Sole^ or to a Chaplain who has 
no Feme i Fur if it be to a Man who has a Feme, and Ihe furvives, 
llie will or may have Dcwer. Br. Atfurances, pi. 3. 

K. k Jc <. it 



21 



8 Dowei*. 



F. N B. 5. It there be Lord, Mefne and leiiant, and the Tenant holds ot the 

i5<^-i(C) Mefne by Fealty and 3 s. Rent, and the Mefne takes a Wile, and the 

^* ^' 'Tenant brings a Wnt of Mefne againfi the Mefne and forejudges him, and 

the Mefne dies, thtWife of that Mefne fhall have Do-juer of the Rene 

by which the Tenant held, and Ihall not be Attendant unto the 

Tenantj caufa patec. Perk. S 432. 

6. If there be Lord and Tenant hy Fealty and 12 d. and the Tenant 
Jeafes the Terancy for Life unto a Stranger, and the Lord takes a Wile, 
and the Tenant dies without Heir, and afterwards the Lord dies bejore 
the L.effee for Lije, iht Lord's Wife /hall not have Dower of the Tenancy; 
kit Ihe Ihall be endowed of the Rent of the Seigniory &c. Perk. S. 339. 

7. li Grantee of a Rent charge in Fee takes a Wife, and the Grantor 
leafes the Land out oi which the Rent is iffuing unto a Stranger for 
Life; Anti ths Grantee of the Rent piirchafes the Rever^on of the fame 
Land, and the Tenant for Life atttirns, and the Grantee of the Rent dies, 
living the Tenant for Life, his Wife pall be endowed vf the Rent but not of 
the Land, becaufe the Freehold and Inheritance were not in the HuC- 
band Simul & Semel during the Coverture &c. Perk. S. 340. 

8. If a Man make a Gift in Tail referving Rent to him and his Heirs, 
and afterwards the Donor has a Wife, and the Tenant in Tail dies ijotib- 
mt ]ffiu, the Wife of the Donor fliall not be endowed of the Rent, be- 
caufe the Rent is extin£i, for it was referved upon the Eilate Tail, 
which is ended. F. N. B. 149. (G), 

"the Deter- 9. Etit although that the Tenant in Tail dies without Iffue, yet his 

mination of Wife fhall be endowed, hecunCe the Land continues, and is not determined 

of df Ba^on ^^ ^-^^ ^^«^ "■ F- N- B. 149. (G). 

is by the 

Aft of God, and the Feme fli all be endow'd. Br. Dower, pi. S6. cites Old Nat. Brc. fol. 144. 

— — Co. Litt. 31. b. S. P. 5 Rep. 84. b. S. P. in a Nota by the Reporter, and cites 

24 E. 3. 28. b. .10 Rep. 96. a. S. C. cited per Cur. Perk S 317. S. P. cite* Mich. 

44 E. 3. 31. 

Of an EJiafe Tail in Lands dete'rmixeda Woman Ihall be endowed in the like Manner and Form as 
a Man fliall be Tenant by the Curtefy, mutatis mutandis. Co. Litt. 31. b. 

S. C, cited 10. Tenant in Tail bargained and fold Land to H. and his Heirs. H. 
W Holt Ch. },gg ^jj Eftate defcendable and determinable upon the Death of the 
veringthe' Tenant in Tail, and hisWifepall be endowed determinable on the Death 
Opinion of of Tenant in Tail 10 Rep. 96, a. 98. a. Mich. 10 Jac. refolv'd in 
the Court. Seymour's Cafe, 

7 Mod. 24. 

Trin. i Ann. B. R. 



(G) Of 



Dower. 219 



(G) Of'u:hat yiuites the Wife fliall have Dower. 

X. 1 if a 99an leafes for Life rendring Rent, Ijj0 tlDift (Dilll not ficS. P- pee 

1 ciinoiuQ of this Renti jfoc tl)iisi isi biit ail t£ttatc far life ni J'''"'pf- 
m Eent tbougij J MceiiD.s ta tije Jpcic. 7IP. 6. 3. U. 17 ^%'„;^:LL^ 

3. 12. 28 m 3 n5)UtlS 5* . totheRe^r. 

<?/ Lift., and by the Incidimy the Heir jbaH have it, but the Father nor the Heir ^xU not have Eiatt 
of Inheritance in it. Br. Lower, pi. 60. cites 3.6 Art. 5S. 

2. 3!f LclTee to him and the Heirs of his Body, Ot to him and his 
Heirs lor the Life of ( S DJCS, tjIS> WX^Z fljaU'tlOt bC PUBOUJ'O, hZ- 

taufe tiji-j 10 but an (eilatE for life. i8(ic. 3. 44. b. 22 e. 19. b. 

3. 3f't'i-efiee tor Lite ieales lor the Life ot another, J)ljg Ugifc 11)311 ^o '^ 'TsK^rBf 

not be enQoiycQ i tm Ije gainjs tijt^ lee iu an imbnt, 5 ^ jorL-femaket 

4. 6. ^Feoffment 

~ i« Fee, and 

Feme of him fliall nothave Dower ; For though the Baron f;ave Fee Simple by Alienation, yet 
he never was Iciled in Fee fo as flie might hare Dower ; qUod noii negatur. Br. Dower pi. -o 
cites S. C > i" • -J • 

4. 3lf tf}C Baron and another ate jointly feifed in Fee, nUU tljC Ba- Co. Litr. 5r, 




cues 

I-. 54 E- '* 

Dower 179 . Jenk. 105, pi. i S. P. 



5* !Jf Tenant in fpecial Tail takes a fecond Wife that is not dowa- Husband 
ble of the Tail and aftet makes Feoffment in Fee, nilO DtejS, IjtjS!?'^ ^ '^* 

UBife fljall not be enrioiueD bectiitfe \)z gniits tlje jfee but m an in- f'"''T<r% 

flanr. CO- 8 l^htt. 43. b. U)lU jJtObC tljlS ; ifOf tbCte (t 10 tl)at if tlje r^^^ov^ 

'Baton be initljiit 3ffe at tbe Jf eoffment * Ijts collatetal Jpclcfljail *foi.67-. 
not a^oiD it, becaufe be is not inljentable of tlje Ki0Dt, foe fuel) v-'Cf^^ 
jaisbt fo caincB docs not oefcenD* J"; ;{«'^. .. 



died, then 

the Husband made a Feoffrvnt to the TTfe of him f elf for Life, Remainder to the Ufe of his Son in Tail with 
a Letter of Jitorvey to mah !Ji-ery, bur befwe that was made he married a feconnlf^ife, and then Livery 
ivas made according totht Ucs i the Feoffment, then the Husband died; and theQuelHon was. Whe- 
ther thi (econd Wife wa» dowable ; and adjudged that flie was not, becaure before the Feoffment made 
the Husband wasfuch aTcna-'t in fpecial Tail, that the IfTueby his fecond Wife could not inherit, and' 
by theFcoffment before, and Livery after the Coverture, he did not gain any new Eftatc or Sei/in of 
which the Wife might be endowed ; for what was done by that Feoffment was imme tiately drawn 
out again by Virtue of the fpecial Entail. Cro. J. 6ij. pi. 5. Pafch. iS Jac. in Scacc. Amcots r. 
Caiherick. 

6. Jf tIjCte be LefTee for Life t\)Z Reverfion to the Husband in 
Fee, anti tlje Lellle leafes tbe latin to the Husband for the Life of 
the Husband, ailD aftCC tlje Husband dies» ailH tlje L.eflee dies tlje 

U&ife (ball not be eiiDoioeD tbereof -, becaufe ttjete tuas a Poffibiiity 
01 a Reveriion nutiuff tlje OToiJctture a0 to tlje iTteeljoio. i C 3. 
16. pefSDotiU. 

n. Jf tlje TBatOn be Tenant in fpecial Tail tlje Remainder to his 
own right Heirs, ailU cakes a fecond Wife, ailll tljeU becomes Tenant 

after Poflibiiity, aiiQ Die^, W \Mz fljaU bc ennoujeD. 46 e. ^>. 

24, b. 22 C, 3' 3- 

1. So 



220 Dower. 

jf- the fif ~fi ^"l^T^rtiirR^eii^iah^r ijati bCCll llUlitCtl tO Ijim in general I'ail. 

Feme dies ^^ ^^ 3. 5. nOUlHS'lJ. 7 IP' 4' ^5- 1% 

!i;''^r.n,ff K.me fliiU be endowed ; for the Remawder in 7ail vefis in the Baron, by reafon tbat the 
barin °vat Lly Teninc fo" Life in Ert.ft after the Death of Uh Feme w.thout Iffue. Br. Dower, 
pi. 25. cites 50 E. 5. 4. 

'2CI)C lDUdbi>nlI cught to have a Fee or Tail and Freehold in 

Poiiiiiion, ommiit m mm ts not noiuabie. 46 c. 316. 

So where jo. 3f tljC Baron hath aU Eitace lor Lite, ELemainder to B. in Tail, 

the Eftate ncniilinnei- to the right Heirs of the Baron, ailU dies during the 

T''"'^^ tile of B. tlienBlfC fljall not be CntJOlOCU i font l^ not a Fee m 

Life, rT- Pollefiion. 40 €. 3- i5- b. 46 ^^ 3- 16. b> 

Sr^^^T...^na^oth^^AR^^^^^ 

^:^ :;d\il:^5::^.'wL^i^|;;.^d duHn, the i^f |;^=,||-.3%:^-i[-.r^= 

his Wife could not be endowed. Cro. E. 515. 316. pi. 10. Hill. 36 Elii. H. K.. Coidal.Uaie. 

II But if Tenant for Life furrenders to the Remainder-man in Ta[l 
or Fee W UBlfC OKlll bC entlOUJC5 i fOt tljC Kltates are united. 44 e, 

^' 12.' mZ fame JLatl) if tIjC Tenant for Life grants his Eftate upon 
Condition, if tljt Condition \i£ not broke. 44 €. 3 S^- U. 4i ^* 3- 

^^if^Iif^Lelke for Life leafes tlj£ lanti to the Leffor and the Heirs 
of his Body for thd Lite of the Lelfee, auH aftCC t!jC Leffor dies, 

living the Leffee, tlje JIBtfc Of tbe um Hjall bc enDoiu'Q, fac Ije 

han the Fee and Freehold Ul ijUll. 18 (£» 3- 45- aUjUtlgD; 
<:PAsif 14 If tije plSSbanO hath a Fee and freehold deleahble pct 

Tenant -m ijl0 S^Ue fljall bC endow'd till It 1$ defeated. 45 €♦ 3. ^S-b* 

'^•'' ^n"; f.lU bv Deed indented and inrolled to another and his Heirs, the Wife of the Bargainee 
CbetnfoweS^?Tong"as the Tenant .n Tail lives; llefolved, ioRep.9<J.a. M.ch. 10 Jac. 
B. R- Seymour-s Cafe. — See (H) pi. i. i> <-. 

See (H) pi. u ^f Baron and Feme Leffees for Life furrenders to him irt Re- 

i^ s.^- ' JLftm IS nefeafible bp tljc f erne oftec tlje 2>^atb of tb^ m 
ron mm tljc mean ^tme if be ui tbe Reveriion dies ijigi ii@ifc 

The WiTe ^'f, ^,f }??^tdt?t^he?dL V^ifS, m m Son endows th. Grand- 
of the Fa- ninrhpr who dies Vtt t\)Z Wife ot the Father Ihall not be endowed. 

.her (hail "^°^Jf -• f\T'm bp Eelation tbe if atbet m but tbe Eeber J 
nedo"- ^m ;3V^«3 x8i3.44.b,^^ tx^- 

the third jimgeb, Doss ise Dote pcti non nebct* 

^^"Vh?'^' - If there be a Grandfather, Father and Sod, 4nd Grandfather is feifed of three 

149 CM) — - ^.^ ^ j; , j La„d defcends to the bather, who dies cither 

Acres of Land t" Fe^, ^'^^ t^k" W. e ^ ^^^^^^^ ^^^^ ^^^^^^ ^.^^ ^ ^^^ ^^^ ^^ 

before or after Entry, now IS tnevvie ^^^ ^^^ endowed of 

tlKGrandfatlK,Msendowedo one Acre a^^^^^^ ^^ ^_^^ ^^^^^ ^^ 

the two A'^'-«/^ffs^^5(^^'"^„r,he Father which defcended to hin,, (be it In Law or attaal) is 
the Father and ^'\'=^^'''" %'"^^//' th^ Father had but a Reverfion cxpeftant upon a Freehold, 
defeated and now upon ^^^J^^^^'^^ ^^^^^^ ,,,„ ^ the Wife of the Grandfather dies living the 
a,.d ,n that Cafe ^°^ ^c U^J^ g ^ "°" ^^^^^^^ , ^Dcfcent and a Purchafe. Co. Litt_^3 1- a -—- 
Fathers Wtfe ^"'^"^^Jf^^'^^'. ^'?\i,\oucher, 249 the Cafe of Paris v Paris, S. P. and is the 
4Kcp..l2.a b. S. I. cites5£^,. n . s/^ becaufe a W^oman (hall not he endowed of a 

Cafe whence th^istakea--^^e. r- 5^^^^^^^^ ^^ ^,^^ p,.^^,,„,j by the fendowment is 
Keverfun expeftant upon \7fJp" "V , ^e Ti'le of the Father unto the Freehold ; but it the 
vefted n, the Grandn.,d.er by a r t le be ore, h^^ ^1- Marriage betwi.t the Father and 

^'■'w^f In ttrC^^^ 3 tcr th Death ot the Grandn^oth^'r, the Wife of the Father fl.ould have 
^' n^he 'anelandof ^hich the Grandmother was endowed, becaufe the Polkfl.on of the 
Dower of the ''^"'^i<'r\"\'''"^V „ ^n-e Dower was in the Life of the Grandtaiher, at which 
5Su;eSi.l;r/Sula;;;?l!^S7he'D:wt lo .hat by the Endowment of the Grandmother 



Dower. 221 

tlicP fll-llionof the Father is not avoided, for the Gr.<ndmorher iiad Kij;lit unto tlie Poff-fTiori but 

from the Time of the Death of- the Grandfather &c Co. LitT ^i. a. b. 6. P. - • 4 Rep. 

izz a. b. cites 5 E. ;. tit. Voucher 249 Paris v. Paris, S. P. & S. G. 

17. There is another Diverlicy, As where the Wife of the Father is 4V.e-y. 122. 
Jirfi endcxced^ and ii'here the Wtje of the Grandfather ; For in the iimic ^- ^^'^es 

Cafe, alter ihe Deceale of his GrandUcher and Father, the Son eiucrs ^•^'■'* ^^ ''^- 
and endows his Mother oi' a third Part, againil whom the Grandrno- ^i'r. \%v:het 
ther recovers a third Part and dies. Trie Mother Ihail eater ?.gain i^y. 6.1*. 
into the Land recovered by the Grandni .cher, becauli ii;e had m it 
an Eftate lor Term of her Liie, and the Eiiate tor the Lite ot the 
Grandmother is lefs in the E)e ot the Law, as to her, th.ia her own 
Lile. Co. Litt. 31. b. 

18. 7'he Heir took Feme and entered, and endowed bis Maher, and af- 
ter aliened the Reverjion^ and xXi^tntbe T'^iiant in Dower died, and filter 
tie Heir -who endo'ved her dted^ and yet the Feme oi the Heir vv,i.s not 
endowed of this Land allotted in Dower, and fo lie that the AV/rt'ovc;- 
iiunt cuts oil and defray the Seijin of the H.ir ; Qii,id Nota, JJr. l)e- 
fcent, pi. 19. cites 19 E. 2. 

19. T. was leiled and had Iffiie Robert the FJdef-^ and Richard the 
Tciingejij and died, and Rcba-t en.ered and took Fenie, ana had Iffne 
Alice. The Feme died, and he took another Feme and dud, the Feme pri- 
'vemcnt en feint with a Son^ and the Lord fei fed the IVard of the Land and 
cf .iltce^ lor the Nonage ot Alice, and lealed the Ward to T. who en- 
dowed the Feme of Robert, and after the Feme is delivered of IK a So»' 
by which the Lord re-feifedthe IVard of W. and AK. lived 10 Fears., and 
died wnhoiit IlJue, by which H. the Plaintill" entered as Heir ot' Rich- 
ard the youngcll Son of J. and Alice oulted him, and he brouo-hc Af- 
life, and prayed the Dilcretion of the Jultices i and becaufe VV. to 
whom Alice was of half Blood was feifed, it was awarded that Henry 
Ihould recover i And lo note that the Seifin of the Guardian m.ikes uiq 
Heir ol the Infant of the intire Blood to be Heir, and the Silter of half 
Blood wa6 barred of the Land, but by the Opinion of -the Court the 
Dower of the Feme Jkall revert to Alice;, becaufe \V. was not leiled of 
it J Qusre. Br. Deicenc, pi. 19 cites SAIJ^ 6. 

20. li the Iffiie be remitted to a fpecial lail.^ the Feme of the Father 
who is not his Mother, Ihall not be endowed. 2 Roll Remitter (K) 
pi. 4. cites 44 E. 3. 26. b. 

21. In Dowet ; Baron and Feme tenants in 'Tail bad JJfue two Sons^ and S P. but 
the Baron died. The Fe^ne leafed to the eldejl Son for 7 ears ^ and after releafed ''''■"o'< '-^vsi 
to him and bis Heirs with Warranty i He took Feme and died 'without If- '^i'^^'^ *^f^ 
file, md-iiier the Mother died, and the youngeft Son entered, and the 'J/ti /i v! 
Feme of the eldelt Son brought VVrit ot Dower, and recovered by m««/ of the 
judgment, and therelore it feems that a Releafe with Warranty isa'^^'""*'" 
l)ifcontinuance ; neverthelefs, this judgment was contrary to the Opi- "^"'^ """'^ 
nion ol leveral. Br. Dilcont. de Polielhon, pi. 7. cites 24 E. 3. 2S. th%"uf 

flie gave Fee, yet'the yoimfer Son is remitted to the I'uU, which is elder than the Title of the^Feme 
now Demandant. Br. Dower, pi. 50. cites S. C. 

22. If two exchaiige, end afterwards ofie aliens, and the other vouch- Perk. s. 509. 
es him being impleaded, he ihall recover in Value the Land given in '=>=« 4 E. 5. 
Exchange, and fo it Ihall relate before the Recovery. 2 Roll Vouch- t.^' ^'ff- '5 
er (R. b) pi. 4. cites Perk. S. and lays the Femeofihc Alienee lliall notfis'—!! 
be endowed. ^ ^.^^,„ 

J ,,,,•- , . fhali not ht 

endowed both of the Land given in Exchange, and of the Land tnken in Exchanffe, yet the Husbmd 
wasleilcd of both ; butfhe may have her Election and be endowed of which fhc will. Cj Litt. j l. t». 

1^ 1 1 2?. In 



222 Dower. 

23. In Dower ; the Ibnaui jaid that B. Baron of the Demandant, was 
feiffd &c. and infeoffed W. who regave to the Baron and his Jirft Feme, and 

to the Heirs of their two Bodies, who had IJJ'ue this Tenant^ and the Jirjt 
Feme died, and the Baron book the Demandant to Feme and died ; Jud<^- 
menc if Dower ; The Feme [aid, that before B. her Baron had any thin^^ 
C. was feifed Sc and gave to the Father of the faid B. in Tail, and than 
the Father of B. died, and fo is the 'tenant remitted as Hetr to the Jirji 
Tail, which is general tail, of which Ihe is dowable, and yet becaufe 
her Baron during the Coverture had nothing hat by the fecond Tail, of 
which Ihe is not dowable, theretore the Opinion of the Court was a- 
gainft her. Br. Dower, pi. 18. cites 40 E. 3. 24. 

24. And there it is faid, that it Donee in Tatl takes Feme, and dies 
•without IJJiie, fo that the Land reverts, yet the Fen^e Ihall be endowed. 
Bf. Dower, pi. 18. cites 40 E. 3. 24 

ZS. And it was faid in the Cafe fupra, that the Heir in Tail may claim 
in by the one tail or the other. Br. Dower, pi. 18. cites 40 E. 3. 24. 

26. In Dower, the tenant faid, that the Land was given to the Baroft 
of the Demandant, and to his Jirjl Feme in tail, the Remainder to IV. in 
tail, the Remainder to the Baron m Fee, and the /I'rjl Feme died without 
IJJhe, and the Baroa died, living him in Remainder in Tail ; Judgment 
&c. and a good Plea ; by which the Demandant averred, that her Ba- 
ron furvived him in Remainder, who died without Illue, and lio feilie 
que Dower la poit. Br, Dower, pi. 19. cites 46 E. 3. 16. 
Br. Eftoppcl, 27. .^tiod ei deforceat ; the Cafe was, that a Alan was feifed in Gene- 
pl.30. citea ^^1 tail by Fine, and made Feoffment, and retook m fpecial tail to him and 
■ ■ his firjl Feme, and had Iffiie. The Fe??ie died, and lie took another Feme 

and died ; The King fcijed by tenure in Capite, and endozved the Feme ; 
The Ifliie came and jhewed the fpecial tail, and had Scire Facias againlt 
the Feme, and recovered againlt him by Default, and Jhe took another Ba- 
ron, and /he and the fecond Baron brought &jiod ei deforceat againftthe 
Heir, and he pleaded the fpecial tail, and jue would have remitted the 
Heir by the Elder tail, and fo concluded him to fay but her Baron was al- 
ways feifed in Gentral tail :, & non allocatur ; For by Thorp clearly, 
the Baron was not remitte/i, and then he was not feiled of fuch Eltate of 
■which the Feme may be endowed i For ot fuch ipecial Eltate his If- 
fue is not inheritable, nor his Feme dowable, by which Ihe averred 
Continuance of Polfeifion by the firlt Tail, and fo to Ifliie ; Quod No- 
ra. Br. Dower, pi. 9. cites 41 E. 3. 30. 

28. In Dower it was found by Verdi^ that JV. infeoffed R. upon Con- 
dition of Payment and Nonpayment of the Part of JV. by one Day, and IV. 
died, and h\s Fetne took another Baron, and the fecond Baron tendered the 
■Money to R. nnd he received it and died, and iht Feme of R. brought 
Dower and recovered ^ For he who paid was not privy to the Condition. 
Br. Dower, pi. 11. cites 42 E. 3. i. 

29. Scire Facias to execute ■iF'mewzsfuedhytheHeirofS.htcdiM^z 
the Fine was levied to A. for Life, the Remainder to f. in tail, the 
Remainder to S. in Fee, and that all are dead, and J. [^ts dead] without 
IJJue, and the Tenant faid that A. furrendcred his EJlate to ff. and af- 
ter S. died, and J, [^died] without Iffue, and that A. entered as Brother 
and Heir to S. whole Eltate he has ; Judgment if Execution ; And the 
other faid that A. by his Entry atter the Death of S. had only his firll 
Eltate for Lite, which is a great Error, for it is a Surrender, and then 
after the Deaths of J. and S. — A. is in in Fee, and then the Fine executed 
of the Fee, and never fhall be executed again ; and per Finch, becaufe 
the EJlate Jor Life merged m the Seijin of J. add he in in tail., and not 
for Life of A. the Feme of J, Ihall be endowed. Br. Sci. Fa. pi. 21. 
cites 42 E. 3. 9. 

so. Dower 



I 



Dower. 22^ 

30. Dower cf the Setftn of N. her Baron againji the Heir of her Baron 
who peived hoiv the Land was int ailed by Fine to his Father Baron of the 
Demandant and his Feme Mother of the 'Tenant in ffecial Tatl^ and rhac 
alter his Father and Mother difcontinited the Tail by Fine to a Straffer, 
and rctvok Eft ate by Grant and Render in general Tail^ and had ](luc t he- 
Tenant^ and the /irji Fcme^ Mother of the Tenant died, and the Baroa 
took the Demandant to Fcme^ and after died, and fo he is in by the one 
Tail and the other, and adjudged in his Elder Right by Remitter j 
Judgment li A£lio j And the Opinion of the Court was clearly that the 
Feme ihall be barred ; Quod Nota ; By which ihe paiied over to the 
other Anfwer, Br. Dower, pi. 14. cites 44 E. 3. 26. 

31. A Man leafed to, J. for Life, the Remainder to B. in Fee, and after BnTorfrl- 
the Tenant for Life leafed to the fa: d B. for Term of B's Life, and B. rm-e de Ter- 
died, and his Feme was barred of Dower, and fo fee that B. was not '■^'^' P'-9^'. 
leiled in Fee, nor it was not a Surrender ; lor if A, furvivcd B. then'^"'^' ^' ^' 
A. fhall re-have the Land. Br. Eit.ites, pi. 67. cites H. 13 R. 2. 

32. Dower of the Dowment of J.M. late her Barnn j The Tenant 
faid that the Land was tailed in Remainder by Fine to f. M. his Father, 
Baron of the Demandant^ and to his Heirs of the Body of F. his fir/f 
Feme begotten, and that J. M. and E. had Iffne this Tenant, and E. died 
and y. M. married the faid Demandant, and died i Judgment if Dow- 
er ; and by the belt Opinion Ibe Ihall not have Dower. Br. Dower 
pi, 36. cites 12 H. 4. T. 

33. The Feme Ihall not be endow'd of Lands or Tenements which The Rcri'bn 
her Baron held Jointly with another at the Time of hfs Death. But °^ ^^^ ^'^ 
where he held in Common it is otherwiie. Litt, S. 45". Foi- tLT'l 

. ' , T t - ■ Jointenant 

which furvives claims the Land Viy the Feoffment and by Survivorfhip, which is above the Tit'e ot 
Dower, and n-ay plead the Feoftmcnt made to himfelt without naming of- hi.s Companion that aied. 
But Tenants in Common have fevcral Freeholds and Inheritances, and their Moieties fliall defceuj 
to their feveral Heirs, and therefore their Wives Ihall be endowed. Co. Litt. 57. b. 

34. Where the EJtate which the Husband has during the Marria'^e is 
ended there the Wife fliaJl lofe her Dower. As if Tenant in Tail dif- 
continues in,Fee, and afterwards takes a Wife and dilleiles the Dif- 
continuee, or the Difcontiniiee does inleoff him, and after^vards the 
Tenant in Tail dies leiled, his Heir is remitted, and the Wife Ihall 
lofe her Dower, becaufe the Heir is in of another Eltate of Inheritance 
than the Husband had during the Coverture. F. N. B. 149. (F). 

35. If a Man has Title of AClion to recover any Land, and afterwards 
he enters and diffeifes the Tenant ot the Land and diesfeifed, and his FJetr 
tnters^ the Heir is remitted unto the Title which his Anceltor had, 
and the Husband'sWife fliall lofe her Dower j lor that Eltate which 
the Hiftband had is determined, lor that was an Eltate in Fee by Wrong, 
and the Heir has the Eltate in Fee which his Anceltor had by Right, 
F. N. B. 149. (F). 

36. If there be /k;o yo/«rf»^»rj of certain Lands in Fee and the one 
aliens that which belongs to him to another in Fee, who raises a Wile 
and after dies. In this Gale the Wife for her Dower Ihall have the 
third Part ot the Moiery which her Husband purchafed to hold in 
Common, (as her Part amounts) with the Heir of her Husband, and 
with the other Jointenants which did not Alien. For that in this Cafe 
her Dower cannot be affigned by Metes and Bounds. Litt. S. 44. 

37. A. devis'd Lands to B. and the Heirs of his Body, and adds. Item Cro. E. z^f. 
I will that after B's Death my Land pall remain to C. the Son of B. B. pi. 9. s'o. 
died, and adjudg'd that the Wile ot B. fhall have Dower j For that B. and a formes- 
had an Eltate TaiL Mo. 593. pi. 801. Hill. 35 Eliz. Atkins v. J^'^stpjnt 
'\tkins. '^'"'^■ 

38- ^. 



224 Dower. 

38. vi. Lclja for Life, the Remauj^er to B- in Fee. A. furrendcrs upon 
Condition to B. and enters for the Condition broken. B. dies and his 
Wite brought Dower againll A. and lllue is join'd'upon Ve tinanes 
Sei/ie que Dower ^c. That i\\\\\ he io'dnA ;igji;!lt A Noy. 66. Palch 
37 Eliz. Olmond and his V\'ife. 

t\MT" '" ^ |9- ^\^'^ ''^"° Tenancy in Dower of a Copyhold but by an Efpecial 
t:?l~ ^f"'- „Arg. Cro^E. 39x.pl. 14. Palch. 37 Eliz. B. R.. in Cafe of 
Clun V. reale and Turner, 



Le. 16. 

Cham V. 



Dover, pi. 19. Pafch. 26 Eliz,. B. R. Copyholder m by the Cuftom is paramount the Title of 
Douer, and the Seifin ot the Lord, fo that (he fliall rot be endow 'd though he keeps the Lands in 
his Hands tor a Time after the Marriage, and then j^r^nts them ajrain bv Copy Per Wi-au ru i 
Per Doderidge J. 2 Bulft. 557. S. P, and per Coke Ch J. Ibid. vvrayui. J. 

2And_i47. 40. Since the Statute 27 //. 8. the Feme flmll have Dower of 
Cafe s pL^" ^/"^- 2 And. 75. Mich. 39 &40 liliz. in Cale of Cromwell v 
But before Andrews. 

the Statute 

ihewas notdowableofLandconvey'd to Ufe. 4 Rep. i b Ko Dower or Tenancy by th- 
f.urtely of an Ule. Arg. Hard 492. cues Perk. 69. S9. Lane. 104. Dcdtor and Stud. 98. ' 

For the 41. If there be two Joint enants in Fee, and one makes a Feoffment ia 

\l\Js'ok Fee, hisVVilelhallnotbeendow'd. Co. Lit:. 31. b. -^"^^^^i" 

^?//?« to entitle the Wife to Dower. Jenk 105. pi. i. And the Sole Seifia whi-h wa, in ,h^ 

Jointenant that made the Feoftment was m Law oniy for an Ir.flant. lenk lot dI r r 

Litt. 51. b. J J • J- i". 1. K^o. 

For Ihe 42. So if the Comifee of a Fine does grant and render the Land to 

theConufee ^^'' Co^/wfor, the VVUe ot the Conuke ihall not be endow'd. Co 
vas .$•«;/:« L'"- 31- b. 

j'or an In- 

fiant on\y. Jenk. J65. pi. I. 

Donel'i? 9- \"^ ir*^?"^ Husband makes a G//r ;» T^^.V, r./.r^/»^ a Rent to him 

Tail dies ^"° "^^ "'^ ^^''■^' ^"^ ^^^^"^ ^"^e Donor takes Wife and dies, the W^ile 

without flia'\ be endowed ot this Rent, becaufe it is a Rent m Fee, and by Pof- 

Iflue the iibility may continue forever. Co. Litt. 32. a 

Wife of the 

Donor (hall not be endow'd of the Rent becaufe it is extinft, the State Tail on which it ws re 

krv-d, being ended; But the Donee's Wife fhall be endow'd ,■ For the Land' continues and 'is nor 

detcrmin'd as the Rem li F. N. B. 149. (G) The Donee's Wife fliall be endow'd 

Perk o. 517. 

^mMI t -^t '^'"f ', j" ?;^*^' '" Conftderation of Marriage intended between A. 

Ule to h,m. i" ?f'/«^ ^- P^"S^^^>^ of B. covenanted toftand fetfed to the Ufe of 

feifjorhts nimlelt&c. till the Marriage, and after to himfelf lor Life, and then 

Life, by to the Ufe of A. and M. and the Heirs of their Bodies, and fuffered a 

Meat he 5^-^''^^^ T '}^^ ^'"^^ ^fes. The Father dies. A. dies without lUiie. 

cou?d not ]! ^iter fuch Covenant the Father had married, his Wife would have 

limit any ^een endowed ; But U the Conlideration had been for the efiohltlhin<r the 

Remainder Land in his Name and Blood, then an Ule had been raifed and it would 

over inj-uch have been otherwife. Brownl. 193. Mich. 2 Jac. Frelhwater v. Rois. 

Wife fhould not be endowed. Are. Godb 44.1 cites "? FhV r. Rpn r-. m?.#.r„„,«' . ^ r 
— But in this fame Cafe and for L fame R^lfon it'^a^ Idfudged; t Jlt^uclf ^\f^T^^l' till 
dowd. And. 291. Blytheman v. Blithman. 2 Rep. %z cites S C -irmrHino^l,. n 

l-^X- 'i % S M'p -'"°'-t^=-^'^^'/-r^Mo. ;;Tl'c\;'a^^^^^^^^^^^ 

sTagried. ^- ^- ^""^ S. P. agreed by all thcjuihces.. Nov. 46 Heigham v. Bedingfield. 

45. N» 



Dower. 




45. No Dower ftall be oi Lands bargaimd and fold if the Husband So it -x Man 
dtes before hnolment. Ow. 150. Pafch. 5 jac. in the Gourc ol' Wards, "i'" '^"- 
Sir Henry Diminock's Cafe. ^ guin and 

Sale by I im 

^nd dies, and afterwards the Deed M,>,//.^ within fi. Months, the Wife fhall not W Do weft 
Cro. U 569. I. 6. Hil]. I) Lar. B. R. Parker v. Blecke. 

46. If A. bargai/js and fells Lands to B. and his Heirs bv Deed in- 
denied and iiirolled, with Pruvifo if fuch A6t be done, that the Bir- 
gain and Sale Ihall l^e void, and afterwards A. takes VV^ife and after 
che Provilo is broken A dies before Entry, and adjudo;ed th^c the Wite 
ihall not be endowed ^ For though the Eitate of the bargainee velh by 
the Statute ot 27 H 8. by Execution of the Eitate of the Land to the 
L'le raikd by the Bargain and Sale, yet inafmuch as the Baron did noc 
re-enter, he had not any Eitate in the Land whereof the Feme m iv 
be endowed ; cited per Curias fo adjudged. 6 Rep. 34. a. Trin. 7 J.'c. 
B. R. in Fuz-VViJli.ms's Cafe. ■' 



47. A Tenant in Tail Remainder to B. in fail. A. largalns and fdls 
the Lands to J. .S. by Deed indented and enrolN. J. S. has an Elt ue 

u- 'xV''-*^'4^ '" ^'"^ '^"'^ '"''^ ^''^^^ determinable on the Deach ot A and 
his VV ite fhall be i.ndow'd i but fuch Dower (hall be determinable 'by the 
Death oj A. Refolvd. 10 Rep. 96. a. Mich. 10 Jac. Sey.nor's 



48. The Datchy of Cornwall by an Aft of Parliament made the 
liE. 3. iseltabhlhed to the King's Eldelt Son, habendum iibi & 
ipiius& Hsredum fuorum Regum Anglise f^liis Primogenitis in Re<^- 
no AngliaeHsreditarioSucceifruns: Refohed by ail the fudges Sf 
England, that thts is an Eitate of Fee-Simple in the Prince, and his 

\ '!^ ", ^o^.'ibJe ot it by Force of this Aft. But fuch a Charter grant- 
ed by the king to a Subjeft is a void Grant. Jenk. 280 pi 5 

. 49- Tenant in Tail makes Leafe for Tears, and then releafes to Leffee and So if he 
his Heirs The W lie ol this Leilee is Dowable of this Eitate, and this '-•^i<« a Fe- 
Dower Ihall continue till the Entry of the Iliue in Tail lenk -^n i 'f"'""" '"■ 

pi. 96. ■ ■' ^ ^I'i- Bar^^^wuvd 

Sale for the 

T.ail has more than an Eftate for Life in him he ha? an TnI-„-,.;M„^» . j r ■ Tenant in 

ga.neee has a d.fr.,Mle Ef.te, and ^oLlt'deLtn ne bv fDeath ^f Tcn'ntSTa!?'/ , 'l" 
tne Entry ot the Iflue. n Mod 20. Trin. B. R, in Cafe of Machil v Cle"k ""' °"'- ^^ 

50. If Tenant for Life makes a Leafe by or without Deed to him in 
the Remainder or Reverfton m Tail or m Fee, for the Term of the Dfe of 
himin t,:e Rever/mi cr Remainder, and alter he in the Remainder taks 
Uje and ^;.j, his VV He ihall not be endowed, for Tenant for Life 
.^all enjoy the Land again, for a Forfeiture it cannot be, lor he in the 
Kemainder was Party, and a Surrender it cannot be, for his whole Eitate 
Was not given. Co. Litt. 42. a. 

51- J S. Tenant w Fee Simple by Indenture inroUed^ bargained and Told <i r ■ a 

^^« .i f /-i T ""y' T"'''''''"^ a Pepp^r-Corn, and with ^ Cc.«- Cafes 7^ - 
ni'Z A ■/• ^ ^'w 't' '^°^- ^' '^'^'"'^ of 20 Tears, then the'' ^'^^^'^ 
177 ""t u- '" ^!- T^'' ^- '''^'""^"^ " accordinglv and d ed ; B.'s 'y^lt 
fnd Srf f ? ? '^ ^T:.'"^\'''^'^'^ S'^"^' becaule'by the Bargain Igainft the 
and Sale the Land was velted in her Husband, and tliereby the VVite I^efendant's 
mtitled toDoweti and when he redemifes it according to the Aeree ^°^=^' ^'^^ 
nienr, yet thofe to whom the Redemife was made lliail hold it fubieft ^"^'''"', 

Aft^rVi "S'''''^'^"^^""-"^''' and When fliO is dowable by «nd u^p-' 
^ct or Rule in Law a Court of Equity iLiU not bar her to claim her P^"'"'^ "^" 
Dower, for u is againlt the Rule W law, where no Fraud oi Gov!,, t^Atr" 

M m m ;^ 



2 26 Dower . 

^m 17 rwrnrEauicv will not relieve; and this was certified by Jones 
Se7e!d^n^lndCroor u^^^^^^^^^ --^ '^' ^^^ Jultices at Serjeant', 

^vas barred J^^ ^J^^^e "'chancery that the Wite ot Bwas to have Dower, and 
?( '"■ that a Court of Equity ought not to preclude her thereot. Cro. C. 
Dower con- tnat a *-ouil ui ^ j Kt^^T, u Prplton 

trarv to the 190. pi. H. P^f^h. 6- Car. Nalh v. i reiton. 

Sl'^Prefton . Cro. , 9 . . and fo it was faid is the conftant Cuflom ot the Court now. z Freem. 
Rep 43- P'- 48- Mich. i6-fi. Noel v. Jevon. 

<2 If i?.«? be granted to A. and his Hdr^^io commtnc^ aficrthe 
Deaih of # and Grantee dies before B. yet his Wife fhall be endowed. 

S C Cited ""rN^' Do- o'Satl^^^^^ Bill dir.nifTed. x6 Car. 

bythe 2. tbl. 749- Chan. Rep. 254- ^ Colt v. Colt. 

Mailer of , 1 j .Uot rhp Tvnft was created bv the Husband. 

the Rolls, who raid it was 15 Car.z.Jol^ ,,, .ni f kttonTa^fd I^thlt where a Trull of 

2 Wms.-s Rep. 640 HiU. 17^,2. i" <-f^fc °, e took i To be fe'tled that the Wife fliall not have 
Inherhmcc IS created by the Husband hmjelfyht tooK it to ^^^^ ^.^^^^ 

Dower, even againft the Heir, nor agamft a Dev.fee Jl^ A''';^^^^^;, 3„d ,he r Heirs, io 

Ibid 640. If a Man before Ma^ia^e convey "^^^^-^^ J^'^'^;^; ,,, ;,,„,, ,he Wile 

as to put the legal Ellate out of hin^^t°^S'^ '^,^V^P fch 712 Bct.omlv v. Fan-la-. S.C. 

Ihall not be endowed of this Eftate Chan. 1 lec. ^ t^' J^ •'J'^" ' > ^ ^ Hill. 17;! m the Cafe ot 
cited and approved by the Mailer o ^l^^^^^^^l^^, \ Ld. Tifbofs Tin. .,9 
Sutton V. Sutton. -——S.Ccned by Ud ^^l^^^.^.i^f a Trull, the received Prafticeo 



autton v. ouiton. ^ :, ,\r ., ru^MiH hp rndowed of a Tru t, the receivea rrauice ou 

Mich. 9 Geo. 2. and fays that if a W^oman ^louUl be '""^"^^l^^^i. .■ cUy aue fruft is not intitled 

inferting to bar Dower would be of 'l" Sigm^/^^tion^ -"T jj^ ^ ^ /^ chapUn v. Chaplin. ■ 

to Dnwer-. oerLd. Talbot, c; Wms. s Rep. 229 pl. ' \- . " 'if iV.wtCff.r. Ar^ Pari. Cafes -,2. 



as to put the legal Eftate out of h-^f°;;g^,;"/:,7p fch .7 2 B;;;;nilv v. Fairta- 
Ihall not be endowed of this Eftate Chan. 1 lec. , :^^. j- j^^cn xj ^ 
cited and approved by the Mailer ot t 

Sutton V. Sutton. S. C. cited I 

Mich. 9 Geo. 2. and fays that if a W 

inferting to bar Dower would be of r 

to Dower; per Ld. Talbot. 5 Wms.s ^^P; "" V- > - j-'^f ;'Truft-Ellate. Arg. Pari. Cafes 72. 

Ko Man will fay that ever any Woman was end^^^^^ ^^ Chan.'Prec. 65. & C. 

in Cafe of the Countefs of Radnor v Vandcbemis . 

,4 TheHusband^^rf;5.^/^^LandsofTenant for Life andy..^^ 

ift. Alrnntv of him for a Conveyance of the tee by his bon and Heir, 

if Relatalt Fee,when.^fA but the Husband died before 

•uch Conveyance was made , the Wile is not intuled to Dower, tin. 

1^ en a 68 Trin. ^o Car. 2. Exton v. St. John, 

?; In Dower a-ainft the Heir of her Husband, the Tenant pleaded, 

dr/rrn,' fei^d^'and devifed the tenements to the Husband and to two 

t^et;li^ oC d^^^^^. aid fo demands Judgment of the Wnt, lup- 

Sf hat fl.e could not fue D.«'.r Lioreh'artmon^g^nii Tenants in 

^omnin' but upon Demurrer adjudged tha^te Writ well Lcs. 

r Q W\c\\ SA Car 2 C. B. Sutton v. Jvolie. 

ruM u ^ T A^Vr a Decree for a perfonal Duty a Sequejlration iflucs, and 

S.c2d ,he'^;hfDVnd?nrmarrLan5dies, ^^1/ ihall not bind the Feme 

- ^" T who comes in tot her Dower ; Per North K. Vern. 118. pi. 106. Hill. 

Caie ol , „ « 

Rockley V. 1682. Anon. 



Burdett 



.^ Fftate to A for Life, Remainder to B. and his Heirs for the Life 
.f^iRemtindefto the^4;r. ./ the Body of A Remainder over, 
4f VVi f o A ft 11 not be endowed, tor the Eftate tor Lite oi A. aocs 
noiZT hAxv^^g^A fuddenly on the flrft Argument, though it was 
Tr Jd ?h;t the Remainder to B. was only tor preferving the Remain- 
urgea tnac iiic Forfeiture, but that in the mean Time 

ders during A. s Lite aganiT any r , ^^^_ 

the Eftate was executed in A. 3 ^e^- 437- "'"• . " ■ ^ 

comb v.Duncomb. j>„nainder for Tears, Remainder to A. in 

^:^- r& ^. wSln MeTotLU i^^^^^'r had be.. 

Ld^K^ir P' Life. I Salk. 254. Hill. 9 W- 3- C. B., Bates s Cale. 

Rep. ^26. , . j:„„i„. Vinr Viad the intervening Term been an Eftate for 

,^7 Batesv. Bates, S.C. adjudged accordingly, but hDdth,^^^^^^^^ .^^ ^^^^ ^^^^^ ^^^ ^^^^ 

Lite it had been otherwife according to Peik. .,6, tne oni, 

Purpofc. 

59' ^'- 



Dower. 227 

59. A. devifed Lands to his Ksecutors tilt Debts paid, Reffiaifidcr tn B. 2 Frccm. 
ill Tail, B. marries and dies betpre the Debts paid. Per Cur. The Eltate ^[j^',,?"^ 
in the Executors is only a f Chattel Intereft, and will not hinder h.'s Hitchins, 
Wife of Dower, and that Intereft determines at Law when the Truft s. c and a 
is fatisfied ; but her Dower cannot commence in Poffeffion, nor Damages latisfied 
be recovered for detaining it, but from the Time of the Debtd being ^^^^^kt^.i 
paid. 2 Vera. 403. pi. 373. Mich. 1700. Hikhins v. Htlchins. onFootln<f 

fet up to 
keep the Widow out of PolTefTion was dcGi-ced to be fet afidc snd not to fland in her Waf , 
and tlic Court tliought the Cafe oK Radnor v Vandebcndie a hai-d Cafe.- — Chan. Prtc. ij^. S.C. 

•f 9 Mod. 152. in Cafe of Chdirlcs v. Andrews. 



60. The Queftion was, \i AJJfgnees of CommiJJioners of Baukrtifit hy 
taking an JJ/igHincnt oj a Mortgage J'erm pacr to the Title of Dower iliafl 
protect their Eltate from Dower ? 

It was inlilted that Creditors and Affignees of Commiflioner.s of 
Bankrupt Hand only in the Place ot the Bankrupt, and lince fuch an 
Affignment to the Bankrupt hinifelf or his Heir would not proteti; the 
Eltate from Title ot Dower in the Hands of the Heir, neither will 
it protect the Eltate in the Hands of the Creditors ot the Bankrupt or 
the Allignee ot the Commilfioners, and this ditiers the piefenc Cafe 
from the Cafe of Lady Radnor and Vandebendy in Dom. Proc. where 
it was held that fbch a prior Term Ihould proLe6t: the Eltate trom 
Dower in the Hands of a Purchafer, Nota Difterentiam, De- 
cree that the Plaintiff be let into her Dower, keeping down the Intereft 
of a third Part of the Mortgage. M.S. Rep. 156. Pafch. 10 Geo. 
Cane. Squire v. Compton. 

61. All Eftates lail are Eftates ot Inheritance^ to vVhich Dower i? 
incident, and muft be within the Statute DeDonis. 3 Wms.'s Rep, 
263. Patch. 1734. Low V. Burron 

62. A Limitation of F.Jiate pur anter Vie to J. and the Heirs of his 
Body makes no Eftate Tail in A. and there can be no Dower of it, it 
being no Inheritance but only adefcendible Freehold, 3 Wms.'s Rep, 
263. pi. 6$. Pafch. 1734. *" C*^^ of Low v. Burron. 

63. If a Rent de Novo be granted in Tail without any Remainder over. For though 
and Tenant in Tail takes W ife and dies without IfTue the Wife fhall the Objecti-^ 
not be endowed, becaufe the Thing out of which tbe Dower is to "here'can^b- 
arife is nbt in Beings Secus if the Rent were granted in Tail, Re- noRem"inr 
mamder over. 3 Wms.'s Rep. 230, Hill. 1733. in Cafe of Chaplin v, derof tha^ 

Chaplin. whereof 

Reverfion, yet the Intent of the Party gives the Rent dfc Novo firft a Being for the Whole ind. 
then the leflTer Eftates 3re carved out ot it. B^ Holt Ch. J. 5 Wms's Rep. '230. at the iiottom q^ 
the Page in a >xote of the Reporter cites Salk. 577. Weeks v. Peach. 

49. An Eftate was conveyed to J. S. and his Heirs, to the Ufe of him 
t'.nd his Heirs tn Triijt, to pcrjnit A. and B. to receive the Rents and Promts 
during their Lives, and th. Life of the Survivor of them, with Power 
to A. to charge it with 400 1. and fubje£l to fuch Power J. S. to Jiand 
feifed to the Ufe of the Survivor of them. A. died in 17 13. £. died in 
1723, and by his Will devifed this Eftate to C. and his Heirs, who long 
lefore had taken M. to Wife. C mortgaged the Eftate. The Queftion 
was, If M. would upon the Death of C. be intirled to Dower fo as 
toatfeft the Mortgagee ? Ld. C. Talbot decreed that M, would not 
be intitled to Dower of this Ttuft Eftate. Cafes m £qu. in Ld. Ta.l- 
bot'sTime 138. Mich, 1735, 9 Geo. 2 Attorney-General v. Scocc. 



22 8 Dower. 



(G. 2 J Of what Selfm. 



I. T N J^fe J. N. was feifed in Fee, and had ffue two Softs, R. and T- 
X and cited. R. entered and had Iffhe a Daughter, and hts Feme di-^ 
ed, and he took another Feme and died, Jhe prtvement en feint with a Son. 
The Daughter of R. entered, and the Lord feifed the Ward, and endowed 
the Mother jf R who was the Feme oj J.N. the Grandfather. Tht Son 
of the fecimd Feme of R. is born, and the Lord feifes the Ward of him, and 
he dies without Ifjiie within jige, and the Son oj 'it. the Uncle entered upon 
the Daughter of R into two Parts, andy&« oujhd him, and he recovered 
the two Parts by Afftfe ; and fl) fee that by the Seijhi of the Guardian by 
the Ward of the Son, the two Parts fhall go to the Heir oi this Son, 
and not to the Daughter ot R who was ol the half Blood j but the O- 
pinion ot the Court was, that the Dower ftjall go to the Daughter of R. 
lor this is in Reverfion, and Ihe may claim it as Heir oi hei Father or 
Grandfather; For the Tenant in Dower is in bj her Baron, and not by 
him who endowed her, and the Daughter of the eldeji Son is Heir to the 
Grandfather. Br. Dower, pi. 87. cites 8 Aif. 6 

2. In AlFife, the Tenant of the King died fcifed of Lands held of the 
King &c. and the Heir was in Ward, and the Feme fued for Dower, and 
Writ 1 [J lied to the Sheriff' of N. to deliver her 10 Marks per Annum for Dow- 
er in Land and Rent, and he delivered to her 5 M.irks Land, aikl s 
Marks Rent iffuing out of the Land of which jhe was dozvatlc, and //. c 
was feifed and difjeifedof the Rent, and brought Afftfe and recovered ; For 
it is a good Endowment, and yec her haron was never feifed of the 
Rent. Br. Dower, pi. 61. cites 26 Ad. 41. 

3. The fame Law offuch Affignmcnt of the Heir if the Feme accepts it. 
Br. Dower, pi. 61. cites 26 Alf 41. 

4. Contra it is faid elie where, //it was affigncd out of Land of which 
the Feme is not dowable. Br. Dower, pi. 61. cites 26 Aif 41. 

5. Dower was brought by a Feme, and it does not appear what the 
iflue was i But it feems that the Iffiie was Ne unques feifie que Dower la 
poiet i the Jury faid, that W. borrowed 40 /. of R. Baron of the Demand- 
ant, which W infeoffedR. upon Condition, that if he repaid the ^o 1. by 
fuch a Day that hefhould re-enter, and at the Day W. did not pay but 
died, and the Fetne of W. married B. and by Accord between R. Baron of 
the Plaintiff, and B. and his Feme, B.paid the Money to R. by which B. 
and his Feme had the Land, and this Feme Demandant demanded Dower, 
and prayed the Difcretion of the Juftices &c. by which the Demand- 
ant recovered her Dower ; the Reaion feems to be, inafmuch as by the 
Nonpayment at the Day the Baron of the Demandant was ieiled Simpli- 
citer and without Condition, and then the Acceptance by R. alter 
cannot prejudice his Feme of her Dower. Br. Verdiil, pi. 85. cites 
42 E. 3. I. 

6. In Dower, the Tenant faid, that the Baron of the Demandant had 
nothing but by Diffei/tn made to htm ; Judgment li Aftio; and the Feme 
faid, that the Father of her Baron had two Sons., and leafed the Land to the 
FJdnfl and his Feme for their Lives, andthe Toungefi took the Demandant 
to Fetne, and the eldefi Son died, and hts Feme took the Tenant to Baron, 
and the Father of the' two Sons died, and the Reverfion defanded to her 
Baron, and after the Feme of the eldejl Son died, and the Tenant held him- 

felfin^ and our Baron oufied him, and prayed Seifin ike. (^sere if Ihe 
ought not to travcrfe the Sei/iit alleged in the Baron, and it leems that 

Ihe 



Dower. 229 

. — -■ — ■ '■ — ' ' " " ■— ■ -■'■ ^_^.^^^. ,_, , .,^ 

fhe Ihould ; For if the Baron ofthe Demandant had not entered after 
the Death of the Feme of the eldell Son, Ihe Ihould not have Dower j 
For the Baron of the Feme of the eldelt Son had Franktenement in Ju- 
re Uxoris, which is not deieated without Entry, as it feems; Qucerej 
and QuxTQ if there Ihali not be Seifin in him without Entry. Br. 
Dower, pi. 29. cites 2 H. 4 22. 

7. In Dower, the Baron ptirchafed Rent, and died before the Day of 
Payment^ yet the Feme fhall be endowed. Br. Dower, pi. 35. cites ir 

H. 4. 88. 

8. If a Man grants a Rent to J. S. in Fee^ and he dies before Seifin of 
It, the Feme Ihall be endowed j Per Heidon j Quod non negatur, Br. 
Dower, pi. 71. cites 5 E. 4. 2. 

9. A Feme fhall be endowed of Seifin and PoflefTion in Law without ^j^Nil' 4?'- 
Seilin in Faft ; As where the Father of the Baron died feifed,_ and Ba- ^a^J j„,hg 
ron after died before Entry ; Quod Nota ; For otherwife it is of Te- new Edirion 
iiant by the Curtefy, and the reafon feems to be, inafmach as the Baron cites 7 E, 5, 
may enter in Juretlsoris, but the Feme cannot compel her Baron to enter ^^- ^'^- 5- 
into bis own Land. Br. Dower, pi. 75. cites 21 E. 4. 60. ; H.^7. lo-. 

and ibid, Marg. cites 5 H. 7. 5 and 21 E. ;. 21. Perk. S. 457 and 464. S. P. 

10. In Dower, where there were Grandfather, Father, and Son, and 
tht Grandfather held of the King, The Father took Feme. Ths Grand- 
father died. The Father had Ijfue and died before Office found, and before 
any Entry ; and alter an Office was fctind for the King, that the Grand- 
father was feifed and dud feifed, and held rf the King, and that he had 
Jffite, who had Iffue him ivho new is Heir and within Age, by which the 
King feifed and committed the Ward durante minore £iate, and the Feme 

of the Father, Son of the Grand.ather, brought Urit of Dower againji the , - 

Committee, and the Committeedemurred in Law upon the Matter. Br. 
Dower, pi. 66. cites i H. 7. 17. 

11. Ent in Anno 4 H. 7. r. the Cafe is put, that the Father entered 
middled before any Office, and therefore by all the Juftices the Feme is 
dowable. Br. Dower, pi. 66. 

12. Where a Stranger abates upon Tenant of the King, and the Heir 
has a Feme and does not enter, the Feme iTiall not have Dower upon this 
Poffeffion, per VV^ood ; and he vouch'd 21 E. 4. 60. which Filher and 
.Davers agreed i For alter Patent made to the Committee, the Com- 
mittee takes the Profits, and not the King, though Livery be fued 
out of the King's Hands. Br. Dower, pi. 66. cites i H. 7. 17. 

13. ii«f per Hufley, if the 'tenant of the King dies feifed^ and his 
Heir has Feme^ and after Office is found for the King, there is no Doubt 
huz the Feme /hail be endowed for the Poffifiion m Fad which was be- 
fore in her Baron by his Flntry before the Office ; For it was agreed per 
tot. Cur. that the Heir by his Entry is no Intruder before Office be Ibund 
for the King. Br. Dower, pi. 66. cites i H. 7. 17. 

14 And if a- Rent defends to the Baron, who dies before the Day of 
Payment, yet the Feme Ihall be endowed. Br. Dower, pi. 66. cites 
I H. 7. 17. * 

15. For fuch Seifin upon which Pracipe qucd redd at lies is as fiifficient 
to have Dower AS thofe which are Seilins in Law, of which Afhfe lie? 
not J For fuch Sciiin ot which Alfile lies, is not always requilite 
where Dowment fhall be, but Seifin in Law fuffices. Br. Dower, pi, 
66. cites I H 7. 17. 

16. And per Brian, where the King has Ward, and the Warddits 
within Age, his Heir has a Feme, and the Baron dies before it c(j-nf:< 
to him, there the Feme (hull not have Dower. Br. Dower, pi. 66- 
cites I H. 7. 17, 

N n n 17. Where 



230 



Dow 



Tr. 



17. Where the Heir of the King's 7'euant has a Feme, and Office is 

found for the Ktng, and ajter the Heir enters and intrudes, ^nd dtes, ytc 

the Feme Ihall have Dower by reafon ot the PofTelfion which hfe had 

before the Office ; Per Davers; For by him the Statute de Prarogatrox 

1 3 . quod nullum accrefcat ei liber um T'enementum is intended where Office is 

Jound, and after he takes Feme, intrudes and dies ; but divers good Stu- 
dents denied it. But Brian and HuHey agreed with Davers. Br. 
Dower, pi. 66. cites i H. 7. 17. 

1 8. And if he had not entered, yet (he had been do'wahle ; for there 
was Seiftn in Law in the Baron, and he -was not an Intruder, becauf^ Of- 
fice was not found for the King, and it lies as well againft the Com- 
mittee of the King as againlt another Guardian. Br. Dower, pi. 66. 
cites 4 H. 7. I. 

OfaSeifin 19. Of an hiflantaneous Seiftn gotten by Difleifin flie may be en- 
foran In- dow'd. See Jo. 3 17. cites 34Eliz.. C. B. Machew Taylor's Cafe. 

ftant a Wo- 
man fhall not be cndow'd ai if CeJJuy queUfe after the Statute of i R. 3. avd before the Statute of 17 

H. S. had made a Feoffment in Fee liis Wife iliould not be endow'd. Co Lite. 31. b. Of an 

Irift.intaneous Seiftn by Fine and Render no Dower fliall be. Cited per TanfieM J. as adjudged; 

Cro J. 615. Co Ljtt. 51. b. S P. Baron and Feme Tenants in Special Tail The 

Feme die.s leaving IfTue The Baron makes Feoffment to tlie life of himlelf for Life a.-.d af er ro 3. his 
Son in Tail, and marries a fecond PFife and then makes Livery. Refolved that fhe is not dowiSle, 
for before the Feoffment fhe was not, he being fuch Tenant in Tail that the IfTue by her could not 
inherit, and the Inifantaneous Seifm by the Livery will not intiilc her. Cro. J. 615. pi. 5, Pafch. 
iS Ja;. in Scacc. Amcots v. Catherich. 

Cto. E. 502, 20. Father 'Tenant for Life, the 'Remainder to his Son in Tail, the Re~ 
j°5 ^ j^.- mamder to the right Heirs of the Father. After the Father and Son at a 
fe^rent^ Point certain Time were attainted of Felony, and executed hkewtfe at one Time, 
but in a ' the Son not having any liliie ot his Body. If now the Father Ihall be 
Note added faid to be (eifed of an Eftate in Fee, that Dower &c. was the Matter, 
at the End ^^^ there becaufe it was proved by Witnelles that the Father moved his 
thus vil Feet after the Death of the Son; It was found by the Jury Seilie que 
The Title Dower &c. And upon that the Wile of the Father had Judgment to 
oftheFeme recover. Note alter Error was brought, and the Error aifigned in the 
to recover Procefs. See Trin. 38 Eliz.. Roc. 876. Noy. 64. Broughcon v. 

Dower was, r> j i • v « o 

That the Randal. 

Father and 

Vvere Jointenants to them and the Heirs of the Son ; and they were both hang'd in one Cart; but 

becaule the Son (as was depofed by Witnefles) luiviv'd, as appeai-'d by fome Tokens, viz. his 

fhakinj; his Legs, his Feme thereupon deni.inded Dower, and upon liTuc Ne Unques Seifii que 

Cower this IfTue was found for the Demandant. JMo. 52S. pi. (5yS. S. C. but S. P. does nor 

appear. 

A Woman 2 1. Dower may he of a. Po/feffion in Law. Jo. 361. Trin. 11 Car. 
ftall be en- £_ j^^ j„ Q^fe ot Reeve V. Maliter. 

oowed or a 

Seifin iu Law, as vjhere Lands and Tenements defend to the Husband before Entry he has but a Seifin in 
Law, and yet the Wife fhall be cndow'd, albeit it be not reduc'd to an actual PolTcffion ; for it lies 
not in the Power of the Wife to bring it to be an aCiual Seilin, as the Husbund may do of his Wife's 
Land, when he is tab; Tenant by Curcefy. Co. Litt. 51 a. Litt. S. 4.^3. S. P. 



(G. 3) Out 



Dower. 231 



(G. 5) In what Cafes Dower may be 
Out of Dower. 

I. T N Dower a Cuftom was pleaded that;/ the Baron aliens the^o\^^t\z- 
\ Land, and expends the Monies bet-xeen him and his levic, that "'^'^^ ^^''^ 
flie Uiall be barr'd of Dower, and adjudg'd a good Cuftom. Br. Cuf- °/'')or'^'°' 
toms, pi. 78. cites 3 E. 3. w^hk-h'the 

Land was 
fold. Br. Cuftoms, pi. 53. cites 20 E. 9. and Fitzh. Prefcription. 50. 

2. Veme of the Father is endo'xcd, and the Grand-mother Irougkt Writ Dower of 
of Dc-joer agcunji her AwAjhe vc!ich''d the Heir by Reverfion, and the De- ^° •^'"J'" "/" 
rnandatit recovered againft the 'Tenant, and pe over againft the Heir, the ,„'^",^ 5^ 5'^" 
third Part of the two Parts refidue, and not in Value, and well. And if the her Baron,' 
Feme of the Grandfather dies, the Feme of the Father may enter ; For the tl«; 7en.wt 
Grandmother was Attendant to hinl by Tender j and from hence it -^''1'p* 
feems that the Heir may enter then into the fecond Dower ; For ^'^^ of 7 B^h^ 
ihall not have both. Br. Dower, pi. 79. cites M. 5 E. 3. and Fitz.h, BaroM ivaT 

Voucher 249. fiifed cfthe 

Premijfes 
eniov^ other Lands and Tenements and died, and 7. B njfign'dto Jerthe Land in demand in Diver in 
.^llo-u-ancc oi all the Lands oj ilhich her Baron ivas feifed; and Jo 'ivas Jhe m of elder Doiier to her rejerved' 
Judgment &c. The Dei/iano'ant Jaid that the fame t" B. was fetfed of the Alantr of B. and 10 jcres of 
'u:':!!;h L'oiver is demanded and died, and the Tenant enter'it into the JJanor of B. and enfeoffed the /aid 7. 
B. before the Jjftgnment of Doner made by 7. B. to the Tenant by ivhich the 20 ^cres mere 7iot Parcel of 
the Manor, and that P B. ivas neier feifed of other Land, hut of the Manor and of 20 Acres, and prayed 
Dower. Cind. faid that now it appears that the Demandant ought to have demanded but only the tliird 
Part ot the two Parts of the Land ot which Dower is demanded. Per Godred, you are in of all the 
Land whicli belonged to your Baron, which is againft common Right, and therefore we ou^-ht to 
have the third Part of the Whole. And lb the Queftion is hecaufe the Tenant is dowable againft 
common Right of the Whole, if the Demandant Ihall have the third Part of the Whole or the third 
Part of two Parts only j and adjornatur. Br. Dower, pi. 52. cites 4 H. 6. 25. 

3. Where Heir takes Feme and entfrs and endoivs his Mother, and 
aliens the Rever/ion, and the Mother dies, and after the Heir dies the 
Fe^ne of the Heir fhall not have Dower ef the Land of ivhich the Mother 
was endowed. For the Seilin of the Heir who was her Baron was de- 
termed by the Endowment, and the Feme in by her Baron and not by 
the Heir; For if the Heir had charged llie Ihould hold difcharged, 
quod nota. Br. Seilin, pi. i8. cites S All". 6. 

4. In Dower, the Tenant in Dower leafed her F.jidte to the Heir, 
rendring Rent for Term of his Life, and the Heir died, and his Feme was 
endowed by Award •■, For this is a Surrender not withllanding the eldeft 
Endowment, and fo the Heir in in Fee, though the firlt Tenant in 
Dower who leafed, was alive. Br. Dower, pi. 17. cites 45 E. 3. 13. 

5. It a Man makes a Feoffment with Warranty and dies, and the Feme 
cfthe Feoffor brings Writ >f Dower againft the Feme of the Feoffee, and 
^he vouches the Heir oj the Feoffor, and pending the Atlion the Feme of the 
Feofee brings Writ oj Dower oj the whole Land and not of two Parts, fhe 
cannot recover Dower till the firlt Dower be determined. Br. Dower, 
pi. 8b. cites Litt. lol. 11. 

6. The Cultom of a Manor was for the Widow to be endowed of f , 

a Moiety of the Copyholds ot which her Husband died feiled ; the Huf^ g' ^2 tut 

band died, and his Wile was endow'd of 100 1. per Ann. and too 1. S P. does 

per Ann. defcended to his Heir, who afterwards died, leaving a "ot appear. 

M'idow. This Iccond Widow fliall be endow'd of a Moiety of the~~^^\^f: 

liJ , pi. 9. s. o 

Moiety ji ^ 



232 Dower. 

butS.P. Moiety^ and fo fliall have 50I. per Ann. Adjudged. Raym. 58. Mich, 
does not 14 Car. 2. B. R. Baker V. Berisford. 

appear. • 

2 Sid I. S C &S. P. but no Refolution. Ibid. 9. S. C. and it wa'! held by Glyti Ch. ]. 

that die fecond Widow was intitled to a Moiety. — ■ Keb. 556. pi. 46. S. G. & S. P. per tot. 

Cur. praster Mallet. 

Co. Lict. 31. 7. The Rule of Dos de Dote peti non debet is thus to be underfiood^ 
^■^- Where the Grandfather dies feifed of three Acres, and the Father 

enters and endows the Grandfather's Wife of one Acre and dies, the 
Father's Wife fhall be endow'd only of the third Part of the other 
two Acres ; For inafmuch as the Grandfater died feifed there was no 
Mefne Seifin in judgment of Law betwixt him and his Wife. But if 
the Father had claimed the laid three Acres by Purchafe from the 
Grandfather, his Wile Ihould after the Death of the Grandfather's 
Wife be endowed ot" the third Part of that Acre whereof the Grand- 
father's Wife was endow'd j Or in the firft Cafe, if the Son after the 
Death of the Grandfather and Father had endow'd his Mother firit, 
and then the Grandmother had recovered a third Part againft her, the 
Mother after her Death might have entred again ; For her Eltate in 
the Part fb recovered was defeated by the Grandmother's Life. Hawk, 
Co. Litt. 44. 



(H) Of what Eftatesyor a collateral RefpeB (he fhall. 

be endow'd. 



See (G) pi. I. TiT t\)Z Baron had a Fee and Freehold tftOUffl) XthZ defeafable, 
14.S.C. I «0|. jjijj u^ifg fljallbe endow'd till It i!S defeated. 45 C 3^ 

and the \r 

^otes there 3* ^* 

(G^dI 2.'Asift'DC Baron and Feme Leflees for Life furrender to \)i\\\ \\\ 

s.c Reveriiontl)t0i!3defeaiibiebptl)Cjfeme; )?et tit tlje lueatt 'STtntc if 
ijc ttt Eeijeraan Die0, W J©ift fl):^n faecnnoioo* 45 C 3. 13- b* 

18 (E. 3. 45- 

3. 3f a DifTeifor dies feifed, anil aftCC tljC DifTeifee abates, t\)t l©ife 
Of tlje DiflCiror fl)aU IjaUe Dower agalnfi IjillT, fo long as the Defcenc 
is in Force. 17 C* 3- 24- aOlllittCD Ijp tljC SllTue. 

4. Jlf 3. endows his Wife Ad Oltium Eccleliae, and aftCt makes a 
Feoffment Of tljC LaUt> to B. who makes a Feoffment tljCtCOf toC. tljE 
Wife of B. fljall be endow'd againft C. till the Wife of A. recovers 
her Dower. CCUtp. €♦ i- 66. b. atHlttttetl* 

5. But tit tljisi Cafe after tljE (giiootottieitt Of tljc Witt of 15. if 

..^^^^^ the Wife of A. brings a WXXt Of Dower againft the Wife of B. and fhe 
* F^K673. vouches C. to * Warranty, tl)t|5 Endowment of the Wife of A. ad Of- 
tium Ecclefise fiiall be a good Counter-plea of the Warranty, qilUI 

DoiS oe Dote peti iton oefaet. Ceiiip. €. i. (>6. b. anjuOff'D. 

6. 31.f A. feifed of the Manor of D. takes B. to Wite, ailD aftCC 
aliens to C. who takes E. to Wile, and after alieillS to F. and dies, 
ailO aftet E. is endowed, ait0 aftCt B. is alfigned Dower of a third 
Part of tlje S19aitOr, and flje brings a Precipe thereof againft the Wife 
of C. fCiltCCt, C. who vouches to warranty F. illfjO counterpleads ic 
IJP tljilS scatter, and fays that the Wife of C. CaitUOt be CllOOiUCD 
£0 quon non poteft habere Dotem de Dote, ft flC pCC ConfjOeratiOnEIU 

Cititte anniliicatutn fitit, qtion etfet tnconUcntcnjS, toeo if. fit 
tlitietiis U i©arratitia ct 15. vecupem fcifiitam et DefenUeitsi tn 
i!0iretico«Jia. 2^. u. C 4- '^^ Kor. 46. 

7- jf 



Dower. 2 :^ c^ 

' ^ — ^ ' ■ - ■ ■ ■ -w 

7- Jf fl iJBOninn recovers Dower oi" a Reverfion expe6tant upon a '> P- And 
Lcife lor Years upon which a Rene is referved, fl)C ihall have a third J^^ ^f''^ 
Part of the Reverlion, and the Rent prefentlv as incident tO tljE tlr^d Vm 

l^cDerfion, aiin tlje Cmittioit (Ijail not ccafc tiU tl)t Lcafc erpireSi of the ke- 
for tl)e €)l3eniT (Ijcill put Iiec tn €cecittioii of ti)c jf reeijoio, ant> "«■•'•''" i'/ 
tlje (iCctmac n)all coiituuieljis Wzua. Cc, ?• 31a. pec Cunaui.}p, 8. ^»ete.aad 
:jav 03* pet OLunani. ipill. 10 :ja, 05. pet(£:unam. caLkt. 

"Where a Mnn feifed in Fie leafed for Te.trx rendering Rent, and after takes a Feme and dies, the Feme 
fhall have I>ower, but fhall not have Execution durin;» the Term of Years; for the Kent is inci- 
dent to the Reverfion, a-id is no Inheritance, but is deierminable by the Death of the Lcflce, and 

therefore fhe cannot be endowed of the Rent. Br. Dower, pi 89. cites M. 1 E. 6 • 

In foine Cafes of Lands and Tenements which are devifeablc, and which the Heir of the Husband 
fliall inherit, yet the Wife fhall not be endowed. As If the Husband make a Le.rje for Life of cer- 
r:)in Lands, rcfervivc^ a Rent ro him and his Heir', and l.e tikes Wife a:id dies, the Wife fhall not 
beendowert, neither of the Reverfion, falbeit it is wi'hin thefe Words Tenenients) becaufe there 
was noSeifin in Deed or in Law of the Freehold, nor of the Rent, becaufe the Husband had but 
a panicular Effate tlierein and no P'ee v'^implc. Co Litt. ,;2. a. 

But if the Husband make a Leafe for Tears refervin^ a Rsnt, and takes Wife, and the Husband dies, 
the V\'ife fh;dl be endowed of the third Part of the Reverfion b/ Myites and Bound?, together 
with the third Parr of the Kent, and Execution fhall not cCife during the Years. If the Husband 
make a Gift in Tai!, rclcrvinp a Rent to him and his Heirs, and after the Donor takes a Wife and 
dies, the Wife fhall not be endowed of this Renr, becaufe it is a Rent in Fee, and by PoJibility 
may continue for ever. Co. Litt 52. a. 

In Dower it was agreed clearly, That if the Tenant fhcws, that before the Husband any Thine 
had, A was fcifed of the fame Land in Fee, and let tl-at for Years rendering Rent, and (granted the 
Reverfion to the Husband ot the Plaintiff, who died fcifed of the fiid Reverfijn, and fo demanded 
Judg;mentif the Demandant fliall hive Dower &c. This is no Plea in bar of Dower but proves 
:(lie hid Title of Dower, but this fives the Leall- for Years, and fhe fh.iU h.ive fudgment only of 
the Keveifion, and of the Rent ; and alio Oie docs i'a.^e fo the Tenant Dam .ges, and the Denlandant 
fl-.all be endowed of tlie Reverfion. Win. So. Pafch. 22 Jac. C. B. Anon. 

s. Ii5ut if no Rent i}E refec^jcti upon t\)z Icafc far 2^car5, tljcn co.Litt. 32. 
tijc ejcciitton fijali tzM till tDc Cetm cj:pirc0. Ctin* 7 1,-^, 15. '■ ^ ''• 
pet Cittiam* 

9. A Retit de *iovo was granted to a Man and his Heirs, with a Pro- F'"-h- • 
vifb that if the Grantte died, his Heirs heinr within Aie^ that then the ^"^"^^ P^- 
Rent jhoiild ceafe during his Minority^ and he died, his Heir being Pa'ch. E. 
within Age, and the \V iJe o£ the Grantee brought a VVrit ol" Do.\er 2 where ' 
iaguinlt the Teiretenant, and heid it lav, and that the Demandant ''icre were 
fliould have Execution a^ainft the Heir -when he came of iitll Jze. i Reo. Ditference.'! 
«7. a. in a rsoca ot the Reporter cues 5 E. 2. ^^^ Amxc- 

fore bid the 
Parties fue a Bill in Parliament, which they did, where it was ordered that the Demindant fhould 
recover her Dower ao;ainft the Grantor, vi?.. Tertiam Partem precdifti Reddirus percipiend' ajcord- 
in,w to the P'orm of the faid Grant, when the Heir fh.iU come to his fu'l Age ; a-d fo the Qi^iefli.jn 

V. as determined. Jenk. 4. pi. 6. S. C. refolvcd in Parliament Vent jd. Mich. 2.^ 

Car. i. B. R. per Cur. S. P. Obiter, fhe (hall have Judgment but Ceffet Executio. 

10. Where father and Sen are ; the Father dies, the Son takes Feme 
and enters^ and endfevs his Mother^ and after grants the Reverjfon, and 
the Mother dies, and the Son dies, the Feme cannot have Dower ; And 
Erook fays it leems to be good Law • ibr it is faid e.lfewhere that 
V here the Heir enters and endows his Mother, and line dies, and J. N. 
abates, he fhall not have Allife but iMorLdancellor or Intrulion j tor 
the firji PcJJtJ/ion is defeated by the Dower. Br. Dower, pi. 87. cites 
19 E. 2. 

11. If a Man leafes Land for Term of 10 Tears tifon Condition that if 
Ltfjee pays 100 /. at the End of the Term, that he jhall have Fee, anid 
if nor, that he iLall have but a Term ; it he pays loo 1. at the End 
of the Term he by this has Fee fur all the Term, and the Feme fnall 
be endowed i Qusre inde ; for this Word Tunc has no Relation to 

Goo vive 



2 34- 



Dower. 



give Fee NIfi de Tempore Solutionis, as it feems. Br. Dower, pi. 45. 
cites 7 H. 6. II. 

12. If Lands are given to the Baron and Feme and to the Heirs of 
their two Bodies, or to their Heirs, and after the Baron dies, now if the 
Feme will waive and refafe the Jcint-FJlate flie may bring Writ of 
Dower, and by this, in Judgment of Law, the Baron ihali be faid fole 
feifed Ab Initio J for otherwife Ihe cannot be endowed, and yet in 
Truth the Baron and Feme were Jointenants during the Coverture. 
3 Rep. 27. b. per Cur. Mich. 33 & 34 Eliz,. B. R. in Cafe of Butler 
V. Baker. 

13. If a Man gt'Oes in 'Tail to Baron and Feme, and after grants the 
tieverfion of thofe Lands to J. S. and then the Bdron dies, and the 
Feme waives, and difagrees to the Eftate Tail, and claims her Dower j 
Now as to her there is a Nullity of Ellate Ab Initio, and to fuch In- 
tent the Law holds it as an Eftate made to the Baron only ; Per 
Cur. 3 Rep. 28. b. Mich. 33 & 34 EWt. in Cafe of Butler v. 
Baker. 

14. In a Writ of Dower the Tenant pleads Ne unques Seifie que 
Dower, and in Truth the Husband of the Deniandant had ah EJiate 
by Dijfeifin which was avoided by the Entry of the Dijjeifeej, and who 
had a Title Paramount i It was agreed clearly that this is no Title by 
which file may have Dower. Win. 77. Pafch. 22 Jac. C. B. Berk- 
Ihire (Countefs of) v. Sir Peter Vanlore. 

00 if the Co- ij;. If there are tivo Jointenants in Fee, and one of them makes n Fe~ 
nnfee of a offmeiit in Fee, his Wife Ihall not be endowed. Co. Litt. 31. b. 

Fine ^rant •'^ 

Mid raider to the Cotmfee &c, the Wife of the Conufee cannot be endowed. Co. Litt. 51. a 

16. Tenant in Dower fhall not have Execution of a ReverJ/on after a 
Term on which no Rent zvas referved ; for in fuch Cafe it would be in 
vain to have Execution before the Term be ended ; Per tot. Cur. and 
judgment accordingly. Comyns's Rep. 1S5. Mich. 8 Ann. C. B. 
JBodmyn (Lady) v. Child (Sir Richard) 



(!) Of what Eftate for a Collateral Refpe6i: fhe fhall 

be endowed. 

For Colhiteral ^aJltks. 

[Conditions 6Cc.] 

Br. Dower, L T 1 A 0^11 \m\i^ i Feoffment to the Husband upon Condi^ 
pl.(52. cites Jt ^i°" tljat he ihall enfeoff his Wife and Son, ailtl he makes a Fe- 
S. C. and offment accordingly and dies, t\)Z Wi^t fliall llC CnOOUlCU Of tIjliS ? 
ftates It as j^j. ^^^ Feoffment tO W bp \)Zl DUjSljaUti was void, llUt it appeatjS 
anTfa?s that the Intent of tljC fiCll jfCOffOC was that flie Ihould have an tLftate 

per Cur. the in the Land, atio inafmticl) 36 fljc cculD itotljaijc tljc Cflatc accorfl' 
Feme reco- ing to w Jiitcntion, fljE fl)aU IjaDc tlje caatc mill) t\)Z lain gUjes? 

not'ata^nd ^^^* ^^ ^^* 4" ^«"^* XCOOltC DOlUCt 62. 

that it feems the Feoffment is void as to the Wife, and good only as to the Son, and therefore fhe iS 
dowable againft him; and fo it appears in Littleton in hii ftit.] Eftates upon Condition. [But] no- 
thing more is at that Plea in Brooke. 

2. €>a 



Dower. 235 



1 



2= ©0 it feCmiS if n Feoffment be maUe to a Husband UpOll COH' 
HitiOll to inleoiFJ. S. anH he does ic accordingly and dies, tIjC Wtft 

fljnil be luDomen ; loc fjt0 3!nteitt Doeis not appeac to ercliiQc tlje 
t©ife of Ijec Dowcc ; aiiD if djiis ijan appenceo, i^et it feemsi it 
uioiiiu not Ijaue ftoon laitlj lam. 3t fcemg a0 it tljisi majs tlje 
Kcafon of tijc Cafe m 28 aiT. 4. IBtoohe Doidcc 62. 

• 3. In Dower the Tenant fatd that Tenant by the Cartefy granted his 
EJiate to him tn Rever/ion, (who ivas Baron to the Fem no-ja Demandant') 
rendering Rent y and for Default of Payment to re-enter i he in Reverjiort 
married the Demandant^ and for the Rcnt-Arrear the Tenant by the Cur~ 
tefy entered ; he in Rever/ion died, and his Feme was barred ot Dower 
by the Re-entry i tor Surrender may well be upon Condition. Br. 
Dower, pi, 74. cites 14 E 4. 6. 

4. It' a Man beTenant m Fee Tail general, and makes a Feoffment in Fce^ 
and takes back an Fflate to him and his Wife^ and to the Heirs of their two 
.Eodiesy and rhey haiie Iffue, and the Wile dies, and the Husband takes 
another IViJe and dies, the \\^il"e Ihall not be endowed ; For during the 
Coverture he was feifed of an Ellate Tail fpecial, and yec the IlFue 
which the fecdnd VVite may have, by Poffibiiity may inherit. Cd 
Lict. 31. b. 

5. The fame Law it is, if he had taken back an EJtat; in Fee-Simple,, 
and after had taken Wife, and had Illue by her, yet fhe fhall not be 
endowed ; For that the Fee-Simple is vaniflied by the Remitter, and 
her Iffue has the Land by Force of the Intail i But in that Cafe the Te- 
nant cannot plead that the Husband was never feifed of fuch an Ellate, 
■whereof the Demandant might be endowedj but he mult plead the fpe- 
tial Matter. Co. Lite. 31. b. 



(K) At what Time ftie fhall be endowed, 

I. TiF tfie Husband enters into Religion, tOOtllj!) it ISs a CitJll P'-''-k. S. 

1 DeatI), iaafmuci) a0 fte i0 tieaa ajs to tijeiJSodD, fot Ijisj '°7 ^- ^v 
$)cir0 fljaU Ija^e W lanD, anti a mm of ii3ottiJanceftoc, pet fji^ tl\Z^ 

Wiie fluil not be endowed during his natural Lite, becaufe Ije CllteteO cites Mich. 
into EellBtOU toUlj ijCC COnfent, OtOeClUtfe Ihe might deraign him ; 5' E «• 

and fo by her own Aiibnt (!)ein a ^annet ^oiagi Cljaftiti? ais loell a.s _T^t' 
l)et 5;>u0bauo* ^z €. i. 'Omzm^. mocf) ' 

s p. 

Co. Lift. 53. b. Co, Lite, i ji. b. S. P. Jenk, 4. pi. 4^ S. P. 

2. The Death of Baron was fuggefted, becaufe of his Ahfence feven A"**' ^c p>. 

Tears, and upon circumllantial Proof, (none being offered to the con- ^'»V^" 

trary) fhe recovered. D. 185. a. pi. 65. Fafch. 2 Eliz. Thorn v. Rolf 15 pi. ^/"^ 

S. C, but the 

Point of Abicnce i>; not particularly mentioned in either And. or Mo, • Bendl. Sjj. pi, 131. S. C, 

8c S. P. and ihe recovered her Dower. 

3. Proof by 4 of the Death of Baron, and at the EfToign Day Proof Fitili. Tri- 
by 12 de Vita "Viri, all agreeing in the fame Points, ^iii melius pro- ^^^^-^'^^ 
bat, melius habet. D. 185. a. pi. 65. Pafch. 2 Eliz, in Cafe ot Thorn !!! winch. 
V, Rolf, cites Cni in Vira, Mich. 2 £. 2. Si.Over v" 

Tii.ker, 
Pafch 22 Jac. C, B. .S. P. 



(L) By 



236 



Dower. 



® (L) By what Adi or Thing a Woman may delaj; kr- 
^''poi6^ f^lf of her Dower. 

Detainment of Charters ^ or of the' Heir. 
What Charters or Heir. 

Perk. S.; 5 5, I. T^Ctnminn; of Charters concerning the fame Land Of tUljJCl) fljC 

!l!_i Th -L/ tJcmaiiDSJ Doitiec, 10 a soon ]!?Ica in Dclap of tjct Dooiec* 
^^i;;;:;;;., ' 14 ip.4. 13. u. 14 D» 6. 4. 21 e. 3. «• tu 

ought to 

concern the Land whereof Dower is demanded, and not other Lands defcended to the Heir. 9 Rep. 

17. a. the firft Refolution in Bedingfield's Cafe. 

2. [So] tctaintttg Of a Fine concernimj tljc lanti 6tc. 10 a goon 
\M^ in Delap of Doiuet, tljotiglj tije Ime maj) be t)ati aijaiii m 
tljc '2Creafurp» i €♦ 3 12. ii» 
Hob. 199- 3. Dctauuiig tljc Heir is ji goou ll^Ica in Dcla» of Doiuec 
s.p. admit- brouffijt asamft ttje ^Suatoinn m Ciji^ad-p. 17 ^» 3- 58. b» 

ted, per 

Cur - See (M) pi. 2. and the Notes there. 

Co Lirt ;9 4 [So] (fai^onmn be endowed Ad oftiumEccicfi^, auts aftcc 

a. S p. and tljC DcatlJ OftljC ISatOH fljC brings a Writ of Dower ao;ainft the 
foof tloign- Guardian in Chivalry Of tljC DCIt Of IjCf IpUSljanti, It 10 a ffOOi) lj?lea 

K'^th?" in 2)^^''^^' of tl)l0 DotDct, tljat t!)c Denmntiant Octants tlje iDeic 
Ward- be- ftomljim* 1 1 !i). 3- B.ot. 6. intec 310oneani ii«rc/f// ^?«-or////W/;;«;;/ 
caufe his Bttrdett, atJuutten pet 3flue, ano agreeti op l^iea* m It). 3 Doiaec 
Marriage ^§7. tljc faiue Cafc, as itfcems, \ii\t \\\ Burdetfs Cafe it 10 not ec= 
7XT^La PtefTeo luljat Doiuet tijis iua0, but fljc claims it as LanQ of luijtcO 
if the Heir fljc lua0 nomtnatiuHiotata Up Ijct IpiisuaiiD. 

comes in as „ „, r, . « .. i . t^ • , r^. 

Vouchee he flull plead the f^mePlea ; But he Ihall not plead Detainment of Charters, becaufe fuch 
as concern the Inheritance of the Heir belong not to the Guardian. 

5. -ilClje fame in a WXit of DOtoCC Ex affenfu Patris, Ot {|9atti0 

II ]^. 3. DoUJec 186. 

The Plea of 6. In Dower, the Tenant faid that the Demandant detained from him 

Detainment certain Charters concerning his Franktenement, and tn Cafe fhe isould de- 

of Charters ^^^^j. xhem^ he is ready to render Dower, and at all Times has been ready '; 

is not e,o(id ^^^ jj. ^jjg agreed, that this Detainer is no Plea^ hut of Charters con- 

LaMslhan ceming the Inheritance, and not of Land pnrchafed ; And fo it feems there, 

the Charters that tf it concerns the Inheritance, though it be other Land than of which 

concern. j/je Dower is demanded^ yet it is a good Plea i and there the Defendant 

D. i3°-^- . vvas compelled to jhew what Charters {be detained. Br. Dower, pi. 47. 

d EUz.. cites 22 H. 6. 16. 



Anon, cues 
22 H. 6. 



S. C. cited H. Dower of four Acres i As to one Acre the Tenant vouched to JFarran- 

p:rCur. 9 fy^ .^^,3^ ^g ^,j j/y^ ycfi that the Demandant detained Evidences from him 

fi^ ^tlia^' (concerning the fame Land, and Jhezved one fpecially, by which T infeoffed 

upon DeU- J- i'^- and R. his Father, habend" to them and to the Heirs of R. and if 

very ot the pe woiild dcliv.r them^ he is ready to render Dower ; Pool fatd his Plea 

Charters flie goeS 



Dower. 



237 



'goes to all ; for if {he detains Charters which concern any Part of the fl^all have 
Land in Demand, it is a good Bar ro the whole Dower, and the De- '^^r judg- 

., ,, . ,■ T- . . /- ^ . . . r ,-T' . ,■ . » . merit immff* 



\tinue fhall be of Land defcended to the Tenant^ and not of the Land Z''^''- Viatel v"^ 
chafed J Per Newton, the Plea does not go to all. Br. Dower, pi. 48. 
cites 22 H. 6. 42. 

8. In Dower, the 'Tenant faid that the Demandant detained certain 
I Charters concerning this Land &Cc. and if pe "juill render &c. then ready to 

reader Dower &c. The Demandant produced the Deed, and prayed Dow- 
er, and the Deed was read, fo that the Court perceived it was the fame 
Deed, by which the Demandant recovered. Br. Dower, pi. 53. cites 
9 £.4. 47. 

9. Dower againft the Heir, who faid that the Detnandant detained 
froiis bun a Bag fealed, -with certain Evidences concerning the fame Laud^ 
and if fhe will deliver it Sc- he is ready to render Dower, and a good 
Pica, per tot. Cur. except Englefield, without Jhewtng the Certainty of 
the Evidences ^ ^i£re if it had not been m a Bag fealed. Br. Dower, pi. 
I. cites 18 H. 8. I. 

10. In Dower, if the Tenant pleads that the Demandant detains 
Evidence, the Demandant delivering in the Evidence may have Judgment 
immediately ; But if ihe denie' the Detainer ot the Evidence, and that be 
jcund againft her, fhe pall lofe her Dower ; Per Cur. Obiter. Hob. 
199. Mich. 15 Jac. in Cafe of Brickhead v. York (Archbilhop.) 

n. & in the Cafe of Dower brought againft a Guardian in Chivalry 
who pleads the Detainer of the Heir his lizard. Ibid. 



(M) Detinue o{ Charters. [Or Heh'.~\ 
Jfbo tjiay 'plead it. [And How.] 

I. Tjf a Wife be with Child, tIjC Heir for the Time being cannot In Dower, 
1 plead Decmue of Charters • Si^l fljC Ulil}? hCep X\)Z\\\ lt!f tlje ^l-e 7'f««»f 

tain Eviden- 
ces concerning his Inheritavce^ and declared what, and tlmt he has been at all Times ready to render Dower 
if pe had delivered them. The Feme, as to t-ivo of the Deeds, intitled her/elf by Gijt to her and her Baron 
and to the reft, where the I'enant intitles himfelfas Bfother and Heir of the Baron, Jhe faid that Ihe is en"- 
feint by her Baron, and keeps the Deeds to the Lfe of the fame infant who pall be Heir, if God give him 
Birth ; Judgment &c. and IJfue -was taktn that pew as notenfeint the Day of his Death, and not if {he 

was enfeint by her Baron the Day &c. Br. Dower, pi. 8. cites S. C, Br. Iffues joines, pi 6 cites 

S. C. & S.P. accordingly. 

2. 3itt a WtXi of DOtoCr agamll tljC Guardian in Chivalry, \\Z imiP S P. but he 

pleao m Delav of Domer, toat tijc i^tamtift-Dctaingi tljc Ha'r from?''' ^^'^ 
tjiuu i7e, 3.J8. ij,aumJttcD, vilj.'son 

-,. T-i n T~. 1 . ,-, and Heir of 

\^ . T. Br. Dower, pi 47. cites 22 H 6. 16. S. P. and flialUhew whsiher Male or Female, or 

ctlierwile Eloignment by the Drmund.in': is no Plea Er. Dower, pi ^-j. cites 2 H. 7. 6. - S P 

But hecannoc plead Detainment of Charters; For he cannot conclude his Plea thus, viz. "'And if" 
•; the Demandant will deliver to him the Chariers &c " For the Charters which concern the Inhe- 
ritance of the Heir llv.iU not be delivered to the Guaidiun. v Rcp- I9' refolvcd in Bedinefield's Cafe 
smdcites It lb adjudj^cd ill ic £. 3. 49.a. ' 

P P P 3 1% 



2^8 



p 



ovvcr. 



5. C. cited 3. '^11 ii li£).-jt Of DOIUCI", if tl)Z Tcn.iiu vouches the Heir in W ard 

r'^^^qk tlje Gutrdinn m^y plead III DClClP Of 2:)0lBCr, tljnt KIjC mCllVS tIjC 

in ReHinjr ^^''" ^'^'°'" 'J^'"' t'jougl) tljc ^SiiarDiaii coiKD not OaUe renaaca to 
fieid-sCafe. Ijcc Doiuct i3efarE tlji0 Cimc ■> JFor Ijc map reiiDec it noiu. 17 e» 
3. 53. t!* Cima* 

4. A Man having a Charter which concerns foiir jicrcs of Socage La/tri. 

he devtfed three to hisyoungeft Son, and Jour to his Wtjefor Ltje^ the Re- 

inaindir to a Strahger, and died. The IVife entered in the Acre, and 

happened upon the Charter^ and brought a Dower of three Acres againit 

the youngeft Son, who pleaded JJetinue of Charters in Bar, ana that 

if /he rjuotild deliver^ he "was ready to render Dower ; But in the Conclulioii 

he faid, yet ready to render^ leaving out the Condition, tf Sec. which 

is a Conteffion, ahd adjudged tor the Coihplainant. D. 230. pi. 52. 

Trin. 6 Eliz.. Anon. 

J Feoffee $. No Stranger^ though he is Tenant of the Land, and has the Evi- 

caniiotpicid defices couveyed to him, can in a Writ ot Dower plead Detainment 

Detaiiimcnc of Charters, but this Plea lies only in Privity, viz. for the Heir of 

agrecd're" ' ^he Baron. 9 Rep. 18. a. Hill. 28 Eliz. the third Refolutioa in Be- 

Cur. Cio. dingfield's Cafe. 

2. Hill. 57 Eliz. B. R. in Cafe of Stokes v. Annesby. 

6. Detainment of Charters id net pleadable by Tenant by Refceipt^ 
who has a Reverfion after Tenant for Life, becaufe he cannot render 
her Demand, and is a Stranger, and therefore Sei fin was a warde«i to 
the Demandant. 9 Rep. 18. b. 19. a. per Cur. cites 8 E. 3. 55.3. 

[pl- 3] 

7. The Heir in feveral Cafes /lands in the Degree of a Stranger^ and 

fhall not have this Plea. 9 Rep. 18. a. Hill. 28 Eliz. in Bedingfield's 
Cafe. 

8. As if the Heir hath the Lands by Ptirchafc. 9 Rep. 18. a. 

9. If the Heir has delivered the Charters to the Woman, he lliall not 
plead the Detainment of them, for he has them with his Confent. 

9 Rep. 18. a. j 

10. So if the Heir is not immediately 'vouched by the Tenant, but the | 
Tenant vouches one who vouches the Heir. 9 Rep. 18. a. j 

1 1. So if the Heir coming in as Vouchee^ has no Land in the fameCo tin-' • 
ty. 9 Rep. 18. a. 



(N) [Detinue of Charters in Bar of Dower.] 
How to be pleaded. 

Dower a- \. Tif iDctinuc oFCljattcts iis plcancj i\\ S:)dai' of £)oiucr, ije 
^wftthe J[ tljat pleaOsi it ougljt to allege what Charters tljcp arc fo cer^ 
ra-Mhe tnintp agi m a Dcclacattou of Detinue foe tljcm. 14 up* 6. 4. 

was ready I vt» 3' ^^" 0» 

to render 

Diwer ifjije would render to him certain Charters conccrnirg his Inheritance, which pe detained from him; 
Per Cur. yow^yallpew what in certain, and this iv reafonable, l)y reafon of the FerdiB to the Jioy, and 
that it appear to the Court to whom they belong ; For if tiiey belong to the Defendant by Purdisfe, und 
not by Inheritancci he is put to Writ of Detinue; but if they are in a Box fealed &l-. he fliall not de- 
clare in certain. Br. Dower, pl. 67 cites 2 H. 7. 6. 9Rep. iS. a. S. P. rcfolved in Bcding- 

field'sCafet fo that a certain IflTue may betaken, and cites 22H. 6. 16. a. a H. 7.6. a. 14H. 6, 4 a. 

and 18H, S. I,.-i. 

Tie 



Dower. 



239 



The Certainly of the Chnrter>i ought to be alleged, tinkfs they are in n Cljejl, Box, or Bag fealed &C" 
D. 250. 3 ;i|. 52. Trtn. 6 £liz. 

2. Dower agabi ft two Feme? ^ ivho [aid that the "Feme Deihandant was 
Fewe of'tkcir Father, and that all the Land of the Baron dtfccnded to them 
as Heir &c. and Partition was tnade between them, fo that certain Land 
'ijjds allotted to the one, and certain to the other, and for the one he [aid ^ 
that the Demandant detained a certain Boyi full of Muniments touching the 
Inheritance of the Feme Tenant, and if fhe will deliver the Box Jhe is ready 
to render Do-x'cr, and at all Tnnes has been, and demanded Judgment if 
llie may demand Dower belore the Delivery of the Box ; And for the 
other Daughter it was faid, that the Demandant detained the fame Bex 
and two Indentures, ana that in the one it is contained, that A. injeoff'ed 
the Father of this Feme of the Tenements to her ajfigned in Partition, and in 
the other Indenture it is contained, as the Father of the Tenant granted to B. 
a Rent-Charge, that if the Father performed certain Conditions, that the 
Rent Jhoufd ceafe, and that the Box and thofe Indentures caihe to the Hands 
0] the Demandant ajter the Death of her Husband, and demanded Judg- 
ment if beiore the Delivery of thofe fhe may demand Dower i And the 
Demandant as to the Box fat d that pe is ready, and at all Times has been ; 
by which, as to this it was adjudged, that the Demandant recover 
Dower, and no Party amerced; and lb as to her who firfl pleaded the 
Detinue of the Box, and to the other ^& [aid, that as to the firfi In- 
denture floe never took it, ^nd the other e contra ; and as to the other In- 
denture fhe [aid that jhe had delivered it to the other Parcener ; And it was 
■awarded that fhe deliver the Box to her who rendered the Dower for 
her Parr, and as to the Delivery to the otic Parcener of the Indenture 
which concerned the Parparty oj the other, Jhe demurred &c. et adjorna- 
tur, therefore quiere. Br. Dower, pi. 41. cites 21 E. 3. 8. 

3. In Dower, the Tenant faid that Atlto non -^ For his Father was 
foffeffed of a Chefi and Charters, and of two Fines in Special, and divers 
other Charters which concerned the Land which is defcended'to him from his 
Father, which come to the Demandant, and he is, and at all Times has 
betii, ready to render Dower in Cafe the would deliver the Cheji and Char- 
ters ■; And the Demandant fend, as to all the Charters except he two Fines, 

pe has been always ready to deliver them, and offered them to the Court, and 
to the two Fines, that they came not to her Hands ; Per Martin J. where 
the Chcp is open, you ought to declare every Charter fpecially, and the fame 
in Detinue of a Cheft open with Charters, quod Curia concelfit^ quod 
nota bene. Br. Dower, pi. 57. cites 14 H. 6. 4. 

4. He that pleads Detainment of Charters ought to plead that he 
has been always ready to render Dower, and yet is if the Demandanc 
would deliver to him the Charters. 9 Rep. 18. a. 19. b. Hill. 28 Eliz. 
in Bedingfield's Cafe. 

5. Detainer of Charters is no Plea after Imparlance ; for per Cur. He ^'^'y^ ^H- 



that pleads this Plea muft plead that ttom the Time df the Death of ^^ 
his Anceilor paratus fuit i3 adhnc paratus exiffit td affigri her Dower if and Judl.' 
Ihe would deliver the Charters, i Salk. 252. pi. 2. Pafch. 3 \Y. & mentaffimi-d 
M. in B. R. Burden v. Burden, inB R. 

^ Comb. i8j. 

S. C. the Pica goes onlj in Abatement, and Judgment afiSrmed Nifi &c. 



(6) /n^f 



240 



Dower. 



(O) ffhat A^ of the Baron may bar the Wife of 

her Dower, 



Co.Litt. 52. 
a. S P. -^ 
But other- 
wife if ilie 
were natu- 
ralized by 
Aft of 
Parliament. Ibid. 



I, T if Land l3£ mortgaged to the Baron, dX^ t\)Z Condition is 

X broke, aUll afteCtuatDlS upon the Agreement the Mortgagor hath 

the Lands again by Payment, })Ct tlje UBtfC Of t\)Z S^OCtgapC fljtlU 

te cnuoiuetj aftcctlje |3eit Of tbe 'Baton Ijatlj cecoUeccU, aim fo it 
[mm tefore -, but tlji^ 10 a Ciusrc* 4« €♦ 3- 1- &♦ 

2. It' a Man takes an Alien toWife^ and afterwards he aliens bis Lands ^ 

■ and after wardsy??e is made a Denizen^ Ihe fhall not be endowed ; for ihe. 

was abfolutely drfabled by the Law, and by her Birth not capable of 

Dower, but her Capacity and Ability began only by her Denization. 

13 Rep. 23. Hill. 27 Eliz. in Chancery in Menavill's Cafe. 



Co. Litt. 35. 3. If a Man feifed feifed of Lands in Fee takes a Wife of eight Tears 
^ ^' ^- of Age j and aliens his Lands, and afterwards the Wife attains to the 

Age of nine Tears, and afterwards the Husband dies, the VV'ite 
fhall be endowed j For although at the Time of the Alienation the 
Wife was not dowable, yet for as much as the Marriage, and Seilin 
in Fee, was before the Alienation, and the Title ot Dower is not con- 
fummate until the Death of her Husband, fo as now there was Mar- 
riage, Seilin in Fee, Age of nine Years during the Coverture, and the 
Death of the Husband, for that Caufe llie Ihall be endowed, ; for it is 
not requifite that the Marriage, Seifin, and Age, concur together all at 
one Time, but it is fufficient if they happen during Coverture. 13 
Rep. 22, 23. Hill. 27 Eliz,. in Chancery in Menavill's Cafe, 

4. Though the Hiistand aliens the Lands or Tenements, or extin- 
guifhes the Rents or Commons &c. yet the Woman fliall be endowed. 
Co. Litt. 32. a. 



Foi. 6S0. (P) Ifljat A^ of the Feme will bar her of her Dower. 

Elopement, 



* Br. Dower I- T iT ffjc clopc^ fcom Ijet i|)usbann tuitlj anotljet s^ait, and con- 
pi. 12. cites \ tinues in Adultery with him without being reconciled tO IjCU 

% c— J5ti!5ban0 before tfjc Deatlj of Ijet l;usJbanD, flje fljali lofe ijet 
J°.^"'r- t)oi!)er, * 43 €. 3- 19- 19 C= 4- 3°- Pcciung %. 354- 47 €. 3* ^7. 
-If N B ©ioc @)tatutum Eobccti \^xmU cap* 13. apuD ®coto;5 accoioiun;. 
150. (H) uagff, 2. cap. 1 3S. accorsutff, 
s, p. 

■\ This feems mifprintcd for 54. 

Co Litt 52. 2. C!je fame latu if flje elopesi iuitl) tlje smutercc anu 10 not 

VeCOnCileD, though Ihe does not llay with the Adulterer. JS)Ct*UlnjX 
^* 354- 



a. b. S. P. - 

2 Inft. 436 
S. P. 



Co. Litt. 3 2 



%. Cbe fame LatO if fljC bC reconciled tO IjCt JDUStV.titl by the 
p.. b. S P. ' Coertion of Holy Church. J3erHut,Sl S", 354- ^ilO HOt Of IjCt 

^ao5>ioiU, 

4. So 



Dower. 241 

4. So if tfaC Wife EIOPC0 ttitl) IjCt pOU l©tn, anti ftays with the F. N. bT^ 
Adulterer againft her Will, flje fljaU lOft IjCt DOlUCC P^tftiltlS .y^^^^^^^ 

^* 354- tnainswith 

the Adul- 
terer file fhall lofe Iier Dower; hut if fhc remains in Adultery upon the Husband's Lands or Te- 
nements fhe fhall have Dower; becaule the fame is not an Elopement. Co. Lift. ^z. b. 

2 Inft 456. S. P. and fb if afterwards the Adulterer turns her away, yet Ihe ihall be fajd morars 
cum Adultero within this A6t. 

5. So if flje bt ravii'hed and ftays with the Adulterer nutiltOP tljC See the 
life of tlje Ii)Ugbantl willingly without Reconcilement, flje fljall ^J«f^ ^^ 

iofe Ijec Dotuer. 43 (£* 3. » 9- &» ^ • ' '• 

6. But if tI)C IBift: be ravifhed and flays UUtl) t\)Z StUltCrCC againft Br. Dower 
her Will fije fljall UOt lOfC fjCC DOUlCf* 43 <£♦ 3 ■ 19- b* pi- ' ^ cites 

Perk. S. 554. S. P. See tir. Rape, pi. 4. and the Notes. 

7. So if after dopcmcnt tijc tiBife be reconciled to bet !|)U!2ibann s^c pi is. 

of his Free VV ill lUItljOUt COCftlOll Of IpOlj) Cl)UlT|), flje fljall ijalJC '"'' "'=^°^=* 

Doujcr. I3zmm ®> 354- D« I, 2. ^a. 107. 23. '""''■ 

8. 3f il ^'^^" grants his Wife with her Goods to another, bpSC. cited 
ifOrCe Of U5!)iClj t|c wife lives with the Grantee afterwards all the ^ ^"^-45^, 
Lile of her Husband, tW fljall lOfC IjCC DOlDCr, beCaUfe flje libCjJ J/i^Hthe 

in suulterp iuitij tlje ©raittee notiuitljltanUiiuT tlje errant of tije Deed at 
Baron* 30 c i. libro 3arllamcntorum JfoU 96. fFninhms i^^^ge <ic 
Payneti antJ Margery ijt^ jiBitc -^ Cafc, .^ri)ii3sc3 lu iparltaiticnt* verb°r 

which Ld. Coke fays he cires for the Strangenefs thereof. 

9. 3if tlje Friends of the Husband elloin him from his Wife, f0 tljnt 
tbe VVife does not know what is become of him, anti t\)t Friends of 
the Husband publilh that the Husband is dead, and after tljCP procure 
the Wife to releafe all Sl^ariJafrcS Sntl Intcrefts, iDljiClj flje Can lja\3C 
In \\im a0 IjCr |ra<ibanO, and after tlje Witt by the Perfwafion ol tlie 
Friends of the Husban-^ marries with another that dies, and ihe takes 

another iiusband, to iDljom jQoticc 10 mlicn tijat tljc firfl IS U^jnig, 
smt no i^Qttce m?- aiijen tljereof to ti)c i©ife, tljonglj tIjc iiaife 
\\\iz$ in latiultcrj.), tuiD t'jotmlj tlje |)u0i3anD uias not out of tljc 
laealm or bepaiin ^^ea, fo tljat t^'^z !©ite ousijt to tal^e J^aticc 

tljatljC llja0 Ulnnii, vet tnafmUClj as flje nonreliquit VirumSp^nte, 

as tljc ©tattite fnps, but bj) tlje perfmnfion of tfjc jrrfcnas of tijs 
f)ti0bani! tljat Ijc was Dcao, ano it noes not appear tijat flje eliec 
Imeiu tbatljc was irontii;, tljis 10 not any iuclj (Elopement as to bar 

Ijer of Ijer DCUJCr* Q^iClj* 12 31a> bCtOJeCU Green and Har-jy. Bzt 

Ctiriani. ^ 

10- of tlje JtSlfC elopes from her Husband, and after lives with her "^^ P''''^'s ^ 
Husband Years and Days till the Death of her Husband, with the ^'^'■"°"'''''^" 
Good-will and Alfent of the Husband lOItljOUt COetfiOn Of 8)0lP Hv'en'iV' 

Cljtirdj, tijis fljall not bar Ijrr of Ijer Dottier, tljoiin;lj it is'notfi^irf^nce 
aUerc'D tljat flje uia0 rcconcil'D to l)er ipusbano. 19 e. 3. eiope= '^'^ '"^^ 
nient 94- Seraf '''" 

Kif;hts in feveral Places afier the Departure and Separation, and demran'd themfelves as Husband 
and Wife. It was objedted that tliey never dwelt together in the fame Houfe, but liv'd afunder; and 
that fhe continued in Adultery wi[h on^ or another all along durin;^ her Husband's Life, fed non 
Allocatur; For there might be feveral Elopements and feveral Reconciliations, and the Tenant at 
his Peril ought to take Illue upon one. D. lo'i. b. 107. pi. 22, z%. Haworth v. Ladv Poivis. 

But thouj^h fhe does cohabit and is reconciled, yet it it be by the Coercion of the Church ihe 
ftall loofe her Dower, z fnfl. 456. 

Q_.q q ^i- If 




242 Dower. 

Bur if a Man jj. ;j:f jj }©onian elopes into another County, and Jives in Adul- 
M*n'^r°\tr° ^^^^ '" ^ Manor chat is of the joint Purchafe ot the Baron and Feme 
Fee"°akc"h without being reconcil'd, Vtt tl)i0 fljilU IlOt btlt IjeC Of IjCt DOUJCr' 

a Wife, and bcfaufe tljE Taaron 10 to ice tijat none fuclj mt iuitljm m lann. 
T^henthe s (£. 2, ©oiHCc 153- aOjuDijeli, 

Husband is 

dwelling; at one Manor, the Wife goes unto the other Manor, and when flie is there fhe liveth in 
Adultery, it is (aid ihat by doing lo fhe fhall not lo(e her Dower, becaufe it cannot be intended a 
running away froip her Husband, when the Law cannot intend that flie can dwell upon the Manor 
of her Husband without the Agreement ot her Husband, tamen quasre. Perk. S 355. 

If the Wife doth elope from her Husband's Houfe of Habitation, and commit Adultery in any 
other the Lands or Manors ot her Husband, this without the free Reconciliation of her Husband is 
within the Purview of this Statute. 2 Inft 4;6. 

It was faid by Daniel that an Elopement is not Bar of Dower Jd OJlium Ecclejla. Nov. loS. 

2 Inft. 455. 12. CfjC fame LBUJ, tljOUgl) t\)t Wife lives in an Houfe of the free 
s P. Contra. Tenant of the Manor. 8 C« 2. DOtUCC 153. aHjllUffED* 

though Ld. 

Coke fays, it has been held otherwife. 

13. Jftljetl&ifebedivorced for Adultery, (ttlljiClj OOES ItOt tilTOlbC 

tljclSonnof^arnasc 6j) tfje Canon laiu, not of our Cijucci) 

_ ^ in tljiS * laealm, but 10 Onlp a Menfa & Thoro) t i?ct tljis iljalt 

Tiin 2 jac bar ijct of bet Dotuer, 

C. B Powell 

V. Weeks refolv'd e Contra, becaufe it is not t a vinculo Matrimonii. Godb. 145. pi. 182. 

2 Jac. C. B. adjudg'd that flie fhall have her Dower. Lady Stowell's Cafe and feems to be S. C. 

Co. Litt. 55. 14 tJBitI) t!ji£i asrEC0 tbC lalU of Scotland. Skene Regiam Ma- 
b. contra. jellatem 43. b- IDecC 5- 

15 VIBitl) tIjiS aSreeiS tbe €M lato» Reynolds of Divorces 86. 

16. @)0 tbe Canon laiU igi aCCOtOing. Reynolds of Divorces 86. 
Iffliegoes i^. 13 £. i.i^C 2. cap. 34. If a Woman wt Hi ugly leaves her Htif- 
willingly land^ and noes away and continues with her Advowterer, (he Ihall he 

with or to , 1 /■ ° r ^a j j 1 r\ ^ J J . 

the Adul- barred jor ever of Action to demand her Dower ^ 

terer, this 

i*. a Departure and a Tarrying, though (he remains not continually with the Adulterer fhe fhall 

lofe her Dower. Co. Litt. 52. b in Principio. 

In this Cafe of Elopement, and remaining with the Adulterer Sec. the Wife could not be barred 
of her Dower by the Common Law, though a Divorce were fued and had for the faid Adultery. 
2 Inft 455. . 

Although the Words of this Branch be in the Conjunftive, yet if the Woman be taken away not 
Sponte, butagainll her Will, and after confents and remains with the Adulterer without being recon- 
ciled &c. fhe fhall lofe her Dower; for the caufe of the Bar of her Dower is not the Manner ot the 
facing away, but the remaining with the Adulterer in Adultery without Reconciliation, that is the 
Bar of the Dower. 2 Inft 4'; 5. 

It the Wife goes away with the Husband's Agreement, and confent with A. B. if after A. B. com- 
mit Adultery with her, and fhe remains with him without Reconciliation, Ihe fhall be barred ot her 
Dower by this Branch ; 2 Inft 455 

But the Husband may give Licence to a Man to carry his Wife to his Houfe, and this fhall be a 
good Bar in Action brought de r\lqliere abdufta cum bonis viri. 2 Inft. 436. 

Note, that 1 8. Ufilefs her Husband willingl)\ and without Coercion of the Churchy 

Cohabitation reconciles her and ftijf'ers her to dwell with him. 
is nor fufSci- 

ent without Reconciliation made by the Husband Sponte, fo as Cohabitation only in the fame Houfe 
with the Husband avails her not ; a Fortiori though fhe remain with the Avowterer in anv of the 
Lands or Manors of her Husband, yet fhe fhall be barred of her Dower by this Branch, without the 
Husbjnd'sfree Kcconciliation, although it h.is been otherwife holden ; and the Rcafon that they 
yielded is, becaufe it is no Elopement; where is it appears before thut the Words of Reliquerit 8c 
Abierit are not of the Subftance of the Bar of Dower, but the Adultery, and the remiining with 
the Adulterer, as is abovefaid ; and although fhe and the .Adulterer remain within any ot the Lands 
or Manors of the Husband, yet (the Words being Si uxor (pontc Reliquerit 8c Abierit) fhe has 

lefc 



Dower. 24.5 

lefrand gone from her Husband in that Cafe, which is a Perfonal Offence; See the firft Part of the 
Inrtitutes, Seft. 56. for bars of Dower, whereunto you may add a Cafe in Tr. 9 E. 2. Fol. 65.10 
libro mco. That if a Woman fay fhe is conceived with Child by her Husband whilft he lived, 
and in Truth is not, whereby the next Heir is dillurbed, flie fliall lofe her Dower, it flie acknov;- 
ledge the fame before the Juftices. 2 Inlt. 43(5. 

19. In Dower Defendant pleaded Elopement in the Wife j Wife 
replied that her Husband had bargained and fold her to the Adulterer j 
and held bad. 12 Mod. 232. Mich. 10 W. 3. Coot v. Berty. 

20. jirticks to fettle Lands hi Jointure, are in Nature of an aftual 
Jointure, which is not forfeited by an Elopement like Dower. 
3 Wms's Rep. 276. Palch. 1734. in Cafe of Sidney againft Sidney. 



(P. 2) Barr'd or not. By A6^ of After-Husband. 

I. A Wife is intitled to Dower of the Lands of her firft HOsband ; 
. jf^ her fecond Husband accepts for this Dower lefs than her third 
Part i alter the Death of this fecond Husband pe may waive it, and 
have her full third Part. Jenk. 79. pi. 56. 



(P. 3) Delayed or fufpended. In what Cafes, 

I. T N Dower Rent was granted by Fine, with Condition that when 
\_ any Heir is within Age the Rent Jhall ceafe during the Nonage^ 
and the Feme reccvered Dcwer during Nonoge, ^ Ceffet executio till the 
full Age of the Heir, noca. Br. Judgment, pi. 41. cites 24 E. 3. 61. 

2. In Dower it was agreed per Cur. that where the 'Tenant vouches 
the Heir m Ward of the King in the fame County, where the Writ is brought, 
the Demandant pall not recover till the Warranty be determined. Br. 
Dower, pi. 2. cices 3 H, 6. 17. 

3. 1 he Heir oj the Husband makes a Leafe for Years of the Land to 
the Wife ajter the Husband's Death, now during this Leafe Dower is 
fufpended. But not {o if pe has taken another Baron, and during the 
Coverture the Heir of fuch Baron makes to him and the Feme fuch Leafe for 
Years and fecond Baron dies; If Ihe waves this Leafe Dower is not 
fufpended. Jenk. 73. pl. 38. _ . 

4. A. an Husbcuid fetfed of Land held of the King by K>tight''s Ser- 
vice dies, his Heir within Age and in Ward to the King ; the King 
by Patent grants to the Widow ot A. the Wardpip of the Body and Land 
of the Heir during his Minority ; this Patent fufpends the Widow's 
Dower during the Nonage, tor her Dower and fuch a Patent are in- 
confiftent. Jenk. 73. pl. 38. 

5. A. feifedoj Lands in Fee makes a Leafe kt Years rendring Rent, 
and takes Wije i alter the Death of A. the Wife Ihall have Judgment 
to have the third Part of this Land for her Dower, zudpall have a 
third Part of the Rent ; but ceflabit executio for the Pofielfion of the 
Land during the Leale. Jenk. 73. pl. 38. 

6. Contra 



244- 



Dower. 



6 Contra tf he had touched him and prayed that he Jhould he fum- 
moned in afiother County ; For there the Demandant Jhall recover imme- 
diately; quod nota Diverlity. Br. Dower, pi. 2. cites 3 H. 6. 17. 
Roll Rep 7- Dower is demandabie againlt an I/ifant, and he Hiall not have 

Arg. 526. his Age. Cro. J. iii. pi. 8. Hill. 3 Jac. B. R. Smith v. Smith. 
S. p. 'But if _ 

great Default he in the JVife, Age fhall be allowed As if fhe does mt bring JHion in a long Time after 
the Title accrued, there if the Infant be in by Defcent, after her Title accrued, Jge lies. Arg. in 
Cafe of Harvey v. Wyatt, cites Fleta lib. 0. cap. 45. and Braft. 251. and Britt. cap. iii. fol. 217. 



(Q.) What y^B of the Baron fliall bar the Feme of 

her Dower. 

Recoveries at the Common Law. 

[And other Alienations by him.] 

I. \ T X\)t Common Law if tIjC Baron was once fo feifed that the 

/\ Wife was entitled to Dower, if IjC aftCt aUCllCn tljE laUD, 

anil a Recovery was atter had in a real Action upon another PoUeliion, 

pet his Wife fhould have had Dower. 47 C* 3- 13- !)♦ 14 ^* 4- 33- 

anmittcti pec aflTue. 

2. It a Man recovers in Val'ie againjt the Husband by a Warranty 
Atincejirel ; yet the Wife ihall be endow ed, becaufe the lame is by 
Force of the Warranty made, and not by Reafon of Eigne Tide to 
the Land. F. N. B. 150. (D) 

ft appears by 3. Weji. 2. cap. 4. 13 £. I. 'The Wife jhall be endcii^abk as "Well 
the Pream- i})here Land was recover ed againjl her Husband by Dejault as by Covin ; 
ble of this a that although the Land was loft by the Husband's Default^ yet that 
^P^^lco^^^ pall be no good Allegation Jcr the Tenant, but he miijt then prccecd and 
lery had " jhew his Rtght^ otherwife the Wife Jhall recoicr. 
been in a 

j*eal Aftion apainft the Husband, and the Hiisband did render the Land to the Demandant, that not- 
■withftanding this Recovery the Wife fhould recover her Dower. But it the Husb;iiid h.id loft by 
Default it was a Queftion and a Doubt whether in that Cafe fhe fhauld recover or no ; and fome 
ludf^es would give Judgment for the Woman, and fome were in a contrary Opinion. Here is to be 
noted that a Recovery by Reddition of the Husband, is not of fo great Account in Law as a Re- 
covery againft the Husband by Default ; but therein before this Aft this Diverfity was holden for 
Law that if in a Writ of Dower the Tenant did plead the Recovery in Bar, the E)eraandant might 
reply' Que ceo fuit per Fraud, ou per Collufion, ou per f^ree le Baron, as Britton fays, who wrore 
befor'f this Statute ; but if it were by Default without Covin, then the greater Opinion was that it 
barred the Feme, i Inft. 549. 

But the Reddition of the Husband was holden for clear Law, as it was adiudged the Year be- 
fore the makin" of this Aft, fo that the Wife was ready to maintain the Title of her Husband. 

All this is to be underftood, where he that recovers has no Right, for where he that recovered 
either by Reddition or Default had E.i}^hr. there neither the common Law nor this Statu, e extend- 
ed thereunto. 2 Inft. 550 

If the Recovery be had by Verdift, the Feme fliall not falUfy in the Point tried, but (lie nuy 
fay, that he might have pleaded a better Plea, or confefs and avoid the Recovery. 2 Inft. 550. 

4. In Dower the Tenant vouched hiw/clf to fave the Tail^ upon 
which he entered into the Warranty^ and faid^ that at another TivH his 
Father brought Writ of Right againji the Earon^ who vouched himfelf to 
fave the Tail.^ upon which the Father of the lenant faidy that the Baron 
had nothing of the Gift cf him whom he fuppofed gave., and upon this 

they 



Dower. 245 

they -juere at Iffiie, and fotifjd for the Father of this 'tenant, then De^ 
ivatidant, that the Donor did not give i3c. upon which the Father of this 
^e»a/it recovered Judgment. Haltings faid, You have not denied the 
Seilin of our Baron, nor have you averred that your Father had fuch 
Title as you allege, and (o recovered upon Dilatory, and prayed 
Dower. Parfhe faid, Your Baron and his Heirs lliall be bound by the 
Recovery, and put to Attaint. And by the Common Law every Recovery 
binds the Feme unlefs it was upon Render, and the Statute does not aid 
again ft any Recovery but Recovery by Default, in which Cafe the Title, 
which was not tried againft the Baron, Ihall be tried at the Suit of the 
Feme i but Recovery by Aftion, tried againft the Baron, is not aided 
by any Law, and prayed that Ihe be barred; and adjornatur. But by the 
Book Parkins fol. 73, 74. the Feme may falfify Recovery had againll 
her Baron by A£lion tried. But Brook fays, this is not Law in the 
fame Point which was tried &c. And the like was held Mich. 47 E. 3. 
fol. 13. that the Recovery againfl the Baron by Affion tried remained at 
the Common Law, and therefore the Feme Ihall not fallify. And by 
36 H. 6. Fitz,h. Faux. Recov. ij". a Feme may falfify Recovery by AH ion 
tried againjf her Baron in another J^oint, but not m the Point which was 
tried. Br. Dower, pi. 24. cites 49 E. 3. 23. 

5. VV'here Land is recovered againjt the Feme tenant in Dower upon Br. Reftore 
Plea, which does not dififfirm the Fofjcffion of the Baron, as where Jhe &c. pi. so. 
pleads that nothing pafjed by the Deed in Scire Facias upon Fine again/f-'^^^'^^^-Q- 
him who pleaded a Feoffment of her Baron by Deed, which pafjed agaiinji 

him, by which the other recovered againft him ; in this Cafe the Feme 
is not reftored to the Writ of Dower ; but this Matter pleaded in 
Writ of Dower is a good Bar. Br. Dower, pi. 26. cites 50 E. 

3. 7. 

6. And per Wiche, where the Baron lofes by Dilatory, as upon A'oa- S. P. Fof 

tenure ox Mifnofmer of the Vill &c. iliemay fallify in Writ of Dower. "^'* j?" 
-r.-!^ \ ^ ■ . IT not difamrtn 

Br. Dower, pi. 26. cues 50 £. 3. 7. the PoiTeffi- 

on of the 
Baron ; but contra it fecriK; upon Recovery upon Dilatory again/l the Feme herfelf being in Dower; Note a 
Diverfity. Br. Reftore &c. pi. i. cites S. C. 

7. The Husband levied a Fine of his Land and died. The Wife Dal. 107. 
within Jive Tears after his Death brought Writ oj Dower, but did not pur- P'- 58- Crave 
fue her Writ till fix Tears were pajl. Maawood and Harper J. held ^- ^''""^'i- 
this to be no Bar ; but Dyer e contra. 3 Le. 50. pi. 7 1. Trin. 15 Eliz. h°e"i'd aecord- 
C. B. Anon. ingiy. 

Mo. 55. 
pi. 154. Pafch. 5 Eli?.. Anon. S. P. Dyer thought that flie was barred becaufe flie had Title at the 
Time of the Fine levied by the Intermarriage, though it could not be executed till after the Deatfi 
of the Baron; And the Reporter fays, that a Precedent was fhewn Anno 6 H. 8. where all the 

Matter was j^leaded. Dal. 52. pi 21. S C. in totidem Verbis D. 224. a. pi. 2S. 

Damport v. Wright, S P. and feems to be S. C. Ibid. Marg fays it was to adjudged Mich. 

:;i & 52 Eliz. C. B. and that it was aifo agreed Pafch. ^4 Eliz. per Cur. She is barred by 

Fine and Nonclaim ^n five Years after her Husband's Death. 2 Rep. 95. a cites it as adjudged 4 H. 

8. S P. Arg. 2 Koll Rep. 69 cites 1 5 Eliz. Paine's Cafe. S. P. if fhe he of full Age, 

found Memory, out of Prilbn, and within the four Seas. Gouldsb. 148. pi. 71. Hill. 45 Eliz. 

,^non Aid bunging a Writ of Dower within the five Years is no Bar to fuch Fine unlefs 

the Return of the Writ be pleaded. 2 Le. 221. pi. 296. Hill. 50 Eliz. C. B. Fitzhugh's Cafe. ■ . 

If fhe brings a Wnx. wnhin the five Years againji one not Tenant of the Land, that is not any Claim 
within the Statute, but if fhe bri g a Writ againft four that are 'Tenants, and two die, and fhe brings 
a Writ againft the others by Journeys Accounts this is a good Claim within the Statute, though the 

fecond Writ was after the Time limiied ; Per Hobert Ch. J. Win. 66. Anne Summer's Cafe. ■ • 

But Qiijere here it the two that died were not Tenants. Ibid. 

«. 4 y 5 7F. y y^/, 16. this A[l jhall not extend to bar any Widow of 
any Mortgagor from her Dower, who did not kgally join with her Hus- 
band m fuch Mortgage, or othsrwife lawfully exclude hsr!elf. 

Kit (Q^z) 



246 Dower. 



(Q. 2) Barred. By A<9:s of Baron and Feme. 

I. T N Dower the Tenant faid^ that he himfelf levied a Fine to the Feme^ 
Y_ tiow Demandant ^ and to her Baron come ceu que &c. and that 
the fame Femt and her Baron granted and rendered it again to the Tenant 
•with Warranty of the Feme, and the Feme faid, that Jbe had nothing but 
as Feme, and therefore was admitted no Bar j quod miror, by Reafoa 
of the Render and Warranty of the Feme himfelf, tit. Dower in Fitzh. 
160. and 165. M. 19E. 2. and 145. M.6. E. 2. Fine upon Conufancede 
Droit come ceo que &c. by the Baron and Feme , quod mirum ! 
For this is a Gift by Collufion. But otherwife it is of a Fine fur Rikafei 
For the Tit/e of the Feme does not take Place till the Baron ts dead, and fb 
a Releafe of later Time, and therefore there fhe may conkfs and avoid 
the Fine. Br. Dower, pi. 77. cites 13 E. 2. 

2. Jointure was made after the Coverture, the Husband and Wife 
levied a Fine Sur Conufance de Droit &c of the Jointure, it feems clear, 
if it be as that which the Conufee had of the Gtft of the Husband, that 
is no Bar in Dower ; and the Eleftion is not given to the Wile till 
after the Death of the Husband, according to the Stat. 27 H. 8. c. lo. 
D. 3j8. b. pi. 49- Trin. 19 Elii. Anon, 
* S.P. Tho' 3. Feme barred of her Dower by joining in a * common Recovery with 
file has no ^j^j^ ^gj- Baron. PI. C. 115. 20 Eliz,. Eare v. Snow. 

Eecompence 

Pig. ot Recov. 66. cites PI. C. 514 and 2 Rep. 74. 78. and fays, He has heard fome learned Men 
queftion this, becaufe flie has no Efiate then inejji, but he lays with Submiffion, the fame may be faid 
aeaintt a Fine, and the ccmmon Recovery eftops her as Party, and the Recovery difaffirms her.Hus- 

band's Titles to the Lands of which {he was dowable. So by a Fine though the Ufej were 

declared by the Husband only- Ow. 6. Trin. aS Eiii. C. B. Kamington v. Rider. 

4. If a Woman has Title of Dower and by Covin caufes the Tenant of 
the Land to be diffeijfed by a Stranger, againfi whom floe brings a Writ of 
DoweTy and the Feme recovers, yet this is void, and fhe is not remit- 
ted. 3 Rep. 78. a. Hiir. 44 Eliz. in Cane, in Fermor's Cafe. 

5. It Baron and Feme levy a Fine the Feme is barred of her Dower i 
Per Coke Ch. J. in a Nota fays, that it is fo without Queltion now. 
10 Rep. 49. b. Mich lo Jac. in Lampet's Cafe. 

6 Fine levied by Feme Covert to confirm a Leafe is no Bar of her 
Thirds after the Leafe fatisjjed by the Profits. Chan. Rep. 132. ij; 
Car. I. Naylor v. Baldwin. 

7 Feme joined with her Husband in a Fine in order to make a Mort- 
gage, but which never was made. He died, and fhe brought Dower, 
•End got Judgment by Default, and the Heir could not be relieved j 
For though it was a Bar at Law, it was not lo in Equity. Ch. Prec. 
34. Mich. 169 1, cites it as Danby'a Cafe. 



(0.3) 



Dower. 24.7 



(Q. 3) Bar. By what Eftate, Grant &c. 

J "VTOTE that the Lady of M. was in Chancery to he endowed of tha 
±_y^ Land of her Baron, where the Heir is in Ward otthe King ; 
and becaul'e the H^'ard of the Land and Body of the Heir was committed to 
her before by Patent of the King^ in which no Exception of Dower was 
tnade, therefore ihe was oulted of Dower during the Nonage. Br. 
Dower, pi. 27. cites 2 H. 4. 7. and 11 H. 4, accordingly, in the Cafe 
of the Lady Arundel, as it is faid there. 

2. A Man granted a Rent of 10 /. to a Fern percipiend' de terris fais 
pro tota dote fua de terris fitiSy and after he married her^ and then died^ 
and aiter Jbe accepted the Rent, and then brought IVrit of Dower ; Qusere 
if the Acceptance of the Rent be a Bar in Dower, as Dowment ad 
Ollium Ecclelis, or ex Alfenfu Patris j For the Acceptance is Recom- 
penci. ^'.ccre. Br. Dower, pi. 97. cites 20 E. 4. 3. 

3. Entry into Part of the Land after the laji Continuance by the De- 
mandant will abate the IVrit of Dower ; And it is no Jultification to 
fay that her Husband and ihe dwelt there till his Death, and that the 
Heir entered, and Ihe and the Heir dwelt there together till now, and 
that llie claimed at the Wtll of the Heir, and not ottierwife j But it was 
held not good for the Quarantine j For ihe fhould ihew the Death 
certain, and the Time ot the 40 Days, and after^ by reafon of the 
Opinion ot the Court, ihe waived the Plea, and travericd the Entry. 
D. 76. b. pi. 32, 33. Mich. 6 E. 6. Kettleby v. Kettleby. 

4. But in Scire Facias to have Execution of Dower recovered, fuch 
£ntry was no Plea. Ibid, cites 45 E. 3. 

4. A Feoffment was made by the Baron to the life of himfelf for Life^ 
and after to the Feme for Life for her Dower ^ upon Condition to perform 

' his laji Will. She entered and agreed thereto, and afterwards brought 
Dower. It was refolved, that an Acceptance of a Collateral Recom- 
pence was no Bar to the Feme of her Dower. 4 Rep. i. Mich. 14 & 
15 Eliz. Vernon's Caft. 

5. Ftme fole Lefjee marries the Leffor, and the Leffor dies within the 
^erm, and the VV^ife enters, this Ihall not conclude her Dower after 
the Leafe is expired i Arg. Ow. 154. per Shuttleworth, Trin. 29Eliz. 
in Cafe of Goodridge v. Watburton, cites 11 H. 4. 

6. A Widow recovered Dower, and upon Writ to the Sheriff to put her 
in Pojfejson, he returned that he had delivered 84 Acres mentioned in the 
Writ. Sije brought Scire Facias againji the Tenant, fuggejiing that 60 
jicres of the faid 84 were the Lands of a Stranger not comprtfed m the Re- 
cord, and fo intended to have a new Divilion. The Tenant pleaded, . 
that the other 24 Acres were Parcel of the Land recovered, and that 
Ihe had entered and accepted the fame. Adjudged a good Bar by her 
Acceptance and Entry into the 24 Acres, though lefs in Quantity than 
the third Part of all in the Record. Mo. 679. pi. 928. Mich. 44 & 45 
Eliz. C. B. Anoa. 

7. Dower ad OJlittm Ecclejia, or ex AJfenfu Patris, being affented 
unto, is a Bar of Dower at :he Common Law ; But a Jointure was no 
Bar of her Dower at the Common Law. Co. Lite. 36. a. b. 

8. Kn AJffgnment of other Land whereof pe is not dowable, or of a 
Rent ifiuing out of the fame, is no Bar of Dower. Co. Litt, 34. b. 

9. An Eltate made by way of jointure to the Wife for Life, or Lives 
of one or many others^ or to her for 100 Tcars^ or looo I'earsy if fhe live 



24 



8 Dower. 



10 lotig^ or -<xtthoia juch Lnnitation^ is no Bar of her Dower, though 
ihey be exprelsly made ia Satistaclion ot' her Dower. Co. Lkc. 

36. b. 

10. UanEfiatehe made 10 others in Fee-Jtiiipk, or for her Life^ upoft 
Triijl^ fo as the hjiate remains in them, albeit it be for her Beneiic, and 
by her Conlent, and by expreis W^ords to be in full Satisl'adion ol' her 
Dower, yet this is no Bar ut her Dower. Co. Lite. 36. b. 

11. A Devife by Will cannot be averred to be in Satisfaction of her 
Dower, unlefs it be fo exprejfed in the VV^ill. Co. Litt. 36. h. 

12. A. purchafed in hts own and his Son's Name, (who furvived A.) 
The Vendor was only Tenant for Lije, hut gave Security that his Heir 

fljould convey the Fte when of Age. A. died before the Conveyance was 
executed, lo that he never was feifed in Fee. Decreed her Title to ic 
to be difcharged, and an Jccotint of the Projits &c. Ihe having enjoyed 
it 12 Years ; But though Ihe had enjoyed a Jointure for feveral V^ears 
of Lands evi^ed Irom her, yet the Court would not impeach her Title 
as to other Lands. Fin. R. 368. Trin. 30 Car. 2. Exton & al' v. St. 
John & al'. 
Ibid. "59. 13. -4 Terra and an old Statute -was kept on Foot to proteff a Purchafey 

Marg. is a and attend the Inheritance. The Widow recovered Dower at Law, 
Note, that it i^m ^2s prevented irom taking out Execution by reafon of the Term 
^ai(kdTr- ^^^ Statute whereupon fhe brought her Bill to be let into Polleffion of 
rn^lTed, arid her Thirds. The Court inclined to relieve the Plaintiff, in regard of 
that the De- the equitable Circumltances of a great Portion and the Purchafe at an 
cree of Dif- under Value, and relerred to the Malter to examine, and ftate the Cafe 
aTSwards' to the Court. Ycrn. 356. pi. 353- HiH- 1685. Bodmyn v. Vande- 
affirmcd up- bendy. 

on an Appeal 

to the Houfe of Lords, and eitesCares in Parliament 69. 2 Chan. Cafes 172 S.C. but no De- 
cree. S. P. by Ld. Somers, Ch. Prec 66. pi. 60 Mich. 1696. decreed. Radnor, (Lady) v. Ro- 

theram and affirmed in Dom. Proc. But it there had been any Agreement to have had the Be" 

nefit of it, it would have done it. Cired per Ld. Somers. Ch. Prec. 66. as the Cafe ot Barker v. Fouke. 

Ch. Prec. 6g. July 1671. Pheafant v. Pheafant, S. P. (though not againft a Purehafor) in 

which the Wi'e had recovered at Law the third Part of a Pepper-Corn, being the Rent referved 
upon the Term afligned, upon which the brought her Bill in Equity, and after feveral Argument.s be 
fore Ld. K. Bridgmaa, and Hale, and Vaughan Ch. Jultices, the Cafe was amicably compofed, and 
fo no Judgment was given. S. C. Chan. Cales 181. S.C. cited Vern. 35S. 

Ibid, in a 15. The Defendant's Husband had devifed to her feveral Parts of his 

Nota there, Jifl^ts^ altogether of better Value than her Dower, and had devifed thac 
[hlsVa'^ufe the Profits of all the Reft of his Eftate for Years Ihould be applied for 
being heard Payment of Debts and Legacies, but did not mention that he intended it\ 
before Ld. ;« Satisfaiiion of her Dower. The Defendant fued at Law and recover-' 
Keeper ^^ ^^ Law, though they did plead the VVill, and averred that it wa* 
Kov^noz'^ in Satisfaftion ot" Dower ; but the Court there was of Opinion, 
he°reverfed that no fuch Averment could have been admitted, unlefs it had been 
the Decree, fo declared in the Will. The PlainciiF being Heir at Law, preferred 
— 2 Vern. j^jg ^\i\ jq be relieved, and he was relieved i lor although it is not de- 
g^^- P'^^'^^7^ clared in the Will to be in Satisfaftion ol Dower, yet here is thac 
accordingly which IS tantamount ; for where he appoints the Profits ot all the 
by Ld. C. reft of his Eftate for other Purpofes, it is plain he never intended ihe 
Sommers, fhould have her Dower ; and in Cale Ifie were admitted to her Dow er, 
tT'^Ld^K*'^'^ thofe Purpofes would be deteaced, and what appears to be the plain 
Wright. — Intent of a Will by Conftru£tion is all one as though it had been 
Equ.Abr. exprefled. 2 Freera. Rep. 234, 23;. pi. 306. Mich. 16^99. Lawrence 

218,219. V. Lawrence, 
pi. 2. 

S. C. accordingly, but adds, thatthe Decree of Reverfal was affirmed in the Houfe of Lords, 17 May, 
i-ji^—S Coited perCur.9 Mod 162. Trin. 11 Geo. in Cane, as fo held in the Houfe of Lords, Anno 
I -17, and add.s, That it )'< true this Court has gone fo far as to confine a Widow to her Elciiion 
•which to take, where a Term for Years was fettled on her in Joiniure in Bar ot her Dower, iho' 

no 



Dower. 



249 



no Cliattcl latei-eft can bar hci- Dower at Law, or within the Statute ; but in regard flie exprefsly 
confented to accept fuch an Intereft for her Jointure, this Court would not admit her to have 
Both. 

14. In Ejeftinent, the Plaintiff made Tide by Recovery in Dower- 
and produced in Evidence the Record of the Judgment, the Hab. Fac! 
Seifinam &c. The Defendant offered to prove « 99 J'ears ferni fuOJiJiing 
prior to this 7'itie, but it was difallowed ; For if he had pleaded this in 
Ear of the Writ of Dower, yet the Plaintiff muft have recovered with 
a QJfet Executio, and the Defendant had a proper Time to have plead- 
ed it then, and has Hipped his Opportunity ; Beiides, a Chattel Inte- 
relt was at Common Law bound by a Recovery in a Real A6lion Co 
that the Demandant had an immediate Execution without Regard to 
the fublifting Term, i Salk. 291. Mich. 8 Anns, B. R. Lady Lind- 
fey v, Lindley. 

IS- Devife of Lands durante Viduitate is no Bar of Dower. MS. Tab. 
Alay 1 6th 1717. Lawrence v. Lawrence. 

16. No Cbattle Intereft can barr Dower at Law or within the Statute See 2 Vcrnj 
but where a Term tor V^ears was fettled in Jointure in Bar of Dower 4°3- Hil- 
in regard that flie expr.fsly confented to accept fuch an Intereft tor her "^'^■'"^ ^' 
Jointure, Chance-ry put her to her Ekifion whether to take Dower or ^'''^^^"^■ 
that Jointure, but would not admit her to have both. Per Cur. 9 

Mod. 152. Trin. 11 Geo. Charles v. Andrewes. 

17. 'tenant (or Ltje makes a Leafe to Remanider-mdn for fo many Tears 
as the Remainder-man Jhoidd live. It was adjudg'd that his Wife fliould 
not be Tenant in Dower i For the Poiiibiiuy the Tenant for Life had 
that the Eftate might revert to him had barred her of all Right of 
Dowef. Per Cur. 9 Mod. 151. cites i E. 3. 14, 15. 

18. K Feme Infant havifig a Jointure made to her bejore Marriage may 
ele£l to abide by it or not when of Age, unlefs after her coming of Age 
Ihe enters. Account was direfted of the Real Eftate, and after taking 
thereof Jhe to ele6l Jointure or Dower. MS. Rep. 14 May 1734, at 
the Rolls. Cray v. Willis. 



(Q. 4) Ear. By what Satisfa6i:ion or Acceptance. 

*■ "D -^-^^ i'"'^''^^'^^"^ of the very Land recovered in Dower in Re- 
JX compence of all the Dower may be pleaded ia Bar, but not if 
it was granted out of other Land. D. 91. a. pi. 12. Mich, i Mar. 
Turney v. Sturges. 

2. In Dower acceptance of zo Acres of Corn daring Life is a good Bar, Mo 50 ps 
and fo of Rent, but otherwife of a Horfe^ and fuch like which does not 167' Trin.' 
arife out oj the Land. D. 91. b. Marg. cites 6 Eliz. 6Elii.Anon, 

3. If Demandant in Dower accepted the Land ajtgn'd ly the Sheriff., ^ ^' 
Ihe cannot in another Term pray 2.new Execution. Cro. E. 310. in 
Cafe of Hanger v. Fry. 

4._ If fhe accepts of 24 Acres for her thirds ofB^ and enters into them. 
She IS Barr'd as to any more. Mo. 679. pi. 928. Mich. 44 & 45 Eiiz. 
C. B. Anon. 

5. Dcrwer in Ireland will be good in Bar of Dower in England So i>owcr 
Arg. Cart, 187. Pafch. 19 Car. 2, C. B. inWaks 

in England. Jenk. 41. pi. 78. cites 17 E. 3. Fitih. Voucher 112. itf E. 5. Parch^.''^^""'"" 

S f f €. Accepcanee 



^o 



Dower. 



Per Sommer<; 6. Acceptance of a Ccollateral Satisfalrion for Dower is no Bar of 
C a Collate- £)o^yer_ i Ghan. Cafes 182. by Ld. Keeper. Trip. 22 Car. 2. Phea- 
tTj,fmafbe ^^^^^ ^- Pheafanc, and cites 4 Rep. i. b. Vernon's Cafe, 
a good Bar 




7. Nothing but a plain andexprefs Intention of the Parties fliall bar the 
Right of Dower i as where a Settlement was made in Confideration 
ot a Portion in Marriage ; but it did not appear that the Parties intend- 
ed it Ihould be in Bar ot Dower. 9 Mod. 152. cited per Cur. Trin. 
II Geo. in Cane, as fo held Anno 1717 in the Houfe ot Lords. 
Lawrence v. Lawrence. 



((^ 5) Bar. By What Offence of the Baron. 

I. T F the Baron he outlawed in Trefpafs after Dijfei/m, and after has 
JJL Charter of Pardon^ his Feme ihall be endowed i Contra after 
Outlawry of Felony, Br. Dower, pi. 82. cites 13 E, 3. and Fitzh. 
Utkrie 49. 

2. A Man feifed of Land fliall forfeit it by Felony^ and by the At' 
tainderoi him the Feme Ihalllofe her Dower. Br. Forteiture de terres', 
78. cites 21 E 3. 49. 

3. It a. Man fetfed in Fee commits Felony y and after makes a Feoffinent 
and dies and ajter ts attainted, the Feme of him fhall be endowed 
againft the Feofieej Contra againft the Lord by Efcheat. Br. Dower, 
pi. 80. cites Litt. fbl. 9. Per Vavitbr. 

, "4. lithQ Baron be attainted of Felony, zn6i gets Charter of Pardon and 

after dies, yet the Feme fhall not have Dower of the Land which he 
had before the Pardon. Br Efcheat, pi. 27. cites F. N. B. tit. Dower. 

5. Contra if the Land which he gets after the Pardon ; For the firft 
Land fl-iall Efcheat. Br. Eicheat, pi. 27, cites F. N. B. tit. Dower. 

6. So it feems of Land which he piirchafes, or which defcends to him 
, Mefne between the Attainder and the Pardon. Br. Efcheat, pi. 27. cites 

F. N. B. tit. Dower. 

7. The Husband's being a Felo de fe is no Bar to the Feme of her 
Dower ; Agreed by all the Juitices. PI. C. 261. b. Mich. 4 & 5 Eliz, 
in Cafe of Hales v. Pettit, cites 3 E. 3. Fitzh.Corone 362. 

The Feme 8. Stat, i E. 6. cap. 12.. S. 12. The IVtfe ^all be endowed although her 
ot one at- Hiisband were attainted. conviHed. or outlawed for Treafon or Felony, fav- 
tainted of • ,, n- ;. .< ♦i, 

Murderer iHg the Right oj Others. 

Felony 

fhouldnotby the Common Law before the Stature I E ^. 12. have Dower againft the Feoffee of 

her Baron, though the Feoffment was made before the Felony or Murder done ; but othei wite fince the 

Statute. Bendl. 56. pi. 91. Marg Mich 5 & 4 P & M. Gate v. Wifeman, citesDal. 140 b. pi. 42. 

Hill. 5 P. & M the S. C. the Demandant was barred by the Opinion of all the Juitices. Le. 5. 

pi. 7. S. C. cited by Manwood Ch. B. as rdblved by all the jullices ot England. Co. 

Liit. 41. a. cites S. C. refolved, and relblved there alfo that lb it was at Common Law in 

Cafe of Felony, but as to Felony the fame is altered by Statute. Le. ;. pi. 7 Mich. 

25 & 26 Elii. in the Exchequer, Maytiey's Cafe, S. P. in Cafe of Treafon ; and Manwood Ch. S. 
faid, that by reafon ot this Attainder Dower cannot accrue to the Wife, for her Title begins by the 
Intermarriage, and ought to continue and be confummated by the Death ot the Husband, which can- 
not he in this Cafe ; tor the Attainder of the Hosband has interrupted it as in theCaie of Elopement ; 
and this Attainder is an univerfal Eftoppel, and doth not run in Privity only betwixt the Wife and 
4iim to whom the Efcheat belong.', but every Stranger may bar her of her Dower by reafon thereof ; 

for 



Dower. 251 



for by the Attainder of her Husband tlie Wife is difabled to demand Dower as well as to demaud his 
Inheritance. . . 

But if the Heir reveffe tie Jttainder by Writ of Error then the Wife fnall be endowed, and 
fliou^h before the Trealbn committed the Baron had levied a Fine, and five Years had paffed before 
the Keverfal, yet Ihe fliall have her Dower, for during the Attainder flie could not claim, and the 
Aftion and Right of Dower accrued to her after Revedal of the Attainder by rcaibn of a Title ot 
Record before the Fine by the Seifin in Fee and the Marriage. 15 Kcp. 19 Hill. 27 Eliz. in Cane. 

Ninian MenviU'sCafe. Mo 659. S. C. • S. C. cited per Coke Ch. J. as Relblvcd 5 lor 

fhe had no Means ot Reverlal. 2 Bulft. 24^. 

A Man feifed of Lur.d in general 'Tail takes Wife and after is attainted of Feleny, before the faiJ 
Statute I E. 0. the HTue fhould have inherited, and yet the Wife fhould not have been endowed ; for 
rlie Statute of W. 2. cap. l. relieves the liVue in Tail, hut not the Wife in that Cafe, but at this 
Dav it the Husband be attainted of Felony the Wife fliall be endowed, and yet the Ifl'uc thai! not 
inherit the Lard^ which the Father had in' Fee Simple. Co. Litt. 40. b. 

It was otherwife at the Common Law. Co. Litt. 41.3. for then fhe fliould not have recovered her 
Dower ad Oftium Ecclefia:, or Ex affenfu Patris, any more than her reafonable Dower which the 
Common Law gave her. But this did not extend to Petty Larceny. Ibid. 

9. But note that this Claafe is altered for Treafon * by 5 E. 6. cap. * This cx- 

II. ly. 13. ai.'d ep.ifis^ that inftich Cafe floe (loall lofe her Dower fo long as p"^*^* ^^^^_ 

the Attainder centinues tu Force. as well as 

High Trea- 
lbn. Co. Litt. 57. a. 

10. iS Eliz. cap. I. ivhkh tnakes it Treafon to dimini/h, falj/fy^c. the 
Monies of this Reatm^ provides that it pall not make the V/ije to lofe her 
Dower. 

11. The Wife of one attainted of Felony or Irefpafs.^ or Herefy., or 
Frxmunire &c. Ihall be indowed. Co. Lice. 3 1. a. 

12. The Wile of a Man attainted ot High I'reafon or Petit Treafon 
fliall not be received to demand Dower unlels it be in certain Cafes 
fpecially provided lor. But the Wife of a Perfon attainted of yl/z/]?r/- 
Jion of Ireafon^ Alurder, or Felony^ is dowable lince our Author wrote, 

by the Statute in that Cafe made and provided, which is more favour- 
able to the Woman than the Common Law was. Co. Litt. 392. b. 

13. Tenant of a Copyhold for Ltfe^ in which the Ctifiom was that the 
Wifepoiild have her Widow's Eftate, and the Husband was attaint ot' 
Felony and executed, and whether the Wife in this Cafe fhali have 
the Widow's Ellare, was the Queftion upon the Demurrer ; Winch be- 
ino' only prelenc feemed that Jhe fliould not without a fpecial Cuitom. 
Win. 27. Hill 19 Jac. Allen v. Brach. 

14. 21 Jac. I. ca^. 26 S. 2. It is Felony without Benefit of Clergy to ac- 
knowledge.^ or procure to be acknowledged any Fine, Recovery, Deed inrolled. 
Statute Recognizance.^ Rail or Judgment in the Name of any Perfon not 
privy or confenting thereto., howbeit this Offence fliall not take away 
Dower. 



(Q. 6) Barred ; By what A6i: or Offence of the 

Feme. 



I. T F Feme, 'fen ant of the King, takes a Grant of the Ward of the 
j[^ Heir during his Nonage, and does not accept her Dower, this n a 
Bar in Dower pro Tempore &c, Br. Executions, pi. 57. cites 24 E. 
3- 39- 

PJ. If 



2^2 Dower. 

C<i, Litt, 2. It a Man be felftd ot Lands ia Fee, and takes a Wife, and afcer- 

i3- a- S. P. warjy the Feu/e is attainted of Felony^ and atcer the Husband aliens, and 

afterwards the Fejjie is pardoned, and then Husband dies, the Feme 

fhall be endowed. 13 Rep. 23. Hill. 27 Eliz,. in Cane, in Ninian 

Men V ill's Cafe. 

3. The Statute of 11 & 12 W. 3. [cap. 4. S. 4.] enafts. That no 
Papill [or Perfon making ProtelTion of the Popiih Religion] fliall pur- 
chafe any Manors, Lands, or Terms, [Hereditaments] &c. It was faid 
by the Lord Chancellor, that in this Cafe a Purchafa muft be made 
by the Aft of the Party in the Way of Grant or Conveyance, or at 
leall by Will, but in Cafe of one dying Inteftate it is the Acl of the 
Law. 3 Wms.'sRep. 48, 49. Trin. 1730. in Cafe of Davers v. Dewes, 
whence the Reporter inters, that tor the fame Reafon it lliould feem 
that a Papijt is capable of taking as Tenant by the Curtefy or in Dower. 



Co. Litt. 52. I 
a. S. P. 



(R) What j4^ hi Law will bar the Wife of 

her Dower. 

Divorce. 

If tlje DilJOtCe IJC Caufa Preconrraaus, tljC JJBlfC fljaU ItOt IjalJC 
DotDcr* 47 ^0. 3- pl* 78* 

Co. Litt. 52. 2. So If It be caufa Confangumuatis. 47 C- 3* pl 1^- 
a. S. P 

Co Litt -2 3- So if it be Caufa Affinitatis. 47 c. 3- pU 78. 

a.S p. * ' ■ 4. So if it be Caufa Frigidltatls. 47 (£* 3. pi, 78. 

5. But if It be Caufa Proteffionis tije i©ife fljail be enootuen* 47 
C* 3- pt* 78 

Batittsfaid, 6. If a IJ^OUtaU te endowed ad Oflium Ecclelias, yet fi Matrimoni- 
thatifthe y^ ;„ Vita contrahentium aCCUfatUltt $ diflblutum lit quacunque 
AE^nment ^^^^^^^^ definit efle Dos, cum deficiat ivlatrimonium, f Defintt DUtljS 

adoj.l Cractio, Q5tarton, lib* 2. jfol* 92- %* 4- ano Lib* 4- ifot 304. 

fpecified, vii I'hat nottuithfi anding any Divorce fliall happen, yet flie fhall hold it for her Life, that 
this is good. Co. Litt. 32. a. ad finem. 

Adjadg'd no 7. Divorce a Menfa ^ Thoro only, as for Adultery, feems to be no 

Bar. Co. Bar of Dower. Co. Litt. 32. a. 
Litt. 35. b. 



(S) In fwhat Cafes Ajftgnment of Dower is ne- 

ceflary. 

E. T jf a t©Onian recovers Dower of Land, flie cannot enter before 
X Execution is fued. 40 (S, 3. 22. 45 <£. 3- 5- b* 

2. %\iz fame latD is tubcce tbe Eecoijec)) iis of a Rent. 40 e. 3. 
22. pet t&ece it iia cettain enougD* 

3. In 



Dower. 



253 



3. In Dower, -the Tenant pleaded Recovery by himfelf agatnfi the Baron 
in jd[]}fi:^ mid the Demandant [aid that the Baron was feifed after Cover- 
ture, and infeojU'ed the Tenant., and after diffetfed him and recovered by Af- 
ftfe i Judgment it'Dower, and fo confclied and avoided him. Br. Con- 
iels and Avoid, pi. 12. cites 14 H. 4 33. 

5. ii there be Lord and a Woman Tenant by Fealty, and 3 s. Rent, and 
they intermarry, and the Zorrt^ dies, the Wife Ihall have 12 d. ot the 
Rent tor her Dower of the Seigniory by way of Retainer &c. with' 
out any manner ot AlTignment made by any Perfon &c. Perk. S. 417. 

6. Jt'a Alan endows his H'tje adO/httm Ecckfta, he then openly de- 
clares the Quantity and Certainty of the Land which ilie Ihall have 
for her Dower ; and in fuch Cafe the Wile, alter the Death of the 
Husband, ;//^' fwr^r into the Land of which Ihe was endowed, without 
other A[jignmcnt. Litt. S. 39. 

7. If a Woman brings a Writ of Dower of 61. Rent-charge, and Ihe Co. Litt. 57: 
has Judgment to recover the third Part, although it be certain thata- h. S. P. 
he ll:ali have 40 s. yet ihe cannot dijiram for 40 j. before the Sheriff de-^Y''-^ ^^^ 
liver the fame unto her ; For wherefoever the Writ demands Land,Dower°isof 
Rent, or other Things in certain, there the Demandant after the ■> s. Rent, 
Judgment may enter or diftrain before any Seifin delivered unto him^ — Peik. S, 
by the Sheriff upon a Writ of Habere Facias Seilinam ; But in Dower,^^^- ^.^■ 
v^heiQ the IVrit demands nothing in certain, there the Demandant alter ^'^'^°"^'"^^* 
Judgment cannot enter or diitrain until Execution fued, by which Ex- 
ecution the Sheriff is by the King's Writ to deliver a third Part in 
Certainty to the Demandant. Co. Litt. 34. b. 

8. So when the Wife of one Tenant in Common demands a third Part Co. 'U.rx.%']. 
of a Moiety, yet after Judgment fhe cannot enter until the SheritFdeli-b. S. P. 
ver to her the third Part, although the Delivery of the Sheriff ihall 

reduce it to no more Certainty than it was. Co. Litt. 34. b. 

9. Where it appears in certain what Lands or Tenements the Wife 
(l.all have tbr her iJower, As in Cafe of an Endowment Ad Ofiium Ec- 
clejia, or Ex Affenfa Patns, the Wife may enter without Allignmenc 
of any j But where the Certainty appears not, as to be endowed of the 
third Part to have in Severalty, or the Moiety, according to the Cuf- 
tom to hold in Severalty, Dower mult be alfigned to her after the 
Death of the Husband, becaufe it does not appear before Affignment 
■what Part of the Lands or Tenements flie Ihall have for her Dower. 
Litt. S. 43. and Co. Lite. 37. a. 



T t t (T) mat 



254- 



Dower. 



(T) frhat Perjofis may njftgn Dower of Com- 
mon Right. 

[And againft whom a Writ of Dower lies for a 
Collateral Refpe£i'.] 



A^ 



m Infant mx^ aflign Doiuct in pa(0, bccaufe ije 10 compel^ 
, lablebpi©nt» 

Before the 2. [But] ail Jilfant in W^ard cannot afllljn DOtDCt of the Land in 

chi'vai>7 en- ^""'^^ ^^^ tlj£l9ix)uQicc tljot uiap couie to tl)c lotD tijercbp. 9 Jl)» 

ter, the 6. 6. b» 

Heir within 

/\f;e may adign Dower, for the Guardian maywaive the Wardfliip ; But there needs neither Livery ot 
Seifin, nor Writing to any AflTignmentof Dower, becaufe it is due of Common Right. Co. Litt. 35. a. 

Co Litt. 59. 3. Guardian in Chivalry map EHtJOUl IjCC* 9 JX 6. 6. !)♦ 24. b* 

a S P. ot 

the Lands and Tenements which he hath in Ward. Ibid. ^5. a. S P Anno 9 H. 5, 

T)o\itr \f)']. h Mau of the Jge of 1% Years took a Wife, and iy Jffent of hh Guardian endowed her, 
/id Of turn Eccleftc, ard it was adjudged a good Endowment, ahhough the Husband died before the 
Age of 21 Years. Co Litt 34 a. 

Co Litt. 35. 4. ^iiU a Writ of Dower lies againll Guardian in Chivalry. 47 

^- ^- ^- M, 5 pec ifindjneu* 

If a Man be 5. J|f fl Husband hath a Ward in the Right of his Wife as Guardian 
yoffeiTcd ot jj, Chivalry, a Writ Of DOUJEC lies againll the Husband, without 

'iiip^t «;. "aming the Wife. 47 M, 5- w if Incijoen* 

tain Land, 

either jointly with his Wife, or in the Right of his Wife, yet the Writ of Dower lies againfl the 

Husband only. Co. Litt. 38. b. 

O^^A-^'^ 6. 3 Writ of 2I)0ltl£C does not lie againll Guardian i;i Soccage. 

^J^lj^ 29 m. 68. 

Co. Litt. 35. 7. 3 Guardian in Soccage cannot affign DOiUCr* 29 Slfl^ 68. 15Ut 

For no Af- 

fienment can be made but by fuch as have a Freehold or again ft whom a Writ of Dowerdoes 

lie. Co. Litt. 35- ^■ 

Though the 8. The King committed the Wardfhip during the Nonage of i;he 
King does Infant; and whether the Co?«?«/«fe might alfign Dower fo as to bind 
cSyoi himielf, Kelw. * 112. dubitatur. 

the Land 

to another, yet he m.iy aflign Dower to the Wife in Chancery, and fhe fliall have a Writ to the 

Efcheator to deliver the Land to her, F N. B. 263. (D) . Ibid, in the new Notes there (b.) 

cites Kelw. 133. that it feems the Committee cannot atfign Dower j but fays Quaere tamen, if it be 
not good till the Heir fues hi.s Livery. 
* ThisisatFol. 133. b pi. 112. Cafus incerti Temporis. 

9. If a Wofnan Guardian in Socage bring a Writ of Dower againll the 
Heir, it is no Plea for the Heir to Jay ^ that floe ts Guardian in Socage 
and may endow herfelf &c. Perk. S. 452. 

10. yf«^ (/ a Woman Guardian in Socage bring a Writ of Dower 
figainji the Feoffee of the Husband with Warranty, the Feoffee cannot fhew 

the 



Dower. 2^^ 



the fpecial Matter, and pray that the Court would award that jhe may 
eiidozv terfe/f ot the Faireil Part &c. becaule that the FeoH'ee may vouch 
the Heir. But the Guardian in Knights Service may fo do &c. Perk. 
S. 453. 

11. As concerning Dower at the Common Law, there muft be an 
Affignmcnt either /y the Sheriff' hy the Kings Writ, or ellc by the Heir 
or Tenant of the Land by Confent or Agreement between them. Co. 
Litt. 34. b. 

12. An Endowment Ex ajfenfn Matris is as good as Ex aflenfu Pa- 
tris i becaufe there is an Appearance of a conllant and perpetual Heir. 
Co. Litt. 35. b. 

13. It is held in the 2 H. 3. Dower 199. That if the Heir apparent 
be within Jge, yet the Endowment JJfenfu Patris n good. Note, that 
Littleton in the Cilc of Dower Ad Oltium Ecclelise doth put the HuC- 
band of tuU AgCi But here of the Dower £x Affenfu Patris he fpeaks 
generally. Co. Litt. 35. b. 

14 The Lvfd^ ot' whom the Land is held in Chivalry, is not poflelTed 
as a Guardian againlt whom a Writ of Dower lies until he enters; Of 
the W'ardlhip ol the Body he is polleired before Seilure, becaufe it is 
Tranhtory. But he is not pojjejjcd of the Lands until he enters. Becaufe 
it is permanent, and therejore if he does not enter, the Heir within ylge 
may ajftgn Dower. Co. Litt. 38. a, b. 



(U) [Affignment] 

of "what Things it may be. 

[Or what llie Ihall be intitled to,] 

1. T jf X\yZ HBlTC recovers Dower of a Rent, fl)g fhall not have the 
X Rent incurred before Judgment, nor alter Judgment before 
Execution. 40 (£♦ 3. 22, 

2. If the Husband fows the Ground and dies, the Property of the 
Corn is in the Executors but fubje£l to this Condition, that if the Heir 
alfigns to her the Land fown for her Dower Ihe fhall have the Corn ; 
For Ihe Ihall be in de optima PoiTeffione above the Title of the Execu- 
tors. 2 Inll. 8 1 . 



(U. 2) In what Cafes fhe has Ele6iion to be endowed 
of one Thing, or another, or of Both. 

I. ^Ometimes the Wife may chufe to be endowed of one Land, or 
\^ ot other Land &c. or ol Seigniory, or ot a T'enancy &c. or of 

La/iii, or ol a. Rent-Charge, or oi -d Rent-Seek ill'uing thereout &c. But 

in fuch Cafes Ihe ihall not have Dower of both, if not that it be in 

Special Cafes &c. Perk. S, 318. 

2. It a Man leifed ol one Acre of Land in Fee takes a Wife and puzh. 

exchanges the {dimt .\t::ii oiL3.nd with a Si ranger ^ for another Acre of Dower, pi 

Land, ' 5°- ^li^^- 



256 



Dower. 



2; E. 5. Land, and the F.xchnngt is cx-jcnted, and the Husband dies. Now ic 

r^^?'- ''y ^ is at the Liberty ol the Wite to have Dower of the i\cre which the 

p ^ 3 Husband pur in exchange, or of the Acre which the Husband took in 
149. (N). Exchange^ But Ine ihall not have Dower of both Acres. Perk. S. 319. 

S. p. flic 

fhall noc have Dower of Both. Co. Litt. 51. b. S. P. 

3. If there ht Lord and 'Tenant by Fealty, and 12 d. Rent, and the 
Lord takes aWijeand pure bafes the J'ennacy in Fee and dies, in this 
Cal'e ic ih.ili be at ch^ Liberty ot the Wife to be endowed of the 
Seigniory or of the Tenancy &c. Perk. S. 320. 

4 Su fliall it be it a Man feifed of a Kent-charge in Fee takes a 
\^ ite, and pnnhafes the Land in Fee whereout the Rent is iliuing 
and diirs, it Ihall be at the Liberty of the Wife to be endowed of 
the Land, or of the Rent &c. Perk. S. 320. 

5. It there be Lord and 'tenant by Fealty, and the Lord takes a Wife^ 
and the tenancy tfcheats unto the Lord, and he enters and dies, in 
this Ca(e it Ihall not be at the Liberty ot the Wife to have Dower 
ot the Seigniory, or of the Tenancy ; But (he (hall be forced to take 
her Duwcr of the tenancy, and the Realbn is, becaufe that the Seigniory 
is determined during the Coverture, by hSt of Law, and it is to no 
Difadvantage unto the Wile to be endowed of the Tenancy, foriflhe 
be put out of Poffelfion of Part thereof by a more ancient Title, the 
Seigniory fliall be revived for fo much, and if all the Tenancy be 
recovered by a more ancient Title, then the Seigniory fliall be re- 
vived in all, &c. and then flie may have Dowry of the Seigniory 
&c. Perk. S. 321. 



(X) Afjtgnment. 
How it is to be made. 



An Affign- 1. T J fl JJ^Otltan tCCOllCriS DOtOCC of Land, of which the Tenant 
menc ot J[ jg foje feiled, it OUgiJt tO bt afllgnCU bP Metes and Bounds. 

Dower -if^ _ • 

^herethe 45 €* I- S- 6. 

Husband was 

Tjle fciled cannot be made of the jd or 4th Part in Common but ought to be in Scverall/. Co Litt. 

34. b. in Principio. 

Where the 2. "But otherways it i0 where the Thing tCCOlJCCCf is not fever- 

Husband was able. 43 C, 3- 1 5- 6. 

feifeci m Lorn- ' 

mon, the Wife iliall not be endow'd by Metes and Bounds. Co. Litt. 52. b. 

Sty. 1-6. ^ 3jf A. feifed of LJinUlS in Fee takes a Wife, and aftCC devifes 

L.rmber'^' '"^ *"'" ^i Years to B. auO DteSS, aitn flftCU C. his Heir alfigns to the 
Trin. 1651. Wife the third Part of the Land for her Dower, without fCttitlg it 
B.R.theS C. out bp Metes and Bounds, anD t!jC Wife accepts it in Satista6tion 

where a Spe- q^ her Dower i tljo' fljc tuas not lioiutD to acccpt fo ill Common, 
found that" iBitlJOUt retting it out tjp ^etegi anti IBounnsi, nor tljc i)m bounu 
the Tenant to affigu It but bp ^ctc0 antJ 'bounDs, foe tljc pcoutiice tijat 
laid to the map accrue to ti)em to occupp it in Common, pet mafmucl) as 
w.dowthus, (jjg fiji^u p^^j-t in Common 10 Due bp lam, anti tljep botlj con= 

Tw vLofa' ftntCtJ to accept it aCCOrDrng to ILaiU, they may by their Confe/.t 
third pJt of waive the Affignmenc by Metes and Bounds, UlljiClj ijS onlp fOt tijCiC 

olun 



I II I 1 1 n 1 1 

Dower. 2:^7 



mn atiDantngc, aiiu accept it a0 it 1$ Hue bp JLauj ; and though "U the uvdf 

the Le.iee lor Veais did no: agree tI)CrCtO, vet the Allignment of the "T^ ^""Z'" 7- 
Tenant of the Freehold lliall bind him. ' C'lm 165 1. betlUmi L/JX^Sl 
Coots and Lambert, aDUtOffCtl llpOlt fl {^Zm\ aiHCtltft, :?ntratUC %^= cd of. Roll 

nierfct. !ip* 1649. Kot. 201. ch. j. to 

whicli Ni- 
cholas and Ask. Juftices aifreed, held that it may be afTign'd Generally of- the third Part in fome CafcSj 
and the Parties may agree againlt Common Right, and that her? both Parties agreed to take 
Dower in this manner; but Jerman e contra. But per Roll Ch. J. if the Sheriff ii(figvt 
Dower and does it not fer AJetas Qp Btt)id,is, ic i<: Error if it miglw: have been (o Affigned, and 
\\here a Feme cannot be endow'd per Mctas 6c Bundat, (lie may enter •wiil^ont AjfignmenU- 
Sty. 277. 

4. 3 Rent Uiap be refervcd for Equality of Dower, if the thing 
Affigned be of greater Value tljatt fljC OUgljt tO Ija^C. 17 .<£♦ 3- 10. 

5. But ti)!?) cannot enure as a Relervation, it' the V\'ii"e in another 
Claufe ot the Deed makes a Grant ot the Rent, without any men- 
tion in tIjC ©CCtl, that the Thing is of greater value. 17 C+ 3. 10. 

6. 3if tl)C Guardian alligns H!)OtDCL', referving a Rent f>r equality 
durino, the Nonage Of tljC fpfir, this is not good, bCCaUfC tljl^ fljall 

not SO to tl)ci!)ctr. 17 €. 3. 10. 

7. W DOUlCr be affigned upon Condition, tOC COlttlttiOIt IJS tlOitJ. ^.^^'^ f!^- 

Com. Coltljivft. 15011* foe fljc itwm III bi) ijec Lilt ~4 b 

ipusbano* s. p. ' 

8. 3lf DOlDCt be affigned Of tljC LattHSJ, excepting the Trees 
growing on the Land, tljIS 10 a VlOI0 (iCECCptiOU fOC tfjC CilllfC «= 

fovcfaio. C9r« Coiicuti'j' at a ^oot citeD 44 CI. 15. E. bctuiccu 

Biillcck and Fnich, tO bC fO ab)UOlJC0. 

9. If DOinCV be aliigned with a Remainder over, it IS a bOlSJ '''• C. 25 t>. 

B.emnmiitr, iccaiifc fijc cdineg in bp bet fpusbauri ; aiiD lubcn it ^ ^ '-''^ 
itiouiti be a pob Heniamtier, tt tooulQ be tomjout a paitiiiilnr Tvoid 7w 

CftatC. Com. COitl). OBejlU Llverv and 

, Seifin is 
made to the Feme, becaafe the Dower has Relation to the Death of the Baron. 

10. 'SCDe King may affign SDOUlCt without limiting amy Eftate,' 

J'ttf. Jf^iUura 263. Da. i. 46- 

11. 3f alBonian be CnbOUJCtl of an Advowfon, flie fliall be af- Co Litt. u. 
figned the third part of' the AdvovvTon, ailtl not only the third part ^'^''"'^ ^^ 

of the profit, fciiicet tijc tbiru prefentation. 17 C> 3. 38. b^ €Qw dow'd o'"' 
tra, «7 C. 3' 22. b. the third 

Prelencaiion 
to an Ad vow ion. 




ilftic oitt of anp tbirn pact of laiibjs of tlje patuij m ccctam. of Tythes 
^icb. 9 lac. %, \Kt Curiam* -^ "f ^'^^ 

third Sheafj 

hecaufc it is uncertain what Land fhall he fown. n Rep. 25. b. Coke Ch. J. cited Pafch 

5 Jac. the Countefs of Oxford s Cafe held accordingly. 

~ 13- Jf a HBOman be dowable of three Manors, (be Sheriff may S- P. per 
affign lier one of the Manors \\\ lldl Of all tbtCC. 12©* 4. 2. Ot V''^,''"'* 

tije a3aictv of a $i5anoc. Ancient Cntric^v Ciuace Iimpeutt Br"Dower 

529- 10. p!. -i. ci-es 

f u , , S. C So 

or lihree Acve^ ; for if ^e afligns the third Part of everv j*cre it would be irfinite If upon a 

• 4(.ecbveryin a VViitof Dower de tribusManeriis the Sheriff on anHab-.l'ac. Seifinam returnsihathe has 

U u « rendered 



258 



Dower. 



rendered to the Feme one Manor, this is not good ; for flie fliall have the third Part of each ; But if 
the Writ was of all Land.s aiul Tenements, and there was Meadow and Palture, the Sherift may 
afTign all the Meadow; Agreed by all the Juftices. Bendlows faid, that if the Writ had been of 
all Tenements it would have been good, which Brown denied. Mo. 12. pi. 47. Trin. 4 & 5 P. & 

M Anon Ibid. 19. pi 66 Mich. 2 Elii. Anon. S. P. and feem.s- to be H. C. held accordinp-- 

Iv And if the Afligi ment be made by Con'ciit of the Parties, or by AlTignmentof the Heir or Te- 
nant of the Land, then the Affignmcnt of ihe one Manor in the Name of her Dower ot all the 
Manors is good enough ; and io was the Opinion of ail the Juftices. 

S P. Br. 14 So if an Advowfon lie appendant to one or more of the faid Ma- 

^"^"d-es'''" "'^'^^J tijC ©ijeriff may affign one of the Manors with the Ad vowfoa 
?2 £^4". appendant Ul llCll Of DOtUEH 12 C* 4- 

15. If a t©Onian be dowable of one Manor, tI)C Sheriff may 
affign the third Part of the Manor in common in ittil Of £)OU)CC, 
without fcttinff It out fap Metes and Bounds. ^nCiCnt CHtCieS, 

SDiiarc JmpcDit 529- 10. anO Ciuar£impetiitmDou)cc i. fo airisn:= 
CD nt Cljancerp. 

16. A Feme is endowed of a third Part of the Manor to which Fran~ 
chifes are appendant^ ihe Ihall not have the third Part of the Franchifes ; 
for thefe cannot be divided. Contra where Ihe has the whole Manor 
in Dower. Br. Dower, pi. 102. cites 3 E, 3. Itinere Derby. 

17. li on a Recovery of the third Part in Dower the Sheriff' ajftgns a 
Aloiety &Cc. the Tenant has i?<?wc<^' againft the Sheriff by A/ft fe ^ or he 
may have a Scire Facias againll the Sheriff to ajjign de novo. F. N. B. 
148. (I) in the new Notes there (b) cites 22 R.. 2. Execution 165. and 
fays, fee 21 H. 7. 29. 

1 8. If the Freehold^ whereof, fhe is dowable, be in the Poffejion of 
divers Perfons by feveral Titles., the VVite in a W^rit of Dower brought 
againlt one of them, fliall recover but the third Part of the Freehold 
which is in his Pollelhon ; So that a Man or a Woman who hath Pof- 
felfion of Parcel of the Freehold (of which the Woman is dowable) 
fhall not be charged according to the Polleffion of the whole Freehold 
of which the Woman is dowable j if he or or Ihe will not. Perk. 
S. 423. 

19. Doyftx ajftgned hy Sheriff per Met as Sec. and Demandant refufes, 
yet ihe may enter at any Time after. D. 278. b. pi. 4. Mich. 10 & 
II Eliz. 

So if Feme 20. It" Aflignment and Grant of Land be made to the Feme for T'erni 
accepts a ^ Tears in Recompence of her Dower, this will not bar her ^ becaufe 
Years in °^ "^^'^ ^'^ '® "°'- Tenant in Dower, nor has fuch Eflate in fuch Cafe as 
Allowance fhe would have if fhe had been indowed, viz,, an abfolute Ellate for 
of her Life. 2 And. 31. in pi. 20. Trin. 38 Eliz. Anon. 

Dower or 

for the Life of him that afligns it, thefe Rents fhall not bar her tif her Dower, becaufe they are 
not fuch-like Eftatesas fhe fhould have in her Dower, which the Law appoints to be an Eft.ite for 

her Life. And. 2S8. in pi. 296. ad finem Pafch_ 34 Eliz. Hob. 153. S, P. by Hobart Ch. 

f. cites 7 H. 6. 34. and 33 H (5. 2. 

21. The Wife of one Jointenant fhall have the third Part of a Moiety., 
which her Husband purchafed to hold in common, with the Heir of 
the Husband, for in this Cafe her Dower cannot be affigned by Metes 
and Bounds^ Litt. S. 44. 

22. Though of many T'hings that be intire^ whereof no Divifion can 
be made by Metes and Bounds, a Woman cannot be endowed of the 
Thing itfelf, yet a W"oman fhall be endowed thereoi in a fpecial and 
certain Manner, Co, Litt. 32. a. 

23. As 



Dower. 259 

^ _^_ .. — - , , — — - ■— ■■ ' - ■ ■ — I . I _ -^ 

2?^ of a Mill a W'oinan ihall not be endowed by Metes and She fluU 

Bounds, nor in common with the Heir, but either Ihe may be en- ^^7^^ ^p=^ 
dowed of the third Toll- Dip, or de intcgro Molendimo per ^umhbet ^i ti^Pro. 
tertiam Mcufm. Co. Lite. 32. a. fit afllgncd 

•^ to tier, and 

^e flvill have a Fveeliotd in the third Part of the Mill &c. F. N. B 49 (K) cites Mich. 45 E. V 
'__. PeT S -41 S P as to the third Part of the Profit, cites i H 5. .. Mich. 45 E. 5. DowCt 
50 16 Aff, 41.—-— II Kep. 25. b. CokeCh. J. cited Mich. 3 Sc 4 Eliz, Bendl. [ii8. lao. pi. 
151.] where the Alignment was accordingly. 

24. Of a Villeife, either the third Day's Works, or every third 
Week or Month. Co. Litt. 32. a. ^ r ■ 

25. Of the third Partot the Profit ot Stallage. Co. Lite. 32. a, 

26. Of the third Part ot the Profits of a Fair. Co. Lict. 32. a. 

28. Of the third Part ot the Profits of the Office of Marjhalfea. Co* 
T 1 rr 22 d 

29. Of the third Part of the Profits of the Keeping a Park. Co. 

Litt. 32. a. 

30. Of the third Part of the Profits of a Dove-Hoiife. Co. Litt. 

32. a. 

31. Of the third Part of the Profits of a Pifcarj, viz. Tertium Pif- 
cem, vel jactum rctis tertium. Co. Litt. 32. a. 

32. Ot the third Part of the Pro/?/j oj Courts ¥'mts^ He riots &c. 
Co. Litt. 32. a. 

33. If the W^ife be intitled to have Dower of three Acres of Marrti, 
every one of the Value of i2d. and the Heir by his Indultry and 
Charge makes it good Meadow, every Acre of 10 s Value, the Wite 
ll,all have her Dower according to the improved Value, -dad not accord- 
ino- to the Value as it was in her Husband's Time j For her Title is to 
the Quantity of the Land, viz. one jult third Part. Co. Litt. 32. a. 

34. And the like Law it is if the Heir improve theValae of the Land 
h< Building. Co. Litt. 32. a. _ 

3 ?. And on the other Side, if the Value be impaired in the Time of 
the Heir, Ihe hall be endowed according to the Value at the Time of 
the Affif^nment, and not accordmg to the Value as it was in the Time 
of her Husband. Co. Litt. 32. a. 

36. There needs neither Livery ofSei/m nor Writing to any Aflignraent 
of Dower, becaufe it is due of Common Right. Co. Litt. 35. a. 

37. Both of Dower Ad Otlium Ecclefise, and Ex AlTenlii Patris, 
ihe Certainty miiji be exprejfed. Co. Litt. 35. b. 

38. Dower demanded of the ^^;r^P,^r^ 0/ ;r;;/.?(?j of Wool and Lamb ia 
three feverai Towns, and it was demanded of the Court how the She- 
riff Ihould deliver Seilin i and the Court held it the beft way for the 
Sherift'to deliver the third Part of the tenth Part, and the third tenth 
Lamb, viz.. the 30th Lamb. Browni. 126. Mich. 9 Jac. Anon. 

39. Writ of Dower of Tithes ought to be brought of the third Sheaf. 
Roll Rep. 63. per Coke Ch. J. Trm. 12 Jac. B. K. 

40. Upon an Habere Facias Setjinam in Dower, the Sheriff returned^ Pa^""- ^^#i 
Ginod habere fecit Set/tnam de tertiaParte of the Honour, Hundreds, Te-^^' 

■ nements &c. viz. De una Tenemento Jive jirma in C. vocat' Wejton-Farm^ 
in Tentira J. S. and 12 other Tenements by Copy; and it was held, that 
this being in an Affignment of Dower, and only the Return of the 
Sheriff, was certain enough, and that there needed not fuch precile 
Certainty therein as in Declarations and Indi£lments ; Adjudged. Cro. 
J. 621. Mich. 18 Jac. Sir Charles Howard v. Sir William Cavendilh. 

41. Conwiijfion out uj Chancery was oidered to alfign Thirds for Dow- S P. Tothi 
cr. Chan. Rep, 38. n Car. i, Huddleftone v. Huddlellone. M5 /jite* 

V\''ild V. Weli?. 

42. Error 



2 6o Dower. 

42. Error of a Judgment in Dower of the third Part of a Mill and 
Kiln^ and two Acres ot" Land, where the Judgment was to recover 
Seilin of the third Part of the aforefaid Tenements federally per Metas 
^ Bimdasy and the Error affigned was, that it could not be per Mecas 
&;Bundas of the Mill and Kiln, for it it fliould, neither of the Parties 
could ufe his Part, but that the Judgment ought to be de tenia Parte 
tanttmi ; and the judgment was reverfed. Lev. 282. Pafch. 18 Car. 2. 
B R. Gilpin v. Cooklon. 

43. \\'here a Writ of DoOTtff" was brought agaifiji feveral Piirchafors 
the Court direSedj that the Sheriff ihould charge them all proporttona- 
bly^ though otherwife the Sheriff might have cnarged all out of onePar- 
ty, and the Party could have no Remedy at Law j But m Equity they 
ought to be all equally charged i and theretore the Court gave this 
Direttioti. Freem. Rep. 227. pi. 234. Pafch 1677. Anon. 

zChan.Cafes 44. Equity will relieve againll -a. Vratidulent and partial Jffiga- 
1 6c. S C. ^g„; Q^' Dower by the Sheriff. Vern. 218. pi, 216. Hill. 16^3.- 
Hoby V. Hoby. 



(Y) Affignment of Dower ngntr/jl common Right 
in lieu of Dower. 

iFhat it is. 

See (X) I. npiSD alfisii DoiDcc of an Advowfon ts aptnft commoii 
p'''- X Etstjt, fat flje ouffijt to Ijatie tlje tljirn ptcfcntatian or 

Commoii Etijljt. 12 €. 4- 2. 
Thisur«ms 2. So mi afligmnent of Rent out of Land IS agauill Common 

is to be m- jnjgijf^ 12 C* 4- 2. 

tenoen out ^ 

of other Lands. See CZ) pi. 7 ' 

Upon an Ha. 3. ^^ SUTiCmilCnt of all the JJEOOU, Ot illl tljC Meadow in lieu 
bcre Facia.9 ^f ^jj ^j^^ y^ ^^^^ Meadow, Palture and Arable, 10 llOt agaillff 

^^\\cToZlY Common Eigljt, init Common Kiffljt ijJ tljc tijicD ^m of 

of Dowerof CaClj* 12 CO* 4. 2. 6. 

three Ma- 

ners, refolved the Sheriff cannot give Iier Scifin of one Manor, hut he mud give her .Seifinofthe 

third Part of every Manor ; But if the Recovery be of all Lands, viz. Meadow &c. Paflurc, 

the Sheriff may Aflign her Dowei- in the Meadow oiily. Mo. 11. pl.47Trin. 4 8c 5 Ph. 6c M. 

Anon. 

4- Sf fljC be dowable o( three Manors, aUD fljC accepts of tljC I^ZIZ 

o neManor \\\ DoiDcc SlUoiaancc Of all, tW is an cnooumient 
agatnft Common Kigljt* is p. e. 27. 19 e. 3- Ciuarc ixw 
peoit 154- , , 

5. A Feme was endow'd of the Moiety of the Rent^ by reafon of 
the Cttjiom of the Land out of which the Rent iffued. Br. Rents, 
pi. 20. cites 4 E. 3. 

6. In Dower the 1'enant pleaded a Fine levied by the Prior of N. of 
the fame Rent of 20 1. of which Do"ucr is demanded^ to ff. M. and 
his Heirs^ upon Condition, that if the Heir, or any Heir of J. M. 
pall be within Age at the Time of the Death of his Ancejior, that 
then the Grantor and his Sncceffors jhall be difcharged of the Payment 
of the Rent during the Nonage^ and [aid, that the Baron died, W. 

his 



Dower. 261 



Ihis Son within Jge i Judgmenc if Dower during his Nonage i For 
the Rent is cealed during the Nonage, and yet the Feme rccover'd 
Dower by Award and Celiet Executio during the Nonage, and there- 
fore Error was brought in B. R. Brook fays, to what End the 
Writ of Error was taken ? For it foems that it is a good Judg- 
ment. Br. Dower, pi. 51. cites 23 E. 3. 19. 



(Z) What Perfon may affign it. 
[Againfl: Common Right] 

E. r-p ji)e Sheriff cannot mm Doitict asoiM common E(gt)t 
± \z e. 4. 2. Contra is D, 6. 27. 

2. COC Heir may. i2C»4-2. D, 2(S ^^IT. 41. 

3. SinD fo ti)C Right Tenant of the Land miip> 12 C» 4. 2. b, 

4. 'QTije Sheriff nwy alfign a Rent m KCU Of DOUlCt. 20 

5. Jf tIjC Heir lie in Ward to the King, aUtl tlje iJBifC t<j tO tit Dower can- 
rnQOlUCt) m CljaUCCn', tljC Chancery mav aliign a Rent de novo ri^ he af- 
tO IjeC oL.t ot the Land Of \Ul)iCl) RjC IS tJOUltlblC, IH UCU Of D0U1= Lf^J-e'" 

cr, ann x\)\% fljaU titnti tijc i:}c(r* 26 dlT. 41. unie!swhe,-e 

6. So If a Writ lie DtlXCtCt) out ot Chancery to the Efcheator to the Heir of 
deliver to the \\ iie ten Marks Rent, and Land in the Name of the King's 
i)ower, aim X\t Eicheator affigns to her five Marks Land, and five Jf",'^''^,';^" 
Marks Rent de novo out ot other Land Ot which fhe is dowable, infuchCa'e 

tij(3 fljail bitm tijc l)m. 26 afl; \\. atijuQpn bp alt tlje Slufttcc^. it isanign-d 

in Conit, 
which is more nfual, or a Writ to the Efcheator to do it, cites F. N. B 26;. If it had been fiid, 
that the Heir had adign'd in Obedience to tht Decnte it might hav<^ been good, but in fuch Cafe 
the Tenant had been in bv the AlTignmenr, and not by the Decree \ Per Holt Ch. ). in delivcrincj 

the Opinion of the Court. Ld. R.iym Rep 7S4. Trin. 1 Ann in Cafe ot Smith v. Angel 

1 Salk 554 ;5'i. pi. I. S. C. and Holt Ch. J. held it plain, that no Eftate or Interell rcfted in the 

Wife by the Decree in Chancery — 7 Mod. 4;. S C Jenk g. pi 17. cites7 Aff 48. Fitih. 

Dower 7^. and iii. Aff 4. [but i' feems mifprimed and fliould be 26 Alf. according to RoJl] 

7. ^ Rent out of the fame Land maP bC affllJtlCU ill IJCU Of J'^^^X" 

_^' ^ rr ^ L z rttr " dianlnChi- 

OmtX. 7 H. 6. 34. b. 26. :a{r. 41- valry may 

affign a Rent out of the Lands and Tenements, wiiich he hath iii Ward in allowance of Doweii 
axid it is good. Co. Litt. 59. a. 

8. If fouviit in Tail affigns a Rent out of the Land in lieu of 
Dower, this Ihall bind his ilfne, unlefs it amount to more than a 
third pare i Per 2 Judges. And. 288. Pafch. 24 Eliz. Bickly v- 
Bickly. 

9. Affignment ot" Dower made ^j ^ Dijfd for is good, and fliali not Co Litt. 5 y- 
be avoided, it it be n(,t made by Covin or Fraud, if the VVoman have^- ^"p'^^'^j 
Right to have the Thing in Dower. Perk. S. 394. if it be not 

prejudicial 

to the DilTeifee. Br. Damages, pi. 96 cites la Aff so. S. P^ S. C. cited per Cur. a. 

Kcp 6;. a. for It is a lawtuiA^. 

10. W a I)i/Jiirc',\ Abator, or Intruder, be of Land by Covin of the Co. Litt^j, 
Woman 'who has R:ght to have Do-joer of the fame Land, and inch. Ditiei- ^ ^""^ ?57- 
for, Abator, or Intruder, endow the fame W oman, the Dilieifee w ho • ■ 

has Right unto the Land, may avoid and deteat fuch Dower by his 
Entry into the Land &.c. Perk, S 395. 

X X X II. If 



s p. 



262 Dower. 

ir. It J.S. be Tenant o^ Land unto which a Woman has Right to 
have Dower, and he is di(]etfed of the lame Land by the Umuan and a. 
Stranger^ or by the Woman alone, and afterwards Jhe is endo-wed of the: 
fame Land by one who is in the Land by her and the other joint Dif~ 
fetfor, or by one of them, fuch Endowment may be avoided by the En- 
try of the Dilieifee, becaufe (he ibalJ not take Advantage of the Wrong 
of which (he herfeU'was Parry ^c. Perk. S. 396. 
Co- Litt. 35. 12. If an jlffignmefit of Rent be made unto a Woman in Allowance 
of Dower, which fhe ought to have of the fame Land, by a Diffeifor^ 
Abator, or Intruder, the Dilleifee, or he who has Right unto the 
Land, Ihall not be bound by fuch AfTignment, notwichltanding that ic 
be without any Covin of the Woman &c. Perk. S. 398. 

13. AffignnKnt of Dower by aG«i7r^/«« in Soeage is, not good, as ic 
feems, becaufe a Writ of Dower does noc lie againft h:m. Perk. 
S. 404. 

14. The fiime Law is of Tenant by Elegit^ Tenant by Statute Mer- 
chant, Tenant by Statute Staple, and by Lelfee for Years &c. Perk. 
S. 404. 

15. But if made by him who has the Freehold it is good if it be of 
fuch a Thing as may be alligned, and ot which ihe has Right to have 
Dower i And though Ihe has noc Right to have Dower thereof, yec 
it Ihali Hand good, until ic be defeated and avoided &c. Perk. S. 
404. 

16. Ic iniifi be made by him that is Tenant of the Land, but herein cer- 
tain Diverjities are to be obferved ; It two or more be Jcmtenants of 
Lands^ the one of them may affign Dower to the Wife ot a third Pare 
in Certainty, and this fliall bind his Companion, becaufe they were 
compellable to do the fame by Law. Co. Litt. 34. b. 35. a. 

Fitih. Dower 110. and ic E. 2. Dower 159. ' 

Perk s. 597. 17. £«/ if one of them afiign a Rent out of the Land ro the Wife, 
S. P. this fhall not bind his Companion, becaufe he was noc compellable by 

the Law thereunto. Co. Litt, 35. a. 

18. If the Husband makes /cwm/ K'o/Jwra^.f of feveral Parcels, and 
dies, and the one Feoffee afjigns Dower to the Wife of Parcel of Land 
in Satisfaction of all the Dower which flie ought to have in the Land 
of the other Feoffee, che other Feoffees Jliall take no Benetic of chis 
Affignment, becaufe they are Strangers thereunto and cannot plead the 
fame. Co. Lite. 35. a. 
o Rep 18. 19- i^tit in that Cafe, if the Husband dies feifed of other Lands in Fee- 

b, in Beding- fimple, and the fame defcend to his Heir, and the Ht'ir endows the Wife 
field's Cale. in certain of thofe Lands ^ in full Satisfacfion oi ^W. the Dower that Ihe 
ought to have, as well in the Lands of the Feoffees as in his own Lands, 
this AlTignment is good, and the feveral Feoftees fhall take Advantage 
of it; And therefore if the Wife bring a Writ of Dower againft any 
of them, they may vouch the Heir, and he may plead che Alfignmenc 
which he himfelt has made in Safety of himfelt, left they Ihould reco- 
ver in Value againft him, fo as there is a Privity in this retpctl: be- 
tween the Heir and the Feoffees, and by this Means the fame may be 
pleaded by the Heir that made it ; And fo it is adjudged in our Books. 
Co. Lite. 35. a. 

(A. a) 



Pevk S 
S P 


•?97- 


2 Rep. 
a. S. P. 


67. 
per 


Cur. cites 


7H. 6. 

SE ;. 


t 



Dower. 263 




I 



(A. a) Affignment [of] Common Right. 
How. 



■ Jf it Q9nu amn;nis a Rent out of Lciuti of UiljicI) fljc \^ nauiablc 2 And. -,o. 

upon Condition, (tt UCU Of DOWCC, tljIlS 13 UOt IJOOtl, fOC fljC P^ -° J""" 

jiUGijt to \mz It free Of atip Conuition, as flje fljoulQ Ijaije m laiiD. Condition 
gaffer X^nngman, at a a3oot insula citen a Ecpoct, 27 ^U?* TS* was, that if 

S)CtU)CCll Wentworth and Wentworth^ tO DC fO aDlUOgCD* the Rent 

was arrcar 
at the Day, it fhoiild cesfe and determine, and that then fhe fhould have her Dower ; :ind all the 
Court held that it did not bar her of her Dower ; P'or if the AfTif^nment bars the Feme ot her Dower, 
file oiis;hr to have fuch Eftate in the Thing affigned as fhe fhonld have in the Dower, which is ari 

abfolute F.ftatc for her Life, and if it be not fhe fhal! not be barr'd. Cro. E. 451. pi. lO- S.t.. 

adjudged for the Demandant. -^ Noy 55. S. C. adjudged for the Demandant. Seef X) pi. 

-.S.P. 

2. a Rene out of the fame Land tliap bC afllSnCH (U \\Z\X Of DOtUeC 
without Deed. 12 lp» 4, 17. i), 7 Jp, 6. 33. tl. 

3. The Alfignment mull be abfolute, and not conditional, or fubject 
to any Limitations. Co. Litt. 34. b. ad finem. 



(B. a) Jfhat Things may be affigned In lieu of 

Dower. 

[And how without Deed.] 

[And what Aclions be for fuch Things.] 

[And Pleadings.] 

I. A ^ Affife IiC0 for Rent afTigned without Deed out of Land of Br. Dowers 
£\ which Ihe is dovvable, (tljCtCfOte it' 10 III \m Of DOtaCCO 33 p'- >■ cites 
D, 6. 2. b. S. C . 

' 2. [But] an 3fftfc lies not foe Rcitt aOiaueti tuitljout DceD out of S'/f ""^ 

other Land Of lUljlCij f^C 10 UOt QOlUable, rtljCtCfOtC It 10 5j0iD auO cited by 

notiiHicu) 33 1)* 6. 2. b* pechiu0, %. 407. Lutieton 

„ . , . atid divers 

ierjeants ; and it is there faid that the like Matter is 7 H. 6. 

3. In Dower the Defendant pleaded that he had afUgned to the Wife 

CO Acres cj Corn out of the Land in name of Rccotnpcnce oj her Dower; and 
held a good Bar, as well as of Rent, or any other Profit out of the 
Land. Mo. 59. pi. 167. Trin. 6 Eliz. Anon. 

4. The Relervation of an Horfe or Sheep Is a good Refervation of 
Rent, yet Affignment of an Horfe or Sheep in lieu of Dower is noE 
good. Forizisnotof the Nature of the Soil. Mo, 59. pi. 167. Trin. 

J. Ccmmcn 



264. 



D. 56i. h. 
pi !1. S.C 

ruled ac- 
cordingly. 



Dov*' 



er. 



5. Common of Pajiure for fjao Cffivs is goc^d in Name ot Recompence 
of Dower. Mo. 59, pi. 167. Trin. 6 Eliz. Anon. 

6. In Dower brought by the Wife ofBeamonc Mafterof the Rolls 
in the Time of E. 6. the Defendant laid, that he himfelt before the Wvik. 
broughrdid afftgn a R.oit 0/ lol. per Annum to the Demandant, in Recom- 
pence of /'tr ij^oaJur, upon which the Demandant did demur in Law • 
and the Caufe was, becaufe the 'Tenant had not (heijoed luhat Kjlate he 
had in the Lands at the Time of the granting oj the Rent, as to fay that 
he wasleifed in Fee, and granted the faid F^ent; fo as it might .appear 
to the Court upon the Plea, that the Tenant had a lawful Fewer to grant 
fitch a Rent^ which was granted by the whole Court, and the Demur- 
rer hoiden good. 2 Le. 10. pi. 15. Hill, 20 Eliz,. C. B. Beamonc 
V. Dean. 

7. Upon an AJignment of Part of the Lands in Dower, the Heir by 
Parol may afpgn a Way through the other Parts. Adjudged 2 Roll. 
Rep. 47J'. AJich. 22jac. White v. Robinion. 



(C. a) In what Cafes a Woman fhallbe t-ixiice endowed, 

[Evi6i:ion.] 



r. 



TJF a JBoman be aiTioUJCti, nntJ iiFtei' \)zk, Dower is eviaed bj? 
an clDcc Citic, fljc iliall ijnvie a item iBrit of Dotuei*, ana 



Br. Scire 

Facias pi 

161, cites 

S. C 

F. N. B. 

149. (M). S. P. and Ibid, in the new Motes there (c) Hivs, S-e 4 E. ;. 25. %(>. 50 E 

there Teems to be this Diverfity, It a Feme be endowed by a Difleifor, fhe fliill have 

ranty &c But if fhe recovers the Lindsonly which are granted over by the Heir, fhe has loft her 

Warranty againlt the Gnnree. 7 £. 5. 7. zi E. 9. 4S. 10 E. 5. Quid Juris 41. Perk. S. 

41S. S. P. unlefs in Special Cafes. 



fljali be enooiu'D of tijc at'oct vm \^m^. 43 aiff, 32. aoinitrcD* 

S. p. and Ibid, in the new Notes there (c) fays, S-e 4 E. ;. 25 



5. 7- yec 
the War- 



Br. Scire 
Facias, pi. 
161. cites 
S. C 



Br. Scire 
Facias, pi. 
161. cites 
SC. 



2. Jf a nBOmanbrinB"0a Writ of Dower againfi tljC Tenant of tljc 
JLanll, lUljO vouches the Heir in the lame Coumy, anO tljC \Voman 
recovers againll the Heir if he hath, and if not, againlt tne Tenant, 
and tlje lIBOman fues Execution -.igainlt the Heir, anU aftCt this is 

evic'ted bp an elDec Citic, (Ije fljall IjaDe a ®circ Jfacias upon tlje 
firft Eccouerj) agamil tlje tenant to be cnbouieD of tlje ttuopart^* 
43 ?.ff. 32. , 

3. Cije fime 3Ci,aUl ii the hrlt Endowment was in Chancery. 43 $ilU 

32. abjuboeo* 

4. Feme Tenant of the King is endowed in Chancery during the Nonage 
cf the yieir, and after the Heir has Livery^ and alter the Feme is evict- 
ed, {\xfhall have Scire Facias to have the Land rc-feifed, and to be endow- 
ed of other two Parts., and when the Heir is vouched in the fame Coun- 
ty the Feme Ihall recover Dower of the Land of the Heir. Br. Dower, 
pi. 6^. cites 43 Alf. 32. 

5. If a VV^oman after the Death of her Husband entreth and agrees 
to Dower ex Ajfenfu Patris, or ad Ofiium EccleJicC, fhe is concluded to 
claim any Dower by the Common Law ^ but if fhe will, fhe may refufe 
the Dower ad Oftium Eccieliae &c. and then Ihe may be endow'd ac- 
cording to the Courfe of the Common Law. Lite. S. 41. 

6. If a Man feifed of two Acres of Land in Fee by rightful Title, and of 
another Acre by Di^ffeifin^ takes a Wile and dies, and his Heiremeis and 

ajigfis 




Dower. 

a/pgits the Jen which his jlncejlor had by Di^eifin unto the Wife in Name 
o't Dower, in iillovvance of" all the Freehold which her Husband had &c. 
And the DiJlJeifee enters into the Acre a (Jigned unto her and puts her out, 
j]ie Ihall be new endowed of the third Part of the two Acres which her 
Husband had by righttul Title, in fuch Manner as if the other Acre 
had never been in tlie PoHeffion of her Husband &c. Perk. S. 419. 

7. If tenant in 'tail make a Difconttritmiice in Fee, and the Difconti- 
ntiee taketh a Wife and hath IJftte and dieth^ and the Difcontinuee is not 
ftiftd of any other 'thing during the Coverture, of which bis Wife is dowable^ 
and his Ifjue enters, againft whom his Mother bringeth a Writ of Dower 
and recovtn-s, and hath Execution ot the third Part by Metes and 
Bounds, and the Iffue in tail bringeth a Formedon againft the Tenant in 
Dower, andy&e vouches the Ilju^ of the Difcontinuee, who enters into the 
Warranty and lofeth, and the Demandant bad Execution. Now, the 
Tenant in Dower Ihall be new endowed ol the third Part of the two 
Parts which remain &c. notwithltanding that his IH'ue hath enteofl'ed 
a Strang<;r ol Part thereol or of all. For notwithltanding that the 
Poffeliion which her Husband had (whereof Ihe is dowable) be defea- 
ilble, yet llie Ihall have Dower thereof until it be defeated &c. Perk. 
S 420. 

3. If a Woman endowed lofes by Action tried her Dower, if fhe 
prays Aid of him in Reverjion, ihe Ihali be new endowed of that which 
remaineth. F. N. B. 149. (M.) 

9. h' the Baron aliens Parcel Ol his Lands daring the Coverture and 
dies, and the Hctr enters into the Refidiie and allows his Mother Parcel of 
the Lands ^ which remain, in Recomptnce of all her Dower, and fte after 
brings Action of Dower againft the yf/;(?«i;e of other Lands, he Jbd/l 
plead this Affignmcnt and bar her of her Dower ; But if the Executor of 
the Baron aliigns to the Feme Parcel of the Lands alien'd in Recom- 
pence of her Dower, the Heir nor the other Feoffees of the Baron 
ihall not plead it; Per Dyer. Mo. 25, 26, in pi. 86. Trin. 3 Eliz. 
faid that it had been fo adjudg'd. 

10. B. feifed of Land in Fee takes to Wife J. and enjeoff^s C. iit 
Fee, who takes Alice to Wife ; C. dies, Alice is endowed, £. dies, J. 
recovers Dower againft Alice and dies, Alice fliall enjoy the Land 
again during Lite. Co Litt. 42. a. 

11. If Ihe IS endowed of the immediate Eflate defcended from the And ihhls 
Baron to the Heir and Ihe is impleaded afterwards fhe ftiall vouch the ''^= KejCon^ 
Heir and ihall be newly endow'd of other Lands which the Heir |J^^V! 
hasi But if ihe is endowed by the Alienee of the Baron or of the Heir, and brin^s^ Wiic 
and ihe is after impleaded, ihe ihall not vouch the Alienee to be of Dower 
newly endow'd. 9 Rep. 17. b. Hill. 28 Eliz. per Cur. in Bed- ^tsainft the 
ingtield's Cafe. fj'*^"^<^ °f 

° the Baron 

&c. and he 
vouches the Heif, the Demandant may fiiew that the Heir has Lands delcended to him in the fame 
County (for to another County the Original does not extend) and pray that fhe may be en- 
dowed of his Eftate, and this is for the Benefit ot his Voucher to be newly endow'd. Ibid. 17. bs 



¥ y y (D, a) fplja 



266 Dower. 



(D. a) frhnt Charges made by the Husband, or other, 
and upon what Things, the Wife fhall avoid. 



D. 



I (£11?. 251. a Man tafeeS a 112>ife, having a Manor in 
__ which is a Cultom, tljiU tljC lOCU, S)Uperl)lfOr, OC DC' 

pUt)>, map demife by Copy, ailQ deviies, th;ic tv\o Ihould make 
cultomary filiates tor the Payment ot his Debts, and dies, the two 
hold Courts in their own Name, and grant Copies in Reveriion ac- 
cording to the Cuftom, tljC Wife hath one of the Copyholds aiiign- 
ed to her lor her Dower, ailU pCt CUtiam flje fljall alJOlO tljljS 

<Srant. 

In what 2. CO. 4- 26 ^I» 24* tIjC lorn of a COpPljOlD Manor, within 

^'•'<'«'he which there were Uiaitp Copyholders lor Lite, tOOk J©ltC, a Copy- 
IvwTdowL holder died, aittl tlje Lord granted it to another, attO OJCD, ailtl 
ot Copyhold atlJUnSCtJ, tljat tljC vVlfe iliouW not avoid this Grant (it a tJBlIt Of 

La,uis. See Doiuet, bEtaufe tt)e Ciiftom tua^ licforc tlje %\t\z of Ooiuer, 
tu. Copyhold ..jj^g tijc faiti SDptmon of sci. citcn contra. 

A Minfeir. 3 31f X\)t i©if£ accepts Dower, of the Heir againft Common Right, 

ed ^t Lands ^^^ fls-ju jjQiQ [[ ftiOjcct to tljg COntffcjj of \}zx, |)usibaini. 18 

I', Fee tikes ,,' ^ on 
Wife, and V> ^- ^7- 



a 




Rent-charge, and after makes a Feoffment, and takes back at) Eftate Tail and dies. The Wife re- 
covers Dower againft the IHue in Tall by Reddinon ; The W fe makes a Surmife that lier Husband 
died feifed, and prays a Writ to inquire of the Damages, and it is granted to her, in this Cafe flic 
holds the Lands charged with the Rent charge, For by her Prayer fhe accepts herfeU dowabic of 
the fecond Fftate, For of the firff Eftate whereof flic was dowable her Husband died not feifed, and 
fo fhc had concluded herfeif ; Wherefore if the Rent charge be more to her Detriment than ihe 
Damages beneficial to her, it is good for her in that Cafe to mike no fuch Prayer. Co. Lite. 35.3. 

4. T5llt otherwife (t 10 if fljC 1)C endowed aijaillll COUtmOlt 

Rlgljt by the Sherilf. 18 Ip. 6. 27. 

5- 31f tl)C Husband grants a Rent out of four Manors, anU 5(00, 
aUO ljl0 llBtfC 10 endovved by the Heir of one Manor in lieu olall, 

iff^^Cb^ nje njall Ijoio It nifcijavseQ. 19 C 3- snuare iuipcuit ij4- pec 
leifed ot tCijocpe. 

three Ma- 
nors of equal Value and Wife, and charge one of the Manors with a Rent-charge and dies, flie may 
by the Provifion of the Law take a third Part of all the Manors and hold them difcharged ; 
But if file will accept the intire Manor charged, it is holdcn that flie fliall hold it charged. Co. 
Litt. 173. a, 

6. !Jf 3. feifed in Tail of a Manor to which an Advowlbn is ap- 
pendant grants the next Prefentation tO tIjC CljUtCl) Of 06. and af- 
ter takes C to VVife, aitt! 0100, anH tl)C ilBife 10 endowed of this 
Manor with the Appurtenances, in lieu of all her Dower, auD aftCC 

tlje Cljurcf) 10 13010, quare uiljctliet fljc map prcfcnt ano auoin 
tlje QDtant niaHe before tlje Coijcrturc. 

7 The Dower of a Wile who was married after a Statute or Receg~ 
nizance ackmivledged^ lliall be extended i But if the Title ot Dower 
precede the Statute or Recognizance, it is not liable at all to fuch 
Statute or Recognisance. Jenk. 26. pi. 69. cites 8 E. i Fitz.h. 
Aflife, 417. 

8. W. brought a W^rit of Dower againft B. C- Leffee for Years 
by Leafe of the Husband rendering Rent before the Coverture^ pray'd to 

be 



Dower. 267 

be receiv'd tor his Term. The Wile recovers and had Judgment. By 
the Court the Leafe of C. is iaved by 21 H. 8. cap. 16. and the Court 
adviil'd, that an Habere Facias Seiftnam fhall be awarded to the Sheriff 
to put the Wile in poflelfion, with a Pnvifo quod len^ ad 7'ermin* 
/iiiijor'fion expe/Iatfir. And Beamond faid, that 3 Eliz. it was fo laid. 
Noy. 65. VVhitley v. Beit. 

9. Tenant in Dower /ball net be dtjiraind for a Debt due to ?/?£ F.N. B. 157.' 
Kiiiz by the Husband in his Life-time in the Lands which ihe holds V'^ ^ -^^^^ 
in Dower. Co. Litt. 31. a. ^^^^ ;^ ^^^ 

Kegifterdi- 
vefted ro the Sheriff, that he do not diftrain the Wife who holds Lands in Dower for tlie Debts of 
the Husband which he owed to the King beftre the Contraci of Marriage between him and his H'ife, 
and file may have fnch Writ out of the Chancery directed unto the Treafurer and Barons of the 
Exchequer, commanding them that tliey inquire thereof, and if they find the fame, that they lur- 
ceafe and difcharge the Wife. 

10. The Endowments by Metes and Bounds according tv Common Right 
is wore benefctal to the Wife than to be endow' d againft Common Right ; 
For there floe (hall hold the Land charged^ in refpeif of a Charge made 
after her Title of Dower. Co. Litt. 32. b. 

11. If Baron and Feme grant a Rent-charge by Fine out of I.,and, 
or make a Leafe for TearSy rendering Rent to the Baron and his Heirs, 
and afterwards the Feme recovers Dower, ihe lliall hold the Land 
charg'd. 10 Rep. 49. b. Mich. 10 Jac. in Lampet's Cafe. 



(E. a) Attendency. 

I. 'T^Cnaitt mDOtUet ofaMefnalcy fhall be attendant tO tIjC Lord.Mefne 

1 ipcic for tije tljirn part of tljat mijicl) tlje Ecnt ij> oUeL% ^""^ "^""^"^ 

jj.-"" '^ ^ ■' ^ ■'■'■' <- are, and the 

1 lP» 4- 3- Tenant takes 

, ^ Feme and 

dies without Heir, and afterwards the Mefne enters into the Land and endows the Wife of the 
third Part 5 Whether the Wife fhall pay to the third Part of the Services which were due befweea 
her Baron and the Mefne, or the third Part of the Services which are between the Mefne and the 
Lcrd Paramount, dubitatur Keilw. 129, a. b. pi. 9S. Cafus incerti Temporis. Anon. 

2. [But] 3f »i asoman be entiouieti of a C^cfnaltp, tljc Heir 

cannot diltrain the Woman tor the third Part which the ought to 
pay him. i p> 4. 3. 

3. Feme Tenant in Dower fhall hold of the Heir pro particula, and 
he Ihall make Avowry for the Portion upon her, and it is a. good Plea 
for her that the Heir holds by lefs Services. Br. Tenure, pi. 84. cites 

Fitzh. Avowry 173. 3 E. 3. 

4. And M Great Grandfather.^ Grandfather., Father ^ and Son 2irt, and 
the Lord gives the Services to the Grandfather and his Feme in Tail, 
and the Great Grandfather atterns, and the Grandfather diss in the Life 
of the Great Grandfather.^ and the Feme has l(fue^ and the Great Grand- 
father dies.) and the Iffue enters and docs the Services to his Mother^ and 
after he and his Mother dies., and the Son enters and endows his Mother ; 
Qusreiflhe lliall be attendant of any Services, becaufe the Services 
which the Baron did are now fufpended in the Tenancy by the de- 
fcending of the Land held by the Great Grandlather to the Illue ia 
Tail, who is Heir to the Great Grandfather who was Tertenant. Br. 
Tenures, pi. 84. cites Fitzh. Avowry 173.. 3 E. 3, 

5. ^\''here 



2^8 Dower. 

J. Where a Man gives in T'ait rendering certain Services^ and the 

Donee lakes Feme, and dies isoithoiit IJJiie, and the Feme is endowed fhe 

Ihall render the third Part oi the Services, and the Donor may avow 

for them, and yet the Tail isextmft. Br. Tenures, pi. 82. cites lo 

E. 3. Avowry 159. 

S. P. Br. 6. V\ here Tenant in 't^ii dies without I/ptc, the Donor enters, the Feme 

Dower, pi. ^ j^^ q'enant in Tail recouers Do'-juer and has Execution, (lie /hall render 

"aE. a 15 the third Part of the Services to the Donor. Br. ExtinguiOiment, pi. 31. 

cites 34 All". 15. 
S. P. And ly. :so whsK x.htrt\s Lord and 7'enant, and the 'tenant dies without 

yet in thefe fjgiy^ j^ that the Land efcheats^ and after the Feme of the Tenant is eft~ 
Seigniory ^"'^'^ &C. Ibid. 
was once 

extinft 14 E. 2. For there is a Diverjity between the .48 of the Law, as a dying without Iflue or with- 
out Heir &c- avd tie JB oj the Party, as Seignory purchafed in Kee &c. 

Br. Dower, g. Contra where the Lord purchafes the 'Tenancy in Fee, and the Feme of 

P' g'*,'^"" the 7'enant is ajter endowed, Ihe Ihall not render any Thing ; For the 

& z'' E.2? ^^° ^^^^ Cafes ot the Death are the Aft of the Law, and the Cafe of 

- 'the Purchafe or fuing Procefs of Forejudger in Wm of Mefne &c. are 

the ACts of the Party and his Folly. Ibid. 

9. Where Tenant in Tail dies without Ilfue, and the Feme is en- 
dowed, or if Lord and Tenant are, and the Tenant dies without 
Heir, the Lord may enter by Efcheat. And in the other Cafe the 
Donor entered, the Feme, the Tenant, or the Feme of the Tenant in 
Tail recovers Dower ^ and has Execution, Ihe /hall hold by the third Part of 
the Services; For this is the Actot God or of the Law j Contra where the 
Lord purchafes the Land tn Fee^ and pe is endowed^ flie ihali render 
nothing to the Lord, tor it is his own A61 and Folly. Br. Tenures, 
pi. 33. cites 34 Afi: 15. 

10. If a Adan holds by Homage and Fealty, and 10 s. Rent, and makes 
a Gift in Frankmamage of the fame Land fo held with his Sijier, and 
alter the Donee in the fourth Degree takes Feme and has IJJiie and dies ^ 
and his Iffne enters and endows the Mother of the Pcffeffton of his Father^ 
The Queltion wss, if the Mother Ihall pay the third Part of the 
Rent to the Heir as he pays over to the Donor' or whether fhe ihall 
hold this third Part dilcharged during her Life > It was argued that 
fhe fliall hold it difcharged ; But Keble was Opinion that Ihe Ihould 
pav the third Part ot the Rent to the Heir. Keilw. 124. a. pi. 80. 
Ca'lus incerti Temporis. Anon. 

11. It there be Lord, Mefne, and Tenant, and the Mefne grants to the 
Tenant to acquit him againji the Lord and his Heirs ; the Lord dies, his 
Wife has ihe Seigniory ajftgned to her for her Dower, and dillrains the 
Tenant, although the Grant was to acquit him againft the Lord and 
his Heirs only ; yet becaufe fhe continued the Eltate of her Husband, 
and the Reverlion remained in the Heir, this Grant of Acquittal did 
extend to the Wife. Co. Litt. 241. a. 

12. A Man makes a Gift in Tail^^referving zo s. Rent., and dies, the 
Donee takes Wife and dies without Ijfue ; the Heir of the Donor enters and 
endows the Wife ; fhe is fo in of the Eltate ot her Husband, that al- 
though the Eltate Tail be fpent, and the Rent referved thereupon de- 
termined, yet after fhe be endowed fhe fhall be Attendant to the 
Heir in refpe£t of the faid Rentj And fo it is of Lord and Tenant, 
the Wife that is endowed ihall be Attendant for the due Services, but 
if any Services be incroached, although the Incroachment Ihall hind 
the Heir, yet the Wife fhall be contributary, but for the Services of 
right due. Co, Litt. 241. a. 

(F. a) Ex 




•■A 



Dower. 



(F. a) Ex Aflenfu Patris &c. 

l<i Infant being in Ward at the Age of i^ Tears took Fe^m hy * The Oru 
^ Afjint of his Guardian^ and endowed her ad oftium Eccle/t£ ; f,'"^^';'^* . 
It was adjudged a good Endowment though the -8^ro« ^«(^ ^t'/'or^ ^^* (ne) An^lice 
Jge of 21, becaufe he * was pafled the Age of 14, and that the Mar-(not) wftcli 
riae;e was with Confent of his Guardian. Fitzh. Dower, pi. 197. isnotSenfc, 
cites Pafch. 9 H. 3. -/J';^ 

be mifprinted. 

2. Aflignment ofDower Ex AfTenfu Patiis, this fliall be by Deed ; Co Lirt. ;if. 
For otherwife the Franktenement of the Father cannot pafs, and ?p|^^ ^^""^ 
Aflent lies not in Averment but in Specialty, and here Franktene- ^^^l^ ^^''^^^^^^ 
inent pajjes without Livery of Seijin ; quod nota. Br. Dower, pi. 7. cites aDetdoj the 
•40 E. 3. 43. ^f;"' ■"■ 

^ Mother, 

froving his JJfent and Confent, for his Freehold fiiall be bounden thereby, and Livery and Sei/in 
iTiall nor be made thereof, and the Father may well make fuch a Deed unto his Son's Wife &c. and 
ye tin ancient Books fuch Aflent and Confent has been tried by Proofs, but the Law is contrary at this 
Day. Perk. S. 442, 

3. lo the fan'.e Manner as there is Dower Ex AlTenfu Patris, in the fCo. Litt. 
fame Manner and Form there is Dower f Ex Ailenfu Matris, mutatis 5^ -b- ^ ^• 
mutandis. Perk. S. 441. _ is good. — 

4. But there is no Dower .Ex Affenfa Fratris nee Confaugainei. Ibid. s. P. F.N 8. 

5. Such Endoiiiments ought to be made immediately after Affiance ^ ')0,{L.') — - 
3nade betwixt them at the Church Door, or in the Churchy if the Mar- J !'.^. ^^^ 
sriages are laied to be in the Church &c. Perk. S, 442. p ^'°^ °* 

150. (L) 
cites 9 H. g. DoweV 19. and 18 E 2. Dower 167. Contra, But Dower i«5. isnelther the S. C. nof 
the S. P and Do'wer 16". is the S. C. of S E. 2. and fo likewifc is pi. 16S. but neither of them is 
S P. But Dower 191. cues Trin. 9 H 5. and is that on liTue as to the Aflent of the Mother &c, it was 
found againlf the Demandant, by which fhe was barred, but Dower 154. cites 29 E. ;. is an In- 
ference drawn from that Cafe, viz That a Man cannor endow his Feme Ex Affenfu of any otiset 
than his Father ; for that flic fliall not have Writ of Dower Ex AiTsnfu Confanguinei. 

6. And yet it has been holden in Ancient Books, that where the Son t Fitz.h, 

ss Heir apparent unco his Father (and fo he ought to be, tor fuch En- Oower, pi. 
dowment made unto the VViie of the fecond Son is nothing worth) ^?^^^^^-^ 

:{: if he marries againfi his Father's Will, and afterwards within eight Weeks zH. \ . 

after the Marriage, the fame Son eudoyjs his Wife, with the Ajfcnt ef his F. N B. 150. 
Father, of the Lands and Tenemetits of the Father &c. it was holden (.Lj S. P. 
"that the fame was a good Endowment &c. Perk. S. 443. 

7. Where the Endowment Ex Alfenfu Patris, vei Matris, is good j^j „ 
and fufficient in Law, the Wife of the Son immediately after the Death of ^j,^ q^ rj^^ 
her Husband, in the Life of the Husband's Father, may enter into the j 5. b, S. P. 
lame Lands fo aliigned unto her in Dower &c. Perk. S. 444. 

8. So if the Son endows his Wife with the x\flent of the Father, of 
Lands of the Father which he held jointly in Fee with a Stranger at the 
Timeof his Allent &c. Perk. S. 446. 

9. So ftiail it be if fuch Endowment be made of Lands or Tenements 
^hich the Father holds for the Term oj his Li-e, at the Time of fuch En- 
dowment. Perk. S. 446. 

10. But if the Father had been feifed in Tail of fuch Lands whereof 
fuch Endowment is made a: the Time of his Ailciu &c. he fball be 

2t -i z btundm 



270 



\ 



^erk. S. 445 
&. P. cites 
Trin. 6 E 

?. ;4 

F. N. B. 
MO. (A) 
S. P. and 
the new E- 
d it ion cites 

4 Ev 
Dower 117. 

and6£. 3. 3 



S. P. pet- 
Cur. ; Rep 
gS.a. Hill. 
!54 Eliz. 
B. R. in 
Ratclift's 
Cale. 



Dower. 

houttdtn thereby during his Lite j But the Iffae i/t 2'ailpall not be bound 
thereby, nor a Woman who has Title to have Dower of the fame 
Land before the Alient &c. As the Father's \\ lie which he had at the 
Time of the Alfent, nor any Stranger who have anctcntir Title to the fame 
Land &c. Ihali be bound by lutn Endow menc or Alient &C. Perk. 

S. 447- 

1 1. If there be Father and Son, and the Father is feifed ot Land in 

Fee with hts H^'ije tn the Right of his Ifife, and the So» endows his Wife 
'of the fame Land with the AJfent of the Father^ and the Son dies^ living 
his Father^ the Son's Wife Ihall not have Dower of chis Land 
againll the Father, yet the Father may make Feoflrnent of the fame 
llaiid during the Coverture between him and his Wife, and it fhall be 
good agamlt him j and it has been faid, that it is becaufe that in fuch. 
Cafe the hiusband does prefentiy difmils himfelt of the Pollelfion, buc 
in the other Lafe he remains feifed ot the fame Land durmg the Co-> 
verture, and in the right of his V\^ite i and when this Matter appears 
Unto the Court, the Court, who is a third Perfon, fhall ouft the Son's 
Wite of her Dower, becauieotherwilc the Court Ihould do Wrong un- 
to the Wile of the Father &c. Tamen quiere, for that the Father can- 
not plead fuch Matter ; but if it be in an Aftion in which Refceit lies, 
it the Wife be received upon the Delault of her Husband, Ihe may- 
plead this Matter &c. yet notwithltanding that Ihe is received, ic 
feems chat upon the Matter of Law the Son's Wife fhall have the Dow- 
er which was afligned unto her by her Husband with the Affent of 
iiis Father &c. [during the Coverture.] Perk. S. 448. 

12. Writ of Dower tx Alienfu Patris lies as -well againft the Guardian 
as againll the Tenant of the Freehold. F. N. B, 150. (B). 

13. If the Son endows his Wife at the Age of [even Tears Ex Affenfit 
PatriSy it Ihe before the Husband attain to the Jge of nine Tears^ the 
Dower is good j But otherwije it is of an original abfolute Difability. Co» 
Litt. 33. a. 

14. Tenant for Life of a Garve of Landj the Rever/ion to the Father itt 
' Fee. The Son and Heir apparent endows his Wite of the Carveby the Af- 
fent of the Father. The Tenant jor Life dies. The Husband dies. The Ke ver- 
lionwas a Tenement in the Father, and jet this is no good Endowmenc 
Ex Alienfu Patris, becaufe the Father at the Time of tne Alient had buc 
a Reverlion expeftant upon a Freehold, whereof he could not have en- 
dowed his own Wife, and though Tenant for Lite died, living the 
Husband, yet .^uod ab initio non vakt tradu Tempris non coitvalefcet, 
Co. Litt. 35. a. 

4. and Perk. 86. [which is the fame Gift as cited above.] J 

15. The youngefl Son^ and Heir apparent, cannot endow his Wife 
Ex Aftenfu Patris of Lands whereof the Father is feifed in Fee, of the 
Nature of Borough Englifii, becaufe the Father may have another Son, 
and then the Husband is not Heir apparent, and it is in refpe£l of the 
conltant and perpetual Appearance, that the Son and Heir apparent 
may endow his Wite of his Father's Land. . And fo it is of Lands ia 
Gavelkind., and this is the reafon that Dower Ex Alfenfu Fracris, or 
Confanguinei, is not good; For that altho' he is Heir apparent at that 
Time, yet for the common Polfibility that he may have llTue, and eve- 
t-y Illue that the Brother or Couiin Ihould heve afterwards ihall exclnde 
him, he is no fuch Heir apparent as the Law intends j So it mull be 
fuch a Son and Heir apparent as mu/ continue an Heir apparent. Co. 
Litt. 35. b. 

16. Though the Freehold and Inheritance is in the Father, yat in 
relpe£l ot the conltant and perpetual Appearance of the Heir th- Heir 
apparent does endow ^ and :hs Father does but affent j and therefore 

ivhere 



Dower. 271 



where the Father did endow the Wife of his Son and Heir apparent, 
that Endow nient was held void, becaufe the Husband in that Cafe mull 
endow, and the Father allenc. Co. Litt. 35. b. 

17. It a Man endows his Wife Ex Affenfu Patris, and the Husband 
(dies, the Wtje may e»r«f, or have a Writ of Dower, though the Father be 
iivitig. Co. Litt. 35. a. 

18. If a Wife be endowed Ex Aflenfu Patris, and the Husband dies, pj^^^ Ht^' 
the W^tfe has Eh£iion either to have her Dower at the Comiuon Law^ or er, pi 158. 
Ex J/feijfu Pains i II flie bring a Writ of Dower at the Common Law, cites Pafch. 
and count, albeit fhe recover not, yet fhe fliall never after claim her '^E. z. S.I*. 
Dower Ex Aflenfu Patris. Co. Lite. 145. a. 



(G. a) De la pluls beale. 

I. TN Dower, the 'Tenant vouched the Heir of the Baron in Ward of the 
X Demandant for Caiife of Nurture^ and fet forth Deed of the Ancef- 
tor of the Iiifanty and hQ was compelled to plead in Bar ^ lecaiife now the 
Feme may endow herfelf of the hefi Part^ becaufe Guardian by Nurture is 
always intended Socage Tenure^ upon which Tenure this Endowment of the 
befi ike. lies. Br. Dower, pi. 42. cites 21 E. 3. 30. 

2. Contra of Tenure in Chivalry, and therefore fhe was barred, Br. 
Dower, pi. 4.2. cites 2 E. 3. 30. 

3. It there be Lord^ Adefne andTenaM, and the Tenant holds of the 
•Mefne by 3 d. and the Mefne holds over by 20 d. and the Tenant takes 
a Jitje^ and the Mefne releafes unto the Tenant all the Right which he has 
in The Tenancy Sic and the Tenant das, and his Wife is endowed by the 
Heirs of the third Part of the Tenancy^ fhe fhall be attendant unto him 
by I d. and not by the third Part of the lod. becaufe that the fliall be en- 
dowed of the beft Poirellion w hich her Husband had during the Co- 
verture &.C. Perk. S. 428. 

4. It the Husband has a Bailiwick &c. or a Fair, &c. as appendant 
tinio his Manor within the fame Precinft, of which Manor the Hus- 
band wasfeifedin Fee during the Coverture, and held the fame in 
Socage, now if the Wife be endowed of the Moiety of the Manor by the 
Cufiom, fhe pall have the Profit of the Moiety of the Bailiwick (J!c. or of 
the Fair as appendant unto the Moiety of the Manor ; But qusere if the 
Bailiwick or Fair be difappendant in Fee from the Manor after the 
Death of the Husband, and ^efore the Endowment, whether f!ie Jhitll 
then have the Moiety of the Profit of the Bailiwick or Fair &c. But 
it feems Hie fhall have the fame, becaufe flie fhall be endowed of the 
beft PofleiTion which her Husband had during the Coverture or Mar- 
riage &c. Perk. S. 436. 

5. Where Judgmant is given in a Writ of Dower that the Demand- 
ant fhall he endowed de la pluis Beale, fhe may take her Neighbours, and 
in their Prefence endow herfelf by Metes and Bounds ot the Fairell 
Part of the Tenements which (lie hath as Guardian in Socage, to 
have and to hold for Term of her Lite. Litt, S, 49. 

6. A Woman Ciuardian in Socage bringing a W^tt of Dower againft ^-^^^ S aS' 
Guardian by Knight's Service (before 12 Car. 2. 24) Ihould upon his Co. Litt- 
pleading the whole Matter, have been adjudged to endow htrfclf de ?S. a b — 
pluis Beale, i. e. that is the Fairetl of the Socage Land. But fuch If Feme 
Dowment could not be without Judgment ; If the Socage Land were not t^I"\^ ^f 
fnfficient for her wlole Dower^pefboiild retain for Part, and recover againjl Dower oc- 
the Guardian in Chivalry for the other Part, Alter Judgment as afore- cupiesthc 

faid, ^-^^ ^ 



272 



Dower. 



Guafdianin faid, whether in the King's Court or the Lord's the Wife fhould in 

Socage by j^e Prcfence of her Neighbours have endowed herfelf of the bell of the 

B.Thr'and Land, which fhe held as Guardian in Socage by Metes to hold it for 

nofas' Life. Hawk. Co. Litt. SS- 

Rightful 

Guardian, fhe fliall nor endow hei-felf de la pluis Beale ; For this is in a Judgment given in the 

King's Court. 5 Rep 50. b. ;i. a. in Coulter's Cafe. 



(H. a) By Cuftom. 



I. 



IN Jj^fe the Tenant [did, that the Land is within the Manor of 
D. tft which is the Fee of L. -where the Ufage has been Time out of 

Mind^ that the Feme pjall have the Whole in Dozver dum fola fet^ and tf 

pe marry that pe Jhalt forfeit it^ and admitted. Br. Cultoms, pi. 67. 

cites 25 Air II, 
F. N. R. 2. Vili which is not a Borough or Incorporated may have a Cuftom 

'50 (-P)S.P. that the ¥tmt ilull be tndow'd of the Whole, as in Gavelkind and 

others. Br. Cuftoms, pi. 72. cites 21 E. 4 53, 54. 
In fome 3. In fbme Boroughs by Cuftom fhe ftiall have for her Dower all the 

Places fhe Tenements which were her Husband's. Lite S. 166. 

fliall have 

tlie Whole of Half dum Tola & cafta vixerit, and the like. Co. Litt. 1 11. a. 

Co. Litt. 4. The Cuftom of Kent is that the Wife ftiall be endowed of the 

33. b and ][4oiety of Gavelkind Land, and Ihali lofe her Dowry if fhe marry again ; 
— S^P ad- Three Juttices held the Plea good, and that flie had not Election to be 
judg'd ac- endowed ot the third Part at the Common Law, but was tied to the 
cordinjly. Cuftom; But Anderfbn e contra. Mo, 260. pi. 408. Pafch. 30 Eliz. 

Cro. E 82 5. Annn 
pi. 26 Pafch. ^"°"- 

4 EIJT.. C. B. Davis V. Selby. Le. i;;. pi. 1S2. Hill. 30 Elii. C B Hunt v. Gilburn. 

S. P adjiidg'd accordingly Cro. E. 121. pi. it. S. C. held accordingly. Gouldsb. loS. 

pi. 13. Hum V. Auftiit S. C. 

5. If a Cuftom be that a Feme fliall be endow'd 0/"^ Moiety of the 
Lands, yet llie Jhall not he tndow'd of the Moiety of a Fair held on tha 
fame Land; Per Newdigate J. 2 Sid. 139. Hill. i6j8, B. R.. 



(I. a) Quarentine. 

Shefhall i. Mag. Charta 9 H. 3. y~ir^ H E Widow fiall have her Dower and 
buromv? ^''^- '• -*- GYiiarentine m the Chief Hoiife tf n be 

of which'^tlie '^"^ ^ Cafile, and if it be, a competent Houfe Jhall be provided until her 
Day of his Dower is ajJigHed, and jbe fhall have in the mean Time her reafunable Ef- 
Death is t overs of the Common, and fhe f Jail have a third Part of the Lands of her' 
^h'^°F"^ft Husband affigned for her Dower, which were his during Covcrturey except 
and ;/ upon P'^ ^'^•^ endow' d With lefs at the Church Door. 
he* Hut' 
haniTj Death p^e depirrts from her Houfe, J)ic cannot return airain within the 40 Days. 2 I" ft. 17. 

Hob. 153. per Hobart Cli. J. cites D 76. Mich. 6 Ed. [H. pi 32. Ketiillsbv v Kettillf- 

by.] If che Widow beholden from her (Quarentine fhe fhall her U'^rit de (^unrentina habenda 

fothcSherid, by Virtue of which Writ the SheritFmay make a Proceft againft the DttcnUant n- 

turnabU 



Dower. 27:^ 

Simiahle <withm two or three Dtiys, and nay and ought, if no jult Caufe be Ihewn aj-ainft ir, fptedih 
to pit her into Pojfejpo)!. 2 Intt. 16, 17. it J 

By a Cafile in x.\\\s Stafjie it is intcnde<i one that is fortified and maintaintd for the Defence of the 
Kealin, snd not a Caftle in Nar>ie for the Habitation ot the Owners ; but this niuft be of a Houie 
V hereof flie is dowablc. 2 Inll. 17. 

2. Jf ihe fn^rrks within the ^o Days (he lofss her Quarantine; For Co. Litr. 
then her Widowhood is part, and the Quarantine is appropriated to>^-*'-^-^' 
the Widow's Eftate. 2 Inft. 17. 

3. TheWord EJiovers in the Statute is taken for Siijitnaiice. 2 Inll. 17. 
and Lord Coke there Tiys, that There is an Opinion in the Books [and 
in Marg, cites 19 H. 6. 14. b. and Regilt. 175.] that the Widow 
ianriot kill any of the Oxen oi the Husband's whillt flie remains in the 
Houfe ; but obferves that the Regiiler fays, Quod interim habeat ra- 
tionabilia Eftoveria de Bonis eorundem Alaricorum, which Lord Coko 
fays, (eenis to be an Expolkion of this Branch. And that in this Cafe 
it fecms to contain Meat, Drink, Garments and Halntatiun, th(nio;h 
-when refrained to IVoods it Jtgnijies Honfe-bote, Hedge-bote and Plough- 
■bote. 2 Inft. 17, 18. 

4. Widow for 40 Days next after the Death of her Baron is by the 
Law allow'd her G^iarentine to live in the Houfe ot her Baron, and to 
be fuftain'd with Vi£tuals there, and not lor any longer Time. Per 
Omnes J. Jenk. 284. pi. 18. 



(K. a) Agalnft whom Dower lies. 



J. T N Dower the tenant wticFd, and the Fatchee voucFd tht Heir 
\^ of //'t; .6i;;ro« of the Demandant ; t\\Q Demandant fhew'd that the 
Heir had Ajfets by Defcent in the fame County. The Demandant ilull 
not recover againlt the Heir but againil the Tenant only ; For there is 
no immediate Privity between the Heir and her ; For Ihe iliail recover 
againft the Heir only when the Tenant in Demefne vouches him. 
9 Rep 17. b. per Cur. in Bedingfield's Cafe cites i8 E. 3. 36. b. 

2. Writ ot Dower does not lie againf a Giiardian in Socage as ic lies Co Lit: -c 
againtl a Guardian in Chivalry, therefore the Indowment ts Diflifin ■,z.^.V. 
^u<ere inde. Br. Dower, pi. 63. cites 29 Alf. 68 

3. Dower thall be brought againf the Guardian 'where the Infant is in Co. Litt. 55. 
Ward, and not againf the Infant, becaufe the Guardian has Intenf. a. S P 
Br. Dower, pi. 20. cites 46 E. 3. 19. 

4. In Ravithment of Ward it was agreed that Writ of Dower may 
be brought againft the Baron alone, where the Baron is pcfsfed of a IVard 
in Jure Uxoris, and the Feme Mother of the Infant demands Dower ; For 
in Writ ot Dower agiinll Guardian Voucher does not lie. Br. Dow- 
er, pi. 23. cites 48 E. 3. 20. 

5. But Right of Ward fhall be againft both ; For there Voucher lies. 
Br. Dower, pi. 23. cites 48 E. 3. 20. 

6. Where there were Grandfather, Father, and Sen, and the Grand- 
father held the King • The Father took Feme j The Grandfather died i 
The Father had Ifjiu and died before Office found, and before any En- 
try, and after an Office was found for the King, that the Grandfather 
was feifed, and died feifed, and held of the King, and that he had 
Iffue, who had Ifue htm who now is Heir and -^ithin Age, by which 
%.\\^ King feifed and committed the Ward durante minor e atate^ and the 

4 A Fe)ne 



7 .^ Uovver. 

IcmeoJ theFalhtr^ Sou of the Grandfaiher^ hrori^kt Writ cf Dou'er a- 
gainf: tic CiT.-.i'iiilu-^ and the Coinmiccee demuired upon the Matter. 
I,r. Dowel, pi 66. citcs i H. 7 17. 

7. VVru 1)1 bcjwer lies againft tha Committee of a Ward, and he 
laay hav. Aid 0/ the King. Br. Dower, pi. 66. cites 4 H. 7. i. 
ptr Va.iior, who vouched rj E. 3. 

8. V', here the tenant f leads in Bar of Dower and demands Judgment 
ft Aiho, there tho' the Aftion does not lie againft the Commictcc, 
^ et by this Concliifwn the Dejtndant has loft his Ad-vantage^ and io J^ua- 
iinqie Via the Action lies well. £r. Dower, pi. 66. 1 H. 7. 17. 
per Briun. 

9. i\ Granite of a Rent in Fee takes Wife ; The Grantee releafes to 
the icr-trtiant and- dies ; His Wite ought to bring her Writ ot Dower 
cgaiisji the Itr-teuant, tor he is to pay the Rent, and there is no other a- 
j. iinlt v\ horn the Writ of Dower may he brought. So in the Cafe of the 
RtUafe of the Mefne, or Fore-jitdger of the Mefne by the 'ter-tenant ; 
\V here Dower is brought by the V\'ife of the Meliie it ought to be 
tigiinlt the Ter-tenanr. Jenk. 4, 5. pi. 6. 

10 Eat where a Grantee of a Rent in Fee dies^ and his Wife is 
dowable, Ihe ought to bring her Writ of Dower agatnji the Heir oj 
the Grantee^ and not againft the Tenant of the Land ; for he (the 
C/rantfe) is tiie True Tenant of the Renti in the other Cafes the 
Kent is excinft ; in this iaft Cafw it is not. Jenk. 5. pi. 6. 



(L. a) Writ and Abatement. 

r- theCon^- ^- ^^''/w- f ^"^P- T-^^ ^^"^ °f JPc^t^'^'* (ti"de nihil hahtt) the Writ 
)■'(,>, Uw if 49. 3 £. I. 1. jl- all not abate by the Exception of the tenant, that 

a M'onian pe has received her JDcwtr of another before the Writ ■ptirchafed^ unlefs 
tad accepted ^^ ^^^ y'y;^,,-^ j/^^j (jj^ receivid Part of her Dower * oJ himftlf, and in 
VlHei hem tl^e t famelown I ej ore the Writ pure ha fd. 



Jjl-.iCC 



i c 1 Ion 

,,.lc! rotrocierile Refdtie urlrfshy Writ of RhI.t of Dower. 2 ln&. z6z. in Principio, ci;es 

,ii Lib 4 tol- ^ ?^i '^■ 

± Thisismirfirimed tor (511. b ) sni IS in Lib 4, C:ip 15. S I 5. 

* Firft it muft be of the rame Tenant, aid not of another, tho' it be in the fame Town ; As it 

i^ d Husbar.ci e>iieo§s J of Whiteacre and B. ot Btackacre, both hi Dale, and the If'ife receives 

I u'er ot J (Jf notvvithfiandmg J].'.i//^<ii'e a Writ of Do'-jjer {uiide nil.'it babet] againft B. b/ the e.'C- 

•crs Puivicw of thib Atr, for he is not the fume Tenant of whom flie received her Dower. 

2dlv h'a haviPK aWifc does /Hfwff /lie J-lmh.wd of er.e Jcre, and the Wife ofamlher, ar.d bull) 
■ D-de- A dies; The Husbar.d affigns Dower of his Acre, yet does the Writ of Dower (,unde 
I'lhil'ha'beti lie againft the Husband and Wife, for they are not tlie fame Tenant, z Inft. z6i. 

•'dlv If xhc Baronhcfrifed of Btack-acre and White-acre in Date, and after tlje Coverture makes a 
1 Zfe tor Lite of Elucli. ^cre, and grants M'lMt-ncre, and the Reverfion of Black-acre to A and his 
J s to v.h'im Aitcriiment be nude, and dies, the //;/« receives Denver of J of Wl.nte-acre, and 
• tcr 'the Lejfre for Life dies, the H'lfe jhalt have a tf^rit of Docier (unde nit.'il hahet) to he endowed of 
J Ifliti-acre- For altho" it be againfl the fame Tenant, and in the lame Town, aid b-fore tlie Writ 
rmxhafcd,' which are the three Points required by tliis Acf, \et is there another P.ojjerty neceiri- 
jilv imiilye'l a"^ t''^'' ''' ^'"' '^"^ '"^ ^"''' ^ Tenant of both tlie one Land and the other n tiie Time 
. f ihe ileceii't of the Dower, as flie might hive UA her Writ ot Dower (unde nihil habet') aj',ainlt 
l.in-, of both which fhe could not have m tliisCalc, in refpett the Leffee for Life was Te.iant ot 
ThtFrecholdatthiit Time, and fu no Default of her. a Lift. 2^2. ., , t^ j , j 

+ A Writ of Dower (u'^de niliil habei) does tie in an FL-.nilet, but vet if tlie Demandant had 
r c, ivcd Dower out of rhe Hamlet, and in the famcTown, the Writ fliall abate, othcrwiie it is, the' 
j,,' be in the fnme Parifh, if u b= in xiollici' Toivn, toi' thf Wj.di of tlic Suture be, E.i mcfme 

L A i::e. z L:ft. 265, 

2. ia 



Dower. 27^ 



2 In W ric ot Dower alfign'd, tc is no Pica to the Writ to fay that 
the Deinandant a feifed of parcel oj her Dower of this fame &.c. But 
it is good in Common V\ ric «t Dower. Thtl. Dig. 148. Lib. 11. 
cap. 35. S. z. cires iMich. 9 E. 2. Brief 813. Britcon ca. 109. 

3. In Dower, the I'emnt pleaded Jointenaniy by Fine with oneTho. 
and the Demandant [aid, that after this Fine her Baron was feifed 
^ind infeojfed the Tenant^ and fo he is iolt Tenant, and lilue taken 
ihereupon, and found tor the Demandant, by which flie recover'd i 
But it was faid, that all might be revers'd in B. R. Thel. Dig. 226. 
Lib. 16. cap. 7. S. 8. cites 3 £. 3, Ic. North. Maintenance de 
briet 14. 

4. Dower in N. and the 'Tenant fays that'H. is a. Hamlet of N. Judg- 
ment ot the Writ, this is a goodPJea; [ii//^] ij he brings another 
Writ in N. the Tenant pall hoi fay that there are two N's^ and none 
"jcithoiit Addition. Br. Lriet, pi. 540. cites 3 E. 3. 

5. In Dower of the third Fart of a Manor where the Tenant 
pleaded Nontenure of Parcel^ the Daiiandant was received to viaintam 
that he was fully Tenant of her Demand, notwithjiandtng that Non- 
tenure ought not to be alleged in Writ of Dower &c. Thel. Die. 226. 
Lib. j6. cap. 7. S. n. cices 4 P.. 3 159. Quaere, 

6. Where a Feme takes a Manor tn Allowance of all her Dower 
ef the Tenements of her Baron, the Writ of iVaJle /hall be brought 
^igainji her as Tenant in Dower, and not as Lejfee for Life, as well 
by the Heir of the Baron as by a Stranger j But ocherwife ic is, - 
if upon Debate had between her and him in Reverijon ftie receives 
the Manor by Accord of the Leafe ol him in Reverfion to releafe 
her A6lion oi Dower. Thel. Dig. 170. Lib. ix. cjp. 52. S. 9 cices 
Tafch. 4 E. 3. 138. 

7. In Dower, the Demand was as to Parcel of the Moiety, and 
c/ the third Part of the Refidue, and the Tenant would have com- 
pelled the Demandant to Ihe^v C.iufe vi^hy he demanded the Moiety, 
but before Caufe fliewn the Tenant pleaded to the Rcjidiie tn Abate- 
ment that (he had recemed Parcel oj her Dower, and Iliue thereupon 
taken, and after the Demandant would not have jhe-mi Caufe of the oth^r 
Demand, becaufe the Tenant had pleaded to the Writ for the Re- 
sidue &c. let fhe was CompcWd by the Court to fliew Caufe, or to 
Amend her Demand. Thel. Dig. 88. Lib. 10. cap. i. S. 11. cites 
i-Iili 7 E. 3. 308. Dower 102. 

8. In Dower tinde Nihil habet it was pleaded to the Writ, that 
the Tenant hinifelf had AJfign'd her Dower to the Demandant m the 
fame Vill of which the Dtmandant was feifed i The Demandant re- 
plied, that at the Time of his Affignment, the Tenant was not feijed of 
the Tenements of which Dower is now demanded, but one A. then held 
them for Term of his Lije, the Reverfion expe^ant to you^ and fo thele 
Tenements are come to you after the De ith of the laid A. &c. Judg- 
ruent of this Writ be not good enough; upon which the Tenant was 

'put to anfwer over. Thel. Dig. 2.-5. Lib. 16. cap. 7. S. 3. cices 
Mich. 2 E. 2. Dower 124. and Hill. 12 E. 3. Dower 86. 

9. In Dower by feveral Praecipes, the Name of one of the Te- 
rants was lelt out in this Claule, unde queritur, and alfo in the 
Summons, by which it was abated againft all. Thel. Dig. 94. 
Lib, 10. cap. 6. S. 3. cites Hill. 12 £. 3 Brief 671.' 

10. But in DoA'er unde Nihil habet, Seiftn of Parcel ot her f)owet f^eifin of Par- 
in the fame fV// is a good Plea. Thel. Dig. 14S. Lib. n. cap. "'o^'^^*" 
iS. S. 2. cices 7 E. 3. 308. Mich. 2 E. 2. Dower 124. and i2!^7'''" ,, 

L. 3. Dower 80. i^noPUam 

_, , Writ of 

Dower by the Statute of Wcftm. I. cap. 49 without fafimr that it is of the Ajjl^nmtnt ot the7e/>ant- 
Ticl. Dig. 14^. Lit. II. cap 35. S. ii. cicci Hill. 1. I. 3. Dower S^. (^uerc. 



2 7^ Dower. 

11. It was adjudged that /;; Writ of IJ'afie brought againji lenant in 
Dower, it fuffites to name the Feme by her proper Name and Surname, 
without iiavuKg her by her ■proper Name, with that Wtje of f tick a vne. 
Thel. Dig. 50. lib. 6. cap. 2. S. 3. cites Mich. 31 E. 3. Brief 326. & 
Pafch. 32 E. 3. Brief 295. 

12. In Dower aguinji vi Guardian, the Detnand was of the third Part 
of a Car-ve of Laud 6i.c. The Tenant pleaded that the Demandant berfelf 
is feifed of the third Part of this Carve, et non allocatur to all the W^rit ; 
becaufe he does not /hew How fhe is feiled, or ofwhofe yljfignment or 
ctherwife &c. by which the Tenant was put to anfwer to the two Pares, 
Thel. Dig. 149. lib. 1 1. cap 35. S. 12 cites Trin. 39 E. 3. 22. 

13. In Dower the Demand was of the thtrd Part of 40/. Rent. Br. 
Demand, pi 47. cites 44 E. 3. 32. 

14. So of the Muiety of Rent, and not of Sum certain. Ibid. 

15. Dower was brought againlt the Earl of Warwick, and the Writ 
Br. Brief, ^^ ^ £)^ Libera Tenemento of J. W. her Husband in 7'erra Gwerr in Wales ^ 

^S^C ^^'^ ^'^'" -O^'"^''^ '^'^•f -^^ tertia Parte lerro- Gwerr, and fo Ihe fuppofes 
3iid fo the 'the Land of Gwerr to be in 7'erra Gwerr, and } et good by Award. Br. 
Demand of Demand, pi. I, cites 47 E. 3. 6. 

the Thing 

in itfelHs good. 

Br. Brief, i(t. So oUhe Manor of B. in B. Ibid, 

pl. 5it. 
cites S. C. 

Br. Brief, 17. And wheie Land is in Forejfa de K. which is not of any Fill, the 

P'^'iv Writ Ihall be PicCcipe quod reddat &:c. in Forefta de K. SLtid not De 

■rmJtfc Fore/a. Ibid. 

'in Forefta, 

and not de Forefta. 

18. Dower // the third Part of 10 I. and did not demand five Marks, 
and ib it ought to be quod nota. Br. Demand, pi. 51. cites 11 
H. 4. 83. 

19. In Dower the Demandant demanded the third Part of a Garden ; 
For the Writ is general Rationabilem dotem fitam qua ei contingit de 
Libera ^Tenemento J. B. viri fui in N. &c. Per Marten, the Demand is 
good, becaule the Writ has palled the Chancery; But note that this 
Term is not in the Writ, but only Libero Tenemento &c. and the 
Opinion of the Court was, that the Writ was good as in Alfife, by 
which the Tenant demanded the View &c. Br. Demand, pi. 8. cites 

8 H. 6. 3- 

20. In Waji it was agreed by the Opinion of all the Court, that a 
Feme Ihall be endowed of a Vtflcin appendant in Grofs, and the W'rit fhall 
be De Libero Tenemento. Br. Dower, pi. 91. cites 2 H. 6. 11. 

21. Dower of the Moiety by Ciiftom the Writ /hall be General, and 
fhall have fpecial Declaration of the Ciijlom lor the Moiety. Br, General 
Brief, pi. 23. 

22. In Dower the Demand was Medietatis 23 Acrarum Terra, pro eo 
quod the Land eft de Tenura m Gavelkind, fee undum Conflict udmem ad An- 
tiqno UJitat' quod de Meditate dotari dtbent, and did not fay De Tempore 
ciijus contrar^ &c. and yet good, becaufe the Courfe is {o, and it feems 
there, that flie ihall fay jbe is Sole according to theCuftom. Br. Dower, 
pi. 70. cites 2 E. 4. 17. 

23. Dower againfl a Guardian (hall \it by Name of Guardian ; and 
there it is a gocd PJea, that he, is not Guardian. Br. Dower, pi. 94,'* 
cites 9 E. 4. 31. 

24. tn. 



Dower. 277 



24, Writ of Dower lies a^ai/t/f Gunrdiatt in Cbivahy, "Without navi^ 
ing othir Guardtam who have Fared of the Ha-ftage of the Heir in IVard^ 
but all the Guardians jhall be jointly •vvitch'4. Thel. Dig, 49. Lib. _j. 
cap. 23. S. I. cites Mich. 16 K. 3 Brief 657. 

25, Dower, auA mjide iht Demand of t-jjo Mills. Skrene demanded 
Judgment of the Wi it i For where (he makes Demand of two M\\\6 
they are only tiiJO Scites of Mills and two Tofts^ and have been always 
in the Life of the Baron^ by which the Demand fball be of two Tofts &i.c. 
quod non negatur. Br. Demand, pi. 5. cites 14 H. 4. 35. 

26, In Dower of the third Part oj the Aloisty of a Manor^ and the 
'Tenoiit demanded the View^ by which the Demandant made her Demand 
■of xhe third P art of the Adanor of B. fvering the other Moiety. Pigoc 
iaid,now the Demand (lull be oftht third Part of'ailthe yicres and Rent., 
and yet good as above per Cur, For where a Afanor is parlcd between 
two G parceners each has a Moiety oi the Manor; Contra it leems where 
the one has all the Denie/nes^ and the other all the Services.^ but as long 
as the one has Land and Services, and the other likewife, each has a 
JMoiety ofthe Manor. Br, Demand, pi. 10. cites <) E, 4. 5. 

27 In Dower il the Tenant snakes Default by which Grand Cape ifjitedj 
the Demandant /hall tnake his Demand; For no Certainty appears before 
the Demand made, nor in Allife before the Plaint. Contra in Praecipe 
<juod rcddat. Br, Dower, pi, 96. cites 38 H. 6. iS. 

28. A Writ of Dower (tnde Nihil habet lies in Cafe where aW^omaii ' 
takes her Husband, who is fole feifed of Lands or Tenements to him 

and his Heirs in Fee Simple, or unto him and the Heirs of his Body 
i^c. Or il the Husband durmg the Marriage betwixt him and his Wite 
be folely felled in Fee Simple, or in Fee Tail c>f fuch Eftate, t