Reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the Common Pleas, Richard Brownlow & John Goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book.

Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton.

IN second deliverance, the case was this, A man seised of a house and fifty Acres of Land held by Rent, fealty, and Harriot service, enfeoffs the Lord of three Acres parcell of the Land, and after in∣feoffs the plaintiff in this Action of three other Acres, and upon this rhe sole question was, if by this Feoffment to the Lord of parcell Harriot service is extinct or not.

Harris Serjeant conceived that the Harriot remaines, for he sayd that it is reserved to the Reversion of the Tenure, but it is not as anu∣all Service, but casuall, and it is not like to rectify, for that it is in∣cident to every service, And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service: And Bracton in his Tractate De Relevijs 2 Booke 2, 7. saith, that Est alia prestatio vocata Harriot &c. Que magis fit de gratia quam ex Jure, and it is not like to a releife, see the Booke at large, and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men, that every of them shall pay a severall Harriot, as it appears by Bruertons Case, 6 Coke

1. a, 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed, 3. 73. a, 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd, that the reason why Ho∣mage and Fealty remaine, if the Lord purchase part of the Tenan∣cy is for that that they are of annuall Services, and it seemed to him, that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed, 3, B. Apportionment last case, which accords the reason, and upon this he concluded, that for that that the Harriot is not annuall, it shall not be extinct by the Feoffment but re∣maines, but he agreed if a man makes a Lease for years rendring Rent, and parcell of the Land comes to the Lord, the Rent shall be appor∣tioned if it be by Lawfull means, as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case, and 24 H. 8. Dyer 4. 1. Rushdens case, by which, &c.

Nicholls Serjeant, that it hath been agreed that it is intire service, and that then he concluded upon that that it shall be of the nature of other intire services, as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3, F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain, and the escuage shall be apportioned, but this is not for the reason alledged in Little∣ton, that is, for that that they are not annuall services, but for that that the Homage is incident to every Knights service, and as the Lord Coke sayd, fealty is incident to every service in generall, and the Te∣nant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him, and the reason for which the Escuage shall be apportioned, is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services, as it appears by the pleading of it, and shall be apportio∣ned according to the Assesment by Parliament, and by 22 Ed 4. It appears that this purchase by the Lord, is as a release, and if the Lord release his services in part, this extincts the services in all, and he sayd there is no difference where an intire service is to be payd, every third or fourth year, and where it is to be payd every year as to that purpose, and yet in one case it is annuall, and in the o∣ther it is casuall, and yet in both cases if the Lord purchase parcell of the Land of the Tenant, all the intire services shall be extinct and gone, though that they are to be performed every third or fourth year, by which, &c.

Foster Justice, that the Harriot is entire service, and for that though that it be not annuall, it shall be extinct by purchase of par∣cell of the Tenancy by the Lord, as if a man makes a Feoffment with warranty, and takes back an Estate of part, the warranty is extinct, as it appears by the 29. of Assise; so if a man hold his Land by the ser∣vice

to repaire parcell of the fence of a Park of the Lords, and the Lord purchase parcell of the Tenancy, the Tenure is extinct, as it appears by 15 Ed. 3. And it is agreed in the 21 H. 7, In Kellawaies Reports by Frowick, that there is no difference between Harriot and Releife, and Releife shall be extinct, and so he concluded that the Harriot is extinct.

Danyell Justice accordingly; and he said that this purchase shall be as strong as release: And if the Lord hath released the service intire for part, it shall be extinct for all, and if Tenant holds by Suite to the court of the Lord, and the Lord purchase parcell of the Tenancy the Suit is extinct, as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is ex∣tinct by the purchase aforesayd.

Warburton accordingly: And saith that in Littletons Case, the Homage and Fealty shall remain, for they are personall ser∣vices, and for that shall remaine intire, and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum: But for other intire services by the purchase of the Lord, be they annuall or casuall, and they are extinct, and 21, Edward 4, was a Suite for a Hawke, which was kept back twenty yeares, and so for Suit if the Tenants make a feoffment to diverse, they shall make but one Suit, but they all shall make contribution to the Suit, but if the Lord purchase parcell, he can∣not make contribution: And though that the Homage and Feal∣ty are personall services, the Horse and Hawke are of the nature of land, so the Harriot is of his goods, and if the Tenant hath no goods, the Lord shall loose it, and for that he concluded as a∣bove.

Walmesley accordingly: And he said, if a Tenant hold by in∣tire services of two Lords, and one purchase parcell of the Tenancy, all the intire services shall not be extinct, but the other Lord which did not purchase, shall have them, for Res inter alios acta, nemi∣ni nocere debeat: To which Coke cheife Justice agreed, and he said if Harriot custome be due, peradventure it shall not be extinct by purchase of parcell of the Tenancy, for that is personall, and it is not Issuing out of land, but for intire services, which are Issuing out of land, he said there is no difference betwixt annuall services and casuall services which are intire, and so he concluded, as a∣bove.

Coke cheife Justice accordingly, and he said there is no diffe∣rence between annuall intire services and casuall, so that they are services to be paid at the death or alteration of every Tenant, or otherwise, but he said there is no doubt, but that Rent service shall be apportioned, though that the Lord purchase parcell, be that

in the Kings case, or of a common person, and this by the com∣mon Law without the aid of any Statute, for there is not any Statute that shall aid that, if it be not remedied by the Common Law, and he said that some Intire services may multiply, as if a man holds by payment of a payre of gilt Spurrs, or of a Hawke, or a Horse, or others such like, and makes a feoffment of parcell, the Feoffee shall hold by the same intire services: But if the Te∣nant hold by personall services, as to cover the Table of his Lord, or to be his Carver, or Sewer at such a Feast, or such like, these personall services cannot multiply, if the Tenant makes a feoffment of part, for by this the Lord may be prejudiced, for peradven∣ture at his house he will not include them, but he may distrain every of them to make the service: And he saith the reason for which Knights service shall be apportioned, is for that it is for the publick good, and for the good of the Common Wealth▪ But so are not the other personall services, and in the principall case he conceives, that if the Tenant had made a feoffment first to a stranger, and after the stranger had infeoffed the Lord, that by that all the intire service shall not be extinct, for by the feoff∣ment of the estranger, was severence of the services, and he holds by a Harriot as well as his Feoffor, and for that nothing shall be extinct, but the Harriot due by that parcell, of which the estran∣ger was infeoffed; and he agreed with Walmesley, that a Harriot custome shall not be extinct, where the custome is that every Te∣nant shall pay a Harriot, for there it is paid in respect that he is Tenant, and custome shall not be drowned by unity of Tenancy and Signiory: And for that he concluded that the Harriot for that, that it was intire service though that it were casuall and not annuall, that yet it shall be extinct, and Judgement was given ac∣cordingly.

Notes

• Casuall intire Services.
• Harris.
• Nicholls.
• Foster.
• Dauiell.
• Warburton.
• Walmesley.
• Coke.