Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 27.

Of Counts.

THus farre of the beginning 〈…〉〈…〉 suite: The proceeding hath 〈…〉〈…〉 parts, Count and pleading (which two are but one in pleading) 〈…〉〈…〉∣ther meane acts.

A condition (annexed to an 〈…〉〈…〉 freehold) cannot bee alledged in 〈…〉〈…〉 or pleading vnlesse it be by deed: Bee it ••••

••ersonell or reall actions. But a condition ••nit to a lease for yeares, or grant of a ward∣••hip, or other chattell Reall may. Yet the Iu∣••ie vpon the generall issue (as ••ultor•• nul ••isseisin in an assise) may find it if they will. ••nd thereby the partie shall haue aduan∣••ge of it.

Count is a larger declaration for the ••me, place, quantitie of the land, and other ••ch things of the substance of the originall ••rit. And therefore in a formedon of foure ••cres and Count but of one, all the Writ ••hall abate, for it is not pursued. In an ap∣••eale of murder, he cannot declare that the ••efendant traiterously killed him as he was ••oing to succour the King, in his warres ••ith xx. men in his company, &c. for the ••rit supposeth no treason.

Statutes.

36. E. 3. cap. 15. Declarations shall bee ••ood enough if they haue matter of sub∣••tance, though the termes be not apt.

In reall actions which are in the right but not in meere possessorie ones) the de∣••andant must alledge the taking of the ••rofits, we call it esplees, in the declaration. As in pleas of la••d, the taking of the profits ••f the land as errable, meadow, and ••asture, &c. if of a pond, then by taking the ••ish there, as Breames, &c. In a writ of right ••f auowson, the esplees shall be laid in his Clarks taking the great and small tythes.

In an assise of an office as of a filizarie, &c. seisin shall bee alledged by the taking of iiij. d. for making out a capias, or such like. In a quod permittat, by the taking of com∣mon by the mouth of his beasts. In a natiue habendo, esplees shall be alledged in the vil∣leine, viz. in taxing him high and low at his pleasure, in making his profit of him; to driue his cattell, to carrie away his doung, and to do all other kind of villeine seruice, &c. But in a writ of Eschete, in a writ of right sur disclaimer, and such like, which are founded vpon the seigniory, and not vp∣on any seisin of the land it selfe, no esplees shall be alledged. And these esplees where they are to be alledged, must be alledged in himselfe, if the action be brought of his owne seisin in his ancestor; if it be brought of his ancestors seisin, where it cannot be brought but of the seisin of some other, there it must be alledged in those other. As in a formed on en descender the esplees shal be alledged onely in the donee. In a forme∣don en remainder for an estate taile, onely in the particular Tenant to proue the estate taile executed. In a formedon en reuerter, they must be alledged both in the donee and the donee, for there a fee simple is de∣manded. In a lease for life the remainder in taile, and the lessee for life, and he in the re∣mainder in taile dye, the issue in taile shall haue a formedon en descender, and make no mention of the Tenant for life. And therefore the esplees shall be onely alled∣ged

in tenant in taile, otherwise it is in the like case of a reuersion in taile granted.

In stead of Count, a plaint shall bee made in assises of nouell disseisin, and in writs of dower a demand.

Notes

• 11. H. 7. 22.
• 11. H. 7. ibid. Lit. 85.
• 8 E. 4. ••. 45. E. 3. 25.
• 8. E. 3. 381. 26. H. 8. 3.
• ••. Mar. Dy. 114. 13. H. 8. 16. 19. H. 6 32.
• Br. Esplees. 11. 21. H. 6. 22.
• 9. H. 6. 53. 50. E. 3. 1.