The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CXXXIII. Mich. 26 Eliz. In the Kings Bench.

* 1.1IN a Formedon of a Mannor, The Tenant pleaded Ioynt-Te∣nancy by Fine with J.S. The Demandant averred the Tenant sole Tenant as the Writ supposed; and upon that it was found and tryed for the Demandant: Vpon which a Writ of Error was brought; and Error assigned in this, Because where Ioynt-Te∣nancy is pleaded by Fine, the Writ ought to have abated, without any Averment by the Demandant against it, and the Averment had been received against Law, &c. Shuttleworth, At the Common-Law, If the Tenant had pleaded Ioynt-Tenancy by Deed, the Writ should have abated, without any Averment; but that was remedied by the Statute of 34 E. 1. But Ioynt-Tenancy by Fine doth remain as it was at the Common Law; For he hath satis sup∣plicii, because by his Plea, if it be false, he hath by way of Con∣clusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-Tenancy: And the Law shall never intend that he would so sleightly depart with his Land for the abatement of a Writ. As in a Praecipe quod reddat, the Tenant confesseth himself to be a Villein of a stranger, the Writ shall abate without any Averment Free, and of Free estate; for the Law intends, that the Tenant will not inthral himself without cause. Wray, to the same purpose; But the Demandant may confess and avoid the Fine; as to say, That he who levied the Fine, was his Disseisor, upon whom he hath before entred. And if Tenant in Feesimple be impleaded, and he saith, That he is Tenant for life, the remainder over to A. in Fee, and prayeth in Aid of A. the Demandant shall not take Averment, That the Tenant at the time of the Writ brought was seised in Fee.

Note: In this Formedon, Ioynt-Tenancy was pleaded but as

to parcel; And it was holden by Wray and Southcote, That the whole Writ should abate, the whole Writ against all the Defen∣dants. And so where the Demandant enters into parcel of the Land in demand, if the thing in demand be an entire thing, the Writ shall abate in all. In this Writ, the Demandant ought to have averred in his Writ an especial foreprise of the Land parcel of the Land in demand whereof the Ioynt-Tenancy by the Fine is pleaded: For this dismembring of the Mannor and distraction of the Land of which the Ioynt-Tenancy is pleaded, is paravail and under the gift whereof the Formedon is conceived; and there∣fore in respect of the title of the Demandant, it remains in right parcel of the Mannor, and therefore ought to be demanded accord∣ingly with a foreprise. But if A. giveth unto B. a Mannor, except 10 Acres in tail, there, if after upon any Discontinuance, the issue in tail is to have a Formedon; in such case, there needs not any foreprise for the said 10 Acres, for they were severed from the Man∣nor upon the gift: But if Lands in demand be several, as 20 Acres, except 2 Acres, this foreprise is not good. See Temps E. 1. Fitz. Brief, 866. Praecipe, &c. unam bovatam terrae forprise, one Sellion, and the Writ was abated, for every demand ought to be certain: but a Sellion is but a parcel of Land uncertain as to the quantity; in some places an Acre, in some more, in some less. Another Point was, Because the Tenant hath admitted, and ac∣cepted this Averment; scil. sole Tenant as the Writ supposeth And the Question was, If the Court, notwithstanding the Admit∣tance of the Tenant, ought without Exception of the party Ex Of∣ficio, to abate the Writ? And it was the Opinion of Wray, Chief Iustice, That it should: For it is a positive Law, As if a Woman bring an Appeal of Murder upon the death of her Brother, and the Defendant doth admit it without a Challenge or Exception, yet the Court ought to abate the Appeal, 10 E. 4. 7. See the princi∣pal Case there, Non ideo puniatur Dominus, &c. And if an Action be brought against an Hostler upon the Common Custom of the Realm, and in the Writ he is not named Common Hostler, yet the Court shall abate the Writ Ex Officio. See 11 H. 4. and 38 H. 6. 42.

Notes

• * 1.1

  2 Len. 161. Dyer 291.