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144. Lands at the Common-law, and Copyhold-lands are leased by one Indenture rendring rent. Resolved, that the whole Rent shall issue out of the Lands at the Common-law, and not out of the Copyhold. But if a man leaseth Lands, a part of which he hath by Disseisin rendring Rent, there the Rent shall issue out of the whole
Land; and by the Entry of the Disseisee, the Rent shall be appor∣tioned.
145. A Composition was betwixt an Abbot and a Parson, that in recompence of the Tythes of all the VVoods within the Mannor, whereof the Abbot was Owner, that he should have to him and his Successor ••0. loads of VVood every year in 20. acres of the said Mannor to burn and spend in his House; The Parsonage was ap∣propriate to the Abby, and after the Abby was dissolved; and the King granted the Parsonage to one, and the 20. Acres to another: It was was resolved, That by the uni••y the Estovers were not extinct; for if they be Tythes they are not extinct by this unity of Possession, for that Tyths run with the Lands: and Tythes de jure Divino & Ca∣nonica Institutione do appertain to the Clergy.
Eyres Case. 146. In Replevin. The Case was, the Archbishop of York was seized of a Field in B. in the right of his Church, and Leases the same by Deed for years rendring rent; which was confirmed by the Dean and Chapter. In the Indenture there was a Proviso, that in the vacan∣cy of the Bishoprick, the rent should be paid to the Chapter as in his right; the Bishop dyed: I. S. was created Bishop, and was deprived because he refused to take the Oath of Supremacy. I D. was cho∣sen and created Bishop, and for Rent behind and not paid to the Chapter in the time of the vacancy he avowed. In this Case these these points were resolved, 1. That the Proviso was well placed, and was a Condition being annexed to the Reservation of the Lease. 2ly. That the Successor might enter for the Condition broken in the time of his Predecessor. 3ly. The Bailiff of the Bishop could not enter for the Condition broken without a Special War∣ranty. 4ly. That the Condition was repugnant, because he appoints the Rent to be paid to the Chapter in the time of the vacancy, the Reservation being to the Bshop and his Successors. 5ly. That no Title was in the Succcessor to enter, because the Condition was repugnant. 6ly. That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head.
147. A man made his Will in this manner: Item, I give my Mannor of D. to my second Son. Item, I give my Mannor of S. to my said Son and to his Heirs. It was resolved by the Justices, that in the first he had but an Estate for life, and the Item seems to be a new Guift to a greater Preferment in the second place for the a∣mendment of the other.
148. A man seized in Fee took a Wife, and afterwards levyed a Fine of his Lands with Proclamation, and 5. years passed in his life, he dyed, and after other 5. years passed. Resolved, That the Wife
should be barred of her Dower, because she did not claim it within the 5. years after the Title of Dower accrued.
149. Assise against divers, who pleaded Nul tort, &c. the As∣sise found, that all the Defendants were Disseisors, but that one of them did the Desseisin with force. It was the opinion of the Justices, That the Verdict was good, for that the Force and Disseisin was two things; for Force is not incident to every Disseisin, for it should be enquired by the Assise if they or any of them had done the Dissei∣sin with force; and if Lessee for years be re-ousted with force, and he in the Reversion bring an Assise, and the Disseisin is found with force, yet the Force is not punishable, for the Force was to the Lessee for years.
150. Nota. It was resolved by the Justices, That if the Deman∣dant do recover in an Assise, he may enter and execute the Judge∣ment without being put in seisin by the view of the Recognitors of the Assise: but if he be disseised again, he shall not have Re-disseisin, but is put to his Writ of Post disseisin.
151. Note, It was agreed by the Justices, That if Tenant in tayl discontinue and dyeth, and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty, and dyeth; and afterwards the Issue in tayle brings a Fo••medon, and is barred by the Collateral warranty (if after, that which was a Collateral warranty become a lineal warranty, as it may;) yet he and his Heirs shall never have remedy against that Bar; But if an Exchange be between Tenant in tayl and another, and the Tenant in tayl dy∣eth, and the Issue enter into the Lands taken in Exchange, and afterwards brings a Formedon, and is barred and dyeth; yet his Issue may enter into the Lands exchanged, or recover the same by Acti∣on, notwithstanding the bar in the first Act••on, for that is out a warranty in Law, which is not so strong as a warranty in fact: but he may disagree to the Exchange and enter, or bring his Action at his Election.
152. A man leaseth a Mannor to another with all the members and appurtenances, To have and to hold all the members of the said Mannor to the Lessee for years. It was holden, It was a good Lease of the Mannor for years; for the limitation of the word Mem∣ber was void, and so it was a good Lease of the Premisses without the Habendum.
Sutton and Robertsons Case. 153. In Ravishment of Ward, the Case was, Lord and Tenant: The Tenant enfeoffeth the Lord and another of the Tenancy; and they reenfeoffed the Tenant. It was resolved by all the Justices, That the Seignory was extinct; for by the Feoffment to them all
the Seignory was suspended in their hands, and then when they de∣parted with the Lands discharged of the Seignory, it was an Extin∣guishment of the Seignory: and when the Lord joyned with his Companion in the Feoffment, all passed by the Feoffment of any of them, and if the Lord releaseth all his Right in one Acre of the Lands holden, it is an Extingushment of the whole Seig∣nory.
154. A man by his Will deviseth his Lands to his Wife to im∣ploy and dispose them upon herself and his Sons at her will and pleasure. Resolved, It was a good devise in fee to her, but the Estate in her was conditional by reason of the words eâ intentione, which makes a Condition in a Devise, but not in a Feoffment, Guift or Grant.
155. A man recovered and sued forth a Capias ad satisfaciend. to the Sheriff, who arrested the Defendant, and he after escaped, and at the day the Sheriff did not return his Writ: A Sicut alias issued to the Sheriff; upon which the Sheriff arrested him again, and the Defendant brought an Audita Querela. Resolved, the Writ did well lye; for although the Par••y himself might have a false Imprisonment against the Sheriff, because he had not returned his Writ, and so was a Trespassor ab initio, yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ, but having respect to the Party Plaintiff he is in Execution by the first taking presently: And in this Case it was said, That if a man be condemned in Debt or Trespass and be taken in Execution, although he be chosen a Burgesse of Parliament, he cannot have the Priviledge of Parliament to discharge him of the Execu∣tion.