The Principal Laws of England, Treatise · Part 40 – Part 42
❧ The limitation of prescriptiō inacted anno. xxxii. Hen. viij.
NO person shal sue or maynteine any writte of right, or make any title or claym to any lādes tenemētes rentes annuities commons pensions porcions corrovies, or other herevitamentes of ye possession of his ancestor or predecessor, and declare any further season or possession of his auncestour or predecessor, but onelyonly of the season or possession of his ancestor or predecessor, whiche hath bene seased of the same within .lx. yeares nexte before y• teste of the same writte, or next before the said title or claime, so to be sued.
Also no persone shal sue or mainteine any assise of Mortancestor, Cosinage, Ayle, writ of entree vponupon disseason done to any of his auncestors or predecessors, or any other action possessary, vponupon the possession of any of his auncestours or predecessours, for any landes or other hereditamentes of any further season or possessiō of his ancestor or predecessor, but onelyonly of the season or possession of his ancestour or predecessor, whiche was seased of y• same wythin fifty yeres next before the teste of the oryginall of y• same writ. And no person shal maynteyne any action for any landes or other hereditamentes vponupon his owne seasone or possessiō therin, aboue .xxx. yeares next before the teste of the original of the same writte. Item no person shal make any auowry or cognisaunce for any rent suite or seruice, & alledge any season of the same in his auowry or cognisance in the possession of his ancestors or predecessours, or in his owne possession, or in y• possessiō of any other whose estate he shal claym to hauehave, aboue fifty yeres next before the making of the sayd auowry or conysaunce. Moreouer al formdownes in reuerter, formedownes in remainder, and scíre facías vponupon fy…es of landes or other hereditamētes at any tyme to be sued, shall be taken wythin fifty yeres next after the tytle of action fallen. And if any person do sue any of the said actions or writtes for any lādes or other hereditamētes, or make any auowry conysance prescription or claime for any rente suite seruice or other hereditamentes, and can not proue y• he or hys ancestours or predecessours were in actuall possessiō or seasō therin at any time wtin y• yeares before lymited, if the same be trauersed or denied by y• partie plaintiffe demandant or auouant or by the partie tenant or defendāt, he and his heires shal from henseforth be vtterly barred for euer of eueryevery the sayde wryttes actions auowries conisance prescription title and clayme hereafter to be sued or made for y• same lādꝭ tenementes or other the premisses, for which the same action wrytte… auowry conysāce title or claime hereafter shal be at any tyme sewed or made.
Prouided, that al persons whiche now hauehave any of y• said actions writtꝭ auowries scire facias conisance prescription title or claime depending, or that hereafter shal sewe or bring any of the sayd writtꝭ or actions, or make any of the said auowries cognisances prescription titles or clayme at any time before the feaste of the ascention of our Lorde which shalbe in the yere of our lord a thousand fiue hundreth forty and syxe, shal alledge the season of their ancestours or predecessours, or their owne possession and season, & also hauehave al other lyke aduantage in the same writtes actiōs auowries conisances prescriptions and claymes: as they myght hauehave had before y• making of this statute. Prouided also, that if any persones, beinge nowe within the age of .xxi. yeres, or couert barō, or in prisō, or out of this realme of Englād, now hauing cause to hauehave or bring any of y• saide writtes or actions, or to make any auowries cognisances prescription or claymes, it shal be lauful to such persōs, to sue or brīg any of the said actiōs, or to make any of the said auowries cognisances titles or claimes at any time wtin syxe yeres nexte after such persons nowe being within age, shal accomplish the age of .xxi. yeres, or now beyng couert barō, shal be sole, or now being in prison, shal be at their lybertie, or nowe being out of this realme, shal come & be within this realme. And that eueryevery such persons in their sayd actions auowries conisāces titles or claimes to be made sued or commenced wtin the said syxe yeares, shall alledge the season of their auncestours or predecessours, or of their own possession, or of the possession of those whose estate they shal thā claime: And also within the same syxe yeares shall hauehave lyke aduantages in y• same, as they might hauehave had before y• makīg of this acte.
Prouided also, that if the sayd ꝑsons now being within age, or couert baron, in prison or out of this realme, do dye within age, or being couert, or while they shal be in prison, or out of this realme, or decease wtin .vi. yeres next after they shall accomplysh their ful age, or shalbe at large, within this realme, or shal become sole, and no determination or iugement had of such titles actions or rightes so to them a…rewed, then the next heir of such persons so dying shal enioy lyke aduantage to sue demaund aduow declare or make their sayd tytles claymes or prescriptions within .vi. yeares nexte after the deathe of such persons, as y• same infant after hys full age, or the sayde woman couert after ye death of her husband, or ye same person beinge oute of this realme after hys repayre or commyng in to ye … or the saide ꝑson imprisoned after his enlargemēt and commyng out off pryson, myght hauehave had wythin .vi. yeres then nexte ensewyng by force of ye prouision last before rehersed▪
Prouided also, that if any persons before the sayd feaste of the ascention sue any of the said actions or make any auowry title or clayme, & the same happen by ye death of any the parties therunto, to be abated before iugemēt or determination therof had, then the sayd persons being demaūdantes or auowantes, or making any such cognisaunce prescription tytle or clayme being than on lyue, and if not, than their next heires, may commence their action and make theyr auowry conisaunce or clayme vppon y• same matter within one yeare nexte after suche suite abated, and shal hauehave like aduāttage to sue demaund auow declare or make their said titles claymes or prescriptions within the sayd one yeare, as the demaundantes in suche writte or suite abated, or as suche as did auowe or make conisance title clayme or prescription, myght hauehave enioyed in the sayd former action or suite.
Prouided furthermore, that if any false verdit happen herafter to be giuen in any of the sayde actions sutes auowres prescriptiōs tytles or claimꝭ than the partie greued may hauehave his attaint vponupon eueryevery such verdit so giuen, and the plaintiffe in the same attaint vponupon iudgement for him giuen shal hauehave his recouery execution and other aduātage in like maner as heretofore hath bene vsed.
❧ Of fines.
FInes hauehave theire name, bycause they make a final ende and determination of all suites strifes and debates betwene men. For the due leuieng wherof, it was inacted in the .iiii. yere of King Henry the seuenth, that they muste be solemnly before y• iustices of the common place red and proclamed the same terme & three termes next folowing y• ingrosmēt, at whiche tymes al y• plees must cease. And such fines shalbe a sufficient barre and discharge against al persons, sauing against women that be couert baron if such women be not priuie to the same fine, or such as be within age, in prisō, out of the realme, or out of their right myndes. But these fines shall not cō clude ne barre all straungers whiche hauehave right to entre or to hauehave any action, if they come within .v. yeares astre suche proclamations made or (in case the cause of action falleth vntounto them after the fyne so duely leuied) if they come and commence their action and suite within .v. yeares nexte after such cause of action to them accrued. And they may sue against the takers of the profittes. But if they that hauehave right to the same be within age, in prison, couert baron, out of the realme or not in their right memory: then their title or entrie shal be saued vntounto them tyl they be of ful age, out of …, discouered and sole, within the real…e or of …ight mynde, and then within fyue yeres after, their action or entrie must be sued or made with effecte
Also ye shal vnderstand, that by the said stature of Henry the .vii. it shalbe a good plee for al straungers to saye, that they that were parties to the fine nor none other to theire vse, had any thing in the tenementes or landes at the tyme of the leuying of the fine.
Furthermore ye shal note that in the .xxxii. yeare of this king, for thaduoyding of certaine doubtes and ambiguities, it was inacted, that al fines aswel hertofore leuied, as hereafter to be leuied according to the sayd statute of Henry the .vii. by any person of the ful age of .xxi. yeres, of any landes or other hereditamentes beinge before y• fine leuied in any wise intayled vntounto him or to any of his ancestors in possession reuersion remaindre or in vse: shalbe immediatly after the same fine leuied ingrossed and proclamations made, a sufficient barre and discharge for euer aswel against him & his heirs clayming the same onelyonly by force of any such entaile, as against al other to their vse, so that the same fines be not leuied by any woman after the death of her husband, contrary to the statute made the .xi. yeare of Henry ye seuēth, of landes and tenementes of thinheritance or purchase of her husbande or of any his ancestours giuen to her in dower for terme of lyfe or in tayle in vse or in possession. Excepted also al fines leuied or to be leuied of any such landes or other hereditamentes as the owners therof by any special acte of parliament made sith the said fourth yeare of Henry the .vij. be restreined from making any alyenations discontinuancies or other alterations of the same. Also of such landes as be now in sute and variāce in any of the kinges courtes, or wherof any euidences be now in demande in the Chancery, or which be already couered. Excepted also fines leuied or to be leuied by any person, of landes or tenementes granted to him or to his ancestours in taile either by the kingꝭ letters patentes, or by vertue of any acte of parliament, wherof the reuersion is in the king.
❧ Of testamentes or last willes.
TEstamentū in latyn is as moche to say as mentis testatio, that is a declaratiō or witnessinge of a mans mynd. And there be two sortes of testamentes. The one is called testamentum scriptum, that is, a written testament, or a last wil by writing, and the other is called testamentum nuncupatū a testament nuncupatiue, which is when a man wyl expresse by mouth his last wil and testament wtout wryting, onelyonly by calling before him certayn of his neighbours in whose presence he doth signifie by wordes his last minde and wil. And this for most parte men vse to do when for feare of sodennes of deth, they dare not abyde the writing of their wil. And this wil (onlesse it be in certaine cases) is as strong and as sure, as is a testament or laste will put in writing and sealed with the seale of the testatour.
Also ye shal vnderstād that though a testament by writinge be not sealed with the seale of the testatoure, yet is the testament good & effectual in the lawe.
And ye shal also marke, that where a man maketh ones his testament & wil, and afterwarde maketh an other wil by wordes: if his laste will be proued before the Ordinary, and by him put in wryting and insealed with his seale, such last wyl shal auoid the first wil, onles it be in special cases, and so alweyes the latter wil and testament shal auoyd the former.
Finally ye shal obserue, that by an acte of Parliament made in the .xxi. yeare of our soueraigne lorde Kinge Henry theight, it was ordeyned that where part of therecutours named in the testament of their testator wherin any landes or tenementes be willed to be solde by them: refuseth to take vponupon them the administration, & the residue do take the charge and administration therof vponupon them: in thys case al bargaines and sales of the said landes made only by those executors that toke the administratiō of y• testament vponupon them, shalbe as good and as effectual in the law, as if as the residue of y• same executors so refusing had ioyned with them or him, if it be but one person, in the makinge of the bargaine and sole.