Jurisdictions, Part 78
Attornement.
WHen any Mannour deſcends to the Lord, upon every deſcent to the Lord, it belongeth to the Steward at the firſt Court to make all the Tenants to make Fealty; and alſo upon every purchaſe of Mannour to enter the Fealty of every Tenant which holds of that, and alſo to enter their Attornement and Seiſin of Services, to the end that the Lord may by this means diſtrain for his Services, and the Tenants may hereafter be better known to him, and by 28 H. 8. Tit. 40. Attornement may be made by Tenants to the Lord in his Court, to the Steward or Purchaſor, and not to his Servant in abſence of the Lord.
For that ſomething ſhall be ſaid of Fealty, and where there ought to be Attornement, and where not.
IT is ſaid, that the Tenant that hath made Homage to the Father, ſhall not make Homage to the Son, for that he hath once made Homage to his Lord, but yet he ſhall make Fealty to the Son, though he have made it to the Father▪ but if the Mannour be recovered againſt the Father which hath taken Homage, now he ſhall make Homage again, Littleton fol. 29.
If a Mannour be exchanged, yet there ought to be Attornement, otherwiſe the Lord cannot diſtrain for the Arrearages, Perkins fol. 47, 56, 58.
If one alien his Mannour by Deed indented of Bargain and Sale, and inrolls that according to the Statute; that is good without Attornement, and the Lord may diſtrain for his Services, and the ſame Law is of a Reverſion ſo granted, Raſtall, Inrolment 2.but of a Grant by Fine it is otherwiſe, 27 H. 8. chap. 16. 30 H. 8. Tit. Attornement.
If the King grant Reverſion of Lands, or grant a Mannour to one and his Heirs, or otherwiſe by his Letters Patents, the Patentee may diſtrain or avow without Attornement, and he need no Attornement, 34 H. 6. fol. 7. Fitzh. fol. 60. J. & 6 Ed. 3. Tit. 13. Natura brevium fol. 171. accordingly, 12 Ed. 4. fol. 3.
Where a Mannour or Reverſion is deviſed by Will in writing, that is good, and ſhall paſſe without Attornement, 19 H. 6. fol. 24. Littleton fol. 132. accordingly of Deviſe, where Lands were deviſable by Cuſtome, 34 H. 6. fol. 7.
The Lord may avow upon the Tenant by the Curteſie, and in dower, and upon him which recovered againſt his Tenant without Attornement, for they are in by Law, and need to have no Attornement, 36 H. 6. fol. 35.
If one have a Mannour delivered in Execution by vertue of a ſtatute Merchant, or an Elegit, he may avow without Attornement, 20 H. 6. fol. 7.
Where a Mannour Eſcheats, or the Lord have that as a Perquiſite by his Villain, he may avow without Attornement, Littleton fol. 132. 34 H. 6. fol. 7. accordingly, and Fitzh. fol. 60. J.
If a man have a Common of Paſture to a certain number, or a Common of Eſtovers certain, and grants them over, theſe ſhall paſſe without Attornement, for that they are not to be taken by the hands of Tenants, but by the mouths of Beaſts; and where no attendance nor payment is to be made by the Tenant, there the things may paſſe without Attornement, 31 H. 8. Tit. Attornement.
Where a man lets for forty years, and after lets the ſame Land to another, to have the Land from the end of the firſt Terme for twenty years, there need no Attornement, and contrary when he grants a Reverſion, to have the ſame Reverſion at the end of the firſt Terme for twenty years then next enſuing, there ought to be Attornement by Horewood, 37 H. 8. Tit. 41. and 1 Ed. 6. Tit. 4.
A man lets a Houſe for Life, and after grants the Reverſion of the ſaid Houſe, to have from the Feaſt of Saint Michael, next after the Death of the Tenant for Life, for 21 years then next following, this is go… without Attornement, for this paſſeth by (to have) the Houſe as a Leaſe, and not as a Reverſion; and alſo the Tenant for Life is not attendant to him, 3 Mary Tit. 69.
One lets for twenty years, and this Leſſee lets that for ten years rendring Rent, and after this Leſſee for twenty years grants the Reverſion of the Terme Rent to a ſtranger, it behoveth that the Leſſee for ten years attorne, otherwiſe it is if no Rent be reſerved, 2 Ed. 6. Tit. 45.
If a man lets for ten years, and the ſame Leſſee lets that to another for four years, the Leſſor makes a Feofment to a ſtranger, by ſufferance of the ſecond Leſſee, this is a good Feofment without Attornement of the firſt Leſſee, 28 H. S. Tit. Feofments 68. B.
Two joint-tenants, and one releaſe to the other, it is good without Attornement, 28 H. 6.
Then let us ſee what is good Attornement, and what not.
WHere a Reverſion is granted, and the Tenant attorn by a Penny, it is good, for it an Agreement, 8 Book of Aſſiſe 25.
A man grants four divers Rents, and the Tenant attornes by a Penny, this is good for them all, that is to ſay, for them all to diſtrain, but not for them all to have an Aſſiſe, for it is not Seiſin, 22 Book of aſſiſe 66.
Attornement ought to be made by the Tenant in the life of the Grantor, for Attornement after is not good, 16 Book of Aſſiſes 25.
A Leaſe is made for Life; and after the Reverſion is granted to one, and the Tenant for life ſurrender to him, this is a good attornement, 23 Aſ. 18.
A man ſeiſed of two acres, or of two Mannours, lets one for years, and after makes a Feofment of both, and makes Livery of that in Poſſeſſion, yet the other ſhall paſſe without attornement, 7 Ed. 4. fol. 20.
Where a Feofment and Livery is made of a Mannour, that one hath in execution by a Statute, this Livery is as an attornement, if the Tenant by Statute enter again, 46 Ed. 3. fol. 30.7 H. 4. Statham 46. the ſame.
If a man lets a Mannour for years, and after outs the Termor and enfeoffes another, and makes Livery, and the Termor re-enter, it is good without other attornement, 5 H. 5. fol. 12. the ſame, 9 H. 6. fol: 16. the ſame, Littl. fol. 130.
If a Feofment be made, and Livery alſo, and do not out the Termor, nor he attorne, it is not good, 5 Book of Aſs. 1.17 Aſs. 3.2 Book of Aſs. 1. the ſame, and 21 H. 7. fol. 7.
If my tenant for life lets his Eſtate to another upon condition, for default of payment to re-enter, and after I grant the Reverſion, and the firſt tenant attorns, this is not good, for he hath nothing at the time of the Grant of the Reverſion, 8 H. 5. fol. 10.
A man lets his Mannor for life, and after grants the Reverſion of that to another, if the tenant for life attorne, it is good, and all the ſervices of all the Free-holders of the Mannour ſhall paſſe without other attornement, 21 Ed. 3. fol. 34.
Payment of Rent is good attornement, 49 Ed. 3. fol. 15. Payment of Rent in name of Seiſin is agreement and Seiſin, 40 Ed. 3. fol. 34.
Where they are compellable to attorne, and where not, and what Tenants are compellable to attorne, and what not.
WHere a Reverſion or a Mannour is granted, unleſſe it be by Fine, there lies no Quid juris clamat to compell the tenant to attorne, but upon a Grant by Fine, and not upon a Grant of Reverſion by Deed, Nat. brevium, fol. 170.
If a man alien his Mannour, he need not that the tenants at will attorne, and the ſame ſeems of tenants by Copy of Court-roll, Br. Tit. 44. Littleton fol. 125.
By Seiſin by the hands of the tenant at will, the Lord by that cannot avow, 8 H. 6. fol. 65.
Tenant for life grants his eſtate to J.S. upon condition, and after the reverſion is granted by fine, and the firſt Tenant for life attorns, it is not good, and he is not compellable to attorn, but J.S. 8. H. 5. fol. 10.
If I let for life, and after grant the reverſion by fine, and after Tenant for life grants over his eſtate to J.S. yet after attorns, it is good, for he was compellable to attorn, and not J.S. 18. Ed. 4. f. 10. and 21 H. 6. fol. 61.
If Tenant in Dower grant over her eſtate to J.S. and after the reverſion is granted by fine, ſhe is compellable to attorn and not, J.S. 10. H. 4. fol. 10.1. H. 4. fol. 18. the ſame.
If Tenant by the Curteſie grant over his eſtate, and after the reverſion is granted by fine, Tenant by the Curteſie is compellable to attorn, 18. Ed. 3. fol. 3.
He which was Tenant, day of the fine levyed, though he hath granted over his eſtate, is compellable to attorn, 18. Ed. 4. fol. 10. Alſo 18. H. 6. fol. 25 and 21. H. 6. fol. 6. the ſame.
After a fine ingroſſed and that delivered, the Tenant is not compellable to attorn, for a Quid juris clamat lieth againſt him, Fitzh. fol. 147. and 11. Ed. 3. Statham.
If I give lands in tail, reſerving rent, and I grant that rent by fine, the Tenant ſhall be charged to attorn, otherwiſe it is if I grant the reverſion, for there he is not compellable to attorn, 5. H. 5. Statham.
Where any perſon is not cempellable to attorn, and yet attorns, and their attornement good, and where not.
TEnant after poſſibility of iſſue extinct, is not compellable to attorn, and yet if he attorn, it is good, 43 Ed. 3. fol. 15.46. Ed. 3. fol. 13.
If Tenant in tail attorn it is good, and yet he is not compellable to attorn, 3. Ed. 4. fol. 11.
If Donor grant the reverſion of Tenant in tail, to another in fee, if the Donee attorn gratis, it is good, and yet he is not compellable, 12. Ed. 4. fol. 3.
If a Lordſhip or Mannor be granted by fine, and after the Tenant which hold of that, makes a feoffment or is diſſeiſed, if the feoff…e or diſſeiſor attorn, it is good, and yet they are not compellable to attorn, 18. Ed. 4. fol. 10.
If a man lets for 10 years, and the ſame leſſee lets for four years attornement of the ſecond leſſee is good, and yet he is not compellable to attorn, and clear is attornement of the firſt, for he ought to attorn, 28. H. 8. tit. feoffments 68.
If I let for life, and grant the reverſion by fine, and after the grant, and before attornement, the Tenant for life lets over his eſtate to J.S. and he attorn gratis, it is good, and yet he is not compellable to attorne, 21 H. 6. f. 54. and 20. Ed. 3. Brook, Tit. 24.
Fine is levied of a Lordſhip, and before attornement the Tenant makes a feoffment, and after the feoffee attorns, this is good, and yet he was not compellable to attorn, but his feoffor was compellable, 18. Ed. 4. fol. 10.
Now let us ſee that the grantee by fine without attornement cannot have action nor avow for rent, which is in lieu of action, nor have waſt, but may have all other things, as entry for forfeiture, and have eſcheat and things in ſeiſin, and take, and have aid.
WHere a reverſion is granted by fine, the right paſſeth, and for that Tenant for life ſhall have aid, though he make no attornement, 12 E. 4. f. 3.37. H. 6 fol. 5. the ſame, 35. H. 6. fol. 5.
Where a Mannor is granted by fine and Tenants do not attorn, the Lord cannot diſtrain for rent, but ſhall have eſcheat of them, 10 H. 6. fol. 17.34. H. 6. fol. 7. the ſame, 20. H. 6. fol. 7.
The Lord grants his Lordſhip by fine, the grantee ſhall have ſuch things, which lie in taking, as ward, but he cannot avow for rent, Natura brevium, fol. 172.
Grantee by fine of a Lordſhip cannot diſtrain; but ſhall have eſcheat and ward, though there be no attornement. But if Tenant for life alien in fee, he may enter for forfeiture, Tit. fol. 130. B. p. 131. A.
Waſt before attornement is diſpuniſhable, but the grantee may enter for forfeiture or ſeiſure but ſhall not have waſt before attornement, 48 Ed. 3. fol. 15. and 34. H. 6. fol. 7. the ſame.
Note that one cannot have an action without attornement, though the grant be by Fine.
Attorney in Court Baron.
THey that have tenements in divers Counties, and fear to be impleaded in a County, or in a Court Baron, may make a generall Attorney to proſecute for them in all Pleas, Weſtin. 2. chap. 10.
It is likewiſe provided, that every free man which oweth ſuite to the County Court, tything, hundred, or to the Court of his Lord, freely may make his Attorney, to follow his ſuits for him, ſo it appears that a Copi-holder cannot ſo do but by aſſent of the Lord, he may compound to pay a certainty yearly, to releaſe his ſuit, and that which he holdeth he may freely by the Statute; and it ſeems that the making of an Attorney, ought to be by writing ſealed, and not by word, Merton, chap. 10.
A Writ of making an Attorney or receiving, lieth in Court Baron, to make the Attorney to make ſuit, Fitzh. 175. B. there lieth an Alias, pluries, and an attachment, if he be not allowed, but Copi-holder ſhall not have that writ, Fitgh. 156. D.
One may make an Attorney to make ſuit perſonall, which is in a hundred or other Court Baron; but for ſuit Reall, at the Leet or turn of the Sheriff, he ſhall not make that by an Attorney, Fitzherbart, 25. C.
What action ſhall be ſued in a Court Baron by plaint, and what not.
WHere one ſues ſeveral plaints for five marks, the other ſhall have a prohibition. And Detinue of writings ſhall not be ſued there, and if he doth, the other ſhall have a prohibition, 5. Ed. 4. fol. 128.
Where 20 l. is parted in ſeverall plaints under 40s. Prohibition lies. Note there it is ſaid. Superſedeas lies, and the Defendant there with ſafe conſcience may wage his Law. But ſee 48 Ed. 3. Fitzherbart, fol. 46. A.
The Lord himſelf ſhall have debt in his Court Baron, for that that the ſuitors are Judges, time of Ed. 1. Tit. debt, in Fitzh. 177. 6 Ed. 4. fol. 3. Suitors are Judges there.
Debt or treſpalle may be ſued in Court Baron by plaint, but that is where the debt or dammage is under forty ſhillings, that the Defendant in Treſpaſſe plead his Freehold, or that the Plaintif is his Villaine, the Court ſhall ceaſe, otherwiſe a VVrit of falſe Judgement lieth, and alſo it is good exception to the Juriſdiction of a Court Baron, to ſay that the contract was made out of the Mannor in another Town, 34 H. 6. fol. 53.
A man ſhall not have account in Court-Baron, nor in County, 43 Ed. 3. fol. 19.
Plea ought not to be removed in debt or treſpaſſe from this Court, but where a Debt or Dammages amount above forty ſhillings or in replegiare, but I intend there ſhal not be a plaint in Replegiare in every Mannor, but in this Mannor where the Lord hath ancient authority by Charter to make Replegiare, yet diverſe ſeem the contrary, ſee Fitzh. Na. Bre. 14 H. 8. fol. 17.
Treſpaſſe, Damages found eight pence in the common Bench, and the Plaintif recovers, but he cannot there count under forty ſhillings, and in Court-Baron he can-count above forty ſhillings, but under that, 19 H. 6. fol. 8.
That Debt and Treſpaſſe ſhall be ſued in Court-Baron Britton, fol. 61.
Detinue of Goods may be ſued in a Court-Baron, 6 …. 2.
Every ſtranger which comes within the Mannour may be ſued there in Debt or Treſpaſſe, under forty ſhillings, ſo that Debt, Detinue of Goods, and ſuch actions perſonalls (except account) where the Debt or Dammages is under forty ſhillings, it is determinable in a Court-Baron by plaint there, 34 H. 6. fol. 53.
Treſpaſſe (by force of Armes) doth not lye in a Court Baron, note that the contrary is uſed, 7 Ed. 4. fol. 23. Sherif in the County may hold Plea by Juſticies of the great Summons, but Juſticies ſhall not be in a Court-Baron for Juſticies ſhall not be directed to the Steward but to the Sherif, and the Sherif is Judge in a Juſticies and Officer to the Court, but ſo is not the Steward, 21 Ed. 4. fol. 79. Fitzh. fol. 139. F.
Note that Court-Baron hath no authority to hold Plea of Free-hold, and of that to give Judgment, for execution thereof that is a Diſſeſin to the Tenant, 22 Aſſ. 64. Glanvile 94. ſaith, No man is tied to anſwer in the Court of his Lord of a Free-hold, without the command of the Lord the King.
Right patent may be directed to the Lord to be tried in a Court-Baron, but it cannot be tried there by great Asſiſe, but it ſeems it may be tried by Battell and if the Tenant ioyne Battell, the Lord may give day to try it, but Fitzh. fol. 4. E. ſaith, if the Lord will proceed or Iſſue is ioyned upon the great Asſiſe, prohibition lies, and if Baſtardy or any forrain Plea be pleaded, then they have no Juriſdiction in Court Baron, and if they proceed, Prohibition lies. Time of Ed. 1. Tit. Droit. 45. 1 H. 6. fol. 7.
If plaint of Debt or Treſpaſſe be ſued there, and forrain matter is pleaded, it ſhall not be tried in Court-Baron, 1 H. 5. fol. 12.
If in a VVrit of Right patent in Court-Baron for Charter Land, the Lord will not proceed to do right, the Demandant may go to the Sherif and have a (Tolt) which is a command to his Bailif, that he take out the complaint and remove the Plea into the County, and after that alſo by a (Pone) in the common Bench, but the Tenant ſhall not have a (Tolt) but he ſhall have a (Recordare) with the cauſe, and the Demandant may have a (Pone) without cauſe, Fitzh. fol. 3. F.
Note that a VVrit of Right patent ought to be ſued in the Lords Court and not otherwhere, without the licenſe of the Lord, Teſtimony of the King, by Letter or otherwiſe, that he hath given licenſe and then he ſhall have his Writ, becauſe the Lord hath remitted his Court in the Common Bench, Nat. Brevium fol. 15.
None may diſtraine Free Tenants to anſwer of a Freehold nor of any thing belonging to the Free-hold, without the Kings Writ, Marleb. chap. 22.
Coppy-holders ſhall not be impleaded by the Kings Writ, but ſhall be impleaded in the Court of their Lord by plaint, in nature of what Writ they will, Lit. fol. 16.
Debt upon a Bill obligatory under forty ſhillings lieth in a Court-Baron.
Fitzh. 2. E. If a Right parent be ſued there in Court-Baron, and forrain matter be pleaded there, or Iſſue joyned to be triod by great Aſſiſe, there ſhall go a Prohibition.
Fitzh. 39.6. The Tenant may have prohibition directed to the Sherif to prohibit Bailiffs of the Court where the Miſe is joyned in a Writ of Right upon the Grand Aſſiſe, unleſſe Battaile were there offered.
Marleb. chap. 20. None except the Lord the King, ſhal hold Pleas in his Court, of falſe Judgement given in the Court of his Tenants, becauſe theſe Pleas eſpecially belong to the Crown.
Fitzh. 4. E. If a Plea be held there which ought not, a Prohibition lieth.
Fitzh. 47. b. Detaining of writings ſhall not be ſued in a Court-Baron.
Fitzh. 139. D. If a man hold plea in County of Treſpaſſe by force of Armes, the Defendant may ſue a Superſedeas out of the Chancery.
The ſame Law ſeems in a Court-Baron, 8 Ed. 4. Tit. Juriſdiction.
B. 215. See, Fitzh. 85. G. That treſpaſſe ſhall be brought in Court-Baron and there ſee the forme of the Writ, but it is not by force of armes there.
Britton fol. 61. That Debt and Treſpaſſe ſhall be ſued in a Court-Baron.
Fitzh. 85. G. Treſpaſſe Viſcountile, there ſhall not be (by force of armes) in the Writ.
8 Ed. 4. Tit. 115. Treſpaſſe doth not lie in a Court-Baron, (by force of armes) for a Fine ſhal not be ſet but in a Court of Record, and for that it ſhall not be there, (by force of armes) ſee Gloceſter, chap. 8.
22 Aſs. 64. If one implead more in a Court-Baron without a Writ and recover dammages, where I plead to the Juriſdiction, and the Court ought to be outed; yet if the Bailif make execution of theſe dammages by command of the Steward, he ſhall not be puniſhed in treſpaſſe, for he doth that which he ought to do, till it be defeated by falſe Judgment, but if it were (before not a Judge) it is void, and otherwiſe.
9 H. 7. fol. 12. Recovery in the common Bench of Lands in the Countries of Lancaſter, Durham, or Cheſter, is there (before not a Judge) otherwiſe it is there of recovery of Lands in the (five Ports).
22 Ed. 3. fol. 30. Formedon in the Kings Bench and an Appeale in the common Bench, recovery there in theſe are void, ſee 7 H. 4. fol. 3. and 8 Booke of Aſs. 32.
Gloceſter chap. 8. It is provided that the Sheriffs ſhall plead in Counties the Pleas of treſpaſſe alſo, as they were wont to be pleaded, &c.
13 H. 7. fol. 20. Waſte, to plead in that is not good, for that that Land ſhall be recovered, and ſo in an (Eiectione firme,) and ſo it is in a (Collegendum,) they ſhall not be ſued here, and by Fitzh. 220. H. Plaintiff ſhall recover his tearm and dammages.
Littleton fol. 60. If there be two Tenants in common for years, and one put the other out of poſſeſſion, he ſhall have an (Eiectione firme) of his half, for that it is to recover a real Chattel. So it ſeems that ſhal not be ſued here, nor an ejectment of Ward which is in the realty.
Fitzh. 220. H. Proceſſe of outlawrie lies in an (Eiectione firme) and yet he ſhall recover his Land again, unleſſe it be expired, and alſo his dammages.
Littleton 93. A Writ of waſt is a mixt action, ſo is an Aſſiſe of novel diſseiſin, and a (Quare Impedit) and for that they ſhall not ſue here.
Action upon the Statute of 8 H. 6. nor upon the Statute of R. 2. ſhall not be ſued here, for that that they are given by Statute: but an action upon the caſe may be ſued here if the dammages are under 40. s.