18. E. 3. 15. a gift to one and his first begotten Son and he hath no Son then but afterwards he hath is a good Remainder to his Son So 39. Assise Pla. 20. a gift to Husband and Wife and to one Heir of his body is a good Remainder yet no Heir to the gift if he be in being when the Possession in Law is cast upon him but a Remainder limited upon contrariety is not good fol. 24. according but the other cause that Litl assigns for that it vests not at the time of the Livery is no cause as is proved by the cases aforesaid because after the Alienation and gift it may not remain to another And the other cause that Litl alleadgeth is because it vests not at the time of Livery which is no cause So a gift to A. and his Heirs so long as B. shall have heirs of his body Remainder to C. in Fee is void for the contrariety because a Remainder cannot depend upon a Fee determinable So a Lease for life to A. upon Condition That if B. pay 20. l. to the Lessor that then immediately it shall remain to B. is void for the contrariety because A. ought to have it during his life But if it were to remain after the death of A. to B. then it were good because no contrariety there and here if W. dies living the Husband and Wife that then it shall remain to to the Defendant is not intendable immediately in their lives but that it should remain as it ought to remain viz. after their deaths and so there is no contrariety and therefore good As to the Condition which is subsequent if he would dwell there c. because it hath two intendments the one that he should inhabite there all the Term and the other to some time during his life shall be taken strictly and the more strongly against the Lessor viz. That he inhabites there at some times during his life which sufficeth as the Feoffee upon Condition for to pay 10. l. to the Feoffor and no time is limited he hath during his life So to serve him in such an Office and saith not how long he hath during his life Harris Serjeant to the same purpose And as to the Exceptions he said That a Condition subsequent and which goeth in the Defeasance of the Estate as here he that claims the Estate shall not shew it but the other which will defeat the Estate But where the Condition precedes the state he shall shew who shall have it because enabled thereunto as if I grant a Rent Charge upon Condition That he shall do such an Act there the Grantee shall avow for the rent without shewing the thing done because it is a condition subsequent and defeats his Estate But if I grant That if he doth such a thing that then he shall have the rent he shall not avow without performance shewed because he is enabled by this to the rent 14. H. 8. Wheeler Grants his Term to one upon Condition That he shall obtain the good will of the Lessor and then shall have it he shall not have it until he hath shewed the performance of the Condition and he affirms the remainder upon Condition to be good Hales Justice If he would c. is a Condition and that the Plea is insufficient because the Defendant hath not averred his continual residence after the Remainder happened for during the Term shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term 27. H. 8. 19. by Audley so the Feoffees shall be intended all the Feoffees and if he hath a reasonable excuse he ought to shew it fo 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife and entred so soon as he had notice which he shall shew in certain that the Justice may trie it as 22. E. 4. 27. Tenant for Life Leases for years and dies The Lessor bringeth Trespass against the Lessee who saith That in as short time as he could after that he had notice of the death of the Tenant for Life he chased his beasts forth of the land and said also that the Trespass was between the death of the Tenant for Life and the chasing out of the beasts and held no plea for by the death of Tenant for Life the Lease for years was determined and no man bound to give him notice and there it is holden that he ought to say That such a day he chased out the beasts and might shew that the Lessor died in another County and so he could not have so soon notice and this shall be tried by the Justice if the avoidance was in reasonable time So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth common intent is that which hath more vehement presumption and intendment then any other intent hath as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death good yet might have goods were not the Testators which are assets after the Debts paid but the most common intendment is That he had no other goods except those which were the Testators but intendment indifferent the more strong intendment the one way or the other and therefore ought to be pleaded in Bar as 13. H. 8. 15. by Willoughby the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not So if he pleads a release made after the Obligation it is not good if he shews it not by express words that it was delivered after it shall be intended that it was delivered when it bears Date But on the other part it shall be intended also That the other would not bring an Action if it were delivered after and therefore shall be shewed which intendment stands indifferent so here A Demurrer all times after the Remainder happens or not is incertain and therefore because he hath not shewed this the Plea is nought As to the matter in Law it seemeth to him that the remainder is good for a man may pass the thing in question when where and how he will if it be not against Law nor repugnant as here the limitation if the remainder is not against Law for the remainder need not pass forth of the Lessor so 29. for upon the Agreement first had by Act made afterwards Franck-Tenement or remainder may be transferred and devested from one vested in another as a Lease for life remainder for life upon condition That it shall be void if he doth not such an act the remainder before the Condition broken is in him when broken it commeth to the Lessor So a rent or Reversion passeth by Attornment not by the Grant presently So 1 H. 7.31 by Brian a remainder to the K. when the Deed is inrolled then it shall pass and relate
Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
by Dyer was for that they pleaded that they were seised of the Rectory of the Parsonage of the Deane in the right of their Cathedrall Church of Worcester whereas it should be in the right of the Church of the Deane Plowden answered the fourth exception thus That they plead the seisen of all the intire thing otherwise if it were of parcell of it or things pertaining to it for there they should plead that they were seised of it in the right of the Church of the Deane But Judgement was given for the Bishop Eare against Snow and others TEnant in taile and his Wise which had nothing in the Land suffer a common Recovery in 23. Hen. 8. to his owne use in Fee H. 20. El. in the Kings Beuch Fiect firme the Husband by his Will in writing deviseth the Land to J. S. and after the Statute of 27. H. 8. is made and after that he publisheth his Testament of new and dies the issue in taile enters J. S. dies his heire within age the issue in taile dies the heire of J. S. enters upon the Son of the issue in taile And adjudged lawfull And no Remitter but that the estate taile shall be barred by the Recovery notwithstanding the overliving of the Wife for the Wife was named onely to be barred of her dower and forasmuch as she had not any estate nor no losse she shall not recover any estate nor any recompence and besides the estate recovered is an estate taile as the estate lost was to which the Wife was a stranger and although she shall have the recompence in value yet the issue in taile might enter and out her because the losse is his and not to the Wise and he shall not be estopped by conclusion of his Ancestors by joining his Wife in the Voucher and besides it is uncertaine what estate the Wife shall have in the recompence Welkden against Elkington LEssee for yeares devise that his Wife shall have and occupie the terme for so many yeares as she shall live H. 20. El. in the Common Pleas. Trespas and after her death he gave and bequeathed the residue of the said yeares of the said Lease then not expired to his Son and his assignes and made his said Wife his sole Executrix and dyed the Wife entred agreeing to the Legacie and after aliened the terme and the alienee granted it againe to the Wife and the Wife died within the terme And adjudged that the Son or his Administrator shall have the residue of the terme Assent to the particular estate shall reach to the Remainder also but an assent to the devise of a rent shall not extend to the devise of the terme and the devise is made of a rent or common out of the terme and after of the Land it selse payment of the rent by the Executor or his sufferance for the Devisee to use the common is not execution of the terme because the terme is one thing and the profit out of it is another but where soure yeares of a terme is devised to one and the remainder to another there otherwise it is because all is of one same thing fol. 621.524 so the same fol. 541. First The devise to the Wife for her life is not an absolute devise of the intire terme but conditionally or upon limitation if she lives so long for if she dies her Interest is determined by the limitation and devise to him for his life by implication because the residue of the terme is devised to the Son after the death of the Wife in which is implied that the Wife shall have it for her life and also determinable by the limitation as above said and the devise to the Son shall be expounded to precede the devise of the Wife and so both shall stand fol. 522.523 624. Secondly The devise to the Wife and Son is of one same thing setlicet Of the Land it selfe and the Wife shall have the Collaterall occupation onely of the Land by the devise but the very Interest and terme of the Land she shall have conditionally and so two parties of one terme the one to the Wife and the other to the Son and then the execution of the devise in the Wife shall be execution of the Legacie to the Son Thirdly The Alienation of the Wife hath not devested the interest of the Son which is accrued to him by the Condition or limitation nor extinct the Condition or limitation which shall transferr the interest to him Executor being legatory of a terme by the devise of the Testator enters generally he is possessed as Executor because it is his first title untill he maketh election to agree to the devise A Termor grants his terme to one for life the Grantee shall have the intire terme by Popham because for life which is a greater time then for yeares But Quere if he dies if the Grant be determined As Lessee for yeares grants a rent to one for his life he shall have the rent during all the yeares if he shall so long live which time of life includes all the years which is a lessor terme yet if he dies the rent shall be determined by Plowden fol. 525. and the Grantee hath but a Chattell in the rent for he may not have freehold out of a Chattell Lessee for yeares grants all his terme which shall be arreare after his death this is voide for the uncertainty for by the reservation of the terme for his life he hath reserved all the terme and therefore the Grant which is but one sentence without any Habendum is voide 7. E. 6. by devise good otherwise if he had granted his terme habendum after his death there the Grant is good and passeth the terme presently and the habendum is void for the Repugnancy But fol. 156. it is void 9. H. 58. A man maketh a Lease for ten years after maketh another Lease for six to commence the same day the second is void and he shall not maintaine an action of debt against his Lessee although the Lessee for ten yeares upon render because during the ten yeares he may not contract with another for a Lease to take effect during this time Implication in a devise giveth an estate for life to the Wife 13. H. 7.17 profit to be taken out of the Land is a distinct thing from the interest of the estate Execution of an occupation of a thing not of property it selfe as in a devise of a Book to use as 37. H. 6.30 Condition or possibility goes in privity and cannot be limitted to a stranger Circum locution in a devise or Lease is equivalent to a direct Grant as to have from day to day during life is all one Intent shall be observed in the Exposition of Wills as if one devise his Land by the premises to one and after deviseth the rent to another out of the same Land by the sayd Will this is a good devise of the Rent
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS
thereof he entred this is a departure from the Bar for it is a new matter For the same reason a special agreement in evidence shall not maintain the general issue one witness is not enough nor one Juror for to try an issue if more were warned by the Sheriff 8. E. 3.50 So here the Defendant had but one witness which proves for him which is not sufficient and so judgement shall be given for the King Atkins for the Defendant A witness produced to prove a thing if he saith That he knoweth nothing of the matter his deposition is void so if he depose negatively as to say no more was not entred then so much and if no witness the knowing of the Jurors aid not the tryal of the matter and a Verdict given contrary to the testimony of witnesses good It is not needfull to aver that which of necessity must be intended as that the King hath a Beam there special agreement is an agreement as a Feoffment upon condition is a Feoffment and so this word Agreement includes every agreement by which the evidence well maintains the issue The Statute speaks not of surety and peradventure intends it not and therefore in vain to speak of it and therefore it may be he hath not answered to this exception Agreement in our Law is threefold viz. Executed at the beginning of it with payment intended by the Statute of 25. E. 3. cap. 3. which saith That goods bought by fore-stallers are forfeited to the King if the buyer had made agreement with the seller such agreement is not meant in our case because then the Statute should not be intended in the disjunctive for then the first and the second clause should be all one but the word Or disjoyns the clauses Agreement to an act made by another as in 20. E. 4.9 To a disseisin to his use maketh him a disseisor from the beginning so the party ravished to agree to the ravisher is an agreement executed here because nothing is to be done afterwards and agreement here may not be an executory agreement because the performance shall be afterwards yet both parties accord at one time before 26. H. 8. cap. 3. intends such because it speaks of payment or agreement for first fruits c. and common usage to pay after upon obligation made before proves this which intends agreement executory and here agreement is intended executory because it is not the first nor the second and an agreement executory is Duplex the one certain at the beginning as this of first fruits the other by matter ex post facto upon certainty to be known as here and such agreement executory the Statute will warrant for no Law will punish him in whom there is no default and where he cannot prevent the mischance by no possibility for the necessity of the matter and for that inevitable chance shall not prejudice any 20. H. 7.11 Fineus A man by the Common Law may kill another in his own defence or as a champion for the necessary safeguard of his life and the Tryal of right so notwithstanding the custom of the Realm new Natura brevium 94. b. If enemies of the King steal of Guests the Hoastler is discharged because he cannot resist So if the ship were on fire the casting of the goods on the land without payment or agreement for the Subsidie shall excuse the Defendant so here the extremity of the Tempest doth excuse the vigor of the Statute Sanders the Kings Serjeant Notwitstanding that an agreement conditional is included in the words of the Statute viz. The Collector not agreed with yet every Statute although it be penal shall be taken as the makers intended for the Statute of Waste is If any make waste in Lands which he holdeth by Demise c. yet if his Estate be Ex ligatione it shall be punishable in waste and yet the Statute gives Ex demissione onely suo de assignat and so it is holden 10. H. 6.3 But Gloucester cap. 5. W. cap. 14. nor Martebridge cap. 13. speaks nothing de demissione So quia emptores terrarum viz. W. 3. speaks secundum quantitatem terrae intend valore So 4. E. 4.12 An information for shipping Wooll without sureties of the carrying of Bullion according to the 14. E. 3. the last chapter holden good because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll other then Custom and Subsidie granted to the King and without assent of Parliament and the two last Staâ—intend not for to discharge Bullion but great Subsidies upon Wooll after 3. years so that the mind intent of the makers shall expound the general and doubtfull words of Star and abridge the generalty of them so here it shall be intended an agreement certain Also because the Commons pray the King That he will be pleased to accept of their Grant for that the words of the Statute which is their Grant shall be taken more beneficial for the King and most strong against the Grantors according to the Principle of the Common Law in case of a common person So the Statute of Prerogativa Regis 17. Ed. 2. Rastal wards 13. is the Grant of the Commons to the King which saith The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite whereof the Tenants were seized in their Demeasne as of Fee at the day of their death of whomsoever they hold also by like Knights Service and notwithstanding that Fee is commonly taken to be Fee-Simple yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments Agreements upon which the Common Law giveth no remedy are void and not good as in 19. H. 6.36 Upon an information for the forging of false Deeds the Defendant pleads Arbitrement made viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant and saith also That the Defendant shall be non-suited in the Assize This is no Plea because non-suited founds not in satisfaction and cannot compell him to be non-suited for the award is not good if it be not executed wholly or the thing awarded may be recovered by action and therefore in 6. H. 7.10 In Trespass to say That he hath paid money but he hath not made his windows which the Heir may compel him to do for the concord is intire but wants execution in all and indeed before action brought is not good then it is performed yet not immediately and therefore it was held no Plea So in 27. ass pl. 5. A Baily known pledge the Ox of his Master for Wheat and if he pays not c. he shall keep the Ox alwaies This shall bind the Master because the wheat cometh to his use otherwise
this shall remain is a limitation of time when this shall vest and not a condition by Hinde and Montague 6. Admitting that it be a condition yet a remainder may depend upon a condition By Hales Hinde and Montague and adjudged accordingly 7. The Plaintiff hath not conveyed to himself Title to have benefit of the breach of the condition if it be broken By Montague Pollard Serjeant for the Plaintiff Except that the Form of the Plea is sufficient 1 Because he doth not aver his continual residence after the Remainder happened but after his entry which may happen to be long time after and so although that he hath performed the words of the condition which hath not satisfied the intent thereof yet he hath not performed the condition because the intent was That he should have all the Mannor So 21. H. 6.10 A man is bound that his Feoffees of the Mannor of D. should grant a Rent of 40. s. to the Plaintiff He had three Feoffees and two of them grant the said Rent to him and there all the Justices said That it shall be intended all the Feoffees so that alwaies the intent of the condition ought to be as well performed as the words of the condition and here the intent of the condition appears to be That Hospitality shall be kept upon the Grange continually from the beginning to the end of the Term which is the death of the Husband and the Wife and here he hath not shewed that he entred within as short time as he conveniently could after the death of the Husband and Wife and therefore because he hath not shewed and averred this he hath not shewed the performance of the condition and therefore his plea is not good For in all cases where the time is issuable he ought also to shew it certainly and therefore in 32. H. 6. it is held That if a man plead a Lease for years made to him that he ought to shew what day the Lease was made because it is issuable So in 33. H. 6.44 In debt by an Executor the Defendant saith That the Testator made the Plaintiff and one R. his Executors at L. the which R. is alive and not named judgement of the Writ and the Plaintiff confessing it saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff his sole Executor in Middlesex and the Defendant saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff and R. his Executors after this time and the Plea of the Defendant was not held good for that the day on which the Plaintiff and R. were made Executors is uncertain So 3. H. 6.33 In Trespass the Defendant pleads in Bar the day of the retaining of the Plaintiff who traverseth the Bar and the Defendant enforced to shew the day certain Matter in Law As to the matter in Law it seemeth to him that the Remainder is void because it ought alwaies to be limited to take its effect after the partricular estate ended and not during the particular estate for if it be limited and appointed to take its effect during the particular estate then it shall be utterly void As if A. Leases to B. for life the Remainder for life and if B. dies that it shall remain over to a stranger in Fee this Remainder is void for that it is appointed to take effect immediately after the first estate for life ended for if the Remainder in Fee should commence then it shall avoid the Remainder for life so if a Lease be made to two the Remainder over in Fee after the death of the first of them this Remainder is void because the Survivor shall have the Land So in the principal case it is given to the Baron and Fem for their lives the Remainder to the eldest son for life upon conditon That if the eldest die living husband and wife that then it shall remain to the Defendant for life which cannot be for the first estate at this time continues and if the Remainder shall be good it drowns the estate of husband and wife and therefore the Remainder void and also for that it is limited to commence upon condition which enures alwaies in privity therefore if a lease for life be made rendring rent and upon condition That if the Rent be arear that then it shall remain to a stranger in Fee if the Rent be arear and not paid the remainder is void for the Remainder which commence upon condition is not good otherwise it is if an estate be made for life upon condition That if the Tenant for Life dies it shall remain over this Remainder is good because that it commenceth upon the Determination of the I state the which is certain and therefore no condition because conditions are alwaies incertain and may be performed or broken and as our Law is for to know the time certain when the things pass from one to another and namely Free-hold because the Law hath it in greater estimation then other things and so to prevent contention hath ordained Ceremonies to be used as in every Feoffment Livery and in every Grant Reversion or Rents c. That Attornment shall be made the which are points certain containing time and by them Estates pass Rules to know when Remainders are good The Law hath appointed that every Remainder shall have three things by the matters aforesaid as Notes and Rules certain for to discern when good The first is an Estate precedent made at the same time that the remainder Commences and that the particular Estate continue when the Remainder vests and that the remainder be from the Donor at the time of Livery and if any of the said three things fail the Remainder is void And therefore for the first point if the Lessor confirm the state of his Tenant for years the Remainder in Fee this Remainder is vold for that the Estate for years was made before the Remainder So if a Lessor disseise his Tenant for Life and after makes a new Lease to him for Life the remainder in Fee this Remainder is void because it is a Remitter to his Estate So an Estate precedent was not made at the time of the remainder and therefore the Remainder is void So the Heir endows his Mother Remainder in Fee by reason of Relation and so the precedent Estates are made before the Remainder appointed Secondly That the particular Estate continue when the remainder vests as 21. H. 7.12 per Frowick Lease for Life upon Condition That if he doth not such an Act that his Estate shall cease and that then the Remainder over is void because the Estate precedent is determined before the Remainder appointed and the Remainder must vest during the particular Estate Thirdly because the Remainder passes from the Lessor at the time of the delivery as Hales Hinde and Montague say and as it is proved by the Cases before cited So Perkins 12. and 19.
by default against her and her husband had not any other remedy then a Writ of Right before the Statute of W. 2. cap. 3. which gives a Cui in vita and before W. 2. cap. 3. a faint Recovery against Tenant for life bound him in Remainder Litl Release 112. because the Law presumes the Title and case true So a Recovery upon a faint Title by a man of Religion was out of the penalty of the Statute of Religiosis untill W. 2. cap. 23. made a Recovery without Title in such plight as a Feoffment in Mortmain was for the truth supposed by the Law to be therein So here the Recovety is intended to be true and therefore the Plaintiff ought to shew matter if there be any to prove the contrary As in 11. H. 4.19 if the Tenant in a precipe vouch one of the Demandants he ought to shew cause because otherwise the Law will presume that he hath not cause against right So 15. E. 4.4 Contrary entry by Title general averment of Covin by the Plaintiff in Dower was not held good Matter in Law As to the matter in Law it seemeth here that the case is clear out of the words and penalty of the Statute of 11. H. 7. cap. 30. For although 27. H. 8. hath executed the Possession to the use yet this case remains here so as if 27. H. 8. had never been made and the Wife had continued Tenant in Tail in use and out of the words of the first branch because he hath an Estate Tail in the use in the land but hath not an Estate in the land in the use and the Statute speaks of an Estate in the Land and this Hereditament or use which is the matter and substance and the use it self which is the confidence of the thing differ But one may not have the state in Land and use also because suspended yet two may to the use of one of them as Husband and Wife to the use of the Wife and so it shall be intended here Also the first branch speaks of lands c. of Inheritance or purchase of the Husband but here the use is a new thing which Commenceth now and was not in being before and so is not the inheritance or purchase of the Husband and therefore out of the Statute as a Rent granted to one out of lands to the use of the Wife of the Grantor or if the Husband gives a signiory in Tail to the Wife for her Joyncture and the Tenancie Escheat and the Wife suffer a faint Recovery this is forth of the Statute So the Husband makes a Feoffment upon Condition to re-enfeoffee him and his Wife in Tail the Wife suffers a faint Recovery this is out of the Statute because the Feoffment of the Land from the Possession of the Husband and was her purchase and not the purchase of the Husband or his Inheritance for the Condition which is the cause of the gift is a new thing is not within the second branch because the Wife had nothing here of the gift of any of the Ancestors of the husband Nor the third branch because the wife had not possession by the Statute nor by the Feoffees to the use of him in Reversion but he in Reversion hath the present Title and so the Statute shall be intended and therefore he may enter presently If Tenant for Life suffer a faint Recovery but 11. H. 7. saith Enjoy according to their Title intends that he shall not Enter until after the death of his Ancestor because he hath no Title in the life of his Ancestor And therefore when the Wife assents to the Ravisher 6. R. 2. gives title of entry saying habeat titulum intrandi c. intends that he shall not have it in the life of the Ancestor And if the makers of the Statute of 11. H. 7. had intended that the issue in Tail should have entred presently they would have given to him Title by such like words as the Statute of 6. R. 2. hath but the end of the clause which saith That they shall enjoy according to their Title expresses that they intented not so For which causes it is probable that the Defendant is out of the penalty of the Statute and that the Plaintiff might not enter and so shall be Barred Whiddon Serjeant for the Plaintiff Because the Defendant hath said whose Heir he is he shall be taken that he is Heir special for a Plea which hath two intendments shall be taken most strongly against him which pleads it as 3. H. 7.2 in Trespass Release generally is no Plea because it may be taken to be delivered before the Trespass or after So 3. H. 7.8 and 9. and 26. H. 8. Entry to avoid Warranty Collaterall pleaded in Bar is no Plea because it may be intended after the discent for he may enter in the life of the Ancestor or after Also the Plaintiff need not shew how he is Heir because he was once seised by entry But if he had brought a formedon upon the Estate Tail he should because by way of Demand as 6. E. 4.1 Executor brought Trespass for a thing taken out of his Possession he shall not shew his Testament but if he Demands a thing whereof he had not ever possession he shall It is not needfull to shew Covin certainly which is a secret thing and the Law doth not enforce one to shew a thing when by intendment of Law it lieth not in his Conusance as 20. H. 7.7 A woman shall have Dower of a Rent Charge without shewing the Deed of the Grant because it belongeth not to her So the Lord shall have Covin generally for the Ward where his Tenant aliens and re-taketh for life the Remainder to his Heir being it lieth secretly in the breast as suspicion lieth for that he may justisie imprisonment for suspicion of Felony without shewing of the cause of his suspicion So 33. H. 6.5 In Trespass a man buys in a Market Overt the Plaintiff said That the said buying was by fraud between the Defendant and a stranger generally without shewing any thing speciall of the Covin and the Plea the e admitted good So in a Precipe against the Lord of ancient Demeasne and Tenant the Lord shall shew that he is Lord and this Action is brought against him by Covin generally So 9. E. 6.41 He which alleadges Covin ought to shew cause of the Covin and the cause is for that the Recovery or Title was tryed by Verdict because to say that it was by Covin shall not be intended true against a Verdict But Covin generally may be averred against a Recovery not gainsaying or default because this is cause of the Judgement and no Triall Wherefore in this case a man shall aver that this was by Covin generally And as to that which hath been said That execution ought to be shewed of the Recovery that needs not For the Statute speaketh only of the Recovery and without Execution it shall be
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
Title to his body accrued in respect of his signiory which is more ancient then the Apprentice 49. E. 3.3 the Kings Tenant in London Devises to his wife for life and dies without Heirs the devise is good as it seems by the Book and yet taketh not effect until after the death of the Kings Tenant and preferred before an Escheat to the King yet both their Titles comes at one instant but the Title of the Wife adjudged the elder because some part of it Commences in the life of the Devisor albeit it taketh effect after his death an Obligee is a Felo de se the Survivor shall have the Obligation by the better opinion 8. E. 4.4 Walsh Chomley Benlos and Carus for the Defendant A Dead man cannot have property for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his otherwise the Forfeiture shall be to the prejudice of others which after his death ought to have the goods and the law hath respect to the Commencement of the Act as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound he forfeits nothing and it is not Felony if then he kils another yet is of Sane memory when he died of the wound So 33. Ass 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant adjudged Treason Felonies done by others may be punished in their life time in person Goods Chattels and Lands A Felon of himself hath prevented the death by Execution and forfeiture of his Land which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance and the only means to make him forfeit that which he may forteit viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life because he took away the means of the Judgement which should have been given against him in his life as he should have if he had killed another and when Judgement by the Law cannot be given the Law supplies it otherwise as 3. E. 3. a Felon flies out of the Sanctuary and will not render himself but is killed he forfeits his Goods and the King hath the year day and waste and so an Inquest there shall be equivalent to the Judgement because he himself is the cause that it cannot be given against him by carus my horse strikes A. I sell him to another A. dies he shall be forfeit So the King shall have the Goods of a Villain which gives himself a mortal wound yet the Lord hath seised them after the wound and before the death of the Villain So the Attainder of the Husband in his life shall be a Forfeiture of the Term of his wife So this Act here and if once Title be given to the King Nullum tempus occurit Regi as in 50. E. 3. the Husband Joynt-Lessor for years with the wife receives money of one Attainted which by the Attainder belongeth to the King the Husband dies the wife her self holdeth it this found after the King hath the Term in Execution for his money as he should have had in the life of her Husband if it had been found then and now found by office shall relate to the life of the Husband Curia this is Murther here and not Homicide because upon malice prepenced and is an offence against nature the Law of God and King to kill a Subject and deprive him of one of his Mystical Members as Brooks terms it whereof he is the head and by the breaking of his peace and for the ill example given to others and therefore Felo de se Forfeits to the King all his Goods Debts and Chattels 8. E. 2.3 E. 3.301 362.22 E. 3. before f. 259. Stamford fol. 188. I. and Stamford Prerogative fol. 46. 8. H. 4.2 by Tillesâ—…y and ex consequenti cannot make Executors nor have Administors neither shall the Bishop have them because out of the Church is no cause of Forfeiture 19. H. 6.63 by Paston 8. E. 4.4 by Needham and Litl and 27. H. 8.9 by Montague and if he repents he is reconciled and hath the rights of the Church before his death yet he shall Forfeit those to the King for this offence But a Felo de se Forfeits not Lands his wives Dower nor Corrupts his bloud 3. E. 3. 22. E. 3. before fol. 259. because those cannot be without attainder in Deed. Appellee in Battail is killed he forfeits his land by Benlos and Brown because this killing is equivalent to Judgement and Execution but Weston held the contrary without express attainder by Judgement for to favor the inheritance and by Dier because the three Writs of Escheat for attainder are Register the 16. pro quo suspensus est utlagatus or abjuravit if the Appellor vanquish the Appellee in battail there his land shall Escheat because there Judgement shall be given after that he shall be hanged 8. E. 3. the husband adheres to the enemies of the King in Scotland and dies there 8. E. 3. fol. 388. or is killed in levying War against the King here he forfeits his Lands the Dower of his Wife and his bloud is corrupted for this is an attainder in Law 7. H. 4.46 by Markham and Stamford fol. 198. a. this which causeth the death ought to be said Feloniously done He that refuseth the trial of the Law forfeits Goods and Chattels as 3. E. 3. 13. H. 4.13 4. H. 7.18 Stamford fol. 183. C. he which flies for Felony Stamford Prerogativae fol. 46. A. he that challengeth without cause above 35.40 E. 3.42 20. E. 4.5 Stamford fol. 185. he that taketh Clergie if he be found guilty of Felonies which refuse the Judgement of Law 14. E. 4.17 he that stands mute of malice for those are the Acts of refusal of the Law And from the time of those which appear of Record the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger not for to be Felony because in the mean between the wound and death he suffers himself voluntarily to escape for if the escape should be Felony then that escape had been Felony at the time of the escape by Brown A. and B. Joynte-Tenants for years A. Grants to C. That if he paies 10. l. before Michaelmas then he shall have his Term yet he shall not have the Term because the condition precedes the Grant as 14. H. 8.22 by Brudnel until the 10. l. paid the Joyncture continues and it is not but a Communication but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor for there the Title is granted in deed in the estate in his life So here this Act in his life gives Title to the King and the office by relation executes the Title then and the Survivor
So the Husband maketh a Feoffment of the Land of his Wife upon the condition which is broken the Feoffee levies a Fine the Husband dies in the fourth year after Proclamations having Issue by the Wife after the Wife dies and five years passe the Heir is barred to enter as Heir to the Father for the Condition but shall have five years from the death of his Father as Heir to his Mother for her right for the cause aforesaid by Saunders Ireland and Scotland are severall Realms But Scotland was holden of the Crown of England and was within the Fee and â—igniory of the Crown of England and he which is in any of the two Realms shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots Lunaticks and they which have the lethargy shall be comprehended in the words of Non-sane-memory as well as Mad-men For Zouch Peace which is the end of all Law described and the necessity and benefit thereof and those Laws which carrie most peace are the most estimable And the Statute which Ousts Nonclaim was to the universall trouble of all the Realm for the avoyding whereof and to make Fines to have their antient force the Act of 4. H. 7. was made and the Preamble of it is to be considered because it is a Key to open the minds of the Makers of the Act and the mischiefs that they intended to remedy and the preamble shews that the Makers of the Act were of Opinion that Fines ought to be of greater force for to avoid contention then they were before the Statute of Non-claim and now is used to the contrary viz. to the universall trouble of the Kings Subjects and therefore they were Enemies to former rights because that stirred up many Suits and made the Purview strongly against it Et lex si prospiciat majori parti retilis est All Infants are bound by the generall Purview which containeth them in the Exceptions As an Infant levies a Fine Proclamations pass he shall not have error yet within age for no Infant is excepted But he that is not Party to the Fine by Southcot and Walsh he is excepted out of the generall Purview in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute for that he had not right at the time of the Fine levied but then the right rested in his Ancestor which was disseised for the Exception is always an exemption of that which is contained before in the generall words otherwise could not be excepted As a Feoffment of a Mannor except such an Acre which is not parcell of it or a Lease of all Lands of the part of the Father except Lands of the part of the Mother is a void exception because this exception was not in the Feoffment nor Demise or right or not right is not the matter but claim or Nonclaim within five years is the matter where a Fine is pleaded to conclude any And this Tried by issue by the one or the other maketh an end of the matter Catline a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant shall make void the Fine and the Tenant shall be restored to the land because he claims signiory and services out of the Land and no right to the Land when the Fine was levyed and therefore is out of the purview which extends not from whom he claims or had right in possession Reversion or Remainder to the thing comprised within the Fine when the Fine was Levyed upon matter rising before The first saving giveth five years after proclamation to those which have right and their Heirs with a Condition annexed to it viz. so that they pursue their Title Claim c. within five years after Proclamations and as the saving is general to all Heirs notwithstanding they have their imperfections of Nonage Insanity c. So is the Condition general and extends to all Heirs whatsoever they are and this was the cause of the Judgement for otherwise the saving shall be for all heirs and the So shall be of all Heirs within age and then the So is not so large as the saving And so the Heir within age is bound to the Condition of the first saving as well as he is saved in the same because general tranquillity is more favored then an Infant and no time shall be gained by exposition or equity beyond the words of the act where the Act as here to strains all men to a time certain for the common tranquillity of the people and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there And therefore if one of the Terms limited by 4. H. 7. be adjourned because the Statute saith then next ensuing all the Proclamations before are void until the Statute of 1. Mar. cap. 7. Rastall Fines 12. because time limited by the act ought to be pursued and once attached in part ought to be continued So the 5. County upon Exigent ought to be the next to the fourth or it is discontinuance and Allocatur Comitatus shall not aid but is error And therefore an Infant at the Common law shall be bound to year and day otherwise f. 365. where by the Statute of 4. H. 7. The five years Commence in the father being of full age Non-claim within the time limited by the Common Law shall lose right and infancy there shall not aid the party as 7. H. 6.32 Nonclaim by the Lord of his villain by a year and day which hath fled into ancient Demeasne So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire So wood of another within a Forrest of the Kings seised into the Kings hand shall be forfeited by Nonclaim within the year and day before fol. 57. So if a Bastard die seised and Mulier claims not So 2. H. 7.10 one shall lose his appeal of Murther if he bringeth it not within the year and day So by the custom of some Mannor one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori time shall be peremptory where it is limited by the Statute for the common repose of the Realm which shall be more favored then the private profit of any single person be he Infant of non sane memory c. by Carus and Dier the right of a Mulier within age is bound by discent of the bastard because the Law in this case is a binding Law by Southcot and Sanders contrary because infancy shall excuse Laches of entry 31. ass 18. 22.36 ass 2. 33. E. 3. The second saving giveth new 5. years to other persons and hore Stowel is the same person which had five years with his ancestor by the first saving because the saving and the so is in the Copulative and the word
others is exclusive of those comprised in the first saving and the exception And because he is heir and so within the first saving he is excluded out of the second saving by the word other by Walsh and others if a Tenant for the life of another the Remainder to B for his life the Remainder to A. in Fee is Disseised the Disseisor levies a Fine and five years pass after proclamations if he for whose life and the Remainder for life dies he shall have new five years because it is another estate and the first remains to him but by Weston and Catline otherwise because not another person also this right which first Discends to Stowell here is not such a right as the Statute intends to give new five years by the second saving for a new right for it was once right in the Ancestor and given to him before And the word first is of great purpose put into the act and this word joyn as it ought to every of the words subsequent viz. Accrue Remain Discend or Come excludes Stowel of the benefit of the second saving and 1. R. 2. cap 7. touching Fines hath all the words of 4. H. 7. touching the purview and body of the Act but the word First which is added to 4. H. 7. as a thing thought very necessary and so he that wil take benefit of the second saving ought to prove four things 1. That he is another person Secondly That the right first came to him Thirdly and that it came after the Fine ingrossed and Proclamations made Fourthly That his right is before the Fine levyed as where right or Title shall first accrue And therefore if the elder brother be professed when the Father died seised and the youngest is Disseised at the levying of the Fine with Proclamations and five years pass and after is deraigned he shall be aided by the second saving for the cause aforesaid So if the Dissesor of a Mortgagee levies a Fine with Proclamations five years pass after the Mortgagor pay or tender the Money he shall have years after his payment or tender because his Title first accrued after the Proclamations by the payment or tender by matter before viz. the condition Plowden sâ—ems that he is at large and not bound to five years because at the time of the Fine levied no wrong was done to him nor to the estate which he claims So a husband levies a Fine with Proclamations and after the five years past dies and from thence by this second saving his wife shall have five years to sue out her Writ of Doweâ— for her Title accrued by the death of her husband upon cause before the Fine viz. their inter-marriage and seisin of her husband by Plowden she is at large and not bound to five years because it was a real wrong done to her at the time of the Fine or before because her Title accrued after the Fine viz. by the death of her husband So Tenant cess one year before the Fine and another year after the Proclamations the Lord is at large to have his cessavit 20. years after for it is not within the purview of the Act because he had not Title at the time of the levying of the Fine but it accrued afterwards viz. to the end of the two years where first it should remain as to the Donee to his heirs Females of his body Remainder to his Son in Fee Levy a Fine with Proclamations and die then the Son shall have five years So Tenant for life Remainder in Fee Levies a Fine with Proclamations and dies then the Son shall have five years So Tenant for life Remainder in Fee is Desseised the Disseisor Levies a Fine and five years pass and Tenant for life dies he in Remainder shall have new five years Tenant for life and Feoffee Levies a Fine five years pass entry for Forfeiture is gone but there by Walsh he shall have a Formedon after the death of the Tenant for life if he sues it within five years by Catline otherwise because his right accrues not first or Remain after the death of the Tenant for life because he might have entred before and therefore is excluded from the benefit of the second saving Tenant for years by Statute or Elegit is ousted and a Fine with Proclamations levied and five years pass now none may enter nor he in Reversion nor particular Tenant and shall not be aided by the second saving for both might have entred before the Proclamations pass because they all are comprised in the first saving and therefore he in Reversion shall not have years after the Term ended as he shall have where the particular estate was Free-hold and a Termor is bound by this Statute of 4. H. 7. by the word Interest in the saving which word may comprehend Term First it shall Discend as by Dier Discontinuance of Tenant in Tail Levy a Fine with Proclamations and five years pass Tenant in Tail dies the issue in Tail shall have five new years but by him and Catline if the Disseisor of Tenant in Tail Levy a Fine c. the issue is bound there for ever because the right was present to the Tenant in Tail when the Fine was Levied and he and the heirs in Tail comprised within the first saving and therefore barred because they pursued their right within five years according to the first saving by Southcot but Weston contrary and by them every issue in Tail shall have a new five years but by the said Chief Justice the word first added as it ought to be to it shall discend will not admit every discent to have five years the Remainder or Reversion in Tail upon an estate for life discends to his issue there the issue shall have five years by the second saving after the death of Tenant for life by Weston and Dier if the Son purchase and dies the Daughter enters and is Disseised the Disseisor Levies a Fine five years pass the Son born after shall have new five years by the second saving because it is he to whom the right first Discended after the Fine and Proclamations So if the Feoffee of Non sane memory Levies a Fine and dies from thence his Heir shall have five years for the reason aforesaid First shall come as Tenant in Tail Levy a Fine five years pass and then dies without issue from thence the Donor shall have five years for to bring his formâ—don in Revertor because aided by the second saving because it is him to whom the right first cometh after the Fine and Proclamations and in all those cases there is a new right or Title accrued Discended remains or comes after the Proclamations which was not in any other before upon cause made before the fine And disseisen here is no such cause which shall make Stowel to have such right which was not in any other but first in himself and so it is not here because the right was first
Marriage that she shall not refuse 9. H. 6.9 Recitall of an Indenture of defeasans concludes the party to deny the Deed. By the Counsell of the Plaintiffe the Act of Parliament cannot enure as a Confirmation of an Attainder and as a new Attainder also for then a man shall be twice convict of one Crime which shall be superfluous yet 1. H. 5.5 One attainted of Fellony may be arraigned of Treason because it is a higher offence and shall forfeit Lands of whomsoever holden if the Treason is committed before the Fellony but where offences are equall he shall not be twice attainted for one Deed shall not be a Confirmation and Grant of one same thing As the King recites by his Letters Patents that he hath made J. a Denison or hath manumissed him being his villain and confirm it and besides grants that he shall be a Denison or Free all this is but a confirmation because the Kings Patents shall not enure to two intents and therefore cannot plead the second Patent for his Legitimation or Manumission But the first Patent so 9. H. 7.2 before fol. 156. and 7. H. 7.14 The King grants Land by his Letters Patents and reciting them confirmes the Estate of the Patentee by the second Letters Patents by authority of Parliament and saith further that he gives and grants the same Land to the Patentee he shall plead the second by way of Confirmation because the Land pass by the first Patent not by the second if he doth not shew that the Land came again to the Kings hands after the first Patent But if the King grants Pasture for two Oxen in his Land and by the second Patent reciting his first Grant confirmes it and moreover giveth and granteth Pasture for two Oxen to the first Grantee there it shall enure as a Grant and confirmation also And the Grantee shall have Pasture for foure Oxen because they are severall things which are mentioned in the Confirmation and in the Grant And in the other Cases before it is one same thing mentioned in both and not severall Also the Statute recites none but persons therere cited to be attainted but the Plaintiffe was not attainted before for the reasons aforesaid therefore he is not attainted by the Statute as the King recites by name that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll c. that will take the benefit of it they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also and the Defendant will plead this so then his plea shall be double because he hath pleaded an attainder by the Common Law and also by the Statute But here it is not double because it is not a new attainder but a Confirmation And because he cannot plead the Confirmation without the thing that was Confirmed Also the Recitall and Confirmation by the Statute is not taken but pro ut And also the recitall being false shall be intended to be upon Information And therefore an averment lies against this recitall So a License to alien Lands holden of the King ut dicitur there he which hath the Lisence is not Estopped to say that it is holden of another then the King because the Tenure in Capite is not precisely affirmed but ut dicitur which taketh away all absolute affirmance 29. Ass 38. Also the Statute refers to an Attainder had before And so to a thing which is not inreâ— veritate for the cause aforesaid and therefore shall be void but if the things was before and wanteth force and effect then this shall be made good by the Statute and there the Act is good and hath power as to the thing 29. E. 3. 24. Grants Fitzh 100. The King reciting an Attainder by Parliament of one Mattravers by his Charter of Pardon reverseth the same and restores him and after this all is recited in another Parliament and Confirmed by the same Parliament and good for the Cause aforesaid So 38. H. 6.33 Parliament confirmes the first Letters Patents this enures according to the Effect and Purport of the first grant and shall not take away the Condition if any such be the King gives Land to J. S. the Parliament Confirmes it s a good grant And so when the Parliament Confirmes a thing which is defective it shall give power to it if it be Confirmed as here the Act shall be void to all purposes as 5. E. 4.40 and 41. If one Village hath Customes which is against the Law and Reason and no others and the Parliament Confirmes their Customes it is void because they had not Customes for things used meerly against the Law and Reason are not Customes notwithstanding such usage And if the branch of one Act recites another Act be it in the Commencement or Continuance it is void as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it this Statute excepts imbâ—sselling of goods by servants made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February and continuing untill the 24. of Aprill whereas it finished the fourteenth of Aprill and so Statutes which misrecite things and are referred to them should be void and conclude no man And so here the Statute which recites that the Plaintiffe was attainted and confirmes it whereas indeed he was not attainted shall be void Coles Case IF one gives to another a mortall wound 13. Eli. whereof he languish the 12. of February and the Queen by a generall Pardon by Parliament Pardon all misdemeanors c. the 20. day of February and after the party dies Now this murther is Pardoned Adjudged for that the wound was a Misdemeanor and the cause of death and then by consequence all that which ensueth the Cause is also pardoned The end of the first Book Newis and his Wife against Larke and others A Man devise his Lands to his eldest Son in tayle M. 13. 14. El. in the Common Pleas. Remainder to his youngest Son in tayle the Remainder to the heires of his body the Remainder over in Fee and moreover his Will was that if any of his entaylees do wrong vex or molest any other of them for the sayd Lands or should Mortgage bargaine and sell c. the sayd Lands or otherwise incumber it other then to Lease it to them that from thenceforth every such person and his heires that shal so doe shall be excluded and dismissed touching the said intaile and that the conveyance of the intaile of the said Lands against him or them shall be of no force But that it shall descend and come to the party next in tayl to him as if such disorderous person had never bin mentioned in the sayd Testament And after the eldest Son levies a Fine and after he and the youngest Brother suffer a common Recovery and their Sister enter and by
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
it ought to touch this blood alwayes But then Heires of the Wife of the Father purchasor shall have it if others fail because Wives by the marriage after the purchase are of Aliance to the blood and not of the blood of the Purchasor otherwise it is of marriage which precedes the Purchase And so no marriage is to be regarded but that of the Father and Mother of the Purchasor and no marriage after shall make a man inheritable to this Land By the Court Wast assigned in digging of Gravell suffering Houses to bee uncovered whereby the Timber rotted and permitting a wall of stone to fall to ruine and a Meadow to lie continually overflowne and covered with water Sir Thomas Wrothes Case KIng Henry the eight granted and Annuitie of 20 l. to Sir Thomas Wroth for his life Tr. 15. El. in the Excheq Petition to be Usher of the Privy Chamber to the Prince Edward his Sonne without the words Pro nobis heredibus successoribus nostris And dies and after E. 6. dies The question was if the Annuity should be determined by it or if notwithstanding it the Annuity shall have his continuance And it was adjudged that the Annuity continues during his owne life and he shall have the arrerages 1. If the King reciting a thing executed which is not materiall as for the good service which he hath done grants an Annuity c. there the party in pleading shall not take averment of it by 21. E. 4.48 and 26. H. 8.1 But otherwise it is if the thing be materiall and executory as that he hath released there he ought to averre that he hath released it which is in benefit of the King 2. The not doing of the service here to the Prince shall cesse the Annuity as well as if the service had bin appointed to the grantor himself as an Annuity granted by the King to a Physician or Schoolmaster for to give Physick or teach a Stranger shall determine by not doing of it which is the cause of the grant and executory as the Annuitie it self is 3. The discent of the Crowne and State Royall to the Prince makes him King and alters the degree of his Person because another Majestie there and requires Officers of greater Honour to doe service to his politicke body And therefore by this Act of God the Law discharges Sir Thomas Wroth from his service and therefore without averment that he had served King Edward all his life time is not to purpose otherwise if the service be feaseable to his naturall body onely as Physick Surgery Musick Grammer c. for the naturall body alters not by assumption of the Royall estate from its infirmities 4. That the death of the King E. the 6. hath not determined the Annuity although that the service be discharged by the death of the Person to whom it is to be done For this discharge cometh by the Act of God otherwise it were if by the Act of the Party as if he had withdrawn himself from the Princes service when he was Prince So of an Annuity granted for life pro consilio impendendo to the Grantee which dyeth yet the Annuity remains but shall cesse by refusall of the Grantee for to give when he is required because his default and the Grantor hath not means by Law to compell him to give counsell 5. The Grantee of the Annuity is good although that it wanteth these words his Heirs and Successours for that it is granted in the body Politick and charges this body which never dies but alwayes hath continuance as a Grant of an Annuitie or Obligation made by the Abbot and Covent is good without successor because the Corporation charged which alwayes continues otherwise it is of a naturall body for there the Heire shall not be charged if he is not named and hath asserts as by Obligatton of his Father grant of Annuity or warranty because as the body naturall which grants is taken away by death so shall his charge be if the King without words heires and successors grant to one licence to Alien and die the Grantee cannot Alien in the time of another King 2. E. 3. and 3. E. 3.29 For that it is a licence onely otherwise of a licence which implies an interest as to an Abbot of a Purchasor in Mortmaine for there the King gives his Signiory upon the matter as it seemeth 2. H. 7.6 Inheritance of the King or a thing in which he is intituled of Common right as Lands Conusans of Pleas out of the Kings Courts or account by a Sheriffe shall not passe against the Heires and Successors of the King without speciall words Heires and Successors as the grant of a County Absque compoto nobis reddendo yet he shall account to the Successor because it is Executory of Common right to the Crowne otherwise of a thing newly created or a grant which is executed presently in the party yet the perception is Executory as a grant of a Faire Market Warren c. without words Heires and successors good Pension or Annuity granted by the King untill he be promoted by us are spoken in the politick body by which the Heire may promote and then the Pension is extinct by Sanders cheif Baron who said as Plowden reported was resolved by the Sages of the Law 1. Mar. that Patents without words pro nobis hered successoribus nostris granted for the corporall exercise of an Office or service are ordered to be good Eiston against Studd A Woman Tenant in fee P. 16. El. in the Common Pleas Eiect firme taketh Husband and the Husband and Wife levies a Fine Sur Conusans de droit come ceo the Conusee grants and renders the Land to the Husband and Wife and the heires of their bodies the remainder in fee to the right heires of the Wife the Husband hath issue by the Wife and dyes the Wife taketh a second Husband and they leavy a Fine to their owne uses for the terme of their lives without impeachment of wast the remainder to the Husband and his heires for sixty yeares Remainder in tayle to their issue the remainder in fee to the right heires of the Wife and the issue of the first Husband enters for the forfeiture made by this second Fine by the Statute of 11. H. 7. Cap. 20. And adjudged no forfeiture and yet is directly within the words but not within the intent for that the Joincture and advancement came not originally from the Husband or any of his Ancestors to the Wife but on the contrary from the Wife to the Husband yet the Land shall be chargable to Statutes and Recognisances which the Conusee had acknowledged before and to the dower of the Wife of the Conusee which grants and renders it But yet is not within the intent of the Statute because the advancement cometh not from the Husband nor his Ancestors and therefore to restraine Women to dispose of their inheritance after the death of
and therefore shall not extend to the death of the daughter which is another distinct Act Otherwise it is if one had followed the other in one person As if I command you to rob J. S. and he resists and you kill him So if I command you to beat him and he dies of the battery So if I command you to burn the House of J. S. and you doe it and by the fire the House of J. D. is burnt I am accessary to both because the commandement reacheth to all the sequell thereof and is the cause of it and therefore I shall be partaker of what ensues this ill Act commanded by me otherwise it is if I command you to robb J S. as he is going to Sturbridge Faire and you rob his House in Cheapside for this is another manner of Fellony and there are severall Acts As if I command you to steale a white Horse and you steale a bay Horse or an Oxe or burne the House of J. whereas I commanded you to burne the House of B. there I am not accessary for that my assent may not be lyable to it because it is a thing distinct and contrary to my commandement directly But if I command you to kill J. and you kill him by another meane or Instrument another day or place then I command there I am accessary because the death is the principall matter and the others onely the manner and forme and the variance in the manner and forme of his commandement discharges not me to be accessary But if I countermand this before you kill I am not accessary for the minde of the accessary ought to continue to doe evill at the time of the act done If one be pardoned of Murder and the wife of the dead sue an appeale and a stranger receives him and gives him Meate and Drinke knowing of the Murder and Pardon he is accessary to the Fellony against the Wife although that he is not against the King because this Fellony is discharged against the King but remaines as to the Wife per Catlin But Popham held otherwise because that at the time of the receipt there is not any offence continuing against the Crowne and Dignity of the King for that he was pardoned before and one cannot be accessary without offence to the Crowne But Plowden held that if the Goaler suffer him to escape after the Pardon this is Fellony in him because he suffers a Fellon to escape for that he was in for Fellony for he was detained in Prison at the suite of the Wife appellant Nicholls against Nicholls THE Lord Lovell M. 17. 18. El. in trespas 18. E. 4. Lease for life to Thomas Wtright and moreover grants that if he dyes without issue that then the Lessee shall have fee And the Lord was attainted of high Treason by Parliament 1. H. 7. and all his Land forfeit to the King saving to every stranger such right title and interest which they had as if the Statute had not been ever made and after the Lord dyed without issue and in 11. El. an Office was found The question was whether the Lessee should have the Fee by the Condition and the saving And adjudged that he should have the Fee 1. That all the Fee Simple passeth not out of the Lord Lovell but continues alwayes in him untill the Condition which is precedent to the estate be performed 14. H. 8.17 Wheelers Case 10. Assi 15.6 R. 2. Plessingtons Case and 12. R. 2. That Action shall be brought against Lessee for years upon condition to have Fee and the Lessor together a Condition precedent shall have relation to the Livery for to avoid incumbrances for vesting the Fee which was at the time of the performance Husband and Wife may not take by Moities yet they shall vouch upon a Feoffment made to them before the Coverture because that although they were sole when the Warrant was made yet were Covert when the Recovery was So a Reversion is granted when they are sole and when they have intermarried the tenant attornes to them they have not distinct Moities because then the Reversion settles in them not to grant when sole and so time in which the thing vests is specially to be considered 2. That the estate in Fee appointed by the Condition nor Reversion because it commenceth at a day to come nor a Remainder because in its vesting it drowns the particular Estate but shall enure by way of inlargement of his Estate 3. That the Freehold in Deede or in Law but a right or Title onely is not vested by the word Forfeiture in this Statute without an Office to finde the certainty of the Land which the party attainted had as in 4. E. 4.22 the Lord Hungerfords Case for then the Statute of 33. H. 8. cap. 20. which now giveth Actuall possession to the King for Treason without Office should be made in vaine and goe to attainders hapning after this Statute of 33. not to those before as our Case is And if one be attainted of Treason the Freehold and Fee remaineth in him and shall not be in the King untill Office found by the course of the common Law for if he hath capacitie to take by new purchase so he shall retain the antient and shall be Tenant to the Precipe out when he dieth the Land cannot descend to his Heire because the blood is corrupted but it shall Escheat to the Lord if it be holden of a common person or to the King in the nature of a common Escheat if it be holden of him and not as an Escheat by Treason untill Office by Barham and Dier To the first Objection it was said That the Condition performed which is a reall agreement shall divest the state in Fee out of any stranger which hath the Reversion without privity as by grant Escheat c. For that the Land is charged with this agreement reall in whose hands soever it cometh and therefore the Fee shall vest in the Lessee by the performance of the Condition discharged of all incumbrances made after the Condition and the previty there is destroyed by the Act of the Lessor So 6. R. 2. Plessingtons Case where a man leases for yeares upon Condition performed to have Fee after levies a Fine the Lessee performes the Condition he shall have Fee of the Conusee but by Belknap there he shall have the moneys which the Lessee by his Condition ought to pay otherwise it is if the privity be destroyed by the Act of the Lessee as where the Lessee grants his Estate there the Fee shall not vest in him nor his assignee 4. fol. 483. 5. For answer to the second Objection it was said that the Condition shall be saved by the words which shall extend to all Conditions Rents Profits or other things out of or in Land and the saving of the right of him which hath not offended shall be taken beneficiall By some right is where a thing is taken
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep