first and after of the Land in sense and so by exposition the words shall be altered and so marshaled that the intent may take effect So a termor deviseth all his terme to his Son neverthelesse his Will is that his Wife shall have it for her life holden a good devise to both by conversion of the words So a Remainder to the Church of Saint Andrew in Holborne good by devise 21. R. 2. although the Devisee is not capable because the Testator intended that the Parson shall have it Cestuy que use at this day devise that his Feoffees shall be seised to the use of one A. in fee this is a good devise of the Land Adjudged in the Case of Lingen yet after 27. H. 8. he cannot have Feoffees to his use because the intent was that he should have the Land So the Executor shall not sell the Land according to the devise but take the profits for two years to his owne use the heire may enter because the intent of the Testator maketh this a Condition 38. Ass 31. Incertainty in Contracts reduceable to certainty by contingent standeth good As if I lease to one habendum from the death of J. untill such a Feast which shall be in the year 1620. good if J. dye before that otherwise it is void Two properties of a terme as where Lessee for yeares which grants over his terme enters for not payment of Rent and retaineth untill he be paid his Arrerages thereof So of a Conusee of a Statute which hath the Land extended so upon a Lease for yeares of a Mill except the Profits to the Lessor for his life and adjudged a good Exception And if the Lessor enters he hath a property incertain and the Lessee another 39. H. 6.37.8 So it is of Sheepe letten for to compester or a Chain of Gold pledged 5. H. 71. they have one Property and the owner another Cestuy que use devise the Profits and Issues of his Lands fol. 509. b Cestui que use before the Statute of 27. H. 8. Devise his Land and after the Statute publishes his Testament of new the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute Cestuy que use devises that his Feoffees shall stand seized to the use of himselfe for life with remainder over this is a good Declaration of the use during his life yet the Will cannot take effect untill his death Quere of this Case fol. 508. b. Bransbie against Grantham AN Executor having a Terme P. 20. El. in the Kings Bench E. firme as Executor devises the Terme to a stranger and maketh his Sonne Executor and dies the stranger enters into the Land by the Assent and Consent of the Executor And after the Executor enters And adjudged that his Entry was lawfull and the devise voide And by consequence the assent given to a voide thing shall be also void and shall not enure as a new grant but onely and assent to the thing devised 1. Because that the Executor cannot devise any thing which he hath as Executor 2. For that the Executor hath the Terme here to the use of the Testator and no man can make a devise of any thing except that he hath it to his owne use And therefore the Husband cannot devise the Terme of his Wife And then when the Executor dies his Executor hath it by Title before the devise as Executor of the first Testator and the property that the Devisor had as Executor is determined hy the determination of his Office of Executorship which is ended by his death and the last Executor hath it by Relation as immediate Executor of the first Testator So an Executor cannot devise the goods of his Testator and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator because the last Executor hath them as immediate Executor to the first Testator and to his use as if they never had been in the last Testator by Relation Hare against Bickley A Prebendary after Admission and Institution and before Induction and Installation grants an Annuity for him and his Successors The Bishop confirmes it and after the Prebendary is Installed and on the same day of the Installation the Dean and Chapter conconfirmes also and after the Prebendary dieth and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend and Adjudged that it lyeth not because the Grant before Induction was voide Induction giveth to the Probendary the possession Temporall and Freehold and the Confirmation is nothing without the Possession And therefore without Induction a man shall not have a Writ of Right nor Spoliation Trespasse nor Assise otherwise it is of a Quare Impedit For in the first he alledges Esplees but not in the last 26. H. 8.3 But by the Admission and Institution he hath care of Soules and is inabled to administer the Sacraments c. And the Arch-Deacon shall make Induction to the Parson and Vicar but shall not make Installation to a Prebendary but the Deane and Chapter shall doe it No Plenarty against the King before Induction for that it is corporall seisen and possession 38. E. 3.10 So the King confirmes to the Collatee of a Bishop before he is inducted the Confirmation is voide 11. H. 4.7.1 H. 5.1 He which hath the Nomination is Patron and he that presents is his servant Induction is triable by the Countrey So if Parson or not and it shall be tried where the Church is 21. E. 4.7 and 33. A woman recovers in Dower she cannot enter but ought to have seisen delivered to her by the Sheriffe as a Copyholder ought to be admitted by the Lord of the Mannor if it discends to him before he shall have seisen in judgement of Law So a Prebendary Parson or Vicar before he is Inducted or Installed hath not seisen nor is full Incumbent for to charge the Possessions of the Prebond Parsonage or Vicaridge Crosse against Howell THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London and in the 21. H. 8. they bargain and sell certain Land by the name of A B C and D. Master and Wardens of the Craft or Mystery of the Cookes of London to R. D. for money without naming his Heires and the Barganee enters and levies a Fine with Proclamations and five yeares passe And adjudged that the Corporation shall be bound by the Fine and Nonclaime and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed by him which had their Letter of Attorney so to doe is meerly void 1. The bargain and sale was made for the variance of the Indenture from their name of Corporation for they were
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
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
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
the patol Demur in cui in vita per nonage of the second vouchee because he was not heir to the husband and so because penal here in savor of him it is restrained to the heir of the husband onely So by W. 2. cap. 11. an accomptant found in arrearages shall be imprisoned by Auditors and saith not when in 27. H. 6 8. In debt for arrearages of accompt it is adjudged That if the Auditors do not commit the accomptant to prison presently after the accompt and therefore the generality of time is restrained to a particularity by the rule of the Common Law in construction of Statutes and also by the intent of the makers for if the scope and end of the matter is satisfied all the matter and intent of the matter is accomplished and the scope of the Statute here was That the King shall have the Subsidie and the agreement here sufficeth for that because it authorizeth the King to weigh Woad by the Collector when he pleaseth and then the King hath Title of Action and so the surety of the King thereby is referred to will Also such agreement hath been allowed upon the same words of former Statutes for Subsidies Also if the Statute had expressed the agreement in certain yet agreement uncertain should have been good here and out of the penalty because the infringing of the words of the Law without the infringing of the intent of the Law for upon some accidents the law priviledges some things done against the words of the Law of the nature of the Law of this Realm and of other Realms and the Law of God viz. First for to avoid greater inconveniencies Secondly for necessity Thirdly by compulsion Fourthly by involuntary ignorance First for the avoiding of greater inconveniencies as 22. ass pl. 6. where a man of non sane memory and in his rage did great hurt and another man and his parents took him bound him and beat him with rods and here it is holden that they might justifie this in avoidance of greater damage being of non sane memory and yet the Law of nature and of the Realm prohibites battery but this particular case for the avoiding of greater mischief hath one exception and special priviledge So 1. H. 6.9 The Lord contrary to the Statute of Marlebridge may lead the Distress from the Land into another County where the Mannor is for it should be prejudicial to the Lord if he should not carry the distress to his Manor Amongst the Romans they had a Law That every one which should scale the walls in the night should be condemned to death and one in the night did scale the walls in the time of War to discry enemies to the Romans and he by the judgement of the Senate was not onely discharged but had a reward therefore so such interpreting of Laws is a tempering of the rigor of the Law Secondly necessitas non habet legem and therefore it is a good excuse in every Law as 38. H. 6.11 Increasing of water excuseth a default in a precipe quod reddat because he could not appear without danger of death yet the Law abhors every default because it is in contempt of the Court So David did eat bread for necessity although prohibited by the Law of God Thirdly compulsion excuses in Law as the avoiding of an obligation made by dares So if the arm of any man is drawn by compulsion and a weapon in his hand kill another this shall not be Felony nor he damnified because he did it by compulsion Fourthly involuntary ignorance doth excuse as 3. H. 7.1 Kell fol. 268. An infant killeth another it is not Felony because he hath not discretion and it shall be imputed to his ignorance which is involuntary by compulsion of nature so no default in him So Fitz. Nat. br 202. b. if one of non sane memory kill another because his ignorance by compulsion viz. the hand of God and such other things done by ignorance because not to be resisted and this involuntary ignorance is cause of the Act and therefore he which kills another by involuntary ignorance As by thâ— fall of a hatchet out of his hand shall have Sanctuary Deut. 19. But ignorance voluntary is not priviledged as if a man killeth another because this ignorance cometh by his own act and folly which he might have resisted and therefore shall not be priviledged because he himself was the cause of such ignorance if any were à fortiori in all the cases together before mentioned shall excuse for the Law is not offended for the said four causes the incertainty of the agreement here and therefore in as much as the Statute saith The Collectors not agreed with and so gives him authority to agree with the Collector and the Defendant hath made a special agreement with him which is an agreement and so within the words of the Statute if seemeth that by the rules of the Common Law used in construction of Statutes is by the intent of the makers and by all reason and equity shall be adjudged a sufficient agreement and warranted by the Statute and therefore demanded judgement against the King and so it was adjudged But all the Judges were of opinion against the King onely Hales and Montague and afterwards the King sent his Privy-Seal Colthirst against Bejushin 23. Trâ—… E. 6 in the Common Pleas. En Trespass the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret residens esset in and upon the aforesaid Grange and Farm and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life if he also would inhabite there during the Term aforesaid and saith That W. did dye in the life of H. and E. and after H. and E. dyed also and the said B. now Defendant entred without shewing in certain when and took averment that he had inhabited there alwaies after his entry and upon this Plea the Plaintiff Demurs and it was adjudged against him for the Defendant 1. For that the averment of his continual residence is surplusage and therefore the incertainty thereof nil refert by Harris Hinde and Montague 2. It is not a condition compulsary but a thing elegible at the discretion of the Defendant by Montague and then his entry is not material but at his pleasure 3. Admitting that it be a condition yet it is subsequent and in defeasance of his Estate and therefore ought not to be shewed by him which shall have benefit thereby the contrary is of a condition precedent 4. For that it is pleaded by way of Bar and being certain to a common intent it sufficeth and it shall be intended that he entred immediately after the Remainder happened but by Hales Justice this common intent ought to be of a vehement presumption and not indifferent 5. That this word if W. dye then
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
to the Livery So in the case of Plessington 6. R. 2. where the Condition was That if the Lessor die within the Term the Lessee shall have for life and there holden that his estate shall be enlarged if the Lessor die So Disseisen to the use of I. passeth not a Free hold of I. to I. without his agreement so here A remainder passeth when W. died not before by force of the words annexed to the Livery So by Litl a confirmation to the Husband and Wife Tenants for life passes the remainder to the Husband yet it passeth not at the time of the first Estate and the diversity where Fee upon Condition is appointed to privy and whereto a stranger is but a conceit which is worth nothing 29. according 24. to the contrary and is privity because it reserveth out of both so it shall bind him in remainder and also he in remainder shall have waste and so is privy to the particular Estate and the Lessor also and the words then which shall remain shall not be intended presently to destroy the particular Estate but shall remain as a remainder ought to divest then and is to be executed after their deaths as if Donee in Tail doth such an Act then to remain to his right heirs which vests when the Act is done and after the Tail ended shall be executed and not presently upon the Act done to avoid the Tail so here There is not any repugnancie or prejudice to any but a thing when it is done made in prejudice of another shall be void as a remainder that he shall have the land in the life of the particular Tenant So 21. E. 4.44 The King discharges an Abbot That he shall not be a Collector when any Titles should be granted by the Clergy of England and Canterbury Grants Tythes provided that the Collector returned by the Bishop shall not be discharged by the King and the Bishop returns the Abbot Collector there holden that the Grant by the Clergie in this point viz. to charge persons exempt is void because it is in prejudice of others And so the remainder here shall be void rather then a shranger shall have prejudice by it but for defaults in the pleading the Plaintiff ought to recover Hinde Justice to the 3. exception the death of the particular Tenant shall not be shewed which is onely conveyance of the execution of the remainder and is not Traversable nor Issuable To the first and Second exceptions he needs not shew his continual residence after the Remainder is fallen nor the day of his entry because it is a Condition subsequent and goes in defease of his Estate and he which hath benefit by it ought to shew it as 29. H. 6.22 the Grantee of an annuity pro concilio impendendo shall have the Annuity without shewing that he hath given Councel for that the shewing of it is not beneficial to him and the denial of Councel defeats the Annuity so he agrees to the diversity in case of Annuity 15. H. 7.1 bont fol. 25 by Pollard when one shall be promoted and therefore the shewing hereof that which is surplusage and the imperfectness of it shall not make the Bar vitious and the Remainder here by him commenceth not upon Condition but it is a limitation and explanation from the time that it first begun for nothing or words makes a Condition but such which restrains the thing given as If I. Lease for life upon Condition That if the Lessee die or maketh waste and I. recover the place wasted or any parcel of it That I. shall enter into all for it is a Condition for that part in which no waste is done because it restrains and defeats that part And if it be a Condition here yet the Remainder thereupon is good if it commenced and vested at any time during the particular Estates 24 29. 32 34. for when he hath Fee-Simple he may Condition with it as he pleaseth if it be not against Law as if I. Lease for life upon Condition That I. S. paies to me 20. l. that I. shall enter then the Remainder is void because the entry avoids the first estate and then no particular estate continues upon which a Remainder may depend Brown Justice to the same purpose The entry of the Defendant shall be intended immediately for this is the most common intent and a Bar good to a common intent shall be intended that he entred presently after his Title accrued and to the matter in Law hold that the remainder shall be good upon Condition Montague Chief Justice to the same intent The entry of the Defendant shall be intended presently for this is the most common intent and a Bar good to a common intent is good as 21. E. 4.83 in Assize the Tenant pleads a discent to him as Son and Heir and he entred and it was held good yet the Father of the Plaintiff might have abated and died seised and then the Plaintiff is in as Son and Heir in which case the Tenant might not enter But this is not intendable but the most common intent is That the Tenant entred immediatly after the death of of his Father So 9. E. 4.12 in Debt against five Executors at the Distress 3. makes Default 2. appears and pleads Recovery against them two of 300. and that more they had not in their hands Exception taken That because by intent there should be five Executors two might have abated the first suit and so the Recovery not duly had but holden good because it may be that then they two onely administred and then they did lie against them two onely and the most common intent is that it might be so rather than at first to lose advantage to have abated the Writ and therefore the Plea in Bar was held good and Execution duly had and if it were otherwise the Plaintiff ought to have shewed it So 21. E. 4.8.1 In formidon in discender The Tenant pleads the release of the Demandant without Warranty in Bar yet might be made by him in the life time of the father and then it is no Bar but it shall be intended to be made after the death of the Father if the Demandant replies not to the contrary but if he which pleads in Bar is bound at a time certain he ought to shew the day of his Act certainly 24 26 27. as the day of entry for Mortmain so that it may appear to be within the year So if one justifies for Common between Lammas and Candlemas So if one justifies by Warrant by Licence by Authority he alwaies ought to shew the time certain of his justification so that pleading in abatement of the Writ or a plea after the last continuance ought to plead certainly and these are observed as principles in our Law but he which pleads in the Negative ought not to plead certainly If he would dwell c. It is like that it is not a Condition here because it is not
it ought to be conjoyned to certainty as 9. H. 7.3 by Fineux and 6. H. 4.7 Debt upon payment at two days whereof the one is come abates by shewing of the Plaintiff the same because he hath shewed falsity So 20. H. 6.30 one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly which ought to appear alwaies to the Court but not in one manner as sometimes by the replication in Assizes sometimes by Verdict as in aquare impedit the value of the Church In Ward the value of the Marriage in Detinue the value of the goods as in 20. H. 6. Champerty was brought which was not Warranted by any Statute and there Newton said That if the party could not shew to them some Statute by which it is Warranted that they would award that the Writ should abate And for that which hath been said that he needs not to recite the Statute and therefore misrecital is not material it seemed to them That howbeit he need not yet if he recites it and there is none such then he hath failed of his substance for the Court will not aid him nor think he intendeth any other thing then what he hath shewed and by this abundance in reciting more then needs hurts the party many times And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 Fitz. H. Count 15. of forging of false Deeds the Writ was of Diversa facta and minimenta c. and he counted but of one onely and by assent of all the Justices it was awarded That the Writ should abate and so abundance abated the Writ And if one maketh Title in Assize in his plaint where he need not yet if it be not formall all shall abate and yet it was abundance and more then he was compelled to do So in the principal case And where it was said That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared they held that admitting this to be a confession yet this binds nor the Court which is a third person as appears by 10. E. 4. Wherein Trespass of Cattle taken brought by the Lessee for years the Defendant said That the Lessor held of him by Rent which was Arear and he took the beasts for it the Plaintiff said nothing Arear and there although the Defendant had admitted the Writ good yet the opinion of the Justices was That the Writ should abate for that the Lord was Defendant And so if the Defendant will admit good an appeal brought by the wife of the death of her Father yet the Court ought to abate it although the party affirm it and a Demur-is a Confession of all matters in Fact but not of matters in Law For by the Demurrer he puts it to the Judgement of the Court and confesseth not the Law against himself although the King may wave the Issue and so Demur in Law and recover afterwards fol. 236. and he hath many other prerogatives yet shall he be bound by misrecitall or by misusing or misconceiving of his Action and there shall abate the Writs where he is sole party as in the case of a common person à fortiori where another is party with the King as here the Plaintiff ought to shew certainty of the Lease here by Cook by other Justices not In Decies tantum certainty of the Summ received here because he shall not recover ten times as much and may not without shewing in Champerty the certainty of the first plea here because privy to the Record So in Trespass if the Defendant pleads Franck-Tenenemt the Plaintiff intitles himself by a Lease made by him the Defendant will shew that he made a Feoffment and that he entred for Forfeiture he ought to shew the name of the Feoffee and certainty of the Feoffment because he is privy and in all cases of privies he ought to shew the certainty as 2. H. 7.6 in Bar of Dower the Heir pleaded detainer of evidences he shall shew certainty for he is privy to them that he affirms to appertain to him of a bag sealed with Charters not 18. H. 8.1 because the bag sealed is certain Indictment cujusdam ignoti good Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices as an Attaint shall not 14. H. 7.13 nor the Statute which augments bread by evil making nor things out of the words shall not be taken by equity But the words may be expounded beneficially as Treason by the Statute 25. E. 3. for killing of a Master so of a Mistris are of one effect 19. H. 6.47 but not by equity but rather within words Plural number contains singular by Hales So here pretenced Rights and Titles as shall be punished for forging one false Deed yet 1. H. 5. cap. 3. speaks of false Deeds So for Entry into one Tenement yet 5. R. 2. cap. 7. speaks of Entry into Tenements under this word any the lesser Estate is contained in the greater as 23. H. 6.10 prohibits that a Sheriff shall Lease his County to farm in any manner shall not Lease part thereof after fol. 124. contrary by Hales This Lease here made by one in possession is out of the Statute because it is not averred to be a pretenced right viz. the bargain and Lease to be made for maintenance contrary Cook for this was the point of the Statute as 9. H. 6.26 if published onely yet the Stat. is in the Copulative for forging and publishing this within the Statute but ought to aver That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute So here the Lease ought to be averred for maintenance for this is the point of our Statute Montague Chief Justice He that is in possession may buy the pretenced right of another he which is out of possession if he promise or bargain to depart with the Land when he shall get the possession is within the Statute and maketh it void by the Common Law wherefore the Statute affirms it and adds a greater pain to the thing done against the Common Law and the Statute shall be meant to avoid a bargain of Right when out of possession he which hath possession but one hour alwaies may sell or it shall be a hard Exposition Acts expounded against the words of the Statute because Law and Reason allows it As Tenant hanging a Precipe Infeoffs his Son and Heir 6. E. 3. fol. 274. after fol. 204. good contray to the words of the Articuli super Chartas cap. 2. because the Son may not maintain to the Father but is bound to aid his father So an Heir may abet his Mother for to bring an appeal as W. 2. Cap. 12. So a Trespass in a Park without hunting shall not be punished by a year before refers to the Clause before onely so that the Clause being in possession Reversion or Remainder
are absolute viz. if for one hour onely it sufficeth and there he may alien without danger of the Statute and here no offence is shewed to be made against the Statute Pollards Assise of Freshforce 7. E. 6. In the Guild-Hall London in the Hustings in time of Tent. AN Assise of Freshforce upon a plaint of Intrusion or of Novell Diseisen was brought by John Pollard Esquire and Mary his wife in the Hustings of the Guild-Hall London against Bartholomew Jekell Ralph Foxley and Anne his wife and eleven others 10. of them appear by Baily and plead nultiel in rerum natura as one named in the Writ this shall abate but for him onely and shall stand good for the others It was adjudged so in the quare impedit against the Bishop of Carlile many others where the death of one of the Defendants was pleaded by abatement for speed in avoiding of delays therein For voucher lyeth not in it unless the party himself be present in Court and Protection lyeth not because excepted in an Assise therefore it sufficeth if Tenant and Disseisor relinquish and the Land is the chief and Original cause of the Action otherwise in Trespass for there the person is chief and the death of one shall abate the whole Writ by 29. Ass fol. 62. adjudged but the contrary was held 44. E. 3.18 47. E. 3.18 The Parson of Honylanes Case AN Assise of Freshforce against Moore 7. F. 6. Panel Parson against Moore the Mercers of London and a Corporation The Corporation may not appear by Baily without Warrant for that it is to defend their wrong otherwise it is to justifie a Trespass which is but a personall thing And although the Assise Pone per vadios salvos plegios predict Defend vel Ballivum suum si ipse inventus non fuerit generally yet he shall be intended a Lawfull Baily by Warrant And the Defendant pleaded that the Plaintiff hath entred after the last continuance and Issue taken thereupon the Jury gave a speciall Verdict That he entred for to see the antiquity of the buildings at the request of the Defendant which had invited him to dinner and adjudged no entry to abate the Writ for that if he were a stranger he should not be a Trespasser by this because of the request because he had not any intent to enter and continue in possession The Jury may give a speciall Verdict and find the matter at large upon every issue by equity of the Statute of Westminster 2. cap. 30. if this tends to prove the part of the Issue onely per curiam Woodland against Mantle and Redsole THe Lord incroacheth services of another nature and avow for this 5. 6. E. 6. Replevin The Tenure shall be Traversed and not the Seisen otherwise it is if he encroach more of the same nature as where he holdeth by 12. d. to encroach 2. s. c. There the seisen shall be Traversed for the quality of the Tenure is Traversable and not the quantity But to avoid the incroachment of the quantity the Tenant is put to a Writ of Customs and Services or contra formam Feoffamenti and this is an Estoppell between true Lord and Tenant onely in Replevin and the Tenant may make Rescous if he Distrains for this incroachment And the Lord may not make Title in Assise for this incroachment And also this encroachment is intendable onely between true Lord and true Tenant and not Donor and Donee Lessor and Lessee for there they ought to avow upon the Reservation which the Tenants may Traverse notwithstanding the encroachment by Plowden The Lord may Seise or Distrain for Heriot Service adjudged because he hath property in this by the death of his Tenant and the certainty thereof appeareth by 6. E. 3 277. Matters of the Crown at Salop. IF one be present and abet a Murtherer he is principall as well as he that kils the man 1. Mar. at the Sessions in Salop. and shall be indicted although that the Murtherer flies and be not attainted because both are principals in the first and same degree And he which abets is not onely principall in the second degree but if one be Indicted as accessary to two he shall not be arraigned with the abettor untill he which flies is also attainted and adjudged which agreeth with 40. Ass 25.7 H. 4.29 and 36. b. And if the abettor be found guilty by one Verdict and the Murtherer by another Verdict is acquitted now Judgement shall be respited against the abettor for the Court will give more credit to the Verdict which was charged directly upon the principal act then another which is charged implicitely and oblique 1 Mar at the same Sessions FIve were Indicted of Murther of a Servant of Doctor Ellis's and one venire facias awarded against all and they severed in peremptory Challenges yet the Jurors which were challenged shall be drawn against all upon the Challenge of one although that the others challenge him not but allow him 1. Adjudged for that the venire facias is intire that the Court in discretion at the prayer of the Attorney of the King may sever the Jury and Tales thereupon 2. They may make one Jury serve severally against every of them by himself 3. The evidence given against the prisoners prove That the Servant was killed upon malice prepenced to Doctor Ellis himself which was in company at the time of the Murther And the Court resolved That this Malice to the Master extends to the Servant and all others which defend the Master and resist the malice of the Murtherers 4. Resolved also That if two are fighting of malice prepenced and a stranger which hath no malice takes part with the one and kils the other this is manslaughter in him and Murther in the other 5. Resolved if one be indicted of Murther and found guilty of Manslaughter and acquitted of the Murther yet Judgement shall be given against him that he shall be hanged for that the death of a man which is the substance is found although that the circumstance is not yet he was reprieved by the discretion of the Justices Fulmerston against Steward M. 1. 2. P. Mar. in the kings Bench in trespass PLeading that the Masters and confreres of a Colledge was seized in fee is good without saying in the right of the Colledge for it shall be so intended for that they are named by the name of corporation otherwise it is if they were named by their particular names 2. If one plead a Lease of a Mannor with an exception made to the defendant and will avoid this for parcel of the Mannor because of another Lease made to the first Lessee within a year after the making of the Statute of 31. H. 8. ca. 13. he ought to aver in pleading that the exception extends not to this parcel For otherwise it shall so intend strongest against him that pleads it and then pass not
or appurtenant unless it be comprised in the premises The Office of the Habendum is for to limit the estate as a grant a Rent and stay there is for life Habendum for a year is for one year 7. E. 3.10 by Trew 7. Ass 1. Perkins fol. 22. The Habendum repugnant to the premises void and the estate before the Habendum shall stand 14. H. 8.13 by Pollard Perkins fol. 34. Contrary 13. H. 7.23 by Fineux a Grant to one and his Heirs Habendum for Life So to two Habendum to the one of them two for life the Remainder to the other for life because it severs the joyncture in the estate So a grant of two acres to two Habendum the one acre to one and the other to the other because it includes the interest of every one in one acre A Lease of land reserving the profits or two acres except one void because parcel of the thing granted Doctor and Student fol. 98. Reversion is a Tenement and ought to vest presently as a Reversion and not at a day to come otherwise it is of land Reverting without estate and agreed of land by the Serjeants for the Defendant Every Deed shall be construed most strongly against the Grantor and if it may be taken to any effect by any reasonable intendment it shall be and the intent of the parties shall be observed as here of using this word Reversion not in its proper signification for then it first ought to vest as in Reversion presently by Attornment and not at a day to come but as a demonstration certain of the land viz. all the land that they have in Reversion and that they will not have the land to pass in the degree of a Reversion but in degree of Demeasne And the Law will That when the intent appeareth incline the words not apt of their proper and common signification to the intent and one word shall have the sense of another as Litl fol. 121. Dedi concessi by the Disseisee shall enure as a confirmation So 17. E. 3.8 Mannor pass by the name of Fee de Chivalry So 10. E. 44. 5. H. 7.1 plead Demise by words of licence to occupie where one word includes in it one thing as here Reversion includes the land the thing included shall pass by the word as 11. R. 2. Piscary pass per a quam and 40. E. 3.45 Soil by Piscary and by Turbary 7. E. 3.342 So Soil and Wear by Gorss for 14. E. 3. Formedon lyeth de gurgite So 6 E. 3.183 By the name of one acre cornubiensi for Cornish acres contain so many A man Grants his Remainder of one acre to have and to hold the same Reversion of that acre good because the Law respects the intent of the matter and applies the words to it So a Gift in Tail reserving the first three daies a Rose and after 10. s. good because one rent in substance A man seised of two acres Leases one for years and after maketh a Feoffment of both Livery in this wherein he hath possession by Attornment the Reversion of the other passeth 7. E. 4.21 So 30. E. 1. Totum Molendinum suum the Reversion of the third of the Mill which was in Dower pass but Tenant for life ought to Attorn upon the Grant Brook grants f. 30. the Habendum explains and corrects the words of the premisses as here the words Reversion of the land to the land it self being the same substance So 7. E. 3.308 A Rent Granted out of a Man nor to take off one acre of the same Mannor nothing shall be charged but this acre in performance of the intent of the parties by the Serjeants for the Plaintiff Anthony Brown Serjeant for the Plaintiff Tenement compriseth a Reversion as 33. E. 3. the King licences to purchase Tenements in Mortmain he purchases a Reversion good Fitzh grants 402. and Cook Alienation fol. 55. is Advowson yet the word Tenement here agrees not with the premisses First because that in the mean time after the first Lease finished at Michaelmas the land is in possession and then it is not a Reversion because no particular estate and therefore may not yest as a reversion as 21. H. 7.11 before fol. 25. Remainder may not vest but during the particular estate and not at the ending of the first estate up on Condition broken So 10. E. 3. dower of a rent reserved upon an estate Tail good so long as the estate continues otherwise it is if the Tail be altered in Tail after possibility or Tenancy by the Courtesie for that the inheritance is determined and the rent is now in another degree 12. E. 3. and 10. H. 7.13 by Keeble if a rent be granted with a cessing during the nonage of the Heir the Wife shall have Dower and Execution shall be staid otherwise the Wife of the Son dying within age for that during the Cesser she had not possession Secondly because the Reversion cannot be granted at a day to come for then he shall have the particular estate in the mean time and shall be Lessor to himself and 38. H 6.38 a man cannot reserve the lesser estate giving the greater without alteration of the Lesser as in 8. H. 7.3 by Vavisor before fol. 152. A. hath rent in Fee and grants this to B. after the death of I.S. void because the Fee passeth presenly if ever and then he should have Franck-tenement of his own grant until I.S. dies And the Estate shall not be so devided without alteration of the whole Estate for a thing in esse cannot be granted to be in esse one time and to be insuspended or differ from the other but a new rent may be granted to commence at a day to come for there he shall not have the particular estate in the mean time because not in esse before after fol. 197. Time material shall void the thing in all viz. both the premisses and Habendum not e converso if it may not pass according to the limitation thereof because time parcel of the parties intent and if it may not pass as to the intent all is void As a man hath a Rent or Term and Grant it if he stay there good if he saies besides Habendum after the death of I. S all is void after fol. 250. So the Remainder void if the Termor enter without Livery Litl 12. But if the Term was to Commence at a day to come the Remainder over there it is void notwithstanding Livery because there is no estate present to which the Livery may be annexed so that the time of Commencement is materiall and Livery before its Commencement is void and Livery shall not destroy the time but the time the Livery and grant every act shall be taken strongest against the makers and most beneficial to him to whom it is made and he hath liberty in another sence to his advantage then the words purport prima facie for every Deed shall be construed
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
probat And by him the Ordinary ought not to suffer the Executor to refuse after he hath once medled with the Goods of the Testator for if before the probat he had released a Debt and after he proves the Will this hath made the release good Walsh probat maketh the Release of the Executor made before good because it is a consummation of the Will and refers to the death Dier Chief Justice If the Ordinary commit and after the Metropolitan commit to another because the intestate hath Goods of the value of 10 l. in diverse Dioces 10. H 7.18 this disproves the authority of the first Administrator and avoids his mean Acts and by Keeble the second Administrator shall have Trespass against the first for taking of the first Goods So 7. E. 4.12 Executor pleads that he hath proved the Testament the action of the Administrator depending against him a good Bar because the power of the Administrator disproved and mean acts avoided by Probat of the Testament and the Executor which is made not knowing of it if he agree after good seems to be 3. H. 7.14 The Ordinary ought to award Proces against the Executor to come in for to prove the Testament before he commits the Administration The Probat here disproves the Administration for ever and proves the Executor to be full Executor from the death of the Testator and is not like to the cases before fol. 239. because the mean time in which no Executor and this time the Ordinary hath authority The Seal of the Ordinary put to the administration is but matter in fact and no estopple and the executor shall not be inforced to sue in the spiritual Court to recall this but shall avoid it by Plea or by matter in fact as 44. E. 3.16 A. bringeth Debt against B. as administrator and sheweth certainly how his Deed was as he ought B. saith he and another are executors Judgement of the Writ and shew forth the Testament to prove it A. offers to aver that he died intestate B. saith to it he shall not be received contrary to the Testament proved and under Seal to take the Plaintiff from his averment but that he shall have it and try it by the Country also the taking of Letters of Administration discharges not a Suit against those which were executors of their own wrong before 21. H. 6.8 2. R. 3.20 So 34. H. 6.14 in debt by the Administrator the Defendant received to avoid Letters of Administration by saying the dead made an executor and taking issue upon it Chapman against Dalton A Man makes a Lease for 21. years by Indenture and Covenants with his Lessee Tr. 7. El. in the K. B. Covenant and his Executors to make a new Lease for 21. years after the expiration of the first to the Lessee and his Assignes the Lessee dies and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor and adjudged good 1. That the executor is an Assignee in Law to whom the Lease ought to be made and so the executor of an executor by the Common Law 2. That the Lease ought to be made to the Lessee if he were alive or to his Assignes in Deed and if he die Assignee in Deed then to his executor and although that the Covenant be in the Copulative in the Letter yet it shall be expounded disjunctive in sense for to avoid absurdity or impossibility 3. Admitting that the word Assignee were void or omitted out of the deed yet this shall be made to the executor for that the intent was such which shall be performed where the words could not Baber and Wray argued for the Defendant as it is abridged by Ash fol. 50. Fleetwood and another apprentice for the Plaintiff Every Covenant and Grant shall be taken most strong against the Maker and most available to the other And if the words thereof have a double sense that which is for the benefit of the Grantee shall be taken then the word Assigned here shall be drawn to so effectuall sense for the avail of the Grantee And if the word Assignee as the Councel on the part of the Defendant would have it applied to a limitation viz. in the sense of an Habendum to him and his Assignes for 21. years it is void and conveys no benefit to the Grantee because if I Lease to A. for 21. years and his Assignes shall have this as largely as I do vest this Lease in him and his Assignes because the Law gives power to him to assign it to another Assignee hath two senses in the one it signifies the person to whom the thing granted or given shall be afterwards conveyed by him which hath the thing as the Lessor Grants to the Lessee for years That he or his Assignes shall have twenty Carts of Wood annually in such a Wood Assignee there hath the sense of the person to whom he shall Assign the Lease So one warrants Land to the Feoffee his Heirs and assignes there the second Feoffee shal vouch So I sell a Horse upon Condition That if I pay 40 s. to him or his Assignees that I shall have the horse again Assignee there is he to whom he grants the horse but such Assignee is not in our case because he hath not any estate first made and such a one is Assignee after the thing granted in the second it contains the person to whom the thing which is to be made and is not made shall be made as I am bound to make a Feoffment or give a horse to you or your Assignee there the Assignee is such a person which you shall name to me to receive and the Assignee in this sense is before the things done or granted and Assignes in this sense is in the first also But with this in the first sense we have not to do here there are Assignes in Deed and Law in Deed where you name such a one to whom I shall make the Feoffment or give the horse in Law where you name no man to receive then the Executor shall have it because the Law saith That they are your Assignes to such purpose and present your person as to receive any Chattels real or personal So 27. H. 8 2. Executor is an Assignee in Law to take a Rental where the Lessee bound himself to deliver it to the Lessor or his Assignes at the end of the Term a true rental and the Lessor made no Assignee he is an ill expounder which confounds the Text. And therefore here and the Copulative shall be taken for or the Disjunctive for otherwise the sense will be absurd that the Lessee if he had been alive at the end of the first Lease should not take a new Lease until he names his Asasignee or impossible as joyning his assignee in law with him because he cannot have an Executor in his life So in our Law a copulative is taken as a disjunctive and a disjunctive as a
and the Son and within his Charge So Litl fol. 4. the Donor shall pay Rent untill four degrees past upon a gift in Free-marriage upon another gift not because the Daughter advanced and the husband from thence forth undertakes to find his wife all necessaries I promise 20. l. to one if he marries my Daughter he shall have Debt for it in our Law because the Daughter is advanced and so consideration proceeding from Nature is a sufficient Consideration in our Law 22. E. 3. ass pl. 70. Fitz. nat br fol. 44. a. and 120. r. Doctor and Student 105. And so the Consideration here of A.B. for provision for his issues males good is a good Consideration to change the use of the land Second Consideration For the continuance of the Land in the name of the Baintons good to raise an Use and Males continue their Sir names and Females change them by marriage and the Male is most Soveraign 40. E. 3.37 2. H. 4.1 27 H. 6.8 and the Female and all inheritance is subject to the will of another 17. E. 4.5 I promise 10. l. to a laborer for to repair a high way or to a Surgeon for to cure such a man he shall have an action of Debt because it is Charity Doctor and Student 105. Third Consideration The good will and fraternal love wich he hath to his bloud and his brothers which is the nearest degree of bloud after Parents and issues good considerations here and so it seems by the better opinion in 20. H. 7.10 but is not there adjudged and they that joyn in bloud by nature joyn in love and therefore if the youngest enter after the death of the Father the elder shall have no action against him conrrary to 21. H 6.15 by Portington because the Law intends that he entred as a friend to preserve the inheritance in his absence because so near in bloud the Law intends as near in love So Littl f. 93. and 40. E. 3.24 no discent of the Puisne or any of his issues shall take away the entry of the eldest for the cause aforesaid So Litl f. 160. Warranty Collateral Bars without assets because the Law presumes that he will advance him as much as he hath prejudiced him by the Warranty So no battail between Brothers or Cosens in a Writ of right But a Nuper obiit lieth against Brothers and Sisters in Gavel-kind where their ancestor died seized or a Wriâ— De rationabili part against him which enters into all which Writs are to try bloud onely So a Juror is Brother or Cosen to one party a good challeng in every action for the affection which the Law presumes the one hath towards the other 21. E. 4.33 And Bromley said That 11. H. 4.12 by Tirwit and Cascoigne by the ancient usage all the bloud of him which was Murthered should draw the Felon found guilty in an appeal of Murther by a long corde to execution for the loss which all the bloud had by the Murther of one of them and for the revengement of his death and love that they had to him that was killed Fourth Consideration Consideration was the Marrige had between Edward Bainton and Agnes his wife Remainder upon Natural Consideration shall preserve the particular estate made without Consideration which precedes it but not on the contrary if the estate upon natural Consideration precede the other estate as A. Convenants with B. in Consideration that B. will marrie his Daughter to stand seized at the time of the Marriage to the use of himself for life after to the use of I. in Tail afterwards to the use of B. and his wife the Daughter of A. is a good use to I. without consideration for the Marriage is private and several Considerations for the estate of B. and his Wife because the Remainder to I. precedes the estate to B. and his Wife but if the Remainder to I. had been after the estate of B. and his wives the estate there had been void to I. but money might have been given in Consideration of all the estates In Mordants case 21. H. 7.19 No use was raised there because the Covenant was in the future Tense and also incertain and therefore was put to his Writ of Covenant there Good and sufficient Consideration raiseth an Use without Deed so a Deed raises Uses if there be any Consideration for it is made to some effect or otherwise should be void because you shall not have an action of Covenant here because an action of Covenant lieth upon a Covenant only in the preter or future Tense and not in the present Tense 1. Contract or Agreement for Lands or Chattels is by the Law First by Writing Secondly by Words First An agreement by writing without Consideration is not Nudum because a man hath great consideration and deliberation in passing things by Deed and the writing his sealing and delivery of it signifies fully his will is sufficient consideration that Land shall pass as his will is and shall bind the party without thinking what cause he hath to do it Secondly an Agreement by word without consideration is Nudum and binds not because words passes from a man suddenly and without advisement many times as 17 E. 4.4 I promise to give you 20. l. for to make your sale of new it is Nudum pactum if it be by Deed you may have Action of Debt upon this Deed and the Consideration there is not examinable and the cause of the Deed is not inquirable for every Deed imports in it self a Consideration without the will of the party which makes the Deed. So 11 H. 4.33 A Carpenter by word without writing undertakes to make a new house and no consideration for the making of it is Nude if it be by writing it is good So 45. E. 3.24 for that the Plaintiff demanded a Debt upon a contract for marriage money by Deed an action lies at the Common Law because there it becometh a Lay Contract by the Deed in Court Christian if it had been without Deed because the marriage which is the consideration is a thing Spiritual 14. E. 4.6 15. E. 4.32 which books are against the opinion of Thorp in the said case in 22. ass before fol. 35. Nudum pactum est ubi nulla subest causa praeter conventionem sed ubi subest causa fit obligatio parit actionem Information for Mines THe King shall have all the Mines of Gold and Silver in the Lands of his Subjects H. 10. El. in the Excheq by the Prerogative of his Crown and not by the proprieity of the Soil although it be not recited in the Treatise of Prerogative and albeit the Oar thereof in anothers land toucheth others Free-holds and inheritance which is proved by three reasons First for the excellency of the matter which being more excellent is appropriated by the Law to the person most excellent viz. the King So the King hath by the Common Law Whales and
the Devise shall be void So of an infant which maketh his will publisheth it and dieth at ful age it is not of any effect because death without good Commencement giveth not effect And so the Commencement and the intent of it is to be considered in every act So the Disseisee of two acres in Dale releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed the Disseisor before the first of May disseises him of another acre and the release is delivered the 10. of May the right as to the 3. acre shall not pass because the first livery was void to this intent so the consummation of it which is the second livery So I have a Reversion of two acres that I. S. holdeth for life after I purchase the Reversion of another acre which I. S. holdeth for life after I. S. Attourns to B. for all three the third acre passeth not for Attornment passeth not more then was contained in the intent of the first Grant And so here That which is not in the intent at the begining Commencement of the grant shal not be in the intent at the consummation of the same but if he had published his will after he had purchased the new Land there it may be all might pass for by the new publication his intent shall be taken That all that which the words contain at the time of the publication will pass and by him if a man Devise a thing by a name certain as the Mannor of D. or white acre and after purchase the same it shall pass for it shall be taken that he intended to purchase it or otherwise the Will shall be void to all intents 39. H. 6 18. But here when he hath 10. acres and Devises all his Lands they are satisfied in passing of the 10. acres and there is no meaning by the words for the land purchased after the Will because the thing is not named certainly as the Mannor of Dale or White-acre Also he may not Devise the 12. acres because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will because it speaks of having Lands which he may Devise and here he hath not those at the time of the Devise Quaere of the case where he Devises by special name and after purchases it because of the word having Second point if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor Manwood for the Defendant Because it is more consonant to the will of the Devisor and reason That the effect shall take place and the form perish rather then both should perish together as Devisee for life the Remainder over dies in the life time of the Devisor it is a good Remainder and shall have the immediate possession which is the effect yet the form was for to have by Remainder So if a Dean die or a woman Covert taketh another husband before their Devisor dies yet they are especially named Land shall vest in the new Dean and his Successors and in the woman which is now the wise of another according to the intent because it cannot according to the words and if the intent of a man in Conditions shall be performed as 4. H. 7. by Joy he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori the intent in Wils shall be observed where the words cannot and the effect here is that the Heir shall have the Land and it is the form of the limitation that he shall have it by discent 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn good And Parson shall take because it was comprehended in the Devise although he was not named Lovelas and all the Justices besides Walsh to the contrary For by the death of the Devisee the Devise is countermanded for that the Devisee is not in rerum natura when the Devise took effect and in all gifts be they by Devise or otherwise there ought to be a Donee in esse capable when the thing ought to vest or otherwise the gift is void and the word Heirs limits the estate and not the persons which shall take and enables the Devisee as well to alien as to permit it of Discent for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee and a thing at his pleasure And things of sequel which ensue if the estate had been vested first as are Discent Dower Escheat are not good causes to make things vest in others then those to whom limited And therefore the heir shall not have the land here no more then the woman shall have dower or Lord Escheat if he had died without heir which should be so if it had vested in the Devisee And therefore if a man Devise a Lease or goods to I. S. which dies and afterwards the Devisor dies the Executor of I. S. shall not have them The speaking to the Son of the Devisee That he shall be his heir c. is void for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing and those are sufficient in themselves for to make the thing devised pass and not regard words without writing by all the Justices but if he had published the Testament of new the Devisee should have the 12. acres in this case for that it had been as it were a new Testament but not his heirs Delamer against Barnard A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail Remainder to the husband in general Tail 10 El in K B â—…r Remainder in Fee to the brother of the husband and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother being in Remainder in Fee 2. E. 6. The brother infeoffs the Defendant the Husband dies the heir of the first Feoffee enters to revive the use to the Wife and adjudged lawfull 1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use is drawn out of him and setled in the second Feoffee and by consequence all the uses which were created out of the first Fee-simple are discontinued and shall not be revived untill a re-entry of the Feoffee after the death of the husband and that he may enter then notwithstanding the Feoffment of the Brother 2. The Feoffment of the Brother in Remainder is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession nor in esse but only a right which he could not grant neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of
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
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