of the tenant yet the bargainee shal have benefit of a condition as an assignee within the Statute of 32 H. S. And it seems he may vouch by force of a warranty annexed to the estate of the land because he is in partly in the per and partly in the post All things for the most part that are grantable by any other way See West Symb. tit Bargain and Sale 4. Of what things a bargain and sale may be Or not from one man to another are grantable and may be transferred by way of bargain and sale from one to another And therefore lands rents advowsons commons tithes profits of Courts and the like may be granted by way of bargain and sale in fee simple fee tail for life or years And all manner of goods and chattels as leases for years wardships cattell corn housholdstuffe wood trees merchandises and the like are grantable by way of bargain and sale But it seems Estovers and such like things de novo and that 6 Jac. B. R. Adjudged 21 H. 6. 43. per Yelverton have not essence before are not grantable by way of bargain and sale as they are by way of grant or lease and therefore that a bargain and sale of such things is void If any estate of freehold or inheritance be made of land by way 5. What shall bee said a good bargain sale And what things are requisite to make such a bargain and sale Or not Of lands of bargain and sale the same must be made by a writing or deed Stat. 27 H. 8. ch 16. indented and cannot be made by word of mouth onely as a lease for years whether it be created de novo or be in esse before may be But lands in London by a speciall Proviso within the Statute may be bargained and sold by word of mouth without any writing 2. The very words Bargain and Sell are not necessary to a good bargain sale for words equivalent will suffice to make land Co. 8. 94. 7. 40. 2. 36. passe by way of bargain sale And therefore if a man seised of land in fee do by deed indented and by the words alien or grant sell them to another or if such a man covenant to stand seised of his land to the use of another and these deeds are made in consideration of money and the deeds be after inrolled these will amount to good bargains and sales And if a man by a deed indented and inrolled in consideration of ten pound paid to him by the words demise and grant passe his lands to another for twenty years this is a good bargain and sale 3. There must be some good consideration Co. 1. 176. given or at least said to be given for the land And therefore if A for divers good considerations a Ward versus Lambert Pasche 37 Eliz. or in consideration that the bargainee is bound for the bargainor and for divers other good causes b 41 El. Adjudged or for divers great and valuable considerations bargaine and sell his land by deed indented and inrolled to B and his heirs nihil operatur But if in these cases in truth there be money or other good consideration given albeit it be not expressed upon the deed Dier 169. the bargainee may aver it and being proved the bargain will bee Averment good And if the deed make mention of money paid as in consideration of an hundred pound or the like and in truth no money is paid yet the bargain and sale is good And no averment will lie against this which is expresly affirmed by the deed And if the deed Dier 90. mention and say for a certain sum of money or for a certaine competent sum of money these are good considerations 4. There needs no livery of seisin or atturnment in this case And therefore Co. 7. 40. 8. 94. if one bargain and sell a reversion by deed indented and inrolled for good consideration the reversion will passe without any atturnment of the tenant And if it be onely a lease for years of a reversion that is granted there needs no atturnment nor inrolment And in case of a bargaine and sale the bargainee is in actuall possession before any entry so that the lessee may atturn to the grant of the reversion as hath been ruled in Mittons case Mich. 18 Jac. in Cur'Ward by the two Chief Justices and the whole Court And yet I think he hath not such a possession as to bring any possessory action for trespasse or the like untill an actuall entry for where the Statute of 27 H. 8. of uses provides that the actuall possession shall be adjudged according to the use yet it ought to have a circumstance Co 5. 112. which is requisite by the common law viz. an actuall entry in deed But there must be an inrolment of the deed in case Stat. 27 H. 8. ch 16. Pl. 307. where any freehold doth passe for it is provided That no lands Inrolment Where necessary And how it must be done except in some Corporations only shall passe from one to another by any deed whereby any estate of inheritance or freehold shall be made or take effect in any person or persons to be made by reason only of any bargain and sale thereof except the same be made and done by writing indented sealed and inrolled in one of the four Courts the Chancery Kings Bench Common Pleas or Exchequer or else within the same County or Counties where the lands so bargained and sold doe lie before the Custos Rotulorum and two Justices of the Peace and the Clerk of the Peace of the same County or Counties or two of them at the least whereof the Clerk of the Peace to be one And the same inrolment to be within six moneths next after the same writing or deed is dated And this Statute was made in the same Parliament wherein the law of transferring of uses into possession was made to the end that mens lands might not suddenly and privately passe upon payment of a little money in an alehouse or the like And herein these things must be observed 1. The inrolment upon such a deed as to make this estate to passe must be in parchment for an inrolment in paper is not good 2. The deed inrolled must be indented for if it be but poll the estate will not passe 3. It must be inrolled within six moneths of the purchase or sale * Co. 5. 1. And this account must be 1. From the date and not from the time of the delivery of the deed 2. After twenty eight days to the moneth 2 Dier 218. Adjudge Franklin Garters case Mich. 37 38 Eliz. 4 Dier 218. and no more 3. The day of the date to be taken exclusive and for none of the days of the six moneths And yet if a deed be inrolled the same day it bears date it is good 4.
work doth succeed well I will say to you that the blinde man may happily hit the mark and it may fall out that sometimes they doe their work well and it doth succeed well but oft-times wofull experience sheweth the contrary and that many men have been much mischieved every where by the ignorance of these men Wherfore I wish both sorts of them to doubt more and to be well advised in these affairs as the Law doth presume every one will be for therefore is it indeed that a Will hath a more favourable interpretation then a Deed because mens Wils are oft-times made in hast and it is presumed men take who they can to make them but men for the making of their Deeds are not put upon those straits but they take advise of learned men therein And the more to move men herein and to redresse the evill before discovered I have herein set forth under certain generall Titles or Common Places the greatest part of the Judgements Statutes Resolutions and Cases that doe contain or concern the learning of the Common Assurances of the Kingdome so as I think I may truly say under reformation that there are few materiall things as touching this subject to be found any where dispersed in the Volumes of the Law but they are to be found somewhere herein and that there shall not happen one Case of a hundred but a hundred to one the diligent Reader may here finde the Case it self or some Case that by good inference may be applied to it Not that I would have men now to rest upon this help and be lesse carefull and more carelesse to take advice of the Lawyer then heretofore for this is the disease I labour to cure for howbeit it may be that hereby these matters are made in some measure conspicuous yet to say the very truth besides that the subject matter of Law is somewhat transcendent and too high for ordinary capacities the manner of putting of Cases is so concise the distinctions and differences of Law are so many that it is hard for any man not well read in the Laws in generall to judge or make use of any part of them in particular and rightly and fully to apprehend and apply the things herein set forth and therefore I dare not advise men to rest altogether hereupon nor can I forbear to tell them it is very dangerous so to doe But my aim and ends being also the uses and commodities I expect and looke after from this work is first of all that such men before spoken of may see by the view of the infinite variety of Cases Points and Questions as touching these matters discovering also so many by-ways wherein men conversant therein may walk how much there goes to making up of an able Conveyancer and that it is not so easie a matter to judge of a Title give advice upon a Conveyance and make these Common Assurances as men dream of and that therefore men learn more to suspect themselves and others herein and to these it may serve as a light in a dark place Secondly that by this the Lawyer and Student may in some measure readily finde together what he desires touching these matters and to him it may serve for a Table or Remembrancer And lastly that every man may be the better able by the help hereof to understand open put his own case to his Lawyer and to move more pertinent questions to him and other uses I would have no man to make of it In the use of this work therefore I must give thee two Advertisements or Caveats First that if thou desire to find any thing in particular therein contained that thou read the whole Chapter or at least the whole Question and Division of the Chapter wherein that thing is contained And secondly that thou doest not confidently build and rely upon any thing therein alone without advice from the learned Lawyer also or at the least without a serious and judicious perusall of the Authorities Books themselves to which thou art therein referred Melius est petere fontes quam sectari rivulos Some other things there are also herein inserted as falling aptly under the Title albeit it bee not altogether pertinent to the subject matter And all these sweet flowers of the Law growing sparsim in the great fields of the Volumes of the Common and Statute Laws have I thus painfully gathered bound up commended to thy charitable censure no doubt but in my desire to grasp and take up so much I have taken and bound up some grasse withall which I hope shall not offend If so be that I finde it have a fragrant smell with thee I shall think I have recompence enough for my pains But if any man think me too presumptuous to attempt this enterprise let him know first that there is nothing mine in it but the method and that not mine neither altogether the matter thereof being nothing else but the Judgements Resolutions and Opinions of the Judges of the Law in succeeding times and then as I have not trusted my selfe so they shall not trust me altogether in these things For I doe freely acknowledge mine own weaknesse and want of judgement and that I am the unmeetest and unworthiest of all men to undertake such a work not one of a thousand but the meanest of ten thousand And this I have done is a poor something sufficient onely to give them that are more learned occasion to doe something more exactly in this kind If any man dislike the publishing of it in the English tongue and think perhaps it may make the Law to be the more despised and the Practitioner of the Law the lesse regarded and used I doe wonder at the dislike of such a man for to me there appears no more reason why to keep the Lawes in an unknown languange that they may be kept from the knowledge of the people then Papists have to keep the Scriptures and their prayers in a language unknown to the people these being the Laws by which the people are to be governed and the Law being the best inheritance of the Subject The wisdome of the Parliament hath thought to commend all the Statute Laws to the people in English and to appoint that the pleadings should be in English And have we not many Books of Law in English already as Littletons Tenures Doctor and Student Finches Law Justice Dodridge Treatises Coke upon Littleton the Womans Lawyer and many others and are not these usefull and profitable And besides the greatest part of the proceedings in Chancery the Court of greatest employment within the Kingdome are in English And if it be meet any part of the Law be in the native tongue it should seeme it is meet this part should be so because it concerneth so many men and them also so much that they may see and understand somewhat in their own Evidences And therefore as we have turned their Deeds from Latine
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the
party grantor shall have relation to the Co. super Lit. 310. 11. How an atturnment shall relate time of the grant to make the thing to passe out of the grantor ab initio albeit it be made many years after the grant and therefore all acts done by him after the time of the grant and before the atturnment to the prejudice of his own grant as granting of rents entring into Statutes or the like are void as to the land to charge it and hence it is that if a reversion be granted to an alien and before the atturnment of the tenant he is made denizen in this case the King upon office found shall have the land and yet it shall not so relate as to make the tenants chargeable to the grantee for any mean arrearages or for any wast in the lands from the time of the grant to the time of the atturnment But in respect of a stanger it shall not relate at all And therefore if two deeds be of a reversion at severall times and hee whose deed was made last gets atturnment first the reversion doth passe to him and though the other get atturnment afterwards yet this will not help him by relation and albeit the former grant of the reversion be in fee and the latter for life onely yet the law will be allone in both case And now having done with this we come to a Lease CHAP. XIV Of a Lease A Lease doth properly signifie a demise or letting of lands rentcommon 1. Quid. Terms of the Law Co. super Lit. 43. 45. Justice Dodridge Treatise called The use of the Law Bro. Leases 60. 437. Plow 421. 432. Dier 125. or any hereditament unto another for a lesser time then he that doth let it hath in it For when a lessee for life or years doth grant over all his estate or time unto another this is more properly called an Assignment then a Lease And this albeit it may be made and done by other words yet it is most commonly Assignement and aptly made by the words Demise Grant and Let. And in this case he that letteth is called the Lessor and he to whom it is let Lessor Lessee the Lessee This word also is sometimes although improperly applied to the estate i. the title time or interest the lessee hath to the thing demised and then it is rather referred to the thing taken or had and the interest of the taker therein but in this place it is applied rather to the manner or means of attaining or coming to the thing letten And in this sense it is sometimes made and done by record as fine recovery c. and sometimes and most frequently 2. Quotuplex by writing called a Lease by Indenture albeit it may be made also by deed poll And sometimes also it is as it may bee of land or any such like thing grantable without deed for life or never so many years by word of mouth without any writing and then it is called a Lease-paroll And hence comes the division of a Lease-paroll and a Lease in writing And all these ways it may be made either for life i. for the life of the lessee or another or both or for years i. for a certain number of years as ten an hundred a thousand or ten thousand years moneths weeks or days as the lessor and lessee doe agree And then the estate is properly called a Term of years for Term of years this word Terme doth not onely signifie the limits and limitation of time but also the estate and interest that doth passe for that time These Leases also for years doe some of them commence in presenti and some in futuro at a day to come and the Lease that is to begin in futuro is called an interesse termini or future interest Interesse termini or Future interest Or at will i. when a Lease is made of land to be held at the will and pleasure of the lessor or at the will and pleasure of the lessor and lessee together and such a lease may be made by word of mouth as well as the former Regularly these things must concurre to the making of every See Grant Numb 4. Co. 6. 36. 34 35. 1. 154 155. Co. super Litt. 45 46. Plow 273. 523. good lease 1. As in other grants so in this there must be a lessor 3. Things necessarily required in every good lease and he must be a person able and not restrained to make that lease 2. There must be a lessee and he must be capable of the thing demised and not disabled to receive it 3. There must be a thing demised and such a thing as is demisable 4. If the thing demised be not grantable without a deed or the party demising not able to grant without deed the lease must be made by deed And if so then there must be a sufficient description and setting forth of the person of the lessor lessee and the thing leased and all necessary circumstances as sealing delivery c. required in other grants must be observed 5. If it be a lease for years it must have a certaine commencement at least then when it comes to take effect in interest or possession and a certain determination either by an expresse enumeration of yeares or by reference to a certainty that is exprest or by reducing it to a certainty upon some contingent precedent by matter ex post facto and then the contingent must happen before the death of the lessor or lessee 6. There must bee all needfull ceremonies as livery of seisin atturnment and the like in cases where they are requisite 7. There must be an acceptance of the thing demised and the estate by the lessee But whether any rent be reserved upon a lease for life years or at will or not is not materiall except only in the cases of leases made by tenant in tail husband and wife and Ecclesiasticall persons Of which see infra For the ability and capacity of the lessors and lessees and what 4. What shall bee said a good and a sufficient lease for life or years Or not shall bee said a good lease or not in respect of the ability of the lessor and the capacity of the lessee and the description of their persons the nature and description of the thing demised and what mis-recitall or misnosmer will hurt or not See Grant Num. 1. In respect of the persons of the lessor and the lessee the thing leased the estate property or poslession of the lessor therein 4. and infra Numb 5. 6 7. Leases for life or years or at will may be made of any thing corporall Bro. Leases 23. or incorporall that lieth in livery or grant Also leases for years may bee made of any goods or chattels See for this Grant Numb 4. A man seised of an estate in fee simple in his own right of any Co. 7. 11.
Adiudg â—il 39 Eli. Co. B. yearly after untill I S he made Knight in this case albeit I S bee made Knight before Michaelmas yet the first 10l at Michaelmas must be paid If the condition bee thus That if the Obligor shall for ever Adiudge M. 18. Iac. B. R pay yearly to the Obligee c. 10l at the two usuall Feasts by equall portions or if his heires shall at any time hereafter pay 100l at Harbert versus Rochsey one payment to the Obligee that then the Obligation to be void in this case albeit the Obligor hath election which of these two things to doe yet because the intent is apparant that one of these things should be done if therefore the 100l be not paid before the first Feast the 10l must be paid yearly If the condition of an obligation from A to B be thus That Dyer 421 43. To warrant land and for quiet enjoying whereas A hath sold to B certaine Meadow in Dale that the said A shall warrant the same against Lord and King and all others if the said B shall peaceably enjoy it to him and his heires of the Lord of the Mannor of M by the services due after the custome c. in this case the substance of this being for quiet enjoying it shall be extended that way and albeit it be not said what he shall warrant yet it shall be taken the Land in question and the warranty shall be construed to last only for the life of B and not to extend to any new titles after the Covenant especially such as are by the act and default of the Obligee himselfe as if he commit a forfeiture and the Lord enter or the like If the condition be That the Obligor shall sufficiently prove Perk. Sect. 791. 10. Ed. 4 11. To prove a thing such a thing this shall be taken for proofe by enquest and accordingly it must be done But if the condition be that it shall be done by such a time or before such persons as when or where such Golds case in Harberts Rep. 127. proofe cannot be had then it is otherwise Where the word proofe is put generally it shall be understood of proofe by Iustice but when the parties agree upon another form of proofe that shall prevaile against that which is but instruction of Law If one be bound in an obligation with condition to suffer his wife Curia Trin. 7. Iac. Co. B. To suffer his wife to make a Will to give to her kinsfolks children or others portions of his goods to the value of 100l and that he will perform it and she give part to one and part to another in this case the husband must performe it accordingly But if the condition be to suffer her to give to A and B 100l and that he will perform it and she give 100l to A he is not bound to perform this If the condition be That hee shall perform his wives Will so it Adiudge Hil. 7. Iac. B. R doe not exceed 20l. and shee make a Will and devise 100l in this case hee is not bound to perform the Will for the 20. If the condition of an Obligation be That the Obligor shall infeoffe 5. In respect of the manner and order of of doing the thing and other matters Kelw. the Obligee and such others as he shall name by a day in this case the Obligee must doe the first act viz. name the others otherwise the Obligor doth not forfeit his obligation by the not doing of iâ— But if the condition be to infeoffe me or such others as I shall name before such a day in this case if I doe not name others it seemes he must enfeoffe me before the day at his perill If the condition be that the Obligor shall make such an estate Coo. 5. 25. 7 Ed. 4. 13 Perk. Sect. 775. of Land as I S shall advise I S must first advise and this must be made known unto the Obligor ere he is bound to doe any thing and if he never advise he is never bound to doe any thing for it is in this case as if one bee bound to stand to the award of I S and I S never make any or make a void award which is all one If the condition be to make such a discharge in such a Court Coo. 5. 23 as the Obligee or his counsell shall advise in this case the Obligee must doe the first act viz. advise and give notice of the advise to the Obligor before he is bound to doe the thing But if the condition be to make such a discharge in such a Court such a day as the Judge of that Court shall advise in this case the Obligor must at his perill procure the Iudge to advise a discharge and it must be done that very day or the obligation will be forfeit If the condition be to pay 20 l. to the Obligee when he doth Per. Iust Nichols M. 13 la Co. B. come to London in this case the Obligee must doe the first act viz. make known to the Obligor when he doth first come to London for otherwise it seemes the Obligor is not bound to pay the money If the condition be that the Obligor shall levie a fine to the Obligee Coo. 5. 127 Dyer 371. before such a day the Obligee must doe the first act viz. sue out the Writ of Covenant If the condition be that the Obligor shall deliver 20 Clothes â—1 Ed. 4. 52 to the Obligee such a day the Obligee paying for every cloth immediately after the delivery 20 l. in this case the clothes must beâ— delivered albeit the Obligee refuse to pay the money but if immediately after be left out it seems the Obligor is not bound to deliver the cloth unlesse the Obligee first pay the money If the condition be that the Obligor and his heires shall at any Coo. 2. 3 4 Dyer 337. time upon request made doe any act c. that the Obligee shall require c. and the Obligee tender a Release or other Deed to seale in this case if the Obligor or his heir that is to seale the Deed be an illiterate man he may refuse to seale it untill he can get some body to read it unto him but he may not refuse or delay to scaâ—e it untill he can have a Lawyers advise upon it but he will forfeit his Obliligation If the condition be to doe any thing upon request the Obligor Perk. Sect. 773. Coo. 5. 21. untill request made is not bound to doe any thing towards it neither can he forfeit his obligation till them And yet if in this case the Obligor disable himselfe to doe the thing he hath undertaken to doe upon request before the request made the obligation may bee so feit without any request made If the condition be that the Obligor shall within a
of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office h Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court and certify the same without any writ of Dedimus Potestatem i Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest or one of them with a Knight but this is not usual at this day k Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take certify cognisances of fines without any special Dedimus Potestatem but at this day they doe not use to certify them without a speciall writ of Dedimus potestatem And fines have been levyed before Justices Errants Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem quid Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile and by this writ upon such a surmise power may be given to any Serjant at law alone or to any Knight and Gentleman together to take the conusance of such persons and they may by virtue thereof take the same l Curia 39. 40 E. l. 17. either of all or some of the parties m Dyer 220. and that as it seems in any place accordingly n 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same and whom they doe admit to make such conusances before them o 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors that they suffer not one man to make a conusance in another mans name and that they doe not take any conusance from any person prohibited by law for misdemeanors by such persons herein are punishable in the Star-Chamber p 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance the Iudges or Commissioners must take care they doe examine her whether she be willing and doe part with her right in the land willingly or by compulsion of her husband for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done q Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly and the day and yeare when it was taken r Dyer 220. Cromp. Iur. 92. and not another time for this may be a misdemeanor punishable in Starre-Chamber and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance at the farthest f Regist or 68. F. N. B. 147. b. And if they refuse to return or certify it the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody or his executor or administrator if he be dead to certify it t Dyer 246. But if any of the cognisors happen to die before it be certifyed then it cannot be certifyed at all for it cannot now be made a good fine u 〈◊〉 1 H. 7. 9. Broo. Fines 124. And so also as some hold if the King die * Dyer 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis quid in paper or upon the back of the writ of covenant as the use is and the party die after this in this case the fine may goe on and will be a good fine notwithstanding the death of the party And Judges for the recording of fines be the Justices of the comÌ„on Pleas onely and therefore all cognisances of fines must be certifyed thither for in that Court onely and not in any other of the Courts of Record at Westminster or in other inferiour Court or ancient demesne are fines to be levyed * 50 Ass pl. 9. But by speciall grant a fine may be levied in a base Court y Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester county Palatine of Lancaster and county Palatine of Duresme of lands lying within those places And if any persons doe take conusance of fines other then such as before that have power or any other persons or Judges shall record fines or they shall be levyed in any other Court or place then as before such fines are void A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds inâ—ra Numb 3. In respect of the thing whereof the Fine is levied of what things a Fine may be levyed or not and by what names lyeth and of all things which are inheritable and in esse at the time of the fine levyed whether the thing be Ecclesiasticall and made temporall or temporall As of an Honor Manor Island Barony Castle Messuage Cottage Mill Toft Curtilage Dove-house Garden Orchard Land Meadow Pasture Wood Underwood Chappell River Chauntry Corrody Office Fishing Warren Fair Rectory Mines a view of Franke pledge Waife Estray Felons goods Deodands Hospitall Furzes Heath Moore Rent Common Advowson Hundred Way Ferry Franchise Seigniorie Reversion Toll Tallage Pickage Pontage Aquitaile Services Portion of tithes Oblations or the like And therefore fines De honore de S. or De Manerio de S. or De Castro or De Castello de S. cum pertinen ' are good So fines De uno mesuagio uno cottagio uno molendino without Aquatico or Granatico annexed are good So fines De uno T of to uno Curtilag uno Columbario uno gardino uno pomario decem acris terrae decem acris prati decem acris pasturae decem acris bosci decem acris subbosci de Balliva sive officio Ballivat ' de D. de Custod sive officio custod de B. de custod parci forrestae de D. de officio senescalciae de S. cum pertinen ' decem acris bruerae
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
is good And in case of a Subject also if Prerogative a lease be made by deed in writing of any such thing for a terme of years reserving a rent this may be good by way of contract to produce an action of debt though not as a rent to be distrained Debt for And thus by apt words an apt rent out of manors and such like memorable things or divers rents may be reserved upon one grant As if one grant the Manors of A B and C rendring for Co. 5. 55. Dier 308. Co. super Lit. 47. 164. 213. A 20 s. for B 20 s. and for C 20 s. these are good Rents and severall So if one grant the manors of A B and C rendering 3 l. viz. for A 20 s. for B 20 s. and for C 20 s. this is a good reservation but in this case the rent is intire Also one may reserve one rent one yeare and another rent another yeare as 10 s. one yeare and 20 s. another yeare or one may reserve a rent to be paid every second or third yeare and no rent the other yeares or one may reserve one kinde of rent one yeare and another kinde of rent another year and these reservations are good And these Co. super Lit. 225. 8 H. 7. 9. Bro. Fine 36. Reservation 4. reservations may be by fine aswell as by deed or it may be in case where the lessor hath a reversion of the land or upon a partition to make an equality without any deed at all But if it be upon an exchange to make an equality it is not good except it be by deed f Co. super Lit. 214. 143. 47. Dier 222. If two Joint tenants joine in the grant of their land by deed indented and the rent is reserved to one of them this is a good reservation and shall goe to him alone But if it be by word or by deed Poll that the lease is made the rent shall goe to them both g Adjudge Mich. 8. Car. in Blands case And if a man possâ—ssed of a Terme joine his wife with him and they both assigne over this Terme by indenture rendering a rent to them two and the survivor of them and shee doth not seale the deed in this case the reservation as to the wife is void And if the reservation be of the rent to a stranger that is no party to the deed and to him only this reservation is void And therefore if the father and his sonne and heire apparant by indenture lease Hobarts Rep. 274. Oates Fith Co. 3. his land for years to beginne after the fathers death rendering rent to the sonne it is void A Condition is a clause of restraint in a deed or a bridle annexed and joined to an estate staying and suspending the same and making 10. Condition Quid. it incertaine whether it shall take effect or no. A Warranty is a clause or covenant made in a deed by the one 11. Warranty Quid. party unto the other whereby the feoffor donor or lessor doth for him and his heires grant to warrant and secure land granted to the feoffee donee or lessee and his heires during the estate A Covenant is a Clause of agreement contained in a deed whereby 12. Covenant Quid. either party is bound to doe performe or give something to the other And of all these see at large afterwards In the Construction of deeds it must be considered 1. How a Co. super Lit 302. Perk. Sect. 66. deed in the grosse shal be taken and enure 2. How it shall be taken 13. How and to what purpose a deed of grant in grosse shall enâ—â—re and be constrâ—ed and taken and expounded in the severall parts and peeces of it And for the first these Rules are to be known 1. If divers joine in a deed and some are able to make such a deed and some are not this shall be said to be his deed alone that is able as if divers joine in the grant of a thing by deed one alone hath all the estate and the rest have nothing in the thing granted it shal be said to be his grant alone that hath the estate And so è converso If a deed be made to one that is uncapable and to others that are capable in this case it shall enure only to him that is capable 2. A deed that is intended and made Dier 251. Co. 2. 35. super Lit. 49. to one purpose may enure to another for if it will not take effect that way it is intended it may take effect another way And therefore a deed made and intended for a release may amount to a grant of a Reversion an Atturnement or a Surrender or è converso And if a man have two waies to passe lands by the common law and he intendeth to passe them one way and they will not passe that way in this case ut res valeat it may passe the other way As if a man beseised of two acres of land in fee and letteth one of them for years and after intending to passe them both by feoffement maketh a Charter of feoffement and maketh livery in the acre in possession in the name of both the acres in this case the acre in possession only doth passe but if the lessee of the other acre Atturne then the reveâ—sion of that acre will passe also But where a man may passe lands by the Common law or by raising of a use and setling it by the Statute there in many cases it is otherwise As if the father make a Charter of feoffment to his sonne and a letter of Atturney to make livery and no livery is made in this case no use shall arise to the sonne So if a man in consideration of marriage make a feoffement with a letter of Atturney to give livery and no livery is made in this case no use will arise And so was it held by Ch. Justice Popham B. R. for the inteÌ„tion of the parties doth work much in the raising and direction of uses And therefore it is said that when a man doth intend to passe land one way it shall never passe another way contrary to Dier 96. his intent as if one covenant for good considerations to levy a fine of land to the use of I S and his heires if no fine be levied no use shall arise upon the covenant If one by words of Bargain sell give 19 Eliz. Thorold Gordens case and grant make a feoffement of his house for money and intending to passe it by way of bargaine and sale and Inrolment the deed being made there being a Master of the Chancery in the house whereof the feoffement is made he doth acknowledge and deliver the deed before him in this case if the deed be not inrolled the conveyance is void and that delivery shall not amount to a livery of seisin And yet when the intent is apparent to
this grant in these words especially if the case be so that the cutting of them will be a wast And yet if the grantor have no peeces or groves of wood in the place nor trees but what are growing in the hedges and grounds in this case it seemes all the trees except the apple trees doe passe but not his hedges and hedgrowes And in case where the trees only doe passe as where the grant is of all a Co. 5. 11. 11. 50. mans trees there shall passe no more of the soile but so much as shall serve for the nutriment of the trees and the owner of the soile shall have the grasse growing thereupon also If a man grant Curia Hill 16 Jac. B. R. Pinchcombs case to another all his salable underwoods within his manor which have been usually sold by the owners of the manor with free entrie egresse and regresse for felling making and carying the same away at all times convenient in this case it seems the soile doth not passe but the wood only And yet if those words with free entrie c. be omitted contra If one devise grant and to terme let a farme with all manner of Dyer 374. Co. 11. 48. timber wood underwood and hedgrowes except the great oakes in such a close to have and to hold the Farme for 21. years in this case albeit there be the word Grant and that the trees be not named againe in the Habendum yet the other trees doe not passe by this grant otherwise then in other leases and if the lessee cut any Timber to sell it is wast in him A Tofte is a place where a mesuage hath stood and by this name Toft in a grant such a thing will passe Bruera is a heath or heathy ground Frassetum is a wood or Bruera Frassetum Alnetum Salicetum Selda Filicetum Fraxinetum Lupulicetum Arundinetum Roncaria Iuncaria Ruscaria Mariscus Mora. Co. super Lit. 4. 5. peece of ground that is woody Alnetum is a word of Elders or place where Elders grow Salicetum a wood of willows or place where willow grow Selda a wood of sallowes willowes or withies or place where such things grow Filicetum is a brakie ground or place where such things grow Fraxinetum a wood of ashes or place where Ashes grow Lupulicetum a hopyard or place where hops doe grow Arundinetum a place where reeds grow Roncaria or Runcaria a place full of bryars or brambles Iuncaria or Ioncaria or Iampna which are all one a place where rushes doe grow Ruscaria a place where kneeholme or butchers pricks or broom doth grow Mariscus a â—enne or marish ground Mora a more barren and unprofitable ground then a marish And by grant of these and such like things or of 20. acres of such ground these particular kinds only or so many acres thereof doe passe Vacaria is a Dairie house Porcaria a Swinestie Bercaria a Tannehouse Vacaria Porcaria Stagnum Gurges and by these names these things will passe By the name of Stagnum Co. super Lit. 5. or Poole or Gurgâ—s a gulfe the water land and fish in the water will passe By the grant of Stadium Ferlingus or Quarentena terre doth Stadium Ferlingus Quarentena terre Selio terrâ— Acre of land Rood of land Co. â—dem passe a â—urlong or furrow long which anciently was the 8th part of a mile By the name of Selio or porcaterre doth passe a ridge of land which is sometimes longer and sometimes shorter By the grant of an acre of land doth passe so much as in an acre by measure in that Country by the Ordinary account and measure of the Country By the grant of a Rood of land doth passe 10. pearches the 4th part of an acre And by the grant of 6. foot in length and two foot in breadth so much only doth passe And by these and such like names land may be granted By the grant of Mineras or Fodinas plumbi c. or Mines of Co. super Lit. 6. Co. 5. 12. Mines Lead c. the land it selfe will passe if livery of seisin be made thereof but otherwise it seemes not and then the grantee hath by the grant a power to digge only granted unto him If one grant to me to digge a Trench in his ground from such a Perk. Sect. 111. Trench place to such a place to convey water by a lead pipe or otherwise hereby also inclusive is granted a liberty at any time after to digge to amend it as occasion shall be If one grant to me to dig turfes in his land or soile and to carry Co. super Lit. 4. Turses them away at my will and pleasure by this is not granted the land it selfe the houses or trees thereupon or mines therein If one grant to another Common for all his beasts in his land Co. super Lit. 4. Perk. Sect. 108 109. Common hereby is not granted Common for Goates Pigges and such like beasts and cattell that are not commonable But if the grant be of common for all manner of beasts contra And if one grant to another Common without number in his land the grantor is not hereby excluded to common there with the grantee And if one grant to me common of pasture for 10. Kine in his Lands in Dale by this grant I shall have common in his commonable grounds and lands only and not in any other lands And if a man grant common of pasture to me for my beasts ubicunque averia sua ierint and he occupie 100. acres of land with his beasts and after he keep no beasts yet by this grant I may keep my beasts in those 100. acres But if hee grant to mee common of pasture for my beasts wheresoever his cattell shall goe c. by this grant I shall have no common but when the grantor doth use his common with his Cattell c. By the grant of Estovers will passe houseboote hayboote and Perk. Sect. 116. plowboote But if a man grant to me Estovers out of his manor Estovers I may not by this grant cut downe any of the fruit trees within his manor If land be granted to me hereby also implicitly is a way thereunto 14 H. 8. 1. granted to me also a Clar. case Trin. 5 Jac. B. R. So that if one have 20. acres of land Way and grant me one acre in the middest of it hereby inclusive there is granted me a way to it b Per. Williams Yelverton Justices Mic. 3 Jac. And yet if a man have two Closes and he use to goe over one of them for his ease to the other Close by a new way and after he grant the further Close cum pertinentiis by this grant the new way doth not passe If a man have a Forest Park Chase Vivarie and Warren in his Co. super Lit. 5. Rice Wisemans case Mic. 9 Jac. owne ground
But of the other side if a man give land to a woman and to her heirs causa matrimonii praelocuti though he mary her or the woman refuse he shall not have the lands again to him and his heirs And in the case of a grant executorie the word pro may make a condition And therefore if a man grant me an Annuity pro una acra Co. super Litt. 204. Co. 10. 42. Plow 141. 9 Ed. 4. 19. 15 Ed. 4. 2. Dier 6. terre or pro decimis c. or if hee grant mee an Annuity for a way or a gutter through my ground this is conditionall and if he be disturbed in the way acre of land tithes or gutter he may refuse to pay the Annuity So if an Annuity be granted to an Officer for the executing of his office or pro consilio impendendo if the grantee doe not execute the office or give counsell c. the Annuity shall cease But if one grant me Tithes or an Annuity and I grant an Annuity for these Tithes or grant to give counsell for the Annuity it seems the grants that are in this manner are not conditionall but absolute So if I pro consilio c. or pro una acra terre c. make a feoffment in fee or lease for life of another acre these estates are not conditionall And if one devise land to be sold by his executors and Dier 7. 127. See Testament to be distributed for his soul by this it seems the estate or power of Testament the executors is conditionall So if one devise his land to finde a Preacher or a Chaplain But otherwise it seems it is of land so conveyed by deed in a mans life time And if a feoffement be made of Plow 141. 142 land ad erudiendum filium some have said this estate is conditionall The most apt and proper words to make a limitation of an estate Co. super Litt. 234 235. Co. 10. 42. Plow 413. Litt. Sect. 90. Dier 290. Limitation are Quamdiu Dummodo Dum Quousque Si and such like And therefore if A grant lands to B To have and to hold to him and his heirs untill B goe to Rome or untill he be promoted to a Benefice or untill B pay to A or A pay to B twenty pound or so long as I S shall live or if A grant lands to B To have and to hold to him his executors c. if I S and I D shall live so long Or if A grant lands to B To have and to hold to him for the life of B So that B pay 20 pound to A at Easter following these are not conditionall but limited to estates So if A grant lands to B To have and to hold to him for so long as he shall keep himself a widower or dum sola fuit or durante viduitate if the grantee be a widow these are good limited estates but these words doe not make the estates to be conditionall If the words in the close or conclusion of a condition bee thus Dier 125. Plow 159. Perk. Sect. 740. That the land shall return to the feoffor c. or that hee shall take it again and turn it to his own profit or that the land shall revert or that the feoffor shall recipere the land these are either of them good words in a condition to give a reentry as good as the word reenter and by these words the estate will bee made conditionall The tenant by the curtesie the tenant in taile after the possibility Co super Lit. 233 234. Co. 8. 44. of issue extinct the tenant in dower the tenant for life the tenant 6. What shall bee said a condition in law And when an estate shall be subject to such a condition for yeares by Statute or Elegit Gardian c. doe hold their estates subject to a condition in law so that if either of them alien his land in fee or claim a greater estate in a court of record then his own he doth forfeit his estate and he in remainder or reversion may enter and if such a tenant doe waste hee in reversion shall recover the place wasted The tenant in feesimple doth hold his estate subject to a condition in law so that if hee alien his land in Mortmain he doth forfeit it and the Lord may enter upon him So also he that doth take land in exchange doth hold it under a condition in law viz. that if the land he give in exchange for that land be recovered from him that hath it that he shall enter upon his own land again Also every officer that hath to doe in the administration of Justice all Keepers of Parks Stewards Beadles Bailiffes and such like hold their offices under a condition in law so that if they doe not duly execute it and doe all that thereunto doth appertain they may forfeit them and the grantor may put them out In quo quis delinquit in eo est de jure puniendus To every good condition is required an externall form i. words 7. What shall bee said a good condition in deed or limitation in his originall creation And what not 1. For the manner and frame and order of making of it to declare an intent in the party to have the estate conditionall as in the cases before And an internall form i. such matter as whereof a condition may be made As to things executed the condition must be made and annexed Perk. Sect. 717. Co. 1. 113. Plow 133. Co. super Litt. 146 217. Co. 2. 7â— to the estate at the time of the making of it but as to things executory it may be made afterwards And if the condition be made in another deed and not the same deed wherein the estate is made if it bee delivered at the same time it is as good as if it were contained in the same deed And therefore if a man make a feoffment lease or the like by one deed absolute and at the same time make another deed of defeasance or condition and deliver both together this is a good condition and will make the estate conditionall But if the defeasance be sealed and delivered before or after the deed contra And therefore if one make an absolute feoffement in fee and before or after the sealing or delivery of that deed the feoffor declare himself by deed or the feoffor and feoffee agree by deed that the estate made before or to be made after shall be conditionall yet this is not conditionall And yet if an Annuity be granted absolutely by one deed and after the grantee grant to the grantor that if the grantor doe such a thing the Annuity shall cease in this case the Annuity is conditionall A condition may be annexed to an estate by way of use as if a Co. 146. Hil. 40. Jac. B. R. Warners case Co 1. 112. Albanies case feoffment be made to A to the
part of the mother shall enter upon him and enjoy the land And if a man be seised of land in the right of his wife and he make a feoffement in fee of it upon condition and die the heire of the husband shall enter for the condition broken but the wife shall have the land And so also is the law as touching Privies in right and representation for Executors and Administrators shall take advantage of a condition now as heretofore And so also shall the Successors of a Deane and Chapter Bishop Arch-deacon Parson Prebend or any body Politique or corporate Ecclesiasticall or Temporall these shall take advantage of conditions as heretofore they did So also the law is the same as touching Privies in law for they shall no more take advantage of a condition now then heretofore But as touching grantees of reversions and Privies in estate there is some alteration made of the Law for by a new law it is provided That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion c. of any lands c. which pertained to Monasteries c. as also all other persons being grantees or assignees c. to or by any other person or persons and their heires executors successors and assignes shall have like advantage against the feoffees c. by entry for not payment of rent or for doing wast or for other forfeiture c. as the said lessors or grantors themselves ought or might have had And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow 27. and the ancient Common law further touching this point 1. These diversities must be observed to be taken before the Statute which take place still 1. Between a condition that doth require a reentry and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law And therefore if a man at this day make a lease to another quousque or untill I S come from Rome or if a man make a lease to a woman quamdiu casta vixerit or if a man make a lease to a widow si tamdiu in pura viduitate viveret or if a man make a lease to another for one hundred years if he live so long and then the lessor doth grant the reversion to a stranger in all these and such like cases the grantee of the reversion may take advantage of the limitation for after the estate is ended by the limitation he may enter 2. Between a condition annexed to a freehold and a condition Co. 3. 64 65. Co. super Lit. 214. 11 H. 7. 17. Plow 136. annexed to a lease for years for if before the Statute a man had made a gift in taile or lease for life on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease in this case the grantee of the reversion could not by the common law have taken advantage of the condition for it could not be void or cease but by entry which could not be transferred to another But if a lease for years had been made on such a condition a grantee of the reversion might by the common law have taken advantage of this condition for the estate in this case was by the breach of the condition ipso facto void without entrie But now the grantee of the reversion shall have advantage of the condition in both these cases 3. Between a condition in deed and a condition in law for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat may either of them have advantage of a condition in law for any breach in his owne time 2. These Resolutions and Judgements upon the Statute must be marked 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every coÌ„mon person as well as the King may take advantage of conditions 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute 3. That he that comes to the reversion by fine feoffement grant limitation of use common recovery or bargaine and sale is such a grantee as is within the intendment of the Statute 4. That where the Statute doth speake of feoffees c. that it doth not extend to gifts in taile and therefore if a gift in taile be upon condition and after the donor doth grant the reversion this grantee shall never have any benefit of this condition 5. That where the Statute doth speake of grantees and assignees of the reversion that hereby an assignee of part of the state of the reversion may take advantage of the condition as if lessee for life be and the reversion is granted for life c. or if lessee for years be c. and the reversion is granted for years c. in these cases the grantees of the reversion shall have advantage of the conditions * Davy and Mathews case per. 2 Justiâ—es Trin. 1â— 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years rendring rent with condition of reentry and the first lessee doth afterward grant his terme and estate to I S in this case I S is such a grantee and assignee of the reversion as shall take advantage of the condition 6. That as well mediate as immediate grantees i. the grantees of grantees in infinitum are intended within Co. 5. 112 113. Co. super Litt. 214. this Statute 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute And therefore is a lease be made of three acres reserving rent upon condition and the reversion is granted of two of the three acres in this case the Prerogative rent shall be apportioned but the condition is destroyed except it be in the Kings case And yet a condition may be apportioned ApportionmeÌ„t by the act of law or by the wrong of the lessee As if a lease be made of two acres the one of the nature of Burrough English and the other at the Common law upon condition and the lessor having issue two sonnes dieth in this case each of them shall enter for the condition broken And if the lessee upon condition make a feoffment of part of the land this doth not destroy the condition There is therefore herein a difference between a condition Power of revocation that is compulsory and a power of revocation that is voluntary for he that hath such a power may by his own act extinguish it in part by levying a fine of part of the land or
otherwise and yet his power may remain for the residue as in the case of a limitation but in the case of a condition he cannot doe so 8. Such grantees as shall have advantage by this Statute must be compleat grantees Co. 5. 113 114. Co. 8. 92. And therefore grantees of reversions by fine or deed must have atturnment ere they can take advantage of the condition And yet if a reversion be granted by fine to one that hath no atturnment and he grant it to another that hath an atturnment in this case the second grantee shall take advantage of the condition albeit the first grantee shall not And the lessee must have notice of the grant of the reversion ere he in reversion can take any advantage of a condition And therefore it is that if the lessor bargain and sell the land by deed indented and inrolled in which case there needs no atturnment or if the lessor make a feoffment of the land and so out the lessee and the lessee reenter which is an atturnment in law the grantee or feoffee in these cases cannot take advantage of any condition before he hath given notice to the lessee of this grant of the reversion 9. Such as come in meerly by act of law or paramount as the Lord of a Villain the Lord by Co. super Litt. 214. Pasche 7 Jac. Co. B. per 2 Justices escheat the Lord that doth enter for Mortmain or the like cannot take advantage of a condition within this Statute And hence it seems it is that if lessee for forty yeares make a lease for thirty seven years on condition and after surrender his estate to his lessor * Co. super Litt. 215. Dier 309. Curia in Leeks case Pasche 7 Jac. Co. B. Albeit the words of the Statute be generall yet grantees and assignces shall not take benefit of every forfeiture by force of a condition nor yet of all conditions but onely of such as are inherent i. such as are either incident to the reversion as for payment of rent or for the benefit of the State as for restraining of wast for causing of reparations making of fences skowring of ditches preserving of woods and the like And of conditions that are collaterall such grantees shall not take benefit And therefore if the condition be for payment of a sum of mony in grosse to restraine alienation for the delivery of corn wood or the like the grantee of the reversion of the land shall not have advantage of it by this Statute for these remain as they were before the Statute at the Common law 11. Such conditions as are on the part of the lessor it seems are not within this Statute And therefore if one Per Justice Bridgman make a lease for years on condition that if the lessor his heirs or assigns pay ten pound to the lessee at our Lady day the lease to bee void the lessor doth grant the reversion to a stranger before the day it seems the grantee shall not take advantage of this but the condition is gone If one make a lease for years rendring rent to him and his heirs Doct. St. 35. 13 H. 4. 17. on condition that if it be not paid within fourteen days that hee and his heirs shall reenter and the rent is behinde and the lessor doth demand it and then die in this case the heir may enter But if he die before demand the heire cannot make a demand and so take advantage of that breach of the condition which was in the time of his Ancestor If a man be possessed of land for twenty years in the right of his Perk. Sect. 834. wife and he make a lease of it for ten years rendring rent with condition of reentry for default of payment and after the husband die in this case the wife shall have the rent but it seems she shall not take advantage of the condition If a lease be made to I S on condition that if such a thing be Co. 1. 85. super Litt. 379. Dier 127. 117. or be not done that the land shall remain to I D or that I D shall enter in this case I D shall never take advantage of this condition either by the Common law or by this Statute Regularly where a man will take advantage of a condition if he 13. Where entry or claim is needfull to avoid an estate on condition And where a man may take advantage of a condition without entry or claim And where not Co. super Litt. 218. 237. may enter he must enter and when he cannot enter he must make a claim for an estate of freehold or inheritance will not cease without entry or claim And he that is to have advantage by the condition may wave his advantage if he will And untill such entrie or claim made the party that should enter can make no good estate of the thing to any other But herein a difference is to be observed in the penning of a condition and between a lease for yeares and a lease for life or a greater estate for if a lease for years be made on condition that upon such a contingent the estate shall cease or the lease shall be void in this case when the thing doth happen the lease is ipso facto void without entry or claim But otherwise it is of a lease for life albeit there be the same words in the condition And if one make a lease for years on condition that if such a thing be done the lessor shall reenter in this case an entry is needfull to avoid the estate If one make a feoffment in fee gift in taile or lease for life on condition that upon such a contingent the estate shall be void in this case there must be an entry made after the condition is broken to avoid the estate So if one bargain and sell his land by deed indented and inrolled with proviso that if the bargainor pay c. then the estate shall cease and be void he doth pay the mony in this case the estate is not revested in the bargainor before an actuall reentry is made And so it is also if lands be devised to a man and his heirs on condition that if the devisee doe not pay twenty pound at a day his estate shall cease and be void in this case the estate is not void untill an actuall reentry be made And so also it is if a reversion remainder advowson rent common or the like be devised on such a condition in these cases there must be a claime before the estate will be determined And therefore if a man grant such a thing to another and his heirs on condition that if the grantor pay twenty pound on such a day the state of the grantee shall cease or be void and the grantor doth pay the mony according to the condition in this case the state is not revested in the grantor before a claim made at
inrolment thereupon shall relate And how and to what purposes not Co. 4. 71. Bro. fait Inrol 9. the sixe moneths shall to most purposes relate to the time of the delivery or of the date of the deed And it is given as a rule That it shall have relation to the time of the delivery of the deed viz. to avoid all meane estates and charges made to a stranger by the bargainor after the delivery of the deed before the inrolment but not to devest any estate lawfully settled in the interim in the bargainee himself And therefore if one bargain and sell his land by deed indented to one and after before the deed is inrolled he enter into a statute or grant a rent-charge out of this land or make a lease of the land to another and then the deed is inrolled within the time in this case the relation shall avoid all the mean charges and estates And if A bargain and sell his land by deed indented to B and afterwards doth sell the same land by deed indented to C and the deed made to C is first inrolled and then the deed made to B is inrolled also within the six months in this case B shall have the land and the relation of his inrolment shall make the inrolment of the other deed void So if A levy a fine Dier 218. of the land to C yet B shall have the land But if the first deed Curia M. 3 Jac. B. R. made to B be not inrolled within the six moneths and the deed to C be inrolled within the six moneths contra If A bargain and sell land to B and after levy a fine to B of the Co. 4. 71. same land and after within the sixe moneths the deed is inrolled in this case B shall take by the fine and not by the bargain and sale If one jointenant alien all his lands in Dale to A and before the Bro. fait Inroll 9. inrolment the other jointenant die and after the deed is inrolled in this case but a moity and not the whole land doth passe If A bargaine and sell his land to B and after this A doth become So held 4. Car. B. R. Bankrupt and the Commissioners sell the land to C and 〈◊〉 after the deed is inrolled within six months in this case B and not C the purchasor shall have the land If A bargain and sel his land held in capite to B in fee B dieth Pasche 15. Jac. Ward before inrolment and then the deed is inrolled in this case the heir of B shall be inward And so was it held by all the Justices in Sir Walter Earls case Pasch 15 Iac. Curia Ward And yet in this case the wife of the bargainee shall not have dower as was held Contrarium tent per Iust Berkley Hil. 11 Cat. Dower by Anderson Chief Justice and Justice Walmsley 3 Iac. Co. B. and again in Sir Robert Barkers case 6 Iac. And if one bargain and sell 〈◊〉 his land to I S and after this the rent incur and then the deed is inrolled the bargainee and not the bargainor shall have the rent Per Curiam B. R. Hil. 11 Car. If A bargain and sell his land to B in fee and then mary C and 22 Eliz. die and C is endowed and after the deed is inrolled in this case the dower of the woman shall be taken away by relation as was held in Baron Frevils case 22 Eliz. Co. B. If A bargain and sell land to B and C in fee and B release to C Release 3 Jac. Co. B. before the inrolment this release is void If A disseisor bargain and sell the land disseised to B in fee and So held in Mockets case 10 El. the disseisee doth release to the bargainor and after the deed is inrolled in this case this release shall avail B. If A bargain and sell his land to B and B before inrolment doth bargain and sell the land to C the first deed is inrolled and then the second deed is inrolled in this case the last bargain and sale is void and shall not be made good by relation as was held by the Court 6 Jac. in Sir Robert Barkers case If a lease be made rendring rent on condition to reenter for not So was it held in Sir Christopher Hattons case payment and the lessor bargain and sell the reversion by deed indented and after the deed made the rent is arere and then the deed is inrolled in this case it shall not relate to give a reentry for the condition broken If A bargain and sell land to B in tail and B before inrolment of So hath it been adjudged the deed doth make a lease according to the Statute of 32 H. 8. and after the deed is inrolled this is a good lease And now we come to a Gift CHAP. XI Of a Gift THis word importing no more then the transferring of the property of a thing from one to another is of larger extent then Gift Quid. a feoffement which is always applied to an immoveable thing for this is often applied to moveable things also as trees cattell houshold-stuffe c. the property whereof is and may be altered as well by gift as by sale or grant And in this sense a gift is sometimes by the act of the party as when one man doth give a thing to another And this is or may be either by word or by writing And sometimes it is by act of Law as when a woman is maried to a husband or one is made Executor to another in these cases by the mariage onely and taking of the Executorship the Law gives all the goods of the woman to the husband and of the Testator to his Executor So where one doth take my goods as a trespasser and I recover damages for them upon a suit in Law in this case the Law doth give him the property of the goods because hee hath paid for them But this word Gift is sometimes taken more strictly and applied to a conveyance or passing of an estate of lands or tenements to another in tail wherein this word Dedi is most commonly used And then hee which doth so give the land is called the donor and hee to whom it is given the donee And this for the most part is by deed though it may be otherwise Donor Donee And for these deeds of gift of immoveable or moveable things see Deed and Grant in toto wherein all the learning touching this matter is involved And so we passe to a Grant CHAP. XII Of a Grant THis word taken largely is where any thing is granted or passed Grant Quid. from one to another And in this sense it doth comprehend Co. super Litt. 172. 9. Finchesley 29. feoffements bargaines and sales gifts leases charges and the like for he that doth give or sell doth grant also And
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
of totam illam Communiam suam c. some doe hold this grant to be good Any thing may be granted by the name whereby it is and hath Co. 6. 65. 45 E. 3. 6. Bro. grant 7. Perk. Sect. 116. been usually called of latter times within nine or tenne years or thereabouts albeit it be an improper name and not the ancient name of the thing but a name newly gotten And so a Manor may passe by the name of a mesuage or farme or a farme or Manor by the name of a mesuage if it be so usually called and reputed So the great houses in London called Exceter and Dorset houses may be granted by those names And if a man grant that which in deed is a pasture ground by the name of a wood Or granr that which in 14 H. 8. 1. 27 H. 6. 2. deed is a wood by the name of a pasture ground and the things are called by those names these are good grants of those things And if one grant by the name of a great field that which in deed is but a little close but it is usually called by the name of a great field this is a good grant of this thing So if one grant by the name of a plow land that which in truth is but an acre of land or grant by the name of a Manor that which is but a plow land these grants are good And so as it seemes it is è converso But if a man grant a house or a mesuage by this grant an acre of land will not passe By the grant of services a rent reserved upon an estate taile Co. super Lit. 150. Mic. 7 Jac. Curia B. R. will passe If a man make a lease of one house to another for years and the lessee divide it and make two houses of it and after the lessor doth grant the reversion of it by the name of one house this is a good grant to passe it And if one lease three houses to three severall men at severall times and they divide them into twenty nine tenements and housholds in them all and the first lessor doth grant them by the name of three mesuages this is a good grant to passe them all But if he grant by the name of fifteene mesuages or tenements only it seemes this is good for no more but for fifteene of the subdivided tenements If one recite that he hath a rent charge issuing out of blacke acre Perk. Sect. 72. and white acre and then grant the same rent and in truth it doth issue out of blacke acre only or if he doe recite that it doth issue out of one acre when in truth it doth issue out of both in both these cases the grant is good notwithstanding these mistakes If one be Patron of the Church of S. Peter and Paul in D and Bro. Grant 12. he grant the next Presentation of the Church of S. Peter or of the Church of S. Paul these are void grants to passe the Presentation * Perk. Sect. 79. Per Ch. Justice Hutton Yelverton Co. B. Mic. 3. Car. in the case of Edward Crew If one grant a rent out of white acre by the name of a rent out of blacke acre this grant is void as to charge white acre If one have a Manor called Steeple Lavington and he grant it by the name of west Lavington alias Steeple Lavington by the alias especially if the grant say lying in Lavington and the Manor of Steeple Lavington doth lie in that parish and the grantor hath no other land there If one grant all his lands which he hath in D in this manner All my lands in D which I had of the grant of I S this is a Mic. 2 Jac. in Brownes case agreed good grant of all his lands in D albeit he had them not of the grant of I S but of the grant of another But if the words be all my lands which I had by the grant of I S in D in this case the grant is not good to cary any other lands in D but such as he had of the grant of I S. So if one grant in this manner all my Manor Plow 169. 395. And so was the opinion of Ch. Justice Popham 2 Jac. B. R. of Sale in Dale which I had by descent and in truth he had it not by descent but by purchase this is a good grant of the Manor So if one grant all his lands in Dale and say no more this is a good grant to passe all his lands there But if one grant in this manner all my lands in Dale which I had by descent from my father and in truth I had them not by descent but by purchase this grant is void and will not passe those lands So if I grant in this manner Dier 87. all my lands that I had by the attainder of I S and in truth I had no land by that meanes this grant is void And if I grant after this manner all my lands in B in the tenure of D which I had of the gift of I S and in truth it doth lie in B and is in the Mic. 2 Jac. Adjudge Brownes case tenure of D but it was not purchased of I S this is a good grant to passe the land If a parish lie in two Counties viz. Berk. and Wilts and one Dier 299. Co. 3. 10. grant in this manner all his close called Callis in the parish of Hurst in the county of Berk. and in truth the close doth lie in the county of Wilts this is a good grant to passe the close But if one grant in this manner All his houses in the parish of S. Buttolphes extra Algate late in the tenure of R where in truth he hath no houses there but he hath some houses in S. Buttolphes extra Aldersgate this is a void grant And yet if the grant be in this manner All that my house in the occupation of I S in S. Andrews parish whereas in truth it is in the parish of K. but in the occupation of I S it seemes this grant is good to passe the house But if it be thus All that my house in S. Andrews parish in Holborne in the occupation of I S and in truth it is in another parish but in his occupation this grant is not good to passe the house If one grant in this manner my Manor of Dale which appeareth by office found to be of the value of tenne pound per Annum and Hil. 2 Jac. B. R. per Tanfield in truth in the office it is found at twenty pound per Annum this grant is good notwithstanding this misprision If one grant in this manner all my Manor of W late parcell of Pase 7 Jac. B. R. Co. 2. 32. the possession of the Abbot of S and late in the possession of K and in truth it was never in the possession of K this grant
other is extinct It is a discharge in writing of a summe of money or other 10. Acquitance Quid. Termes of the law duty which ought to be paid or done As if one be bound to pay money on an obligation or rent reserved upon a lease or the like and the party to whom the money or duty should be paid or done upon the receipt thereof or upon some other agreement betweene them maketh a writing under his hand witnessing that he is paid or otherwise contented and therefore doth acquite and discharge him of the same The which is such a discharge and barre in the law that he cannot demand and recover the same againe contrary thereunto if the acquitance be shewed The obligor is not bound to pay money upon a single bond 22 E. 4. 6. 41 E. 3. 25. 1 H. 7. 15. 22 E. 4. 6. Bro debt 43. Oblig 10. 11. Where a man is not bound to pay money without he hath an acquitance unlesse the obligee will make to him an acquitance or release Nor is he bound to pay it before he hath the acquitance And in this case the obligor may compell the obligee to make him an acquitance And so also it is in case of a Statute Merchant one is not bound to pay the money thereupon before he hath the acquitance or release of the plaintife But otherwise it is in case of an obligation with a condition for there a man may averre paiment And because Statutes Recognisances and Obligations are often used and tend to the strengthening of the Common Assurances of the kingdome we may not in any wise passe them over but must take some surveigh of them And first of a Statute CAP. XX. Of a Statute A Statute is a Bond or Obligation of Record But this word is 1 Statute Quid. Terms of the Law Stat. de Mercatoribus Acton Burnell 11 Ed. 1. sometimes used in another sense viz. for a Decree made in Parliament called an Act of Parliament And of these Obligations there are three kinds 1. A Statute 2 Quâ—tuplex Statute Mechant Quid. Merchant 2. A Statute Staple 3. A Recognisance The Statute Merchant is a Bond acknowledged before one of the Clerks of the Statute Merchant and Mayor and chief Warden of the City of London or two Merchants of the said City for that purpose assigned or before the Mayor chief Warden or Master of other Cities as York Bristow or the like or the Bailisse of any Burrough or Village or other sufficient men for that purpose appointed and Authorised Sealed with the seal of the Debtor or Recognisor and of the King which is of two pieces the greater whereof is kept by the Mayor or chief Warden and the lessor by the said Clerk And the form of it is thus Novertis c. me A B teneri C D in Centum libris solvend eidem ad Festum S. Mich. proxim Et nisi fecero concedo quod currat super me haeredes meos districtio paena in Statuto domini Regis edito apud Westin Dat. c. And this albeit at first it was ordained and used for Merchants only yet at this day it is and may be used and given by any others and is become one of the common Assurances of the Kingdome The Staple doth signifie this or that Town or City whither the 27 Ed. 3. Stat. 2 cap. 1 â—â—3 c. Merchants by common order and commandement doe carry their Statute Staple Quid. commodities as Wooll and the like to utter by the great And the 27 Ed. 3. Stat cap. 9. 22 H. c. â— Coo. super Lit. 289. 15 H. 7. 16. Statute Staple is either properly or improperly so called That which is properly so called is defined to be a Bond of Record acknowledged before the Mayor of the Staple in the presence of one or two Constables of the same Staple and is sealed with the Seale of the Staple and sometimes also with the Seale of the party the which it seemes is not necessary And this is founded upon the Statute of 27 Ed. 3. cap. 9. and was invented and is used only â—or Merchants and Merchandizes of the same Staple This is of the same nature the Statute Merchant is That which is improperly so called is also called a Recognisance which is also a Bond of Record Recognisin â— Quid. testifying that the Recognisor doth owe to the Recognisee a summe of money And of these there are divers kinds for thre is one Recognisance founded upon the Statute of 23 H. 8. cap. 6. The forme whereof is this Noveritis c. me A B teneri C D in Centum libris solvend eidem ad Festum S. Mich. proxim Et si defecero in solutione debi praedict volo concedo quod tunc currat super me haeredes executores meos poena in Statuto Stapulae debit pro Marchandisis in eadem emptis recuperand ordinat provis Dat. c. And this is alwayes to be acknowledged before the chiefe Justice of the Kings Bench or of the Common Pleas in the Terme time or in their absence out of Term before the Mayor of the Staple at Westminster and the Recorder of the City of London for the time being And it is to be sealed with the Seale of the Conusor and with the Seale of the King appointed for that purpose and with the Seale of the chiefe Justice Mayor and Recorder before whom it is acknowledged and they before whom it is taken doe subscribe their names to it And this was ordained and may be and is used by Merchants or any other whomsoever for paiment of debts or assurance of other things And this also is of the same nature the Statute Merchant is And both this and the two former are much of the nature of judgements had upon Suits in the Courts of Kings Coo. 8. 153. Bench and Common Pleas and therefore they are called Pocket Pocket Iudgements judgements There are also divers other kinds of Recognisances that are See Statute 33 H. 8. c. 22 39. 3 H. 7. c. 1 10 H. 6. c. 1 Dyer 315. 307. F N B. 251. f. 132 c. 133. a. 68. a. taken by and acknowledged before the Lord Keeper Master of the Wards Master of the Rolls Master of the Chancery Justices of the one Bench or of the other some of which are called Bailes Barons of the Excheker Judges in their Circuits Baile Justices of the Peace Sheriffs and others some whereof are by the Common Law and some by certaine Statutes And amongst these some are without Seale and recorded only and some are sealed and recorded also And some of them are in a sum certaine as the Recognisances taken in the Common-Pleas for Baile are and some of them are incertaine as those Recognisances that are taken for Baile in the Kings Bench which are after this manner Si Judicium redditum c. tunc volo concodo
Execution Condemnation Captas utlagatum Excommunication Suretie of the Peace or some other speciall case being sent for by a Iustice for Felony or the like may not be bailed and others that are arrested on a Capias for Debt or an Indictment or otherwise by Writ Bill or Warrant that are mainpemable must be bailed For the better understanding of which Statute these things must be observed That such Obligations as differ and vary from the some of this Statute in words and circumstances only are good notwithstanding this Statute a a Villars case M. 9. Iac. B. R. And therefore if a Prisoner make an Obligation with a condition to appear and answer in a plea of debt and say no more nor do set down the cause of the debt this is a good Obligation And if the Sheriffe take an Obligation with one surtie only or with two Coo. 10. 101 sureties that are insufficient or with two sureties of another County this is a good Obligation So if the debt for which the party is arrested be 300l and the Sheriffe take an Obligation of 100l for his appearance this is a good Obligation for in these cases it is left to his discretion and it doth concern him only So if the Villars case condition of the Obligation be for appearance Mense pasche omitting proximè futurum yet is is a good Obligation So if the Dyer 364. party be arrested by an Attachment out of the Starre-Chamber upon a contempt and the condition of the Obligation is that if the Obligee shall appeare and then and there shall answer a contempt by him committed against the King and his councell this is a good Obligation And if the party that doth make the Obligation be not in the Sheriffes custody albeit the Obligation be made in any other manner essentially differing from the forme prescribed in the Statute if it be not against the common Law it is a good Obligation And therefore if when a Capias utlagatum be delivered to the Sheriffe against a man the Sheriffe take Bond of him for his fees and his travaile this Bond if it be not within this Statute Antleys case Hill 7. Iac. Co. B. yet it is against the common Law and therefore voyd because it is by colour of Extortion But where the Obligation whether it be single or double made by a prisoner doth essentially differ by addition alteration or diminution from the form prescribed in the Statute there the Condition and Obligation both are voyd And therefore if such a Prisoner make an Obligation to any other besides Coo. 10 103 the Sheriffe albeit he to whom it be made be called Sheriffe or if he make an Obligation to the Sheriffe himself and not by the name of his office or if he make an Obligation to him by the name of his office and doth not rightly name him * Nowels case Trin. 21. Iac. Cuâ—â— as if he make it to I S vicecomiti in Comitatu praedicto whereas it should be de Comitatupraedicto all these Obligations are voyd by this Statute And if the Sheriffe take an Obligation of a prisoner for his appearance in case where he is not bailable by the Statute and so let him goe free or iâ— he take an obligation of a prisoner that is bailable for his apâ—earance and doth insert other things into the condition as to pay money for meat drink or fees or the like or if he deliver a man in execution and take bond of him to save him harmelesse or to be a true prisoner all these and such like obligations as these are voyd by this Statute If a man be a prisoner in Ludgate upon a Capias utlagatum and the Gaoler take an obligation of him with two Dyer 118. 119. sureties with condition to save him harmelesse and to discharge his fees and to yeild his body at all times upon Summons c. this is a voyd obligation aswell against the sureties as against the principall If the under Marshall of the Kings Bench take an obligation of one in execution and a stranger with condition to save him harmlesse of allescapes and so suffer the prisoner to goe at large this is a Dyer 324. voyd obligation If the Sacriffe of Bedford having a prisoner by force of an execution let him goe at large and take an obligation of Plow 61. 62. him with condition that he shall keep the Sheriffe without damage against the King and the Plantiffe and be at all times at the commandement of the Sheriffe as a true Prisoner and appear before the Iustices of the King at Westminster c. this is a voyd obligation If a man be a prisoner to the Sheriffe for suspition of Felony and â—it Oblig 1. after a writ comes to him to have all his prisoners at a certain day before the Iustices of Goale delivery of the same County and thereupon the Prisoner doth make a single obligation to the Sheriffe to appear before the Iustices the day of the writ this is a voyd obligation because it is single and not with condition And if the Sheriffe baâ—le not one bailable by a single obligation it seemes this is a voyd obligation A single obligation is alwayes taken most in advantage of the ob 6 How a single Obligation shall be taken ligee and against the obligor but it is otherwise of the condition of an obligation for this is alwayes taken most in advantage of the obligor and against the obligee 10. H. 7. 1. 16. If two three or more bind themselvs in an obligation thus Obligamus Ioint and severall nos and say no more the obligation is and shall be taken to be Dyer 19. 310 Coo. 5. 119. 9 53. old N. B. 62. Broo. Iointemancy 4. 16. Dec. 69. joint only and not severall but if it be thus Obligamus nos utrumque nostrum or obligamus nos unumquemque nostrum or obligamus nos quemlibet nostrum or obligamus nos alterum nostrum in all these cases the obligation is both joint and severall so as in these cases the obligee may sue all the obligors together or all of them apart at his pleasure but it seemes he may not sue some of them and spare the rest but he must sue them altogether or all apart by severall Precipes and in this case he may have severall judgements and severall executions against the obligors and take all their bodies in execution but he shall have satisfaction but once or from one of them only for after he hath been satisfied by one the rest shall be discharged But in the first case where the obligation is joynt and not several the obligee must sue all the obligors together for he cannot sue one alone with effect without the rest unlesse it be in some speciall cases as where one of the obligors alone doth seale the Deed or where all of them do seale but one of them is an
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ— due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â— 7â— 17 Ed. 4. 3. me of land and the obligoâ— doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
executor or administrator of a Gardian in Chivalry that E N B. â—6 doth commit waste in the Wards lands shall be charged and may be sued for the heire for it If a man possessed of a term of years devise it to another and Coo. 5. 12. Coo. 8. 94. the executor or administrator of the Devisor before the assent to the Legacy doth commit Waste in the land in Lease in this case he shall be charged with and may be sued for this Waste by him in reveâ—sion But if the executor die his executor shall not bee charged with it for it is a personall wrong that dyeth with the person If a Bishop grant an annuity out of his lands to I S for life and Dyer 370. die in this case it seemes the executor or administrator of the Bishop shall bee charged with the Arrerages due in the Bishops time If a Lease for yeares be made rendring rent and the rent is behind Broo. Executor 127. Coo. 3. 24. 22. and the Lessee die in this case the executor or administrator of the Leassee shall be charged for this rent So also if Leassee for yeares assigne over his Interest and die his executor or administrator shall be charged with the Arrerages before the assignment but not with any of the Arrerages due after the assignment The executor or administrator of a Customer or Controller shall Broo. Exeâ—oâ— 157. be charged upon a Taile of the Exchequer showed to the Testator The executor or administrator shall bee charged for a Ravishment West◠〈◊〉 c. 35. or â—jectment of Ward by the deceased The Executor or Administrator may be charged in the Spirituall Trin. 7. Ia. B. R. 〈◊〉 N B. 51. all Court for Tythes due from the deceased buâ— he may not as it seemes be sued in any Temporall Court for them The executor or administrator of a man that recovereth a debt Curia 21. Ia. B. R. upon a judgement had by the deceased shall be chargable with restitution if the judgement be reversed for error An executor or administrator shall not be charged for any personall Coo. 9. 87. F N B. 117. Dyer 322. 〈◊〉 H. 4. 46. Doct. St. 76. Coo. 8. 94. 133. wrong done by the deceased and therefore no action may be brought against him for any such cause as because the deceased did burne the Deed of the lantiffe suffer a Prisoner at his suite to escape cut down his trees cat up his grasse beate or wound the body of the Plantiffe defame him in his name or the like for all these are said to be personall actions that dye with the person neither is there any remedy to be had against the executor or administrator in equity in these cases neither shall he be charged in any action of accompt for any receit or occupation by the deceased And yet perhaps an action of the case may lie in this case neither will an action of debt lie against him upon the simple contract of the deceased but an action of the case only r Adiudge Hill 40. â—liz B. R. Bowyeâ—â— case Neither will an action lie against an executor or administrator upon an arbitrement made in the life time of the deceased albeit it be made in writing s Hâ—â—l 7. Ia. BR â—per 3 Iustices Neither will any action lie against any Executor or administrator for costs given in the â—tar chamber or Chancery against the deceased in a Suite there but when the party dieth the same is lost and Coo 9. â—9â— 40 Broo. Executor 78. 136. 136. Fitz. Briefe 34â— where a man doth sue an executor or administrator in a Suite hee must charge him as he is v. z. if he be an Executor he must sue him by that name if an administrator then by that name And where there be many Executors and have all accepted they must be all sued but if some of them have refused perhaps the Suite may bee good enough against the rest But otherwise one Executor cannot be charged without his companions except it be in the case of Summons and Severance and in some speciall case where one alone doth the wrong and the like as where one Executor alone doth detain the deeds from the heir for in this case he alone may be charged See more infra at Numb 39. 21 Ed. 4. 25. 4 H. 7. 4. 16. H. 7. 4. Broo. Executors 66. 30. 65. 9. Ed. 4. 12. Fitz. Executors 10. All the Executors where there be more then one be they never 30. What act one Executor or Administrator alone may do And where the act or laches of one may prejudice or barr his companion and where not so many in the eye of the Law are but as one man in which respect the Law doth esteeme most acts done by or to any one of them as acts done by or to all of them And therefore the possession of one of them of the goods and chattels of the deceased is esteemed the possession of them all paiment of debts by or to one of them is esteemed a payment by or to them all the sale or gift of one of them of the goods and chattels of the dâ—ceased the sale and gift of them all a Release made by or to one of them is a Release made by or to them all and the assent of one of them to a Legacy the assent of them all * Adiudge M. 39. 40. Eliz. B. R. And therefore if there be two Executors and one of them deliver up the Obligation to the Debtor whereby he is bound the other Executor shall not recover him in a Detinue So if two Executors have lands or goods in execution and one of them release all his interest this is a totall discharge of the execution * Crompt Iac. 45. 4â—â— 7. 4. And yet if in this case there be any practise between the executor and the Creditor in this matter and there be not Assets besides to pay all the Debts and Legacies here perhaps the other Executor may have remedy in equity against his Co-executor and the Creditor But how the Law is of Administrators quaere for some think that one of them also may sell-goods release debts plead to actions or the like without the other If one Executor atturn to the Grant of a reversion or a rent Dyer 210. Coo. 4. 31. Additioâ— to â—ust Doâ—â—dge 4â— this is as good as if they did all atturn and bind all the rest as in case of assent to a Legacy for in this case the assent will bind all the rest albeit there be not enough to pay the debts besides the Legacy given away by assent but his assent shall not hurr his Co-executors in a Devastavit If one Executor appear to an action sued against them all or Coo. 9. 38. Dyerâ— 10. plead a Plea to it this for the most part shall be said to be the appearance and plea of them all and shall bind the rest