and the Son and within his Charge So Litl fol. 4. the Donor shall pay Rent untill four degrees past upon a gift in Free-marriage upon another gift not because the Daughter advanced and the husband from thence forth undertakes to find his wife all necessaries I promise 20. l. to one if he marries my Daughter he shall have Debt for it in our Law because the Daughter is advanced and so consideration proceeding from Nature is a sufficient Consideration in our Law 22. E. 3. ass pl. 70. Fitz. nat br fol. 44. a. and 120. r. Doctor and Student 105. And so the Consideration here of A.B. for provision for his issues males good is a good Consideration to change the use of the land Second Consideration For the continuance of the Land in the name of the Baintons good to raise an Use and Males continue their Sir names and Females change them by marriage and the Male is most Soveraign 40. E. 3.37 2. H. 4.1 27 H. 6.8 and the Female and all inheritance is subject to the will of another 17. E. 4.5 I promise 10. l. to a laborer for to repair a high way or to a Surgeon for to cure such a man he shall have an action of Debt because it is Charity Doctor and Student 105. Third Consideration The good will and fraternal love wich he hath to his bloud and his brothers which is the nearest degree of bloud after Parents and issues good considerations here and so it seems by the better opinion in 20. H. 7.10 but is not there adjudged and they that joyn in bloud by nature joyn in love and therefore if the youngest enter after the death of the Father the elder shall have no action against him conrrary to 21. H 6.15 by Portington because the Law intends that he entred as a friend to preserve the inheritance in his absence because so near in bloud the Law intends as near in love So Littl f. 93. and 40. E. 3.24 no discent of the Puisne or any of his issues shall take away the entry of the eldest for the cause aforesaid So Litl f. 160. Warranty Collateral Bars without assets because the Law presumes that he will advance him as much as he hath prejudiced him by the Warranty So no battail between Brothers or Cosens in a Writ of right But a Nuper obiit lieth against Brothers and Sisters in Gavel-kind where their ancestor died seized or a Wriâ— De rationabili part against him which enters into all which Writs are to try bloud onely So a Juror is Brother or Cosen to one party a good challeng in every action for the affection which the Law presumes the one hath towards the other 21. E. 4.33 And Bromley said That 11. H. 4.12 by Tirwit and Cascoigne by the ancient usage all the bloud of him which was Murthered should draw the Felon found guilty in an appeal of Murther by a long corde to execution for the loss which all the bloud had by the Murther of one of them and for the revengement of his death and love that they had to him that was killed Fourth Consideration Consideration was the Marrige had between Edward Bainton and Agnes his wife Remainder upon Natural Consideration shall preserve the particular estate made without Consideration which precedes it but not on the contrary if the estate upon natural Consideration precede the other estate as A. Convenants with B. in Consideration that B. will marrie his Daughter to stand seized at the time of the Marriage to the use of himself for life after to the use of I. in Tail afterwards to the use of B. and his wife the Daughter of A. is a good use to I. without consideration for the Marriage is private and several Considerations for the estate of B. and his Wife because the Remainder to I. precedes the estate to B. and his Wife but if the Remainder to I. had been after the estate of B. and his wives the estate there had been void to I. but money might have been given in Consideration of all the estates In Mordants case 21. H. 7.19 No use was raised there because the Covenant was in the future Tense and also incertain and therefore was put to his Writ of Covenant there Good and sufficient Consideration raiseth an Use without Deed so a Deed raises Uses if there be any Consideration for it is made to some effect or otherwise should be void because you shall not have an action of Covenant here because an action of Covenant lieth upon a Covenant only in the preter or future Tense and not in the present Tense 1. Contract or Agreement for Lands or Chattels is by the Law First by Writing Secondly by Words First An agreement by writing without Consideration is not Nudum because a man hath great consideration and deliberation in passing things by Deed and the writing his sealing and delivery of it signifies fully his will is sufficient consideration that Land shall pass as his will is and shall bind the party without thinking what cause he hath to do it Secondly an Agreement by word without consideration is Nudum and binds not because words passes from a man suddenly and without advisement many times as 17 E. 4.4 I promise to give you 20. l. for to make your sale of new it is Nudum pactum if it be by Deed you may have Action of Debt upon this Deed and the Consideration there is not examinable and the cause of the Deed is not inquirable for every Deed imports in it self a Consideration without the will of the party which makes the Deed. So 11 H. 4.33 A Carpenter by word without writing undertakes to make a new house and no consideration for the making of it is Nude if it be by writing it is good So 45. E. 3.24 for that the Plaintiff demanded a Debt upon a contract for marriage money by Deed an action lies at the Common Law because there it becometh a Lay Contract by the Deed in Court Christian if it had been without Deed because the marriage which is the consideration is a thing Spiritual 14. E. 4.6 15. E. 4.32 which books are against the opinion of Thorp in the said case in 22. ass before fol. 35. Nudum pactum est ubi nulla subest causa praeter conventionem sed ubi subest causa fit obligatio parit actionem Information for Mines THe King shall have all the Mines of Gold and Silver in the Lands of his Subjects H. 10. El. in the Excheq by the Prerogative of his Crown and not by the proprieity of the Soil although it be not recited in the Treatise of Prerogative and albeit the Oar thereof in anothers land toucheth others Free-holds and inheritance which is proved by three reasons First for the excellency of the matter which being more excellent is appropriated by the Law to the person most excellent viz. the King So the King hath by the Common Law Whales and
Testator and to the same use shall the Lease The Court increases the costs here Osburn against Carden and Jay A Woman guardian in Soccage taketh husband they make a Lease for years of the Land to Commence at Michaelmas M. 7. 8. El. in K. Bench Tr. and before Michaelmas the Lessee maketh a Lease for a lesser Term of years the Husband dies the Wife enters and being outed bringeth Trespass and adjudged lawful For that the Lease is voidable by the Wife because she hath the Wardship to another use and by reason of Natural affection presumed by the Law to be the nearest friend for the proximity of bloud for that the Custody of him cometh not to the executor Litl fol. 27. The Custody cannot be given by the Husband or forfeited by Utlary or Attainder longer then during the life of the Guardian because no such Natural affection there 33. H. 6.55 But the husband hath interest in the Custody in the right of his Wife for to participate with his Wife in all matters of interest and Prerogatives because they are one person in Law but looseth his interest when his Wife dies because Cessante causa cessat effectus And although Doctor and Student saith fol. 13. That the Wife cannot avoid the Act of the Husband as to give Demise or sell Chattels real or personal which she hath to her own use yet here she may because she hath it in anothers right and the Wardship of the body which is the principal remains which shall be maintained with the profits of the Land and this is in effect the suit of the Ward by the woman Caril against Cuddington A Woman seised of 2. acres in Fee the one holden of the Queen by Knights Service onely M. 7. 8. El. in the Court of Ward the other in Soccage taketh husband she and her husband levies a Fine sur Conusans come ceo of both the Conusee Grants and Renders to the husband and Wife and the Heirs of their bodies Remainder in Fee to the right Heirs of the wife the Husband and wife die their issue within the age of 14. years the Grand-mother on the part of the Mother enters and the Grand-father on the part of the Father of the infant sues as next friend in the Court of Wards because that the Queen hath the Wardship of the acre holden by Knights Service and of the body and adjudged that the Grandfather on the part of the father shall have the wardship of the acre holden in Soccage as Guardian in Soccage and not the Grand-mother for that the Grand-mother by possibility may have the Land by discent after the estate Tail determined and the Grand-father cannot but they are in equal degrees as to the estate Tail the wife here is a purchaser by the Fine of the Fee-simple and the Law is all one of land only as if it were of the land and body also Sherington c. against Stratton ANdrew Bainton by Indenture Covenants and Grants with his brother Edward M. 7. 8. El. in K. B. Tr. for the affection that he hath That the Lands shall discend and come to the Heirs males of their own bodies and continue in the bloud and name of the Baintons and also for brotherly love and good will That he his Heirs and Assignes shall stand seized to the use of himself for his life and after to the use of Edward Bainton for his life and after to the Heirs Males of the body of Andrew and afterwards to the Heirs Males of the body of Edward and adjudged that every of the considerations by it self being grounded upon Nature is sufficient to raise the uses according to the Limitation although it were without Deed. And so Covenant and Grant That he will stand seized to another use by Indenture without any valuable or natural consideration is good enough for that the deed imports consideration in the Will of the Covenantor by Plowden Quere notwithstanding Fleetwood and Wray for the Plaintiff An use is a confidence annexed to the estate with which he departs An use may be created by the Common Law First by Transmutation of Possession as by Feoffment Fine or Recovery to the use intended Secondly without Transmutation of Possession by one Act done importing good consideration which shall make the land subject to the use as a bargain and sale or Covenant or Grant upon good consideration First by a new Act done of two parts 21. H. 7.18 and 6. E. 6. by bargain and sale viz. Land for mony or 36. H. 8. Covenant for marriage because advancement to the Daughter and comfort to her parents Secondly where of one part onely as Covenant for Natural affection from the Father to the Daughter or Brother to Brother and a desire to have the land continue in his name and posterty For a new thing to be done by both is not requisite by the Councel of the Defendant But long acquainiance ancient familiarity or that they have been Scholars in their youth no considerations to raise a use because they are not considerations of value or recompence as if I promise to pay to you 10. l. because you are my Brother or old acquaintance it is Nudum pactum and so note that a use was at the Common Law A new use cannot be Created without consideration but being created and in esse may be granted over without consideration as another Chattel and Doctor and Student fol. 99. may be devised 1. Bromley and another Aprrentice with the Defendant and they Grant that there are two waies by the Common Law to make a Use without Transmutation of possession viz. Bargain and Sale and Covenant upon Consideration proved by the words of 27. H. 8. cap. 10. and Consideration arising from the one part onely good and it is not requisite to have Consideration and a new thing done by both the parties First Consideration It is natural to engender and nourish after engendred or otherwise the first is without effect the Father shall have the Custody and Education of his Son for his natural affection to him Litl fol. 25.33 H. 6.55 and Trespass for taking away his Son Fitzh nat br fol. 143. and 3. E. 4.12 And the Son shall have an Appeal of the death of his Father before others for his earnest intent of revenge and his reciprocal love So a Feoffment to the Son a Suit depending is not Champerty 6. E 3. cap. 274. yet within the words of Articuli super Chartas cap. 2. because by all Laws the Son ought to aid his Father and so out of the intent of the Statute and there by Herle the Son may abet his Mother to bring an appeal of the death of her husband and shall not answer Damages And Litl 8. The Son and Heir apparent endowes his wife ex assensu patruâ—… good without Livery because the wife of his Son is as his own wife for the love that the Law presumes is between the Father
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep
not agree otherwise then for landing because the Statute will as if a Baily pay the debts of his Master he shall not be allowed for this in his accompt without specialty but if he pay Quit-Rents issuing out of the Land he shall be allowed for this for that the payment of this belongeth to his Office And so if the Collector accept another Agreement then is intended by the Statute this shall not help the party and said that agreement upon condition ought to be performed before it be pleaded as if I give all the money in my purse to I. S. he cannot have his action for it except that he alleadge the certainty of it So here wherefore judgement shall be given for the King Pollard Serjeant for the Defendant An agreement upon condition is an agreement as a Feoffment upon condition is a Feoffment and included in words of the issue that is to say in this word Agreement which contains every agreement So 36. H. 6.2 In debt upon a Regognisance and the Defendant saith That there is no such Recognisance whereupon they were at issue and at the day c. a Recognisance with condition was certified held good and that he had not failed of the Record because a Recognisance upon condition is held to be a Recognisance So here the agreement general was put in issue the which shall be intended the more common agreement and this is the general agreement and the evidence given by W. proves a special agreement viz. an agreement upon condition which is other then the agreement tendred by the issue therefore the Demurrer shall be adjudged for the King and Informer Sir as to this I answer That by the arguments made before nothing hath been put in issue but if they agree according to the Statute so here admitting that the agreement general had been in issue but the especial is The especial matter viz. Tempest super hoc agreavit are in the affirmative and may stand together and therefore both remain as one entire matter and substance of the issue As if the Tenant pleads special Bastardy against the Plaintiff in mort D'ancester and alleadge this incertain as he ought viz. That the Plaintiff was ingendred between I. and A. and born before marriage then they marry and conclude as he ought and so Bastard This conclusion hath not avoided the special matter before for if so then it should be Bastard generally and triable by the Bishop and then shall be by him certified Mulier because such is a mulier in the law spiritual but shal be tried here by Assize and therefore the special matter remains and the issue is taken thereupon So 3. H. 7.5 by Keble One counts of a gift in formedon and being demandant maintains it by recovery in value by reason of a Warranty and so gave the Tenant ought not to traverse the conclusion viz. as he should do if he had avoided the special matter before because it is matter in fact triable by the Countrey but he ought to answer to the recovery triable by Record which proves That the special matter before the conclusion shall remain So 32. H. 6.14 by Litl If the Plaintiff in Assize makes to himself a Title and concludes and so he was seised until by the Defendant disseised now if this conclusion hath avoided the especial matter before then it ensueth that the Defendant cannot answer to the Title but the Law is That he ought to answer to the Title and traverse it by which it is proved that the conclusion hath not avoided the especiall matter before and in all these cases the matter before the conclusion and the conclusion are in the Affirmative as in Debt the Defendant pleads payment and so ows nothing and in Trespass the Defendant pleads a gift of the goods and so not guilty when it is agreed between any That a principal thing shall be done or had and before that this may be done or had there is another thing first to be done which is not certainly agreed who shall do the other thing the Law appoints him which hath the most skill to do the said other thing So 9. E. 4.4 One is bound to make the great Bell of M. tunable with the other Bels there in that case to say in Debt by Obligation That the Bell was not weighed judgement if action is no Plea because in construction of the Law he shall weigh it for it belongeth to his Office So a Taylor bound to make a gown shall shape the cloth So here the Collector in behalf of the King shall have the Subsidie which is the principal thing and therefore he shall weigh for it belongeth to his Office to try the certainty for without certainty the King may not be satisfied And in Trespass because that he justisies the necessary circumstance and mean or hath Title to the principal thing as 2. R. 2. Fitz. Bar. 333. and Perkins fol. 23. He may cut and carry trees granted to him and justifie it although the grass is spoiled by it So one may take Fishes in a Pond with Nets and justifie it but if he digg a Trench to drain out the water not A Collector may weigh when he pleases for where one shall have benefit upon the first act to be done by him and no time is limited when he shall do it the Law saith That it shall be done at his pleasure So the Mortgager shall pay when he pleaseth when no time is limited so one may marry the daughter of A. when he pleaseth if no time be limited so in the principal case for as much as payment shall be made to the Collector upon the weighing and no time is limited for the weighing the Law refers the time of it to the will of the Collector and so the agreement is good and perfect 3. H. 7.11 The Sheriff takes A. by Capias now he doth well but if he return non est inventus then he shall be a Trespassor ab initio but here the not weighing because the King refers this to the Collector in the behalf of the King in his default the agreement shall not be made void ab initio in prejudice of the Defendant which before was good notwithstanding that the agreement special is an agreement as Sanders confesseth yet it shall be construed best viz. general for the King as he urged The rules of the Common Law in the construction of Statutes prohibite this for Statutes Penal shall be taken and restrained to their general words favourably and to the benefit and not prejudice of him against whom the pain is inflicted and shall not extend farther then the words as W. 2. cap. 40. saith where the husband aliens the land of his wife quod secta mulieris non differatur c. per minorem aetatem heraedis qui warrantizare debet and saith not the Heir of the husband nor of a stranger yet 18. E. 4.16 and 17. E. 4.59 postea 47.
intent shall aid the obscurity of the words in Construction of words but if it be not within the words yet it shall be taken by equity because it restrains Liberty that the Common Law gave to the prejudice of another as here of Tenant in Tail to bind their issues by recovery or Warranty So Marlebridge cap. 6. speaks of a Lease for years for to defraud the Lord of Ward yet if it were for Life or in Tail taken by equity So W. 2. cap. 1. speaks of 3. gifts in Tail yet 4. H. 5.6 and 19. H. 6.74 comprise by equity all manner of intails because it restrains liberty of breaking the intention of the Donor suffer by the Common Law So W. 2. cap. 3. gives receipt to the Reversioner by equity to the Remainder for the Common Law which may not suffer him to be received suffers a wrong and this Statute remedies it So 13. R. 2. cap. 17. gives receipt for faint pleading by equity receipt by equity shall be for faint defending So an Administrator shall have account by equity of the Statute where it is given to Executors onely So 1. H. 7.3 gives an Action of Forgery of false Deeds by which the Title and Possession of another are disturbed in the Copulative by equity if the Title onely be disturbed and therefore the disseisee which hath not but onely a right shall have an Action in 4. H. 6.26 because where the Law defective suffers a thing which is a wrong to another and a Statute redresseth it there things in the like mischief shall be taken by equity in the like purview So here because it is made in avoidance of Covin therefore it is beneficial to the Common-wealth Brown Justice argued to the contrary for 2. causes in the Pleading The one was for that the cause of the Covin was not shewed for howbeit that the Statute speaks generally of Covin yet it refers the pleading of this to the Common Law and therefore because the cause of Covin was not shewed the replication was nought The other cause was for that the Plaintiffs have not shewed how the Wife Plaintiff was Heir and therefore may not be seised in Tail as it was pleaded And as to the execution he held that it was not necessary to be shewed And as to the matter in Law he held the case here within the words of the Statute and if it were not yet he held them within the equity for that the Statute was made in avoidance of Covin which is to be abhorred and therefore the Statute is benificial to the Common-wealth But for the said defaults in the replication he held that the Plaintiffs should not recover Montague Chief Justice Title amends not Covin for it may be upon a good Title and therefore the books are If a Wife recover Dower against A. who by Covin enters and outs the Tenant as in 15. E. 4.4 yet she is a Disseisoress and by 8. H. 4.6 where the issue in Tail recovers against A. who by Covin Disseise the Discontinuee yet 18. H. 8.5 is not remitted although his Title good but is a Disseisor by reason of the Covin The Title of a man shall not be tryed between strangers where he which hath the Title is not party nor shew Covin because it is a thing secretly determined to the prejudice of another as Joyntenancie on part of the Plaintiff the Defendant which pleads this shall not shew of whose Feoffment for that that he may have knowledge of it by presumption of Law on his own part here H. 21. E. 4.78 and 19. H. 6.32 So 19. H. 79. he which pleads a Deed which belongeth not to him shall not be enforced to shew it a man may aver Covin generally where averment is given by Statute or Common Law as the Statute of 13. R. 2. giveth receipt for faint pleader and may alleadge it generally when he prays to be received So a Termor for years by the Statute of Gloucestor shall be received and aver Covin generally and faint pleading and Covin is all one So 8. H. 6.7 In Assise the Tenant makes default one shall answer for him as Baily he appears and disallows him and saith That he will make default the Bailiffs comes and Demands Conusance of this default made by Covin for to take away their Conusance generally and holden good So 10. H. 6.15 In Formedon one Demandant agrees with the Tenant in Challenge which he made to a Juror the other Demandant avers the Challenge to be made by Covin generally and good So if one pleads imprisonment in excuse of his default or sale in a Market overt the other avers That it is by Covin generally or if he pleads a Feoffment the other avers That it was by Champerty generally and so may aver Covin given by the Statute or Common Law generally where the cause of it may not be special if it may be special otherwise it is 7. H. 4.15 in scire facias the Wife received pleads a recovery by a stranger upon a not denial and execution against him it is but the acknowledgement of the Tenant and his own Act and so Covenous Faint recovery against Tenant in Tail which dies before execution the issue is remitted and the Recovery not executory against him and so is defeasable yet the Covin in the Recovery which is as a Condition is cause of the forfeiture of the State as a Feoffment upon Condition not to infeoffee I. albeit that he within age infeoffees I. and so the State is defeasable yet he hath broken the Condition And as to the other exception taken for that it was not shewed certainly how he was Heir Montague held the Replication nought for Replications Titles Pleas in abatement of Writs and Estopples ought to comprehend certainty the Replication forceth the party to issue and therefore shall be certain because the Court nor the Jury may not be inveigled or troubled for the incertainty of the Replication which maketh the issue ordained and provided that they should be certain But a Bar which is certain to a common intent is good for a man shall plead in Bar an Estate without shewing how it is not good as it is holden 2. E. 4.26 and every Replication ought to shew contrary matter to the Bar and then ought to take Traverse or confesse and avoid the Bar. And here the Bar is good and the Replication contains a misbehavior of the Wife of the Defendant by which here Estate is void and then the Plaintiff ought to make him able for to take benefit of the misbehavior of the Defendant and here the Heir pleads this ability certainly the Bar which is plainly confessed is not plainly avoided for it appeareth not here how the Plaintiff is cosen to G. T. pretoxtu quorum premissoy refers to him which is said before onely as it is expounded 7. H. 6.51 in a Bill of Debt against the Warden of the Fleet. 4. H. 7.13 where one binds himselfe That he
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
uses in the first branch of it executes the possession according to the quantity of the State in use And the quantity of the State in use was for that Term of the life of the husband and wife ergo the Estate executed by the Statute shall be to them also for their lives according to the use aforesaid The second branch of the Statute executes the possession according to the quality of the Estate in use But the quality and manner of this Estate was by purchase for they shall be purchasers of the use therefore she shall have the Land as a new purchase and in no other manner for the words Affirmative in the Estate includes a Negative for that where the Statute appoints or limits order or form in things which shall not be by the Common Law before by words Affirmative in the Statute includes a Negative and shall not be in any other manner then the Statute appoints as execution of uses hereby 27. H. 8. and of voucher as if he were Tenant by W. 2. cap. 4. 14. H. 7.18 and after fo 206. and entry for forfeiture by Jointures by 11. H. 7. cap. 20. before fol. 56. but contrary and its words in the Negative viz. and not above twenty one yeers and the continuance of the State shall not alter the possession in other degree then the continuance made it at first where the entry is taken away contrary it is where the entry is lawfull as if the disseisor maketh a Feeffment to the use of the diffeisee and is in possession by 27. H. 8. but untill his reentry is not remitted yet after he shall in respect of the first disseisen and not by possession transferred by the Statute 3. The wife here is not remitted because the Statute of 27. H. 8. executes the possessions of the remitter c. And if it should be a remitter the remainder shall be defeated and void thereby contrary to the words of the Statute And although that by the Feoffment the freehold passeth to the wife and she remains Tenant thereof after the death of her husband and is Tenant to the precipe of a stranger untill her disagreement or disclaimer yet she may use her action against him in the remainder which is a disagreemen in Law to the use and possession conveyed by means thereof and then the possession vests in the next remainder as if the wife had not been named or had been a dead person in Law So if it were to the use of the wife in fee if she refuse it she may use her Action of Cui in vita against the Feoffor or his Heir for by her refusall they are Tenants to her Action and the use reflects to the Feoffor or his Heir for upon a Feoffment to the use of one which refuses which is as to the use as a dead person or of the thing insensible as Pauls Steeple there wanteth considerations and then the Feoffment shall be to the use of the Feoffor and by using of her Action she may purge the incombrance by her husband and so no inconveniency if she were not remitted as was objected It is not a remitter as the case here is if the Estate had been made by immediate Feoffment because the husband survives the wife Littl. here presently fol. 150. she is Tenant to the Action of the Heir of the wife and therefore in 21. E. 3.26 Ass 2. that the Heir in like case enter upon the husband bringeth an Assise and good no Law now by Brook Remitter 41. The Earle of Darby against Newdigate THe Earle challenges the Array of the Pannel because that he is a Peer of the Realm 2 Ma. in the Common pleas Aslise and no Knight is named in it and adjudged a good Challenge according to 13. E. 3. Fit H. Title Challenge 115. Challenge by the Bishop of Exeter was taken in Quare Impedit because he had not a Knight named in the Pannel and it was allowed Buckly against Rice Thomas DEbt upon the Statute of 23. H. 6. by Buckly Knight Mâ—… Mar. in debt against Rice Thomas the Plantiff counts that although he was returned a Knight of the Parliament in a County in Wales whereof the defendant was Sheriff by the greatest number of Freeholders of the County yet the defendant returned not it But that another was chosen Knight and recites how by the Statute of 27. H. 8. Wales was incorporated and annexed and made parcel of England and the Welch Nation by this enabled and made inheritable to all liberties franchises rights priviledges and laws of England as other the subjects of the King of England had and adjudged that he should recover 1. For that the allegation alleadged under the licet is a precise affirmative by the Rules of great authority the Latine Authors by the Register and opinion of Doctors of the Civill Law by Brook 2. That the Plantiff need not to shew the number of choosers in certain for the Infiniteness of it and for the impossibility that he should take notice of it 3. That the penalty of the Statute of 23. H. 6. for false returns of Sheriffs upon election of Kinghts of the Parliament and all other Laws of this Realm extends to the Welch Nation by the last clause of the Statute of 27. H. 8 which enables them to it and not by the generall words of this which makes it parcell of England The most voices in the upper house shall be numbered by the Clerk of the house for every one there shall be severally demanded Otherwise in the Commons house for there the assent is tried by the voice and are all at one time So in Election of Coroners fol. 126. a. Stamford Justice Declarations ought contain the materiall points pertaining by apt words of affirmation and not by recitall or implication As by debt upon an obligation it appeareth by the obligation that the defendant stands bound to the plantiff in ten pound the which he hath not paid So upon an escape by which the plaintiff was excluded from his debt is not good because he saith not that for the matter in fact he was not satisfied when the prisoner escaped So 38. H. 6.14 for debt for a salary declare upon retain in all occupations the defendant shall have his Law howbeit that the generalty imply husbandry in which Law lieth not which is not expressed plainly but by implication that he was retained in Husbandry The Law of England prays aide of other faculties and Sciences in matters appending to it as of Grammer for the exposition of Latin words as of a renuntiavit toti Communiae 9. H. 63. So adjudged imaginavit which was amended in the writ because no such Latin 9. H. 6.35 So of Penticosts 11. H. 6.2.9 H. 7.16 of Latin for fine Gold by Sanders fol. 125.7 H. 6.11 aide of the Civil Law for difference of Compulsion precisa causativa 21. H. 7.35 of Surgeons for maihem of the Canon Law 20.
intent So proviso That the Lessee make such a thing So here it shall enure as a Condition in whatsoever manner it be called it shall enure as a Determination of the Leasee because it was made at the time when the Lease began If the second Lease admit it be a Condition shall be good before re-entry or not Ramsey fol. 133. It is not good because after the Condition broken untill he enters he hath but a Title because he may not grant and the Lease continues and the possession also And therefore 22. E. 4.37 Lesser shall not have Trespass untill entry 14.3 Ass 11. Distress estop his entry because it affirms the continuance of his Term. Where a man may enter he ought to enter or not have the thing and where he cannot enter he ought to make claim before he shall have it As a Reversion granted upon Condition which is broken the Rent is extinct without Claim for that he may not have it by Claim by Stamford and Walsh it is good fol. 136. for that the first Lease for years commenced by words without entry it may be determined by words without entry Lease for life not 2. Mar. fol. 142. because Livery and Seisen which gave the State and Entry which ought to be avoided by entry upon Condition broken it is expressed here how the Lease shall be avoided viz. by entry and there if he enters not or doth an Act which excludes him to Enter as the making of an acquittance or distraining there the Lease is good But the words here are utterly extinct dissolving the Lease without Entry and no Act after shall make it good and the words of the entry here are surplusage and take away the effect of the first words As to 22. E. 4. The Lessor cannot punish him because the entry was first with his assent and when the Lease ended he was Tenant at sufferance but he may make a Lease to another and it determines his will by Gawdy it is not good Void here shall be expounded void by Entry as W. 2. cap. 1. before fol. 82. Finis ipsojure sit nullus viz. to the right yet it is a discontinuance So by 8. H. 6. cap. 10 Outlary shall be void in Indictment or Appeal if no Capias in the County where he dwelleth Common Law 19. H. 6.2 expounds it shall be void by Writ of Error he that hath a possession in Law may Lease before entry after fol. 142. after a stranger hath abated not because another hath possession in Deed. So a Lease by the Husband for years shall not be void of the Wives land after his death before entry of the Wife for possession ought to be defeated by possession and possession ought to be gained by entry Catline fol. 142. b. By the not payment the first Lease is determined without entry because it may be made by word without other circumstance otherwise of Free-hold and therefore may make a Lease but cannot have Trespass without entry as Heir before fol. 137. he may make a Lease before entry but cannot have Trespess before entry 11. H. 7.22 So a Lessee may grant his Term before it commence 22. E. 4.37 yet he shall not have Trespass before entry 37. H. 6.18 To shew two matters where both are effectual and answerable makes a double plea as 3. H. 6.32 Feoffment up-Condition to infeoff the Heir and averment of the Collusion in Wardship of the body So 20. H. 6.7 Seisen in his Ancestor and himself by avowing So 22. H. 6.37 Two continuall claims viz. by the predecessor and the Plaintiff for to avoid a discent So 19. E. 4.4 by Vavisor and Brian Two discents in Fee bars not two discents is not double in Tail because one answer viz. he gave not makes an end of all for if he cannot shew one thing without the other it is not double nor if the one is pursuant to the other as fully administred and so nothing in his hands for the last is but a conclusion of the former But the other Justices held the aforesaid two exceptions effectual for the causes aforesaid and that the Rejoynder was vicious wherefore they said That it was in vain to argue them and therefore in consideration of them onely without respect to the other matters rising upon the Rejoynder and before debate they awarded for the plaintiff Throgmorton against Tracie M. Mar in the Common Plaes second deliverance A Man makes a Lease for life and after Grants the Reversion of the Land habendum the land at Michaelmas after the determination of the first Lease for life for one and twenty years and adjudged a good Lease for years of the Reversion and of the Land Reverting and that the Habendum stood well with the premises because that the land is the degree and state of the Grantor was included in the premises by the word Reversion and the degree and estate excluded by the Habendum and the other part onely granted viz. The land Reverting and so was the intent of both the parties Reversion is compounded of the remnant of the estate which is left in the Lessor and of the land Reverting and carties with him the land to be afterwards happening in possession and the land is the substance of both and by the grant of this both pass So the Mannor which is compounded of Demeasnes and Services and of stegno aqua priscarie 4. E. 3. or gurgite which consists of water and land The Habendum which is not pursuant to the premises is void as a grant of a Mannor Habendum a Rent parcell of the Mannor because in the grant it was Rent service and in the Habendum it is Rent Seck So a Grant of Services Homage Fealty and rent Habendum the rent to the Grantee in Fee this habendum is void because in the grant the rent was contained as a rent Service but here it is rent Seck Grant of it after the death of I. S. void for the nature of a Grant is that the thing Granted ought to pass presently after fol. 155. for it is a thing in possession and is granted as a Reversion where no Reversion was of it If one maketh a Lease of land for years and after maketh a feoffment of the same without livery it passeth not the Reversion by Attornment Quere because the Grant of a thing which includes all interests in it shall make the Reversion to pass but the Reversion granted shall not make the possession to pass 38. H. 6.34 and after fol. 399. The King Grants a Mannor to which an Advowson is appendant for life the Advowson passeth not nor if he grant the Reversion Habondum cum advocatione it passeth not because in gross because it was not mentioned in the first Grant but the Reversion of an Advowson may be parcel or appendant of or to a Mannor in possession not possession of or to the Reversion of a Mannor the Habendum passes not a thing not parcel nor appendant
Litl fol. 108. before fol. 140. two Tenants in Common grant 20. s. it shall enure as several Grants 34. ass fol. 11. Grants totum piscariam salvo stagno molendini sui yet the piscarie passes not for the stagno shall be excepted and not the piscarie because he hath a Reversion in the Propriety of the land and possession of the Ter-Tenancy The nature of an habendum is to give in large or qualifie Malitiosa juris interpretatio herere in verbis c. the words are but witnesses to the contract reversion includes land by all Brown Justice To the same intent of the Abbot and Covent and of Smith and his wife was to have the land pass as a Lease after the paticular estate ended and not otherwise and from that hour that their intent was to have the word reversion enure that way it seemed to him That the Law would warrant it for the land is included in the reversion for if it was not a man by Granting of a reversion could not have the Land in possession after the particular estate ended And a Feoffment of a Carue habendum the Mannor of D. is good if the Carue maketh the Mannor And if land is parcel of an Office it shall pass by the Grant of the office Much more he said tending to the effect to make the Lease good and so the Plaintiff shall recover Brook Chief Justice to the contrary Estate in lands includes land it self land is a generall word and contains Grantor and reversion particular words containing a Decree where one estate onely intent shall be inclined and ruled by the Law and not otherwise and intent nevertheless in certainty of words as 9. H. 6.35 Renuntiavit communium and not to whom void before fol. 122. 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage Fealty and Castle gard the Lord grants all Services Castle gard passeth not because he granted not the Castle But in Testaments the intent shall be onely observed and rule the Law because the Teastator had not time by presumption to ordain all things according to the Law In conclusion he agreed that Judgement should be given for the Plaintiff Hill against Grange A Man maketh a Lease for years of a Messuage and an hundred acres of land appertaining to it 3. Mar in Common Pleas in Trespass c. by Deed indented the 6. of August rendring rent yearly payable at our Lady day and Michaelmas or 10 days after with clause of re-entry and after Grants the reversion and the Grantee the last instant of the 10. day after Michaelmas demands the rent and enters for not payment and it was adjudged that the entry was good for these reasons 1. Land may not appertain to a Messuage because both are things corporate simply otherwise of Advowsons waies c. which are things incorporate but things Corporate or Incorporate may pertain or be parcel of a thing compounded as a Mannor Castle Knights Fees Honors Forrests Monasterie Rectorie fol. 170. a. But here the land passes as appurtenant but by the intent and phrase of the parties as they have said usually occupied or let c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual notwithstanding the other feast be first named 10. E. 3. the Abbot of Osneys case 3. The demand of the rent the last instant is good 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition or Covenant fol. 173. a. and shall not be intended of the Pattentee of the King 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words Things of distinct and several natures the one is not parcel of or appendant to the other as 8. H. 7.1 by Keeble a Warren cannot be pertaining to a Leet nor a Leet to a Hundred nor one Office to another nor land to other land to a thing Compounded they may as a Mannor Knights Fee Honor Monastery Castle and a Village or to words general as are Oxgang a yard land a hide of land which contains land meadow pasture wood c. Messuage is a single word consisting of a thing special and not Compound nor a general word for that 27. H. 6.2 Land not parcel or appendant to a house and by demand of a Messuage in precipe land shall not be recovered and therefore pass not by the Grant of a House by the Serjeants on the part of the Plaintiff 23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances Land passes not a Mannor and things made appertaining to it are made by usage and continuance So 2. H. 7.28 land belonging to a Forrest and Warden of the Fleet and the house of the Master of the Rolls and divers farms to the Guardians of the Castle of Colchester and one Office to another as the custos brevium giveth one of the Offices of prothonatories and use and continuance is cause of it A man Leases a Messuage and land rendring rent be ought to demand the rent at the Messuage because most worthy Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant Norwood against Read Action upon the case upon assumpsit made by the Testator 5. Mar â—…n K. Bench. lieth against the Executors adjudged For that the Testator could not gage his Law otherwise it is where he might gage his Law for the ignorance that the Law imputes of it to Executors and therefore there they ought to Demur but if they plead in Bar which is found against them they have lost the benefit of the Law and take Conusance of it whereof otherwise their ignorance shall excuse them 39. H. 6.19 12. H. 8.11 27. H. 8.23 Woodward against the Lord Darcie IF the Debtor make the Debtee his Executor and leaves him assets to satisfie the debt 5. Mar. Reso by the Judges of both Courts and dies the Debtee may pay himself by way of retainer by the Court 12. H. 4 21. according And in such case the Action is not utterly exstinct by the Administration for that the Law intends that he is satisfied by retainer before and so a thing in Action altered to a thing in possession by Act in Law for satisfaction of the party which hath no other remedy but if he hath not sufficient assets for to satisfie the debt the administration there extinguishes not the Action because that he cannot retain for parcel and have his Action against the Heir for the residue but ought to do the one for the other at his peril Wrotesly against Adams A Lease for 80. years of a Farm Tr i El. in Com. Pleas. Ej. firme the Lessor granted the Reversion of the Farm to a stranger to have and to hold the Farm for 60. years after the
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS