17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
be divers other limitations c. As if a rent charge be granted to A. and B. habendum to them two viz. to A. untill he be married and to B. untill he be advanced to a Benefice they be joynt-tenants in the meane time c. And if A. dye before marriage the rent shall survive but if A. had married the rent should have ceased for a moity sic è converso on the other side If an alien and a subject purchase lands in fee they are joynt-tenants and the survivorship shall hold place Et nullum tempus occurrit regi upon an office found 7 E. 4. 29. 11. H. 4. 26. Sect. 278. Omnis rati-habitio retrotrahitur mandato aequiparatur Nota That seeing Coadjutors Counsellors Commanders c. are all disseisors albeit the disseisor which is tenant dyeth yet the Assize lieth against the Coadjutor c. and tenant of the land though he be no desseisor The Demandant and others in a praecipe did disseise the tenant to the use of the others and the Writ did not abate for the Demandant was a disseisor but gained no tenancy in the land for that he was but a Coadjutor 50. E. 3. 2. A man disseised tenant for life to the use of him in the reversion and after he in the reversion agreeth c. he is a disseisor in fee for by the disseisin the reversion was divested which some say cannot be revested by the agreement of him in the reversion for that it maketh him a wrong doer and therefore no relation of an estate by wrong can help him Sect. 27. 9 Disseisin est properment lou un home enter eu asc ' terres c lou son entre nem pas congeable ousta celuy que ad franktenement c. This description c. is understood onely of such lands c. whereinto an entry may be made and not of Rents Commons c. Every entry is no disseisin unless there be an ouster also of the free hold as an Entry and a Claimer or taking of Profits c. 3 E. 4. 2. 34 Ass 11. 12. Pl. Com. 89. Parson de Honey-lane Now as there be joynt-tenants by Disseisin so are there joynt-tenants by Abatement Intrusion and Vsurpation Sect. 280. Nota que le nature de joyntenancy est que le survivor aūa solement lentier tenancy solunque tiel estate que il ad si le jointure soit continue c. mes auterment est de parceners Although survivorship be proper to joynt-tenants yet it is not proper quarto modo for if a man letteth lands to A. and B during the life of A. if B. dyeth A. shall have all by the survivor but if A. dyeth B. shall have nothing Two or more may have trust or authority committed to them joyntly and yet it shall not survive But with a diversity between a naked Trust c. and a Trust joyned to an estate or interest 2. There is a diversity between Authorities created by the party for private causes and Authority created by Law for execution of Justice Ex gr As if a man devise that his two Executors shall sell his land if one of them dye the survivor shall not sell it but if he had devised his lands to his Executors to be sold there the survivor shall sell it 39. Ass p. 17. 30 H. 8. tit Devise B. 31 Dyer 3 El. 190. Br. tit Cond 190. If a man make a Letter of Atturney to two to doe any act the survivor shall not doe it but if a Venire fac be awarded to four Coroners to impannel and return a Jury and one of them dye yet the other shall execute and return the same If a Charter of Feoffment be made and a Letter of Atturney to four or three joyntly or severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor any of them severally 38 H. 8. Dyer 62 27 H 8. f. 6. But if the Sheriff upon a Capias directed to him make a Warrant to four or three joyntly or severally to arrest the Defendant two of them may arrest him because it is for the execution of Justice which is pro bono publico Pasch 45 Eliz. in Banco Reg. inter King Hobbes Not of that kind of the infidel of Malmsbury Sect. 281 282. Survivor holdeth place regularly as well between joynt-tenants of goods and chattels in possession or in right as of Inheritance or Free hold fo 182. a. Si un obligation soit f◠a plusors pur un debt celuy que survequist avera tout le debt ou duty issent est daverts Covenants Contracts c. Mes Jus accrescendi inter mercatores pro beneficio commercii locum non habet F.N.B. 117. E. 38. E. 3 7. Sect. 283. Terres sont dones a 2. homes a les heires de lour 2. corps engendres en cen case les donees ont joint estre pur lour 2. vies encore ils ont several inheritances entant que ils ne poient aver per nul possibility un heire enter eux engendre sicome home feme point aver c. Note albeit they have severall inheritances in taile and a particular estate for their lives yet the inheritance doth not execute and so break the joynt-tenancy but they are joynt-joynt-tenants for life and tenants in common of the inheritance in tail Here a diversity is implyed when the state of inheritance is limited by one Conveyance as in this case it is there are no severall estates to drowne one in another but when the states are divided into severall Conveyances their particular estates are distinct c. and the one drownes the other As if a lease be made to two men for terme of their lives and after the lessor granteth the reversion to them two and to the heirs of their two bodies the juynture is severed and they are tenants in common in possession and it is further implyed that in this Case of Littletons there is no division between the estates for lives and the severall inheritances because they cannot convey away the inheritance after their decease for it is divided onely in supposition of law and to some purposes the inheritance is said to be executed 12 E. 4. 2. b. If a man make a lease for life and after granteth the reversion to the tenant for life and to a stranger and to their heires they are not joynt-tenants of the reversion but the reversion by act of law is executed for the one moity in the tenant for life and for the other moity he holdeth it still for life the reversion of that moity to the grantee 39 H. 6. 2. b. And so it is if a man make a lease to two for their lives and after granteth the reversion to one of them in fee the joynture is severed and the reversion is executed for the one moity and for the other moity there is tenant for life
the reversion to the grantee Vide Westcotes Case lib. 2. fo 60 61. If lessee for life granteth his estate to him in the reversion and to a stranger the joynture is severed and the reversion executed for the one moity by the act of the Law 7 H. 6. If a man make a lease for life and grant the reversion to two in fee the lessee granteth his estate to one of them they are not joynt-tenants of the reversion for there is an execution of the estate for the one moity and an estate for life the reversion to the other of the other moity Si home voet lesser terre a un auter par fait ou sans fait nient fesant mention que estate il avoit fert livery c. en ceo cas le lesse ad estate pur tinere de sa vie Quaelibet concessio fortissimè contra donatorem interpretanda est Legis autem constructio non facit injuriam Pl. Com. in Throgmortons case If a lease be made to two habendum to the one for life the remainder to the other for life this doth alter the generall intendment of the premises Et semper expressam facit cessare tacitum 30 H. 8. tit Joyntenans Br. 53. Dyer fo 361. Pl. Com. 100. Nota where the grant is impossible to take effect according to the letter there the Law shall make such a construction as the gift by possibility may take effect Benignae faciendae sunt interpretationes cartar propter simplicitatem laicorum ut res magis valeat quam pereat fo 183. b. Cognitio legis est copulata complicata Tunc unumquodque scire dicimur cum primam causam scire putamus scire autem propriè est rem ratione per causam cognoscere Arist 1 Metap Virg. 1. Georg. Felix qui potuit rerum cognoscere causas If a gift be made to two men and the heirs of their two bodies begotten the remainder to them two and their heirs they are joynt-tenants for life tenants in common of the estate taile and joynt-tenants of the fee simple in remainder for they are joynt purchasers of the fee simple and the remainder in fee is a new created estate but the reversion remaining in the Donor or his heirs is a part of his ancient fee simple Dyer 14 Eli. 309. Sect. 284. Lou terre eÌ„ done a. 2. females a les heires de lour 2. corps ingendres It hath been said that the husband c. should be Tenant pur le Curt ' living the other sister 17 E. 3. 51. 78. and that the issue of the one should recover the moity in a Formedon living the other sister 44 E. 3. Taile 13. 7. H. 4. 16. Corbets c. l. 1. fo 8. 84. 6. 4. Mar. Dyer 145. But Littleton hath resolved this doubt Vid. fo 183. a. If a man give lands to two men and one woman and the heires of their three bodies begotten they have severall inheritances For the Law will never intend a possibility upon a possibility Fo. 184. a. Sect. 285. If a fine be levied to two and to the heirs of one of them by force whereof he is seised he that hath Fee dyeth and after the joint-joint-tenant for life dieth and an estranger abates in this case the heir may either suppose the Fee simple executed and have an Ass of Mordanc ou briefe de droit or he may have a scire fac to execute the fine or maintain a Writ of intrusion by which the heir supposeth that the Fee was not executed 11 H. 4. 55. F.N.B. 196. and 219. and he shall term it a remainder and yet when Land is given to two and to the heirs of one of them he in the remainder cannot grant away his Fee simple Sect. 286. 2 Jointenants de terre c. celuy que survesquist claima ad la terre per le survivor nemy ad ne poit de ceo claimer rien per discent de son compagnon c. Mes auterment est de parceners c. and the diversity is for that the Survivor doth claime above the grant c. and the heir by discent under c. If two joyntenants be of a terme and the one of them grant to I.S. that if he pay to him 10. l. deut Mich. that then he shall have his terme the grantor dyeth before the day I.S. payes the summe to his executor at the day yet he shall not have the terme but the survivor shall hold place for it was but in nature of a communication but if he had made a Lease for years to begin at Mich. it should have bound the Survivor 14 Pl. 8. 22. Pl. Com. 263. b. Hales case Ius accrescendi praefertur oneribus alienatio rei praefertur juri accrescendi If one joyntenant in Fee simple be indebted to the King and dieth no extent shall be made upon the land in the hands of the Survivor 40 Ass 36. F. N. B. 149. Pl. Com. 321. If a recovery be had against one joyntenant who dyeth before execution the Survivor shall not avoid this recovery because that the right of the moity is bound by it If one joynt-tenant in Fee take a Lease for years of a stranger per ft. indent and dyeth the Survivor shall not be bound by the conclusion because he claims above it c. If two joynt-tenants be in Fee and the one make a Lease for years reserving a rent and dyeth the surviving Feoffee shall have the reversion by survivor but not the rent because he claimeth in from the first Feoffer which is paramount the rent Dyer M. 2. 3. El. 187. Lib. 1. f. 96. and Lib. 6. fo 78 79. If one joynt-tenant granteth a rent charge out of his part and after release to his joint companion and dieth he shall hold the land charged because he claimeth not by the survivor in as much as the rel ' prevent the same 33 H. 6. 3 a. 9 El. Dyer 263. fo 185. a. But all men agree that if A. B. and C. be joynt-tenants in Fee and A. charge his part and then release to B. and his heires and dye that the charge is good for ever for B. cannot be in from the first Feoffer because he hath a joynt companion at the time of the release made and severall Writs of praec must be brought against them 37 H. 8. tit alienation Br. 31. 10 E. 4. 3. b. Sect. 287 Jus accrescendi prefertur ultimae voluntati Although an inâ—ant est unum indivisible tempore quod non eÌ„ tempus nec pars temporis ad quod tamen partes temp connectuntur and that instans est finis unius temporis principium alterius yet in consideration of Law there is a priority of time in an instant as here the survivor is preferred before the devise which Littleton distinguisheth by these words post mortem per mortem Pl. Com Fulmerstons case Two femes ioynt-tenants of a Lease for years one of
by the Common Law are of two natures i.e. the one is founded upon skill and confidence as here the Office of Parkership the other without skill or confidence whereof some by the Common Law and some by the Statute By the Common Law as to every estate of Tenant by the Curtesie Tenant in Tail after possibility c. Tenant in Dower Tenant for life for years Tenant by Statute Merchant or Staple by Elegit Gardian c. there is a condition in Law secretly annexed to their estates that if they alien in fee c. that he in the reversion or remainder may enter c. or if they claim a greater estate in Court of Record c. Pl. Com. 373. a. Sir H. Nevils case 21 E. 4. 20. 93. l. 8. f. 44. Wittinghams case concerning condition in law founded upon Statutes for some of them an entry is given and for some other a recovery by action where an entry is given as upon an Alienation in Mortmain c. and the like where an action is given as for Waste against Tenant for life and years c. As for Example admit that an office of Parkership be granted or descend to an Infant or feme Covert if the conditions in law annexed to this office which require skill and confidence be not observed and fulfilled the office is lost for ever because it is as strong as an express condition But if a lease for life be made to a feme covert or an Infant and they by Charter of Feoffment alien in fee the breach of this condition in Law that is without skill c. is no absolute forfeiture of their estate So of a condition in Law given by Statute which giveth an entry onely As if an Infant or feme Covert with husband aliens by Charter of Feoffment in Mortmain this is no barre to the Infant or feme Covert But if a recovery be had against an Infant or feme Covert in an action of Waste there they are bound and barred for ever And note that a condition in Law by force of a Statute which giveth a recovery is in some case stronger then a condition in Law without a recovery for if lessee for life make a lease for years and after enter into the land and make Waste and the lessor recover in an action of Waste he shall avoid the lease made before the waste done because of necessity the action of Waste must be brought against the lessee for life which in that case must binde the lessee for years or else by the act of the lessee for life the lessor should be barred to recover locum vastatum which the Statute giveth But if the lessee for life make a lease for years and after enter upon him and make a Feoffment in fee this forfeiture shall not avoid the lease for years Reg. A man that taketh advantage of a condition in Law shall take the land with such charge as he findes it And a condition in Law is as strong as a condition in Deed as to avoid the estate or interest it self but not precedent charges to avoid but in some particular cases Vtique fortior potentior est dispositio legis quam hominis Vide S. 419 429 430. fo 234. a. For Offices in any wise touching the Administration or execution of Justice or Clerkship in any Court of Record or concerning the Kings Treasure Revenue Account Customs Alnage Auditorship Kings Surveyor or keeping of any of his Majesties Castles Forts c. Conditions in Law are annexed c. 3 H. 7. c. 11. 7 E. 6. c. 1. 5 E. 6. c. 16. And note that all Promises Bonds and Assurances for such Offices c. as well on the part of the bargain or as of the bargainee are void c. Nulla alia re magis Rom. Respub interiit quam quod Magistratus officia venalia erant M. 13 Ja. R. lib. 3. f. 83. Colshils case Aerod fo 343. Jugurtha going from Rome said to the City Vale venalis Civitas mox peritura si emptorem invenias Salust 12 R. 2. cap. 2. Sect. 379. The Oath of a Beadle or under-Bayliff of a Manor is That he shall duly and truly execute all such Attachments and other Proces as shall be directed to him from the Lord or Steward of his Court and that he shall present all Pound-breaches which shall happen within his Office and all Chattels waved and Estrayes Sect. 380. Si lease soit fait al Bar. feme a aver tenant a eux durant le coverture enter eux en ceÌ„ case ils ont estate pur terme de lour 2. vies sur condition en ley sc si un de eux devie ou que devorce soit fait enter eux donques bien lirroit a lessor aâ—ses heires dentr c. Durante dummodo dum quamdiu donec quousque usque ad Tam Diu ubicunque are words of limitation 37 H. 6. 27. 10 Ass 4. 11 Ass p. 8. 7 E. 4. 16. 9 E. 4. 25 26. 14 H. 8. 13. Divorces à vinculo Matrimonii are these causa praecontracti causa metus impotentiae seu frigiditatis Assinitatis consanguinitatis c. Divorce à mensa Thoro dissolveth not the marriage à vinculo Matrimonii for it is subsequent to the marriage as causa Adulterii 18 E. 4. 28. 24 H. 8. 8. Bastards 11 H. 4. 14. 76. Vide S. 399. 32 H. 8. c. 38. A man married the daughter of the sister of his first wife and it was declared by Act of Parliament to be good Tr. 2. Ja. Rot. 1032. Ri. Parsons case fo 235. b. Sect. 381. Logick teacheth a man not onely by just argument to conclude the matter in question but to discern between truth and falshood and to use a good method in his study and probably to speak to any legal question Arg. à divisione Pl. Com. 561. b. Vide S. 345. Sect. 383. Note a diversity viz. when a man deviseth that his executor shall sell the land there the lands descend in the mean time to the heir and until the sale be made the heir may enter to take the profits But when the land is devised to his Executors to be sold there the devise taketh away the discent and vesteth the state of the Land in the Executor and he may enter and take the profits and make sale according to the devise and the mean profits taken before the sale shall not be Assets so as he may be compellable to pay debts with the same and therefore he must sell the lands assoon as he can for otherwise he shall take advantage of his own Laches A man seised of certain lands holden in Socage had issue two daughters A. and B. and devised all his lands to A. and her heirs to pay unto B. a certain summe of money at a certaine day and place the money was not paid and it was adjudged that those words To pay c. did amount in a Will to a Condition because
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
was se defendendo c. 2. That in any action upon the case Trespasse Battery or of false imprisonment against any Justice of Peace Mayor or Bayliff of City c. in any his Majesties Courts in Westminster or elswhere concerning any thing by any of them done by reason of any of their Officers aforesaid and all other in their aid or assistance or by their Commandement c. they may plead the generall issue and give the speciall matter for their excuse or justification in evidence 7. Ja. c. 5. 23. H. 8. c. 5. Probationes debent esse evidentes i.e. perspicuae faciles intelligi If the Trespass were done the 4. of May and the Plaintiff alleageth the same to be done the 5. of May or the 1. of May when no trespass was done yet if upon the evidence it falleth out that the trespass was done before the action brought it sufficeth 19. H. 6. 47. 5. E. 4. 5. 21. E. 4. 66. And Littleton saith That the Jury may find the Defendant guilty at another day then the Plaintiff supposeth Note That the Law of England respecteth the effect and substance of the matter and not every nicety of form or circumstance Qui haeret in litera haeret in Cortice apices juris non sunt jura Sect. 487. Fo. 283. b. Note a diversity when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right 50. E. 3. 78. Vide S. 447. But when the right is first and then the possession cometh to the right albeit the possession be defeated as here in Littletons case it is by the heir of the disseisor yet the right of the disseisee remaineth A dyeth seised and the Land descendeth to B. his Son before he enter an estranger abate and dieth seised B. enter against whom the heir of the Abator recovers in an Assize B. may have a Writ of Mortdan and recover the land against him And if the disseisin had been done to A. c. then after the recovery in the Assize B. should have had a Writ of entry in the per because the heir that is in by discent is in the per. Sect. 490. 491. En praecipe quod red If the Tenant alien the land hanging the Writ puis le Demandant release a luy tout son droit c. cel release est bone pur ceo que il est suppose terre tenant per le suit del Demandant uncore il nad riens en la terre al temps de release fait Item si en praecipe c. le tenant vouch le vouchee entry en garr ' si apres le demandant release c. al vouchee co est assets bone pur ceo que apres le vouchee avoit entry en le garr ' il est tenant en ley al demandant c. But if after the vouchee hath entred into Warranty and become Tenant in Law an Ancestor collaterall release to the vouchee with Warranty he shall not plead this against the Demandant for that the release by the estranger is void 10. E. 4. 13. 12. Ass 41. 7. E. 3. 6. 8. H. 7. 5. Dyer 17. El. 341. Sect. 447. Sect. 492. Fol. 285. a. Nota there be two kinds of actions viz. concerning 1. Placita Coronae or Placita Criminalia 2. Placita Communia seu Civilia Of actions concerning Common Pleas quaedam sunt ad rem quaedam in personam quaedam mixtae Vide S. 444. Actio nihil aliud est quà m jus prosequendi in judicio quod sibi debetur Or Action nest auter chose que loial demand de son droit And by the release of all actions causes of action be released but within a submission of all actions to Arbitrement causes of action are not contained lib. 8. 153. Althams Case 35. H. 8. Dyer 57. 5. Mar. 217. 36. H. 6. 8. vide 42. E. 3. 22 23. Note a diversity A man by his own cannot alter the nature of his action and therefore if the lessee for life or years do waste now is an action of Waste given to the lessor wherein he shall recover two things viz. the place wasted and treble damages But by act in Law the nature of the action may be changed as if a man make a lease pur terme daughter vie and the lessee doth waste and then Cesty que vie dieth an action of VVaste shall lie for damages only because the other is determined by act in Law 14. H. 8. 14. 23. H. 8. Br. Waste And again hereupon is another diversity to be observed that in case when an action is well begun and part of the action determined by act in Law and yet the like action for the residue is given there the VVrit shall not abate but proceed But where by the determination of part the like action for the residue remaineth not there the action well commenced shall abate 9. E. 4. 50. But if Tenant pur auter vie bring an Assize and Cesty que vie dieth hanging the VVrit albeit the VVrit were well commenced yet the VVrit shall abate because no Assize can be maintained for damages only Also an action of VVaste must be ad exbaereditatem 2. H. 4. 22. 6. E. 2. breve 807. vide c. If a VVrit of Annuity be brought and the Annuity determineth hanging the VVrit the VVrit faileth for ever because no like action can be maintained for the arrerages onely but for the annuity and arrerages 34. H. 6. 10. 9. E. 4. 39. 14. H. 7. 31. But where damages onely are to be recovered there albeit by act in Law the like action lieth not afterwards yet the action well commenced shall proceed as if a Conspiracy be brought against two and one of them die hanging the VVrit it shall proceed 22. R. 2. breve 888. 18. E. 4. 1. And in an Assize of No. Diss a VVrit of Annuity Qu. Imp. and other mixt actions a release of actions reals is a good plea and so it is of a release of actions personalls 2. H. 4. 13. 9. H. 6. 57. But if three joyntenants be disseised and they arraign an Assize and one of them release to the disseisor all actions personalls this shall bar him but it shall not bar the other Plaintiffs for having regard to them realty shall be preferred omne majus trahit ad se minus dignum 30. H. 6. Barre 59. 45. E. 3. fo 6. So it is in a Writ of Ward brought by two c. Nota diversit In reall actions where damages are not to be recovered by the Common Law as in an Assize c. but are given by the Statute there a release of all actions personalls is no bar as in the Writ of Dower Entry sur disseisin in le per c. Mordane Aiel c. Mert. cap. 1. Dower Gloc. cap. 1. Sect. 493 494. fol. 258. b. A Release of actions personalls is
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
6. 1. F.N.B. 107. For if an Ass be taken by default a quod ei deforceat doth lye and yet the party may have an Attaint for this is no enquest of Office but a Recognition by the Recognitors of an Ass who were returned the first day and not returned upon the awarding of the Ass by default 17 E. 2 Attaint 69. 21 H. 6. 56. 34. H. 6. 12. As to the 3. Ob. That the damages should be the principal because they were at the common Law that is an Argument that they are more ancient but not that they are more principal and treble dammages were not at the common Law for the common Law never giveth more dammage than the losse amounteth unto but are given by the Statute of Glocester but the place wasted is worthier being in the realty then dammages that be in the personalty Et omne majus dignum trahit ad se minus dignum quamvis minus dignum sit antiquius à digniori fieri debet denominatio and it is confessed That in an action of waste against Tenant for life or for years the place wasted is the principal because the statute of Glocester doth give the place wasted and treble dammages at one time for no prohibition or action of waste lay against them at the Common Law and in an action of waste 34 H. 6. 7. waste 50. And in an action of waste if the defendant confesse the action the plaintiffe may have judgement for the place wasted and release the damages which proveth that the damgas are not the principal for a man shall never release the principle and have judgement of the Accessory and an action of waste against Tenant for life is as reall as an action a-against Tenant in Dower and as to the case of 9 H. 5. It was answered that it was an action in the Tenuit which is only in the personalty and then the release of one doth barre both neither could summons and severance lye in that case but in an action of wast in the Tenet either against Tenant for life or yeers the release of the one doth not bar the other and in those two cases Summons and severance doth lye 6 E. 3 47. 48. E. 319. But when these 3. parts were resolved by the Court for the demandant then the counsel of the Tenant moved in arrest of judgement another point viz. That the judgement was given upon a nihil dicit which is alwayes after appearance and not per defaltam and there upon judgement was stayed But to return to Littleton Here he openeth a secret of Law for the cause of this Remitter is for that the Tenant for life in this case might have a quod ei deforceat And the Tenant for life at the common Law was remedilesse because he could not have a writ of right and consequently the feme Covert in this case could not be remitted by the taking of an estate to her husband and her because her right was remedilesse and could have no action But when an act of Parliament or a custome doth alter the reason c. thereby the Common Law it self is alterd if the Act of Parliament and custome be pursued for Alterata causa ratione legis alteratur lex cessante causa ratione leg cessat lex as in this case the statute of W. 2. giving remedy to this feme Tenant for life in this case it giveth her ability to be remitted c. 14 H. 7 11. per Fineux 27 H. 8. 4. 6. Aid 35 H. 6. gard 72. 29 E. 3. per wilbie custome l. 3. fo 86. Justice Windhams cases And Littleton warily puteth his case That the Recovery was had against the feme while she was sole for there was a time when it was a question whether a Recovery being had by defalt against the husband and wife the wife being Tenant for life the said statute gave a quod ei deforceat to the Husband and wife for that the statute gave it a gainst Tenant in Dower and Tenant for life c. and here the Husband is not Tenant for life but seised in the right of his wife and therefore out of the statute and of this opinion is one book * But Apices juris non sunt jura parum differunt quae re concordant * 4. E. 3. 38. 33. E. 3. Avowry 255. The contrary hath been adjudged and so that point is now in peace 5. E. 3. 4. 33. E. 3. 255. F.N.B. 156. a. 5. E. 3. 5. 2. E. 4. 13. F.N.B. 156. c. 33. H. 6. 46. 2. E. 4. 11. 19. E. 4. 2. And the like in case of Resceit for him in reversion But if the husband lose by default and the husband die the wife shall not have a quod ei deforceat for a cui in vita is given to her in that case by a former statute viz. W. 2. ca. 3. These things are worthy of due observation c. and Littleton in our books of another kinde of quod ei deforceat at the common Law upon a disseisin Fo. 356. a. When the reversion is devested the lessor cannot have an action of waste because the Writ is That the Lessee did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought And Nota That in an action of waste brought by the lessor against the lessee the Lessee in respect of the privity cannot plead generall * riens en le reversion But he must shew how and by what means the reversion is devested out of him and this holdeth between the lessor and lessee but if the grantee of a reversion bring an action of waste the lessee may plead generally That he hath nothing in the reversion 45. E. 3. 21. 44. E. 3. 34 35. F.N.B. 60. 23. H. 8. waste Br. 138. * 45. E. 3. 20. 8. H. 6. 13 30. H. 6. 7. And yet in some speciall cases an action of waste shall lie albeit the lessor had nothing in the reversion at the time of the waste done As if Tenant for life make a feoffment in Fee upon condition and waste is done and after the lessee reenter for the condition broken in this case the lessor shall have an action of waste And so if a Rishop make a lease for life or yeers and the Bishop die the lessee the Sea being void doth waste the successor shall have an action of waste So if Lessee for life be disseised and waste is done the lessee reenter an action of waste shall be maintained against the lessee and so in like cases Here note that albeit the action be false and feigned yet is the recovery so much respected in Law as it worketh a discontinuâ—â— But if Tenant for life suffer a common recovery or any other recovery by covin and consent between the Tenant for life and the recoverer this is a forfeiture of his estate and he in the reversion may enter c. 5. Ass p. 3.