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
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
of Weyland being abjured the Realm for Felony in the year before Margery de Mose his wife and Richard son of the said Tho. exhibited their Petition of Right into the Parliament Anno 19. E. 1. for the Manor of Sobbir wherein her husband had but an Estate for life joyntly with her and the inheritance in Richard the son by fine The Earl of Glocester Lord of the fee who claiming the land by Escheat had taken the possession thereof alleged Quod non fuit jure consonum quod aliqua foemina intraret in aliquas terras vivente marito suo c. Tamen Coram Consilio Domini R. vocat ' Thesaurar ' Baron Justiciariis de utroque Banco concordat ' est quod praedicta Margeria rehabeat talem seiseinam c. secundum perportum finis praedict ' c. Vide lib. fo 33. a. If the husband had aliened the land of his wife and after had been abjured the Realm for Felony the wife shall have a Cui in vita in his life time 31 E. 1. Cui in vita 31. The wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a feme sole by the Common Law And such a Queen hath many Prerogatives as she shall find no pledges for such is her dignity as she shall not be amerced 18 E. 3. 1 2. The Queen shall pay no Toll N. B. 235. The Writ of Right shall not be directed to the Queen no more than to the King but to her Bayliff F.N.B. 1. F. But a Protection shall be allowed against the Queen but not against the King neither shall the Queen be sued by Petition but by a Praecipe 21 E. 3. 13. 11 H. 4. 76. b. If A. be bound to the Abbot of D.A. is professed a Monk in the same Abbey and after is made Abbot thereof he shall have an action of Debt against his own Executors 4 E. 4. 25. 6 E. 4. 4. 22 H. 6. 5. 45 E. 3. 10. a. 5 H. 7. 25. b. Sect. 201. Excommunicato interdicitur omnis actus legitimus ita quod agere non potest nec aliquem convenire licet ipse ab aliis possit conveniri Excommunicatio nihil aliud est quam Censura à Canone vel judice ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque hominum Bract. lib. 5. fo 415. 426 c. F.N.B. 64. F. None can certifie Excommengment but onely the Bishop or one that hath Ordinary Jurisdiction and is immediate Officer to the Kings Courts As the Archdeacon of R. or the Dean and Chapter in time of vacation The Common Law disallows all acts done in disability of any Subject of this Realm by any forren power as things not authentique wherof the Judges should give allowance 16 E. 3. Sxcom 4. N.B. 64. For the manner of Election of Bishops vide le statute of 25 H. 8. None but the Kings Courts of Record as the Kings Bench c. Justices of Gaol-delivery c. can write to the Bishop to certifie Bastardy Mulierty loyalty of Matrimony c. for it is a rule in Law That none but the King can write to the Bishop to certifie Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bract. l. 3. 106. Jour is the day of appearance of the parties or continuance of the plea. And in all Summons upon the Original there be 15 daies after the Summons before the appearance But if the Original be returned tarde and Sommons alias goeth forth there be nine Returns between the Teste and the Return 8 H. 6. 20. 8 Eliz. Dyer 251. And before the Statute of Articuli super Chart. cap. 15. 28 E. 1. in all Summons and Attachments in plea of Lund there shall be contained the term of 15 daies But by consent other than common dayes may be taken 11 H. 6. 23 The use of the Kings Bench at this day is That if the offence be committed in another county than where the Bench sits and the Indictment be removed by Certiorari there must be 15 daies between every Process and the Return thereof c. Lib. 9. 118 Zanchers Case fo 134. b. vide c. There is dies specialis as in an Assize in the Kings Bench or Common Pleas the Attachment need not be 15 daies before the appearance F. N.B 177. cap. The day of Nisi prius and the day in bank is all one day as to pleading but not to other purposes 21 H. 6. 10. 20. vide qu. fo 135. a. Resummons or Reattachments are Writs that the Demandant or Plaintiff after he hath obtained the Letters of his Absolution may sue out to bring the Tenant or Defendant again into Court to have day to answer unto him and these Writs do lie in all cases when the plea is discontinued or put without day either in this case or in case where the Demandant or Tenant hath his age or for the non venue of the Justices or in case of a protection or Essoign de service le Roy c. Bracton lib. 5. 425. Brit. cap. 74. l. 7. 29 30. Note That in the case of Excommengement the Writ shall not abate but the plea to be put without day untill the plaintiff purchase his Letters of Absolution c. but in the other five cases sc of a Villain c. ante fo 55. a. the Writ shall abate fo 135. b. But in the case of Outlawry the writ shall abate if he obtain not his pardon 44 E. 3. 27. At this day Ideots Madmen c. may sue for the Sutes must be in their name but it shall be followed by others An Ideot shall not appear by Guardian or Prochein amy or Atturney but hee must be ever in person 33 H. 6. 18. F. N. B. 27. G. But an Infant or a minor shall sue by Prochein amy and defend by Guardian 27 H. 8. 11. 20 E. 4. 2. F. N. B. 27. H. Sect. 202 203 204. Si lenfant al age de 14 ans enter en religion est professe le gaodein nad auer remedie quant al gard le corps forsque breve de ravishment de gard enveâ—s le soveraigne del meason l'entry d'asc ' estaut de pleine age que eÌ„ heire lenfant eÌ„ congeable legardein en tiel case nad asc ' remedie pur le terre c. Manumittere idem est quod extra manum vel extra potestatem alterius ponere Every Manumission is an infranchisement but every infranchisement is not a Manumission Mirr cap. 2. Sect. 18. There be two kindes of Manumissions 1. Express when the Villain by deed in express words is manumissed and made free 2. Implyed by doing some act that maketh in judgement of Law the Villain free c. Libertinum ingratum leges civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum judicant
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
incorporeal real or personal or mixt 6. a. If a man by deed give lands to another and to his heirs without more saying this is good ut res magis valeat quam pereat if he put his seal to the deed deliver it and make livery accordingly So it is if A give lands to have and to hold to B and his heirs this is good by construction of the Law but when form and substance concur then is the deed fair and absolutely good fol. 7. a. In ancient charters c. there was never mention made of the delivery of the deed or any livery of seisin indorsed for the witnesses named in the deed were witnesses of both ib. Witnesses are very necessary for the better strengthning of deeds fol. 7. b. Haeres legitimus est quem nuptiae demonstrant and is he to whom Lands Tenemenrs and Hereditaments by the act of God right of bloud do descend of som estate of enheritance for Solus Deus facere potest haeredem non homo haeres ab haerendo nam qui haeres est haeret vel dicitur ab haerendo quia haereditas sibi haeret c. Vide libr. Partus cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter bene debet inter liberos connumerari Si inutilia nostra reddidit ut si membra tortuosa habuerit non tamen is partus monstrosus Bract. l. 5. f. 437. A denizen by the Kings Letters Patents cannot be heir c. But otherwise is it if he be naturaliz'd by Act of Parliament and if one be made denizen the issue that he hath afterwards shall be heir to him An alien cannot he heir c. Propter de sectum subjectionis Fol. 8. a. Where the Sons by no possibility can be heir to the Father the one of them shall not be heir to the other as if an alien cometh into England and hath issue c. l. 7. Calvins Case A man attainted of Treason or Felony can be heir to no man nor any man heir to him propter delictum A man hath issue two sons and after is attaint c. And one of the sons purchase Lands and dieth without issue the other brother shall be his heir for the attainder c. corrupteth the lineal bloud only not the collateral bloud between the brethren which was vested in them before the attainder But if a man after he be attainted have issue c. Autrement est In case where filiatio non potest probari the child may choose his Father A man by the common law cannot be heir to Goods or Chattels for haeres dicitur ab haereditate Haeres astrarius so called ab astre i. e. an harth of an house cum Antecessor restituat haeredi in vita sua haereditatem c. fol. 8. b. Si uxor dicit se esse praegnantem de ipso defuncto cum non sit habeat haeres brevium de ventre inspic nemo est haeres viventis apparens dicitur If a man give land unto two haeredibus omitting suis they have but an estate for life for the uncertainty 10 H. 6. 7. Pl. Com. 28. b. Ceux parolx ses heirs tantsolement font lestate denheritance en touts Feoffments and grants Here Littleton treateth of purchases by natural persons and not of bodies politique or corporate As the heir doth inherit to the ancestor so the successor doth succeed to the predecessor and the executor to the Testat An ancient grant must be expounded as the law was taken at the time of the grant 17 E. 3. 25. b. Sub vocabulis haeredibus suis omnes haeredes propinqui comprehenduntur remoti nati nascituri fo 9 a. Fleta l. 3 c. 8. The law is precise in prescribing certain words to create an estate of inheritance for avoiding of uncertainty the mother of contention and confusion Pl. Com. 163. There bee many words so appropriated as that they cannot be legally expressed by any other words c. Some to estates of lands some to tenures some to persons some to offences some to forms of Originall Writs some to warrant c. Satus dicitur à stando An estate of inheritance granted by the great Seal c. is descendible according to the cours of the common law Hereditas est duplex Corporata viz. Of Lands and Tenements which may pass by Livery by Deed or without Deed. Incorporata as Advowsons Commons c. which cannot pass by livery but by Deed. The Deed of incorporaet inheritances doth equal the livery of corporeate al I. S. habend sibi succes sive haered suis ē fee s. Si. soit per Letters Patents A conveiance by feoffment cleareth all disseisins abatements intrusions and other wrongful or defeasible estates where the entry of the feoffor is lawful which neither fine recovery nor bargain and sale by deed indented and inrolled doth Sometime when an estate of freehold only doth pass improperly it is called a feoffment Done est nosme general plus que nest feoffment car done est general à touts choses moebles nient moebles Feoffment est riens forsque del soil If a man devise lands to a man in perpepetuum or to give and to sell c. A fee simple doth pass by the intent of the devisor Fol. 9. b. A man deviseth land to one sanguini suo that is a fee simple but if it be semini suo it is an estate tail Br. tit tail 21. So that ceux parolx ses heirs tantsolement c. Extend not 1. To last Wills and Testaments 2. Not to a fine sur conusans de droit come ceo c. 3. Nor to certain releases 4. Nor to a recovery 5. Nor to a creation of Nobility by Writ But out of This rule of our Author the Law doth make divers exceptions as 1 If the Son infeoff the Father as fully as the Father infeoffed him 2. In respect of the consideration as if lands be given in frankmarriage generally 3. If a feoffment or grant be made to any corporation aggregate of many persons capable 4. In case of a sole corporation as if a feoffment in fee be made to a Bishop habendum c. In libera elemosina 5. In grants sometimes as if one coparcenor for owelty of partition grant a rent to the other generally c. Ipsae etenim leges cupiunt ut jure regantur 6. By the Forrest Law if an Assart be granted by the King to another habendū tenend sibi in perpetuū he hath a fee simple without this word heirs fol. 10. a. And this rule c. extendeth to the passing of estates of inheritances in exchanges releases or confirmations that enure by way of enlargement of estates warranty bargains and sales by Deed indented and inrolled c. In which this word heirs is also necessary for they do taptamount to a Feoffment or grant ubi eadem ratio ibi idem jus A man may purchase lands to
defectum patriae libertatis liberi tenementi Hundredorum for vicini vicinorum facta praesumuntur scire 3. Propter affectum and this is either working a principall challenge or to the favour and again a principall challenge is either by judgement of Law without any act of his as if the Juror be of bloud or kindred to either party Brit. f. 135. if the Juror have part of the Land that dependeth upon the same title Bract. fo 18 If a witnesse named in the Deed be returned of the Jury c. f. 23. Ass 11. Fo. 157. a. Vide nota Or upon his own act as if the Juror had given a verdict before for the same cause albeit it be reversed by Writ of error or if after verdict Judgement were arested So if he hath given a former verdict upon the same title or matter though between other persons 8 H. 5. 10. 18. E. 4. 12. 21. E. 4. 74. fo 157. b. Vide c. If a Juror hath been an arbitrator chosen by the plaintiff or defendant in the same cause and have been informed of or treated of the matter this is a principall challenge 9. E. 4 46. But a Commissioner chosen by one of the parties for examination of witnesses c. may upon cause he challenged so favour l. 9. fo 71. Peacocks Case Challenge concluding to the favour must be left to the conscience of the triors c. As if the Juror bee of kindred or under the distresse of him in the reversion or remainder or in whose right the Avowry or justification is made c. These be no principall challenges because he in reversions c. is not party to the Record otherwise it is if they were made parties by Aide Rescepit or voucher and yet the cause of favour is apparant so it is of all principall causes if they were party to the Record 10. E. a. 12. vide c. 4. Propter delictum as if the Juror be attainted or convicted of treason or felony c. for repellitur à sacramento infamis So it is if a man be outlawed in trespasse c. Mirror cap. 3. d' attaint Fol. 158. a. Vide c. Nota the array of the Tales shall not be challenged by any one party untill the array of the principall be tried but if the plaintiff challenge the array of the principall the defendant may challenge the array of the Tales and there the one of the principall and the other of the Tales shall try both arrayes after one hath taken a challenge to the Poll hee cannot challenge the array 9. E. 4. 27. 9. H. 5. 11. If a pannell upon a ven fac be returned and a Tales and the array of the principall is challenged the Triors which try and quash the array shall not try the Array of the Tales for now it is as if there had beene no appearance of the principall pannel but if the riors affirm the array of the principall then they shall try the array of the Tales 9 E. 4. 46. 7. E. 6. Dyer 78. When any challenge is made to the Polls two triors shall be appointed by the Court and if they try one indifferent and he be sworne then hee and the two triors shall try another and if another bee tried indifferent and he be sworne then the two triors cease and the two that be sworne in the Jury shall try the rest 22. E. 4. Chal. 61. 62. If the plaintiffe challenge ten and the defendant one and the twelfth is sworne because one cannot try alone there shall be added unto him one challenged by the plaintiffe and the other by the defendant 7. H. 4. 41. If the cause of challenge touch the dishonour or discredit of the Juror he shall not be examined upon his oath but in other cases he shall be examined upon his oath to informe the triors 49. E. 3. 1. 2. Fems ne serfs ne enfans ne nul infamys ne nul que neÌ„ fise tenant ne poet estr bone summonere Brit. ca. 121. Vide libr. Fo. 158. b. Of an Ass of no disseim Vide l. 8. f. 45. Iehu Webbs case Whensoever a Statute giveth a forfeiture or penalty against him which wrongfully detaineth or dispossesseth another of his duty or interest in that case he that hath the wrong shall have the forfeiture c. and not the King P. 29. Eliz. between the Queen and Wood and so it was adjudged c. M 4. Ia. Re. and note that the Act of Parliament doâ—h give a temporall remedy at the Common Law to Parsons c. for an ecclesiasticall duty and to lay men proprietaries of tithes the like remedy but they have election either to sue for the treble value at the Common Law or for the double value in the Ecclesiasticall Court or for substraction of tithes there also Vide nota 159. a. c. 2. E. 6. ca. 13. Donee treble value al party grieve p. praediall dismes detaine per tort c. Sect. 235. 236. Payment of any money or of any valuable thing in the name of seisin of a rent seck before any rent become due is a good seisin of the rent to have an Ass of no disseis when it is due and that which is given in the name of seis c. worketh his effect to give seisin and yet it is no part of the rent nor shall be abated out of the rent S. 565. The grant and delivery of the Deede and atturnement is no seisin of the rent and a seisin in Law which the grantee hath by the grant is not sufficient to maintaine an Ass or any other reall action but there must bee an actuall seisin Fo. 160. a. Also of a rent seck and so it is of a rent charge home poit aver ass de mortd ou Bre. de Ayel ou de Cosinag touts auters manners dactions reals come la case gift sicome i poet auÌ„ daesc ' auter rent Hereupon some have gathered that a man shall have a Writ of right of a rent seck or of a rent charge albeit they be against common right F. N. B. 6. 14. E. 4 5. Sect. 237. Sont 3. causes de disseisine de rent service sc rescous replevin inclosure car per tiels choses le Seignior eÌ„ disturbe de le meane per que il doit auÌ„ vener a son rent sc de le distresse But you may make six disseisins of a rent service Rescous of a distresse resistance to distrein Repl. inclos counter pleading of the title and vouching of a Record and sailing Fo. 160. b. In some cases the Tenant may make Rescous c. 1. if no rent be behind when the distress is taken 2. If the Tenant tender the rent to the Lord when he is to take the distresse and yet the Lord will distreine c. 3. If the rent be behind and the Lord destreine the Cattell of the Tenant in the high way within his Fee 4. If the
Condition is performed and the Feoffee doth receive no damage c. fol. 205. b. The Executor or Administrator of the Mortgagor or in default of them the Ordinary may also tender Sect. 337. If the Condition annexed to lands be possible at the making of the Condition and become impossible by the act of God yet the state of the Feoffee c. shall not be avoided Pl. Com. 456. Wrothes Case 14 Hen. 7. 3. 15 Hen. 7. 1. 14 Ed. 4. 3. But where a Condition of a Bond Recognizance c. is possible at the making of the Condition and becomes impossible by the act of God or of the Law or of the Obligee c. there the Obligation c. is saved and the reason of the diversity because the state of the land is executed and setled in the Feoffee and cannot be redeemed back again but by matter subsequent viz. the performance of the Condition But the Bond c. is a thing in action and executory whereof no advantage can be taken untill there be a default in the Obligor 15 H. 7. 18. 9 Eliz. 262. Dyer lib. 5. 22. Laughters Case 38 H. 6. 2. Brit. c. 36. fol. 89 99 114 130. But if the condition of a Bond c. be impossible at the time of the making of the condition the Obligation c. is single And so it is of a Feoffment in fee with a condition subsequent that is impossible the state of the Feoffee is absolute but if the condition precedent be impossible no state or interest shall grow thereupon 14 Hen. 8. 28. 10 Hen. 7. 22. 5 Eliz. Dyer 222. Pl. Com. 22. 272. Fullers Case fol. 206. b. If A. be bound to B. that J. S. shall marry J. G. before such a day and before the day B. marry with Jane he shall never take advantage of the Bond for that he himself is the mean that the condition could not be performed 4 H. 7. 4. 30 H. 8. Dyer 42. The Law distinguisheth between a Condition against law for the doing of any act that is malum in se and a Condition against law that is either repugnant to the State or against some Maxime or Rule in Law As 1. If a man be bound upon Condition That he shall kill J.S. the estate is absolute and the Condition void 4 H. 7. 4. But if a man make a Feoffment in fee upon Condition that the Feoffee shall kill J.S. the estate is absolute and the Condition void Pl. Com. 133. Brownings Case 2. If a man make a Feoffment c. that he shall not alien or that the Feoffee shall not take the profits c. this Condition is repugnant and against Law and the state of the Feoffee is absolute But if the Feoffee be bound c. that he or his heirs shall not alien this is good for he notwithstanding alien if he will forfeit his Bond c. 20 Ed. 4. 8. 21 Hen. 7. 11. 30. 27 Hen. 8. Albeit a convenient time before Sun-set be the last time given to the Feoffor to tender yet if he tender it to the person of the Mortgagee at any time of the payment and he refuseth it the Condition is saved for that time vide S. 325. Guardian in Socage may render in the name of the heir because he hath an interest c. vide S. 401. Hill 28 Eliz. in Banco Reg. inter Walkins If the Mortgagee accept of a strangers tender in the name of the Mortgager c. this is good c. Omnis ratihabitio retro trahitur mandato aequiparatur 36 Hen. 6. tit Barre 166. Sect. 335. The Obligor tenders the money at the day c. and the Obligee refuseth the same yet in an action of Debt upon the Obligation if the Defendant plead the tender c. he must also plead that he is yet ready to pay the money and tender the same in Court But if the Plaintiff will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever 22 Hen. 6. 39 lib. 9. fol. 79. H. Peytoes Case And the reason wherefore the money is not lost by the tender and refusall is not only for that it is a duty and parcell of the Obligation but also for that the Obligee hath remedy by Law for the same Liberata pecunia non liberat offerentem 8 E. 2. tit Assize Ass 389. When the Condition is collaterall to the Obligation a tender and refusall is a perpetuall barre 7 Hen. 4. 18. 5 Mar. Dyer 150. 21 E. 4. 25. 31 Ass 25. Pl. Com. fol. 6. Obligor makes a lease and a release to the Obligee and his heirs this amounts in law to a feoffment and albeit this be a collaterall Condition yet it is well performed Cuna dicitur à cudendo of Coining c. In French Coin signifieth a Corner Some say that Coine dicitur à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Communis quod sit omnibus rebus communis Moneta dicitur à monendo not onely because he that hath it is to be warned providently to use it but also because Nota illa de authore valore admonet lib. 5. fol. 114. Wades Case lib. 9. fol. 78. Pecunia dicitur à pecu Omnes en veterum divitia in animalibus consistebant Arist l. 5. c. 8. Nummus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia lege fit non natura 9 Hen. 5. Stat. 2. cap. 7. Sect. 336 337. Note he that hath interest in the Condition on the one side or in the land on the other may tender fol. 207. b. vide Sect. 334. Auxi en case de Mortgage si nul jour de payment soit limit le feoffor mor. c. donques le temps de le tender est pas Note divers diversities * 1. Between a Feoffment in fee with Condition for the payment of a summe of money where no time is limited and the Condition of a Bond c. 21 E. 4. 38. b. 2. Between a Condition of an Obligation which concerns the doing of a transitory act without limitation of any time as payment of money delivery of Charters c. for there the condition is to be performed presently i.e. in convenient time and when by the condition of the Obligation the act is locall for there the Obligor hath time during his life to perform it as to make a feoffment c. if the Obligee doth not hasten the same by request 3. In case where the Condition is locall when the concurrence of the Obligor and the Obligee is requisite as in the said case of the Feoffment and when the Obligor may perform it in the absence of the Obligee as to acknowledge satisfaction in the Court of Kings Bench for there he must doe it in convenient time 4. Where the Condition concerneth a transitory or locall act and is to be performed to the Feoffee or Obligee and where it is to be performed to a stranger As if
upon condition c. and dye his executors or administrators shall enter for the condition broken for they are privy in right and represent the person of the dead Vide 21 H. 7. 18. a. fo 214. b. c. If cesty que use had made a Lease for yeares c. upon condition the Feoffes should not enter for the condition broken for they are privy in estate but not privy in bloud 27 H. 8. 1. 4. Diversity is in case of a Lease for years where the condition is that the Lease shall cease or be void and where the condition is that the lessor shall reenter for there the grantee as Littleton saith shall never take benefit of the condition And note that where the estate or Lease is ipso facto void by the condition or limitation no acceptance of the rent after can make it to have a continuance otherwise it is of an estate or Lease voidable by entry Pl. 136. Brownings case 5. Diversity between condition in Deed and condition in Law As if a man make a Lease for life there is a condition in Law annexed unto it that if the lessee doth make a greater estate c. that then the lessor may enter of this and the like condition in law which doe give an entry to the Lessor the lessor himselfe and his heires shall not only take benefit of it but also his Assignee and the Lord by escheat every one for the condition in law broken in their own time 6. Diversity is between the judgement of the common Law and the Law at this day by force of the Statute of 32. H. 8. ca. 34. for by the Common Law no grantee or Assignee of a reversion could take advantage of a re-entry by force of a condition But now by the said Statute it is otherwise By which act it is provided that as well every person which shall have any grant of the King of any reversion c. of any Lands c. which pertained to Monasteries c. as also all other persons being Grantees or Assignees c. to or by any other person or persons and their heires executors successors and Assignees shall have like advantage against the Lessees c. by entry for non-payment of the rent or for doing of waste or other forfeiture c. as the said lessors or grantors themselves ought or might have had 26 H. 6. tit entreconge 49. Upon this act divers judgments c. have been given which are necessary to be known 1. That the said Statute is generall that the grantee of the reversion of every common person as well as of the King shall take advantage of condition Pl. 175. 76. Hill and Granges case M. 10. and 11 Eliz. 180. Dyer 2. That the Statute doth extend to grants made by the successors of the King albeit the King be only named in the Act. 3. That where the Statute speaketh of Lessees that the same doth not extend to gifts in Taile 14. El. Dyer 309. Winters case 4. That where the Statute speakes of Grantees and Assignees of the reversion that an Assignee of part of the estate of the reversion may take advantage of the condition As if Lessees for life be c. and the reversion is granted for life c. So if Lessee for years be c. and the reversion c. the grantee for years shall take benefit of the condition in respect of this word execution in the Act. Pl. 69. Kidwellies case 7 E. 3. 54. and Vide Dyer 309. 5. That a grantee of part of the reversion shall not take advantage c. As if the Lease be of three Acres reserving a rens upon condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is entire and against common right lib. 5. fol. 54. Knights Case Winters Case c. 6. That in the Kings case the condition c. is not destroyed c. 7. By act in Law a condition may be apportioned in the case of a common person as if a Lease for years be made of two acres one Burrough English and the other at the common law and the lessor having issue two sons dieth each of them shall enter for the condition broken and likewise a condition shall be apportioned by the act and wrong of the Lessee as in the Chap. of Rents l. 4. f. 120. Dumpers Case 8. If a Lease for life be made reserving a rent upon condition c. the Lessor levies a fine of the reversion he is Grantee or Assignee of the reversion but without atturnment he shall not take advantage of the condition P. 20. El. in Com. Ba. Dukes Case lib. 5. 112. b. Mallories Case 9. Diversity between a condition that is compulsory and a power of a revocation that is voluntary for a man that hath a power of revocation may by his own act extinguish his power c. in part as by levying of a Fine of part and yet the power shall remain for the residue because it is in nature of a limitation and not of a condition P. 39. El. and 40 41 H. Earl of Salisburies case in Court of Wards 14 El. Dy. 39. 10. If the Lessor bargain and sell the reversion by Deed indenture and inroll the Bargainee is not in the Per by the Bargainor and yet he is an Assignee within the Statute So if the Lessor grant the reversion in Fee to the use of A. and his heirs A. is a sufficient Assignee c. because he comes in by the act and limitation of the party albeit he is in the Post and the words of the Statute be To or By and they be Assignee to him although they be not by him but such as come in meerly by act in Law as the Lord of the villain the Lord by Escheat c. shall not take benefit of this Statute 11. If the Lessor bargain and sell the reversion c. Or make a Feoffment in Fee and the Lessee reenter the grantee or Feoffee shall not take advantage c. Without making notice to the Lessee l. 8. f. 92. Frances Case And 12. albeit the whole words of the Statute be for non-payment of the rent or for doing of wast c. yet the Grantees and Assignee shall not take benefit of every forfeiture c. but onely of such conditions as either are incident to the reversion as rent or for the benefit of the State as for not doing of wast for keeping the houses in repair for making of fences scouring of ditches for preserving of woods c. and not for payment of any summe in grosse delivery of corn wood c. So as other forfeiture shall be taken for other forfeitures like to those examples which were there put viz. of payment of rent and not doing of wast which are for the benefit of the reversion Dyer 309. Sect. 348 349. Seign Tenant le tenant
condic ' suam deter ' nequaquam Brit. f. 143. As a Parson Vicar Archdeacon Prebend Chantry Priest c. may have an action of Waste and in the Writ it shall be said Ad exhaereditationem ecclesiae c ipsius B. or Praehendae ipsius A. F N B 55. d. 57 E. 2. 10 H. 7. 5. And the Parson c. that maketh a lease for life shall have a Consimili casu during the life of the lessee and a Writ of Entry ad Com. legem after his death or a Writ ad terminum qui praeteriit or a quod permittat in the debet and none can maintain any of these Writs but a Tenant in fee simple or fee tail F N B l. m. n. 20 H. 3. Jur. utr Temps E. 3. Jur. utr 141. 14 E. 3. ibid. 4. F N B. 50. 30 E. 3. 26. 21 E. 3. 11. Entry 10. F N B 206. fol. Reg. 237. 4 E. 4. 2. 8 E. 3. Entry 3. 7 E. 3. 54 55. And a Parson c. may receive Homage which Tenant for life cannot do Temps E. 1. Encumbent 19. Item a Parson e. shall have a Writ of Mesne and a Contra formam feoffmenti F N B. 49. l. 50. a. fo 341. b. But a parson cannot make a discontinuance for that should be to the prejudice of his successor to take away his entry and to drive him to a reall action Also if a parson c. make a Lease for years reserving a rent and dyeth the Lease is determined by his death as if Tenant for life had made a Lease no acceptance of the rent by the successor can make it good Also in a reall action a Parson Vicar Archdeacon c. shall have aid of the Parron and ordinary as Tenant for life shall have 20 E. 3. aid 30. 25 E. 3. 54. 8 E. 3. 45. 8 H. 6. 24. 11 H. 6. 9 6 E. 3. 45. 43. Ass p. 13. F.N.B. 129. So as it is evident that to many purposes a parson hath but in effect an Estate for life and to many a qualified fee simple but the entire fee and right is not in him and that is the reason that he cannot discontinue the fee simple that he hath not nor ever had for as it hath been said Omnis privatio presupponit habitum and for the same cause he cannot have a writ of right nor a writ of right in his nature as a writ of right for disclaimer of customes and services ne injustè vexes rationalibus divisis quo jure c. But here it appeareth by Littleton that such bodies politick or corporate as have a sole seisin and may have a writ of right for that the fee and right is in them albeit they cannot absolutely convey away their Lands c. without assent of others may make a discontinuance as a Bishop an Abbot a Dean a Master of an Hospital c. But this is to be understood where a Dean c. are solely seised of distinct possessions for if the body that is seised be aggregate of many as the Dean and Chapter Master and confrates c. then the Feoffment of the Dean or Master is so far from a discontinuance as it is a disseisin But at this day the Bishop Dean Master of an Hospital c. that have the fee and right in them cannot discontinue neither can they or any Parson Vicar Arch-Deacon Prebendary or any other having any Ecclesiastical living with assent of Dean and Chapter Patron and Ordinary or the consent of any others make any Lease gift granr or Conveyance Estate Charge or Incumbrance to binde his successors or others then for term of 21 years or three lives in possession whereupon the accustomed rent or more shall be reserved Vide S. 528. 593. c. 1 El. c. 18. 13 El. c. 10. 1 Ja. c. 3. l. 2. fol. 46. l. 4. fol. 76. 20 El. 5. fo 9. 14. l. 6. fo 37. l. 7. fo 8. l. 11. fo 67. 27 H. 8. 31 H. 8. 32 H. 8. 37 H. 8. 1 E. 6. c. These points concerning Hospitals were resolved by the Justices P. 24. Eliz. The Cheneys case l. 2. fo 48 49. Evesque de Cant. case First That no Hospital was given to the Crown by the Statute of 27 H. 8. nor any Hospital is within the Statute of 31 H. 8. of Monasteries but only Religious and Ecclesiastical Hospitals and that no Lay Hospital was within those Statutes 2. If upon the Foundation of any Hospital or after it was ordained That one or divers Priests should be maintained within the Hospital to celebrate Divine Service to the poor and to pray for the Soul of the Founder and all Christian Souls or the like and that the poor of such Hotals should make the like Orisons yet such an Hospitall is not within the said Statute for the Hospital is Lay and not Religious and all or the most part of ancient Lay Hospitals were founded or ordained after the like sort and the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse 3. That no Hospital was given to the King by the Statute of 37 H. 8. but in two cases where the Donors Founders or Patrons c. had entred and expulsed the Priests Wardens c. between the 4. of Febr. 27 H. 8. and the 25. of Decemb. 37 H. 8. or where King H. 8. by Commission according to that Act should enter and seise the same but that determined by the death of that King l. 1. f. 24. Porters Case 4. That the Statute of 1 E. 6. extended not to any Hospital whatsoever either Lay or Religious as by the same appeareth l. 4. 111 113 114 116. in Lamberts case Nota of Hospitals some are Corporations aggregate of many as of Master or Warden c. and his Confratres some where the Master or Warden hath only the estate of Inheritance in him and the Brethren and Sisters power to consent having College and Common Seal some where the Master or Warden hath the estate in him but hath no College and Common Seal and such a Master or Warden shall have a Juris utrum and of these Hospitals some be Eligible some Donative and some Presentative 14 E. 3. Juris utrum 4. Sect. 646 647. Fol. 342. b. If Tenant pur terme dauter vie dyeth the Freehold is said to be in Abeyance until the occupant enter If a man make a lease for life the remainder to the right heirs of I. S. the fee simple is an Abeyance untill I.S. dyeth Vide Sect. 1. Virg. 4. Aen. Insequiturque solo caput inter â—ubile condit Also when a Parson dyeth we say That the Freehold of the Gleab c. is in consideratione sive intelligentia legâ— because a suceessor is in expectation to take it 24 E. 3. 63. So it is of a Bishop Abbot Dean Archdeacon Prebend Vicar and of every other sole Corporation or Body Politick Presentative Elective or Donative
wrote A lineal Warranty and Assets was a barre to the estate Tail when Littleton wrote 26 H. 8. c. 13. 33 H. 8. c. 20. 5 E. 6. c. 11. St. pl. Cor. 18. A Common Recovery with a voucher over and a Judgement to recover in value was a barre of the estate Tail when Littleton wrote 12 E 4. 19. Taltarums Case And of Common Recoveries there be two sorts viz. one with a single Voucher and another with a double Voucher and that is more common and more safe there may be more Vouchers over Vid. Sect. 690. vide l. 3. f. 5. Cuppledicks case and fo 94 97 106. vide post ** If the King had made a gift in Tail and the donee had suffered a Common Recovery this should have barred the estate Tail in Littletons time but not the reversion or remainder in the King And so if such a donee had levied a Fine with proclamation after the Statute of 4 H. 7. this had barred the estate Tail although the reversion was in the King 38 H. 8. Tail Br. 41. Pl. Com. fo 555. 29 H. 8. Dyer 52 ** Com. Recoveries c. Vide l. 1. f. 62. Capels case l. 2. f. 16. 52 74 77. l. 6. f 41 32. l. 10. f. 37. Mary Portingtons case But since Littleton wrote a Common Recovery had against Tenant in Tail of the Kings gift c. is no barre c. by the Statute of 34 H. 8. c. 20. And where the words of the Statute be Whereof the reversion or remainder at the time of such recovery had shall be in the King these ten things are to be observed upon the construction of that Act. 1. That the estate Tail must be created by a King and not by any Subject 2. The King must have the reversion at the time of the Recovery 3. The reversion or remainder cannot be barred but where the estate Tail in possession is barred l. 8. f. 77 78. Seignieur Staffords case 4. If a Subject make a gift in Tail the remainder to the King in fee the estate Tail may be barred by a Common Recovery causa patet l. 2. f. 52. Cholâ—leys case 5 So it is if the King had the remainder by discent 6. The word Reversion in the body of the Act hath reference to these words given or granted and Remainder hath reference to these words otherwise provided As if the King in consideration of money or of Assurance of Land or for other considerations by way of provision procure a Subject by Deed indented and inrolled to make a gift in Tail to one of his Servants and Subjects for recompence of service or other consideration the remainder to the King in fee and all this appear of Record this is a good provision within the Statute and the Tenant in Tail cannot by a Common Recovery barre the estate Tail So it is if the remainder be limited to the King in Tail bus if he be limited for years or for life it is otherwise Lib. 2. fol. 16. Wisemans case 7. Where a Common Recovery cannot barre the estate Tail by force of the said Statute there a Fine levied in Fee in Tail for lives for years with proclamation according to the Statute shall not barre the estate Tail or the issue in Tail where the reversion or remainder is in the King by reason of these words in the said act The said Recovery or any other thing or things hereafter to be had done or suffered by or against any such Tenant in Tail to the contrary notwithstanding which words include a Fine levied by such a donee and restraineth the same P. 31. Eliz. Rot. 1645. Notleys case B. C. 8. But where a Common Recovery shall barre the estate Tail notwithstanding that Statute there a Fine with proclamation shall barre the same also 9. Where the said latter words of the Statute be Had done or suffered by or against any such Tenant in Tail the sense and construction is where Tenant in Tail is party or privy to the Act be it by doing or suffering that which should work the barre and not by meer permission he being a stranger to the Act. 10. Albeit the Preamble of the Statute extends onely to gifts in Tail made by the Kings of England before the Act viz. hath given and granted c. and the body of the Act referreth to the Preamble viz. that no such fained Recovery hereafter to be had against such Tenant in Tail so as this word such may seem to couple the body and the Preamble together yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth That the makers of the Act intended to extend it to future gifts and so is the Law taken at this day A Recovery in a Writ of Right against Tenant in Tail without a Voucher is no barre of any gift in Tail If Tenant in Tail the remainder over in fee cesse and the Lord recover in a Cessavit this shall not barre the estate Tail for the issue shall recover in a Formedon neither were either of these barres when Littleton wrote 33. E. 3. Judgement 252. 3 H 6. 55. 10 H. 6. 5. 14 E. 4. 5. b. 15 E. 4. 8. F.N.B. 134. b. Pl. Com. 237. 28 E. 3. 95. F.N.B. 28. I. Sect. 702. Fol. 373. b. Nemo praesumitur alienam posteritatem suae praetulisse If a man that is innocent be accused of Felony and it be found that he fled for the Felony he shall forfeit all his goods and chattels debts and duties 3 E. 3. Corone Staf. But yet the general Rule is Quod stabitur praesumptioni donec probetur in contrarium Bract. l. 1. c. 9. It hath been attempted in Parliament that a Statute might be made That no man should be barred by a Warranty collateral but where assets descended from the same Ancestor but it never took effect for that it should weaken common assurances Rot. Parliament 50 E. 3. num 77. Sect. 710 711 712. If husband and wife tenants in especial Tail have issue a daughter and the wife dye the husband by a second wife hath issue another daughter and discontinueth in fee and dyeth a collateral Ancestor of the daughters releaseth to the discontinuee with Warranty and dyeth the Warranty descendeth upon both daughters yet the issue in Tail shall be barred of the whole for in judgement of Law the entire Warranty descendeth upon both of them 5 E. 2. garr 78. l. 8. fo 41. Sims case Here note That when one Coparcener doth generally enter into the whole this doth not devest the estate which descended by Law to the other unlesse she that doth enter claimeth the whole and taketh the profits of the whole Vide Sect. 398. Otherwise it is after the parceners be actually seised the taking of the whole profits or any claim made by the one cannot put the other out of possession without an actual putting out of disseisin And