Marriage that she shall not refuse 9. H. 6.9 Recitall of an Indenture of defeasans concludes the party to deny the Deed. By the Counsell of the Plaintiffe the Act of Parliament cannot enure as a Confirmation of an Attainder and as a new Attainder also for then a man shall be twice convict of one Crime which shall be superfluous yet 1. H. 5.5 One attainted of Fellony may be arraigned of Treason because it is a higher offence and shall forfeit Lands of whomsoever holden if the Treason is committed before the Fellony but where offences are equall he shall not be twice attainted for one Deed shall not be a Confirmation and Grant of one same thing As the King recites by his Letters Patents that he hath made J. a Denison or hath manumissed him being his villain and confirm it and besides grants that he shall be a Denison or Free all this is but a confirmation because the Kings Patents shall not enure to two intents and therefore cannot plead the second Patent for his Legitimation or Manumission But the first Patent so 9. H. 7.2 before fol. 156. and 7. H. 7.14 The King grants Land by his Letters Patents and reciting them confirmes the Estate of the Patentee by the second Letters Patents by authority of Parliament and saith further that he gives and grants the same Land to the Patentee he shall plead the second by way of Confirmation because the Land pass by the first Patent not by the second if he doth not shew that the Land came again to the Kings hands after the first Patent But if the King grants Pasture for two Oxen in his Land and by the second Patent reciting his first Grant confirmes it and moreover giveth and granteth Pasture for two Oxen to the first Grantee there it shall enure as a Grant and confirmation also And the Grantee shall have Pasture for foure Oxen because they are severall things which are mentioned in the Confirmation and in the Grant And in the other Cases before it is one same thing mentioned in both and not severall Also the Statute recites none but persons therere cited to be attainted but the Plaintiffe was not attainted before for the reasons aforesaid therefore he is not attainted by the Statute as the King recites by name that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll c. that will take the benefit of it they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also and the Defendant will plead this so then his plea shall be double because he hath pleaded an attainder by the Common Law and also by the Statute But here it is not double because it is not a new attainder but a Confirmation And because he cannot plead the Confirmation without the thing that was Confirmed Also the Recitall and Confirmation by the Statute is not taken but pro ut And also the recitall being false shall be intended to be upon Information And therefore an averment lies against this recitall So a License to alien Lands holden of the King ut dicitur there he which hath the Lisence is not Estopped to say that it is holden of another then the King because the Tenure in Capite is not precisely affirmed but ut dicitur which taketh away all absolute affirmance 29. Ass 38. Also the Statute refers to an Attainder had before And so to a thing which is not inreâ— veritate for the cause aforesaid and therefore shall be void but if the things was before and wanteth force and effect then this shall be made good by the Statute and there the Act is good and hath power as to the thing 29. E. 3. 24. Grants Fitzh 100. The King reciting an Attainder by Parliament of one Mattravers by his Charter of Pardon reverseth the same and restores him and after this all is recited in another Parliament and Confirmed by the same Parliament and good for the Cause aforesaid So 38. H. 6.33 Parliament confirmes the first Letters Patents this enures according to the Effect and Purport of the first grant and shall not take away the Condition if any such be the King gives Land to J. S. the Parliament Confirmes it s a good grant And so when the Parliament Confirmes a thing which is defective it shall give power to it if it be Confirmed as here the Act shall be void to all purposes as 5. E. 4.40 and 41. If one Village hath Customes which is against the Law and Reason and no others and the Parliament Confirmes their Customes it is void because they had not Customes for things used meerly against the Law and Reason are not Customes notwithstanding such usage And if the branch of one Act recites another Act be it in the Commencement or Continuance it is void as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it this Statute excepts imbâ—sselling of goods by servants made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February and continuing untill the 24. of Aprill whereas it finished the fourteenth of Aprill and so Statutes which misrecite things and are referred to them should be void and conclude no man And so here the Statute which recites that the Plaintiffe was attainted and confirmes it whereas indeed he was not attainted shall be void Coles Case IF one gives to another a mortall wound 13. Eli. whereof he languish the 12. of February and the Queen by a generall Pardon by Parliament Pardon all misdemeanors c. the 20. day of February and after the party dies Now this murther is Pardoned Adjudged for that the wound was a Misdemeanor and the cause of death and then by consequence all that which ensueth the Cause is also pardoned The end of the first Book Newis and his Wife against Larke and others A Man devise his Lands to his eldest Son in tayle M. 13. 14. El. in the Common Pleas. Remainder to his youngest Son in tayle the Remainder to the heires of his body the Remainder over in Fee and moreover his Will was that if any of his entaylees do wrong vex or molest any other of them for the sayd Lands or should Mortgage bargaine and sell c. the sayd Lands or otherwise incumber it other then to Lease it to them that from thenceforth every such person and his heires that shal so doe shall be excluded and dismissed touching the said intaile and that the conveyance of the intaile of the said Lands against him or them shall be of no force But that it shall descend and come to the party next in tayl to him as if such disorderous person had never bin mentioned in the sayd Testament And after the eldest Son levies a Fine and after he and the youngest Brother suffer a common Recovery and their Sister enter and by
day of the entry for a Bar good to a Common intent is not good because parcel of the Substance is left out and because Durante termino is for all the Term for that the time which is parcel of the Substance of the Bar ought to be shewed as the Obligee infeoffees fee another before M. he must shew in certain what day he did infeoff him So 3. H. 7.3 the Lord which Leaseth within the year entred for Mortmain for otherwise it shall not be intended for to enter within the year if he doth not set it forth but the Bar is good where such things are limited because that by special and not by general intendment they are omitted as a Feoffment in Bar is good to a Common intent yet it may be That the Feoffor was within age or in prison but such special things shall not be intended by the Law but shall be shewed As to the matter there are principally two things upon which Arguments may be made viz. Maxims and Reasons the Mother of all Laws and the Maxims are the Foundations of the Law and Conclusions of Reason and therefore are holden as firm Principles and Authorities of themselves One is a Remainder shal not be limitted except it be to a person capable at the time as to a Monk profest which afterwards is deraigned after this the Tenant for life dies the Lessee for life shal not have the remainder because he was not a person able at the time of the remainder limited to take it so a remainder to him That the particular Tenants shall name and after he nameth one yet the Remainder is void for the cause aforesaid But 32. H. 6. if the remainder is limited to the right Heirs of Jo. S. who is living and he die before the particular Tenant is good because I. S. shall be intended then dead also because by all presumption and intendment of Law I. S. may have an Heir which the Law will appoint in despight and so will be certain and therefore the Remainder good but shall not be good where it stands indifferent if he to whom the Remainder is limited will be a person able or not Another Maxim is That a Remainder may pass out of the Lessor at the time of the Livery for that Richel saith in Litl 162. the Remainder is void for this cause amongst others so here it passeth not by the first Livery because a Condition precedes the Commencement of the Remainder viz. if W. die living the Husband and Wife then the remainder to the Defendant and so passeth not at the first Livery and therefore void Brook Serjeant to the contrary As to the uncertainty of the time of the Entry the Bar shall be intended the better for the Defendant which is That he entred immediately and the Bar sufficeth which is good to a Common intent And therefore about 20. E. 3. it is holden That if one plead in Bar That one I. S. died seised and R. S. entred as Son and Heir to him whose Estate he hath this shall make the Bar good and yet it may be that he was not Heir for it is not expresly said That he is Son and Heir but that he Entred as Son and Heir and yet in as much as it is pleaded by way of Bar the best shall be intended for the Defendant so here And he argued besides much in effect as Cook did Sanders Serjeant for the Defendant The Bar is good to a Common intent and the best shall be intended for him which pleads it for a Plea in Bar is alwaies made for two causes The one to enforce the Plaintiff to make his replication The other is to compel him to joyn Issue which cannot be joyned upon the replication as it may upon the Bar and then the certainty shall be in it and not of necessity in the Bar and therefore the Bar good if it be good to a Common intent As in Assise the Tenant pleads in Bar a discent to the Plaintiff and to two others and that he hath the state of one and it is a good Plea because it is intended lawfully yet he may have it by Disseisen and then he is a Disseisor to the Plaintiff also for he cannot be a Disseisor to one except he be so to the other So 27. ass 31. in an Assise by the Heir the Tenant saith That the Father of the Plaintiff being Tenant by the courtesie and now in life Leased his Estate to his Father which died and he is in as Son and Heir Judgement if Assise and held a good Bar yet he doth not say That he was the first which entred and yet good So 21. H. 6. 17. here fol. 26. as to the Remainder it shall be good because it is a principle that it shall be taken most strongly against him which made it and therefore in 31. H. 8. If a man gives to a man and to Heirs without his it is Fee yet he giveth not Fee expresly So 18. E. 3. 28. after 170. A good Remainder by word That after the Decease of Tenant for Life the Lands shall return to A. and B. in Fee So a Remainder to the right Heirs of I. S. in Life passeth presently and shall be in abeyance rather than void and that if shall be to the benefit of the Lessee against his own Livery and limitation as alwaies the Law interprets words strongest against the Speakers as in 40. E. 3. 5. 49. E. 3. 1. A Termor counts that he left this as good as he found it and the Wind blew down the House it is not waste but Covenant lies for the special Agreement alters the Law and maketh his words to be taken more strongly against him So the Law taketh the Acts aforesaid strongly against the Makers And therefore if I. give to B. Land upon Condition That if he Marry my Daughter he shall have Fee if he Marries her he shall have Fee for by the Livery it taketh Commencement and by the performance of the Condition it taketh perfection and in the mean time it is ambiguous So a Lease for years upon Condition That one moneth after he shall have Fee he shall have it after the moneth accordingly for the thing passes according to the Covenant most strong against the Donor So a Lease to two upon Condition That if the one die within seven years that then after the death of the other it shall remain to a stranger good and Privies and strangers are all one 24. and 32. he differs because he hath an Estate first given to which the Condition may be annexed and Livery and by imitation shall be taken strongest against him which makes it Three things one shall have by Remainder First he shall have a Remainder to vest Secondly a Possession in Law and Thirdly a Possession in Deed if he be capable at the time of the Possession in Law cast upon him it sufficeth 28. against it as 17. E. 3. 29. and
18. E. 3. 15. a gift to one and his first begotten Son and he hath no Son then but afterwards he hath is a good Remainder to his Son So 39. Assise Pla. 20. a gift to Husband and Wife and to one Heir of his body is a good Remainder yet no Heir to the gift if he be in being when the Possession in Law is cast upon him but a Remainder limited upon contrariety is not good fol. 24. according but the other cause that Litl assigns for that it vests not at the time of the Livery is no cause as is proved by the cases aforesaid because after the Alienation and gift it may not remain to another And the other cause that Litl alleadgeth is because it vests not at the time of Livery which is no cause So a gift to A. and his Heirs so long as B. shall have heirs of his body Remainder to C. in Fee is void for the contrariety because a Remainder cannot depend upon a Fee determinable So a Lease for life to A. upon Condition That if B. pay 20. l. to the Lessor that then immediately it shall remain to B. is void for the contrariety because A. ought to have it during his life But if it were to remain after the death of A. to B. then it were good because no contrariety there and here if W. dies living the Husband and Wife that then it shall remain to to the Defendant is not intendable immediately in their lives but that it should remain as it ought to remain viz. after their deaths and so there is no contrariety and therefore good As to the Condition which is subsequent if he would dwell there c. because it hath two intendments the one that he should inhabite there all the Term and the other to some time during his life shall be taken strictly and the more strongly against the Lessor viz. That he inhabites there at some times during his life which sufficeth as the Feoffee upon Condition for to pay 10. l. to the Feoffor and no time is limited he hath during his life So to serve him in such an Office and saith not how long he hath during his life Harris Serjeant to the same purpose And as to the Exceptions he said That a Condition subsequent and which goeth in the Defeasance of the Estate as here he that claims the Estate shall not shew it but the other which will defeat the Estate But where the Condition precedes the state he shall shew who shall have it because enabled thereunto as if I grant a Rent Charge upon Condition That he shall do such an Act there the Grantee shall avow for the rent without shewing the thing done because it is a condition subsequent and defeats his Estate But if I grant That if he doth such a thing that then he shall have the rent he shall not avow without performance shewed because he is enabled by this to the rent 14. H. 8. Wheeler Grants his Term to one upon Condition That he shall obtain the good will of the Lessor and then shall have it he shall not have it until he hath shewed the performance of the Condition and he affirms the remainder upon Condition to be good Hales Justice If he would c. is a Condition and that the Plea is insufficient because the Defendant hath not averred his continual residence after the Remainder happened for during the Term shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term 27. H. 8. 19. by Audley so the Feoffees shall be intended all the Feoffees and if he hath a reasonable excuse he ought to shew it fo 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife and entred so soon as he had notice which he shall shew in certain that the Justice may trie it as 22. E. 4. 27. Tenant for Life Leases for years and dies The Lessor bringeth Trespass against the Lessee who saith That in as short time as he could after that he had notice of the death of the Tenant for Life he chased his beasts forth of the land and said also that the Trespass was between the death of the Tenant for Life and the chasing out of the beasts and held no plea for by the death of Tenant for Life the Lease for years was determined and no man bound to give him notice and there it is holden that he ought to say That such a day he chased out the beasts and might shew that the Lessor died in another County and so he could not have so soon notice and this shall be tried by the Justice if the avoidance was in reasonable time So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth common intent is that which hath more vehement presumption and intendment then any other intent hath as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death good yet might have goods were not the Testators which are assets after the Debts paid but the most common intendment is That he had no other goods except those which were the Testators but intendment indifferent the more strong intendment the one way or the other and therefore ought to be pleaded in Bar as 13. H. 8. 15. by Willoughby the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not So if he pleads a release made after the Obligation it is not good if he shews it not by express words that it was delivered after it shall be intended that it was delivered when it bears Date But on the other part it shall be intended also That the other would not bring an Action if it were delivered after and therefore shall be shewed which intendment stands indifferent so here A Demurrer all times after the Remainder happens or not is incertain and therefore because he hath not shewed this the Plea is nought As to the matter in Law it seemeth to him that the remainder is good for a man may pass the thing in question when where and how he will if it be not against Law nor repugnant as here the limitation if the remainder is not against Law for the remainder need not pass forth of the Lessor so 29. for upon the Agreement first had by Act made afterwards Franck-Tenement or remainder may be transferred and devested from one vested in another as a Lease for life remainder for life upon condition That it shall be void if he doth not such an act the remainder before the Condition broken is in him when broken it commeth to the Lessor So a rent or Reversion passeth by Attornment not by the Grant presently So 1 H. 7.31 by Brian a remainder to the K. when the Deed is inrolled then it shall pass and relate
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
it ought to be conjoyned to certainty as 9. H. 7.3 by Fineux and 6. H. 4.7 Debt upon payment at two days whereof the one is come abates by shewing of the Plaintiff the same because he hath shewed falsity So 20. H. 6.30 one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly which ought to appear alwaies to the Court but not in one manner as sometimes by the replication in Assizes sometimes by Verdict as in aquare impedit the value of the Church In Ward the value of the Marriage in Detinue the value of the goods as in 20. H. 6. Champerty was brought which was not Warranted by any Statute and there Newton said That if the party could not shew to them some Statute by which it is Warranted that they would award that the Writ should abate And for that which hath been said that he needs not to recite the Statute and therefore misrecital is not material it seemed to them That howbeit he need not yet if he recites it and there is none such then he hath failed of his substance for the Court will not aid him nor think he intendeth any other thing then what he hath shewed and by this abundance in reciting more then needs hurts the party many times And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 Fitz. H. Count 15. of forging of false Deeds the Writ was of Diversa facta and minimenta c. and he counted but of one onely and by assent of all the Justices it was awarded That the Writ should abate and so abundance abated the Writ And if one maketh Title in Assize in his plaint where he need not yet if it be not formall all shall abate and yet it was abundance and more then he was compelled to do So in the principal case And where it was said That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared they held that admitting this to be a confession yet this binds nor the Court which is a third person as appears by 10. E. 4. Wherein Trespass of Cattle taken brought by the Lessee for years the Defendant said That the Lessor held of him by Rent which was Arear and he took the beasts for it the Plaintiff said nothing Arear and there although the Defendant had admitted the Writ good yet the opinion of the Justices was That the Writ should abate for that the Lord was Defendant And so if the Defendant will admit good an appeal brought by the wife of the death of her Father yet the Court ought to abate it although the party affirm it and a Demur-is a Confession of all matters in Fact but not of matters in Law For by the Demurrer he puts it to the Judgement of the Court and confesseth not the Law against himself although the King may wave the Issue and so Demur in Law and recover afterwards fol. 236. and he hath many other prerogatives yet shall he be bound by misrecitall or by misusing or misconceiving of his Action and there shall abate the Writs where he is sole party as in the case of a common person à fortiori where another is party with the King as here the Plaintiff ought to shew certainty of the Lease here by Cook by other Justices not In Decies tantum certainty of the Summ received here because he shall not recover ten times as much and may not without shewing in Champerty the certainty of the first plea here because privy to the Record So in Trespass if the Defendant pleads Franck-Tenenemt the Plaintiff intitles himself by a Lease made by him the Defendant will shew that he made a Feoffment and that he entred for Forfeiture he ought to shew the name of the Feoffee and certainty of the Feoffment because he is privy and in all cases of privies he ought to shew the certainty as 2. H. 7.6 in Bar of Dower the Heir pleaded detainer of evidences he shall shew certainty for he is privy to them that he affirms to appertain to him of a bag sealed with Charters not 18. H. 8.1 because the bag sealed is certain Indictment cujusdam ignoti good Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices as an Attaint shall not 14. H. 7.13 nor the Statute which augments bread by evil making nor things out of the words shall not be taken by equity But the words may be expounded beneficially as Treason by the Statute 25. E. 3. for killing of a Master so of a Mistris are of one effect 19. H. 6.47 but not by equity but rather within words Plural number contains singular by Hales So here pretenced Rights and Titles as shall be punished for forging one false Deed yet 1. H. 5. cap. 3. speaks of false Deeds So for Entry into one Tenement yet 5. R. 2. cap. 7. speaks of Entry into Tenements under this word any the lesser Estate is contained in the greater as 23. H. 6.10 prohibits that a Sheriff shall Lease his County to farm in any manner shall not Lease part thereof after fol. 124. contrary by Hales This Lease here made by one in possession is out of the Statute because it is not averred to be a pretenced right viz. the bargain and Lease to be made for maintenance contrary Cook for this was the point of the Statute as 9. H. 6.26 if published onely yet the Stat. is in the Copulative for forging and publishing this within the Statute but ought to aver That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute So here the Lease ought to be averred for maintenance for this is the point of our Statute Montague Chief Justice He that is in possession may buy the pretenced right of another he which is out of possession if he promise or bargain to depart with the Land when he shall get the possession is within the Statute and maketh it void by the Common Law wherefore the Statute affirms it and adds a greater pain to the thing done against the Common Law and the Statute shall be meant to avoid a bargain of Right when out of possession he which hath possession but one hour alwaies may sell or it shall be a hard Exposition Acts expounded against the words of the Statute because Law and Reason allows it As Tenant hanging a Precipe Infeoffs his Son and Heir 6. E. 3. fol. 274. after fol. 204. good contray to the words of the Articuli super Chartas cap. 2. because the Son may not maintain to the Father but is bound to aid his father So an Heir may abet his Mother for to bring an appeal as W. 2. Cap. 12. So a Trespass in a Park without hunting shall not be punished by a year before refers to the Clause before onely so that the Clause being in possession Reversion or Remainder
Litl fol. 108. before fol. 140. two Tenants in Common grant 20. s. it shall enure as several Grants 34. ass fol. 11. Grants totum piscariam salvo stagno molendini sui yet the piscarie passes not for the stagno shall be excepted and not the piscarie because he hath a Reversion in the Propriety of the land and possession of the Ter-Tenancy The nature of an habendum is to give in large or qualifie Malitiosa juris interpretatio herere in verbis c. the words are but witnesses to the contract reversion includes land by all Brown Justice To the same intent of the Abbot and Covent and of Smith and his wife was to have the land pass as a Lease after the paticular estate ended and not otherwise and from that hour that their intent was to have the word reversion enure that way it seemed to him That the Law would warrant it for the land is included in the reversion for if it was not a man by Granting of a reversion could not have the Land in possession after the particular estate ended And a Feoffment of a Carue habendum the Mannor of D. is good if the Carue maketh the Mannor And if land is parcel of an Office it shall pass by the Grant of the office Much more he said tending to the effect to make the Lease good and so the Plaintiff shall recover Brook Chief Justice to the contrary Estate in lands includes land it self land is a generall word and contains Grantor and reversion particular words containing a Decree where one estate onely intent shall be inclined and ruled by the Law and not otherwise and intent nevertheless in certainty of words as 9. H. 6.35 Renuntiavit communium and not to whom void before fol. 122. 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage Fealty and Castle gard the Lord grants all Services Castle gard passeth not because he granted not the Castle But in Testaments the intent shall be onely observed and rule the Law because the Teastator had not time by presumption to ordain all things according to the Law In conclusion he agreed that Judgement should be given for the Plaintiff Hill against Grange A Man maketh a Lease for years of a Messuage and an hundred acres of land appertaining to it 3. Mar in Common Pleas in Trespass c. by Deed indented the 6. of August rendring rent yearly payable at our Lady day and Michaelmas or 10 days after with clause of re-entry and after Grants the reversion and the Grantee the last instant of the 10. day after Michaelmas demands the rent and enters for not payment and it was adjudged that the entry was good for these reasons 1. Land may not appertain to a Messuage because both are things corporate simply otherwise of Advowsons waies c. which are things incorporate but things Corporate or Incorporate may pertain or be parcel of a thing compounded as a Mannor Castle Knights Fees Honors Forrests Monasterie Rectorie fol. 170. a. But here the land passes as appurtenant but by the intent and phrase of the parties as they have said usually occupied or let c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual notwithstanding the other feast be first named 10. E. 3. the Abbot of Osneys case 3. The demand of the rent the last instant is good 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition or Covenant fol. 173. a. and shall not be intended of the Pattentee of the King 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words Things of distinct and several natures the one is not parcel of or appendant to the other as 8. H. 7.1 by Keeble a Warren cannot be pertaining to a Leet nor a Leet to a Hundred nor one Office to another nor land to other land to a thing Compounded they may as a Mannor Knights Fee Honor Monastery Castle and a Village or to words general as are Oxgang a yard land a hide of land which contains land meadow pasture wood c. Messuage is a single word consisting of a thing special and not Compound nor a general word for that 27. H. 6.2 Land not parcel or appendant to a house and by demand of a Messuage in precipe land shall not be recovered and therefore pass not by the Grant of a House by the Serjeants on the part of the Plaintiff 23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances Land passes not a Mannor and things made appertaining to it are made by usage and continuance So 2. H. 7.28 land belonging to a Forrest and Warden of the Fleet and the house of the Master of the Rolls and divers farms to the Guardians of the Castle of Colchester and one Office to another as the custos brevium giveth one of the Offices of prothonatories and use and continuance is cause of it A man Leases a Messuage and land rendring rent be ought to demand the rent at the Messuage because most worthy Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant Norwood against Read Action upon the case upon assumpsit made by the Testator 5. Mar â—…n K. Bench. lieth against the Executors adjudged For that the Testator could not gage his Law otherwise it is where he might gage his Law for the ignorance that the Law imputes of it to Executors and therefore there they ought to Demur but if they plead in Bar which is found against them they have lost the benefit of the Law and take Conusance of it whereof otherwise their ignorance shall excuse them 39. H. 6.19 12. H. 8.11 27. H. 8.23 Woodward against the Lord Darcie IF the Debtor make the Debtee his Executor and leaves him assets to satisfie the debt 5. Mar. Reso by the Judges of both Courts and dies the Debtee may pay himself by way of retainer by the Court 12. H. 4 21. according And in such case the Action is not utterly exstinct by the Administration for that the Law intends that he is satisfied by retainer before and so a thing in Action altered to a thing in possession by Act in Law for satisfaction of the party which hath no other remedy but if he hath not sufficient assets for to satisfie the debt the administration there extinguishes not the Action because that he cannot retain for parcel and have his Action against the Heir for the residue but ought to do the one for the other at his peril Wrotesly against Adams A Lease for 80. years of a Farm Tr i El. in Com. Pleas. Ej. firme the Lessor granted the Reversion of the Farm to a stranger to have and to hold the Farm for 60. years after the
the Statute And when the Statute appoints place order and form of suits and before what person it shall not be altered As by W. 2. cap 11. an Accomptant found in Arrearages shall be imprisoned in the next Goal although it be in another County 27. H. 8. before fol. 17. So by Westminster 2. cap. 3. Second deliverance shall be sued out of the same Court where the first Replevin was granted and not elsewhere So 31. E. 3. c. 12. Error in the Exchequer shall be corrected before the Chancellor and Treasurer and therefore not before others So an Affirmative because general implies a Negative exclusively so all Actions shall be sâ—ed in Wales and not elsewhere is implied here as by W. 2. cap. 4. he shall vouch in Quo die deforceat as if he were Tenant and included and not otherwise and therefore shall not vouch in scire facias where it is the first Writ because he cannot vouch there before fo 113 So the issue in Tail shall not be remitted because he hath the use as a purchaser by 27. H. 8. for the Statute of 27. executes the possession in the same manner as he had the use which implies and not in any other Mannors before fol. 114. So by 31. H. 8. Leases made by Abbots after this Stat. adjudged void when Abbies came after to the King by dissolution because the Statute saith That the King shall have it as it was then which implies a Negative and therefore the King shall not have them now in Reversion by making of such Leases or before he hath them in possession On the part of the Plaintiff it was argued to the contrary And they agreed to the cases of voucher in a Quod ei deforceat of the Execution of the use and of the committing of an accomptant to the next Gaol for where an Act maketh a new thing Affirmative and gives to them Authority to do that which they could not before there they shall be in the order limited by the Statute and not otherwise and at the Common Law there was not any voucher by the demandant nor any coming to the land by the use nor any power given to Auditors to commit an Accomptant to prison and therefore there that which is limited by such Stat. ought to be pursued accordingly but where the Action which was before at the Common Law is given by any Statute in any case where it did not lie before there this Action is suable in all Courts therefore used by the Common Law before if there are not express words to restrain it for where one Act affirms a former before there the last Affirmative destroies not the first nor takes any thing from the Jurisdiction of the first but declares That they have power So 34. and 35. H. 8. hereby the Affirmative takes not away the Jurisdiction of other Courts given to them by 27. H. 8. for uniting Wales and England Sanders against Freeman THe Conusee of a Fine brings a Quidjuris clamat against Husband and Wife M. 3. and 4. Eliz. in the C. P. Quid juris clamat Tenants for life in the right of the Wife and pleads that they were seized in Tail in the right of the Wife and shew how and thereupon are at issue the Jury finds a private Verdict for the Defendant and after in open Court contradicts it and found for the Plaintiff for they were charged openly in Court and ought to give their Verdict there openly and the other was but matter of courtesie to ease the Jurors and not of necessity for the Plaintiff could not have been nonsuited upon it otherwise upon a verdict given in Court and by this Plea the estate for life was at the will of the Plaintiff A Verdict secretly given to the Justice out of Court is not a Verdict because taken of courtesie when Jurors agree for their ease until aptly pronounced in Court for at every verdict the Plaintiff is demandable and then may be nonsuited but there he is not and therefore the last open Verdict shall stand Also the Inquest may change their Verdict given in Court if mistaken or not plain in Law or for other reasonable cause immediatly perceived as to find not guilty and immediatly guilty because they may be mistaken this was received in the Kings Bench. So 4 H. 4.2 In Conspiracie acquit one and found another guilty because it was contrary in it self they may find both guilty and good Dutchie of Lancaster HENRY 8. 4. Eliz at Serj. Innâ— makes a Lease for one and twentie years under the great Seal of the Dutchie and dyeth after E. 6. being within age maketh a new Lease to a stranger under the same Seal for 21. years after the Determination Surrender c. of the first Lease and dies and by all the Justices Queen Elizabeth could not avoid this second Lease for the nonage of the King E 6. howbeit he was seized of the Dutchie in his natural body because he hath the imbecillity of infancie yet this is invested and adorned with the dignity of the body politique of the King which is utterly void of such imperfections A Lease by the King within age of Dutchie land is good although he was seized of the Dutchie in his natural body which hath the imbecillity of infancy because he hath the natural body invested and adorned with the estate and dignity Royal by conjunction of the body politique to it which is utterly void of such imperfections and so when both bodies remain in one person all the bodies shall have the properties qualities and degrees of the body politique which is the most worthy and no Act of the King made as King shall be defeasable by any disability in his body natural and therefore the letters pattents of the King within age good So a gift of the King by Thorp 36. ass pl. 54. So 6. E. 3.291 the King shall have right of seisen of his ancestor within age So the King hath by purchase or discent in capacity of his natural body when he is King or before that he was King and being given this within age good and shall pass by the Letters Pattents onely and without Livery because he may not make Livery in his natural body disjoined from the politike body which are in one and the same body and indivisible and it is contrary to the dignity Royal for a King to make livery in proper person and Livery is matter in fact and the King must have his Acts recorded So the King need not demand rent reserved upon his land by a common ancestor but shall not enter if the Condition be broken until it be found by Office if he purchases and sels before he is King and within age if King also then otherwise it is yet after he is King he shall avoid it by his nonage before but shall not enter without Office because his person which had right of entry before hath now the estate Royall united which
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
Title to his body accrued in respect of his signiory which is more ancient then the Apprentice 49. E. 3.3 the Kings Tenant in London Devises to his wife for life and dies without Heirs the devise is good as it seems by the Book and yet taketh not effect until after the death of the Kings Tenant and preferred before an Escheat to the King yet both their Titles comes at one instant but the Title of the Wife adjudged the elder because some part of it Commences in the life of the Devisor albeit it taketh effect after his death an Obligee is a Felo de se the Survivor shall have the Obligation by the better opinion 8. E. 4.4 Walsh Chomley Benlos and Carus for the Defendant A Dead man cannot have property for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his otherwise the Forfeiture shall be to the prejudice of others which after his death ought to have the goods and the law hath respect to the Commencement of the Act as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound he forfeits nothing and it is not Felony if then he kils another yet is of Sane memory when he died of the wound So 33. Ass 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant adjudged Treason Felonies done by others may be punished in their life time in person Goods Chattels and Lands A Felon of himself hath prevented the death by Execution and forfeiture of his Land which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance and the only means to make him forfeit that which he may forteit viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life because he took away the means of the Judgement which should have been given against him in his life as he should have if he had killed another and when Judgement by the Law cannot be given the Law supplies it otherwise as 3. E. 3. a Felon flies out of the Sanctuary and will not render himself but is killed he forfeits his Goods and the King hath the year day and waste and so an Inquest there shall be equivalent to the Judgement because he himself is the cause that it cannot be given against him by carus my horse strikes A. I sell him to another A. dies he shall be forfeit So the King shall have the Goods of a Villain which gives himself a mortal wound yet the Lord hath seised them after the wound and before the death of the Villain So the Attainder of the Husband in his life shall be a Forfeiture of the Term of his wife So this Act here and if once Title be given to the King Nullum tempus occurit Regi as in 50. E. 3. the Husband Joynt-Lessor for years with the wife receives money of one Attainted which by the Attainder belongeth to the King the Husband dies the wife her self holdeth it this found after the King hath the Term in Execution for his money as he should have had in the life of her Husband if it had been found then and now found by office shall relate to the life of the Husband Curia this is Murther here and not Homicide because upon malice prepenced and is an offence against nature the Law of God and King to kill a Subject and deprive him of one of his Mystical Members as Brooks terms it whereof he is the head and by the breaking of his peace and for the ill example given to others and therefore Felo de se Forfeits to the King all his Goods Debts and Chattels 8. E. 2.3 E. 3.301 362.22 E. 3. before f. 259. Stamford fol. 188. I. and Stamford Prerogative fol. 46. 8. H. 4.2 by Tillesâ—…y and ex consequenti cannot make Executors nor have Administors neither shall the Bishop have them because out of the Church is no cause of Forfeiture 19. H. 6.63 by Paston 8. E. 4.4 by Needham and Litl and 27. H. 8.9 by Montague and if he repents he is reconciled and hath the rights of the Church before his death yet he shall Forfeit those to the King for this offence But a Felo de se Forfeits not Lands his wives Dower nor Corrupts his bloud 3. E. 3. 22. E. 3. before fol. 259. because those cannot be without attainder in Deed. Appellee in Battail is killed he forfeits his land by Benlos and Brown because this killing is equivalent to Judgement and Execution but Weston held the contrary without express attainder by Judgement for to favor the inheritance and by Dier because the three Writs of Escheat for attainder are Register the 16. pro quo suspensus est utlagatus or abjuravit if the Appellor vanquish the Appellee in battail there his land shall Escheat because there Judgement shall be given after that he shall be hanged 8. E. 3. the husband adheres to the enemies of the King in Scotland and dies there 8. E. 3. fol. 388. or is killed in levying War against the King here he forfeits his Lands the Dower of his Wife and his bloud is corrupted for this is an attainder in Law 7. H. 4.46 by Markham and Stamford fol. 198. a. this which causeth the death ought to be said Feloniously done He that refuseth the trial of the Law forfeits Goods and Chattels as 3. E. 3. 13. H. 4.13 4. H. 7.18 Stamford fol. 183. C. he which flies for Felony Stamford Prerogativae fol. 46. A. he that challengeth without cause above 35.40 E. 3.42 20. E. 4.5 Stamford fol. 185. he that taketh Clergie if he be found guilty of Felonies which refuse the Judgement of Law 14. E. 4.17 he that stands mute of malice for those are the Acts of refusal of the Law And from the time of those which appear of Record the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger not for to be Felony because in the mean between the wound and death he suffers himself voluntarily to escape for if the escape should be Felony then that escape had been Felony at the time of the escape by Brown A. and B. Joynte-Tenants for years A. Grants to C. That if he paies 10. l. before Michaelmas then he shall have his Term yet he shall not have the Term because the condition precedes the Grant as 14. H. 8.22 by Brudnel until the 10. l. paid the Joyncture continues and it is not but a Communication but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor for there the Title is granted in deed in the estate in his life So here this Act in his life gives Title to the King and the office by relation executes the Title then and the Survivor
shall not have it from him because once attached in him as the Kings Villain and his wife are Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
copulative for to make words to stand with reason and with the intent of the parties as the Obligee shall pay 10. l. if he infeoff not him or his Heirs when he cometh to I. intends yet words disjunctive in sense That he shall infeoff him if he be living and if dead then his Heirs because he cannot have an Heir during his life so here a Covenant to make a Lease at a time to come to him and his Assignes Copulatively shall be taken disjunctively viz. to him if he be alive and to his Assignes if he be dead So 4. Mar. before 171. A. and B. Grants a Rent Charge of 20. s. out of all lands which they both have the Grantee shall have several 20. s. out of both their lands and yet the Grant was out of the lands which were to A. and B. 19. H 6.3 I release all actions which I have against A. and B. if he hath any actions against either of them they are gone So Arbitrators 2. R. 3.18 may make Arbitrement of actions joynt and several where one and two others submit themselves to their arbitrement because it literally couples them yet in sense goes to them severally And so in the Common case in Indenture of bargain and sale which Covenants to make a sure estate or deliver evidences to the Bargainee and his heirs within two moneths and he dies before he ought to make the estate to his Heirs because impossible to be performed literally viz. joyntly for in his life he cannot have Heirs that thing which another doth by my authority is my act As if I demise That I. S. shall sell my land or authorize my Steward to demise it or my Baily to sell my sheep which doth it so it is my alienation demise and sale by him So the second Executor shall be immediate Executor and in such degree to the first Testator as the first executor was as chosen by the first executor by force of the Authority given to him by the first Testator which intends the same or otherwise all contracts would be destroyed by the Common Law in a short time viz. after the death of the first executor because administrators could not have actions given to the intestate untill 31. E. 3. cap. 11. proved by 10. E. 3.2 the executor of an executor because executors have not those actions by the Common Law but by Statute and because by equity they were not to be extended to an executor of an executor but the action of Debt was put in the Act in 25. E. 3. cap. 5. not of necessity because the Law gave it to an executor of an executor before but for to take away the doubt that some had of it and so an executor of an executor may have all actions that the Common Law gives to the first executor and so may have actions of Covenant and if not they should have it by equity of the Statute of 25. E. 3. cap. 5. Admitting that the word Assignee was void or omitted out of the Covenant yet this Lease here shall be made to the executor for that the intent which is the chief thing to be considered in every agreement was such which shall be performed so near as may be or the words shall not be effectual and the chief effect of the agreement was the estate which should be made not the person to whom but if the Tenant bind himself and Covenant to do corporall service to the Lord he cannot to the Heir or executor because it must be done to the body of the Lord and if I perish the thing also perisheth The intent performed and not the words good as in the cases of Litl fol. 82. That the Feoffee shall re-infeoff the Feoffor and his Wife and the Heirs of their two bodies before fol. 6. And it is not requisite alwaies that in agreements every thing ought to be performed according to the words for if the Mortgagee accept of another thing in another place good Litl f. 79. So if the Obligee cometh not to the place at the day appointed to receive his summ he hath not lost it 7. E. 4.4 but 19. H. 8 12 if the Obligee sue for the penalty the Obligor ought to shew that he was ready at the day and place and say that he is yet ready So payment of a lesser summ at another place Perk. fol. 145. or before the day 10 H. 7.14 good So Litl fo 77. upon a Mortgage the Heir or Executor of the Feoffer shall pay at a day certain and Litl fol. 76. the Feoffee of the Feoffee pays at the day good because he hath interest in the Land So 17. E. 3. ass pl. 2. the Disseisor Grants by Indenture That if the Disseisee paies unto him 10. l. such a day that one release which the Disseisee hath made to him shall be void and before the day the Disseisor makes a Feoffment and at the day 10. l. was paid to the Feoffee Words performed and not the intent as it may be in some cases yet the agreement is not performed as 21. H 6.10 before fol. 23. one binds himself that his Feoffees of the mannor of D. shall Grant out of it 40. s. annual Rent to the Plaintiff he hath 3. Feoffees and two Grants it is nought because he intended that all should do it for there but two parts of the Mannor are charged So 3. H. 7.4 one bindes himself to infeoff me of the Mannor of Dale he infeoffs an other of parcel and afterwards me of the Mannor he hath performed the words but not the intent which was That I shall have all the Mannor as then it was So before fol. 21. and 23. si vellet inhabitare residens c. during the Term intends all the Term. So 10. E. 4.16 the words of a verdict true yet the verdict false because he brought Annuity as Abbot and prescribe so without naming of him parson where he had the annuity in right of his Parsonage as Parson Impersonee the new Lease here shall be in the Executor of the Executor to the use of the first Testator because the Title of Covenant cometh to him derived from the first Testator and that which is done in perfermance of the Covenant ought to be in him in such degree as the Covenant was in him So 11. H. 6.11 An Executor assignes Auditors to one which was an Accomptant to the Testator and he is found in arrearages the Executor shall have Debt in the Detinet onely because the Debt shall be in him as Executor and hath a respect to the foundation So 32 H. 8. and Doctor and Student 92. One hath a Villain for years as an executor the Villain purchaseth hands the executor enters it shall be to the use of the Testator and assets in his hands because the Villain which was the cause of it was to such use So here the Covenant which was the cause of the Lease cometh to the executors in right of the
Testator and to the same use shall the Lease The Court increases the costs here Osburn against Carden and Jay A Woman guardian in Soccage taketh husband they make a Lease for years of the Land to Commence at Michaelmas M. 7. 8. El. in K. Bench Tr. and before Michaelmas the Lessee maketh a Lease for a lesser Term of years the Husband dies the Wife enters and being outed bringeth Trespass and adjudged lawful For that the Lease is voidable by the Wife because she hath the Wardship to another use and by reason of Natural affection presumed by the Law to be the nearest friend for the proximity of bloud for that the Custody of him cometh not to the executor Litl fol. 27. The Custody cannot be given by the Husband or forfeited by Utlary or Attainder longer then during the life of the Guardian because no such Natural affection there 33. H. 6.55 But the husband hath interest in the Custody in the right of his Wife for to participate with his Wife in all matters of interest and Prerogatives because they are one person in Law but looseth his interest when his Wife dies because Cessante causa cessat effectus And although Doctor and Student saith fol. 13. That the Wife cannot avoid the Act of the Husband as to give Demise or sell Chattels real or personal which she hath to her own use yet here she may because she hath it in anothers right and the Wardship of the body which is the principal remains which shall be maintained with the profits of the Land and this is in effect the suit of the Ward by the woman Caril against Cuddington A Woman seised of 2. acres in Fee the one holden of the Queen by Knights Service onely M. 7. 8. El. in the Court of Ward the other in Soccage taketh husband she and her husband levies a Fine sur Conusans come ceo of both the Conusee Grants and Renders to the husband and Wife and the Heirs of their bodies Remainder in Fee to the right Heirs of the wife the Husband and wife die their issue within the age of 14. years the Grand-mother on the part of the Mother enters and the Grand-father on the part of the Father of the infant sues as next friend in the Court of Wards because that the Queen hath the Wardship of the acre holden by Knights Service and of the body and adjudged that the Grandfather on the part of the father shall have the wardship of the acre holden in Soccage as Guardian in Soccage and not the Grand-mother for that the Grand-mother by possibility may have the Land by discent after the estate Tail determined and the Grand-father cannot but they are in equal degrees as to the estate Tail the wife here is a purchaser by the Fine of the Fee-simple and the Law is all one of land only as if it were of the land and body also Sherington c. against Stratton ANdrew Bainton by Indenture Covenants and Grants with his brother Edward M. 7. 8. El. in K. B. Tr. for the affection that he hath That the Lands shall discend and come to the Heirs males of their own bodies and continue in the bloud and name of the Baintons and also for brotherly love and good will That he his Heirs and Assignes shall stand seized to the use of himself for his life and after to the use of Edward Bainton for his life and after to the Heirs Males of the body of Andrew and afterwards to the Heirs Males of the body of Edward and adjudged that every of the considerations by it self being grounded upon Nature is sufficient to raise the uses according to the Limitation although it were without Deed. And so Covenant and Grant That he will stand seized to another use by Indenture without any valuable or natural consideration is good enough for that the deed imports consideration in the Will of the Covenantor by Plowden Quere notwithstanding Fleetwood and Wray for the Plaintiff An use is a confidence annexed to the estate with which he departs An use may be created by the Common Law First by Transmutation of Possession as by Feoffment Fine or Recovery to the use intended Secondly without Transmutation of Possession by one Act done importing good consideration which shall make the land subject to the use as a bargain and sale or Covenant or Grant upon good consideration First by a new Act done of two parts 21. H. 7.18 and 6. E. 6. by bargain and sale viz. Land for mony or 36. H. 8. Covenant for marriage because advancement to the Daughter and comfort to her parents Secondly where of one part onely as Covenant for Natural affection from the Father to the Daughter or Brother to Brother and a desire to have the land continue in his name and posterty For a new thing to be done by both is not requisite by the Councel of the Defendant But long acquainiance ancient familiarity or that they have been Scholars in their youth no considerations to raise a use because they are not considerations of value or recompence as if I promise to pay to you 10. l. because you are my Brother or old acquaintance it is Nudum pactum and so note that a use was at the Common Law A new use cannot be Created without consideration but being created and in esse may be granted over without consideration as another Chattel and Doctor and Student fol. 99. may be devised 1. Bromley and another Aprrentice with the Defendant and they Grant that there are two waies by the Common Law to make a Use without Transmutation of possession viz. Bargain and Sale and Covenant upon Consideration proved by the words of 27. H. 8. cap. 10. and Consideration arising from the one part onely good and it is not requisite to have Consideration and a new thing done by both the parties First Consideration It is natural to engender and nourish after engendred or otherwise the first is without effect the Father shall have the Custody and Education of his Son for his natural affection to him Litl fol. 25.33 H. 6.55 and Trespass for taking away his Son Fitzh nat br fol. 143. and 3. E. 4.12 And the Son shall have an Appeal of the death of his Father before others for his earnest intent of revenge and his reciprocal love So a Feoffment to the Son a Suit depending is not Champerty 6. E 3. cap. 274. yet within the words of Articuli super Chartas cap. 2. because by all Laws the Son ought to aid his Father and so out of the intent of the Statute and there by Herle the Son may abet his Mother to bring an appeal of the death of her husband and shall not answer Damages And Litl 8. The Son and Heir apparent endowes his wife ex assensu patruâ—… good without Livery because the wife of his Son is as his own wife for the love that the Law presumes is between the Father
Return of summons of the Exchequer because it concerneth the King himself there So 2. R. 3.4 2. H. 7.7 The Kings Grantee of Amerciaments of his Tenants shall not have the amerciament of his Tenant which holdeth of him and another because it is before other Tenants as well as my Tenant Charters of the King taken according to common intent and other things which have not common intent shall not pass from the King by his Charters And therefore 3. E. 3 the King Grants to an Abbot That he and his Successors shall be quit of repairing of Bridges Cawseys and Walls it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village but it is good otherwise of a Town to which the King hath Granted Murage Pannage or Pontage So 9. H. 6.56 before fol. 243. The Grantee of the King with Warranty shall not have in value without precise words but he may rebutt So 2. H. 7.6 The Grantee of the King of all Fines and Amerciaments in such a County he shall not have Amerciaments if the Sheriff Coroner or other great Officer is Amerced because Royal and a Grant shall enure for common things in intendment So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall cum omnibus Wardis Maritagiis c. And one which held of the Dutchie by Knights Service and which held also of one which was in Ward because of Ward by Knights Service dieth his Heir within age the Prince shall not have the Wardship of him but the King because a thing pertaining to the Crown passeth not without special words So the King maketh a County Palatine and giveth to another and Jura Regalia and that Pleas within the County shall be determined there yet he himself shall sue at Westminster his actions arising within the County Palatine as 3. E. 2. For an advowson in the County Palatine of Durham the King brings his Quare impedit in the Common Pleas the Defendant pleaded to the Jurisdiction of the Court and was compelled to answer So an Abbot by the Kings Grant made to him for the amortizing of Land or Tenements may not purchase an Advowson holden of the King in Capite and this case by Wray differs from the case in 41. ass pl. 19. before fol. 332. for there the Charter names the house but names not what Lands by which it cannot be intended that the King was mistaken in the Tenure and therefore it is good there and not for the cause of Ex gratia speciali So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words Ex merâ—… motu c. will not pass other things then the nature of the words contain And therefore the King Grants to a man and his Heirs males excerta scientia c. passeth not inheritance 28. H. 8. A Felon may not wage battail against the King because dangerous for the King Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant 20. E. 3. So if one takes the Kings goods wrongfully the King may seiz his goods until restitution and 8. R 2. if any take Toll of those of the Town of Lynn they may by the Kings Grant take withernam of those another time within their Jurisdiction And so the King conveys not from the Prerogative of his person to the person of another a fortiori he may here where the thing is not but Revenue or profit These words ad humilem Petitionem Comitis deminisheth the force of the Pattent by Catline by Plowden if Gold or Silver will not defray charges the King shall not have it because no mettal without them but because the party shewed it not as our case is the Queen shall have Judgement And this point was not put to the Judges to adjudge because that the Defendant confessed that it contained gold which is intended to be of good value because the best for the King Bret against Rigden A Man seized of 10. acres Soccage Devises all his Lands by writing Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage and the Devisee dieth the Devisor saith to the Son of the Devisee That he shall be his Heir and have all the Land that his Father should have had if he had survived him and dies Adjudged that he shall not have the 12. acres 1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will Manwood for the Defendant said That it shall be presumed that every one knows the Law in acts indifferent and that the Will is of no effect until the death of the party for ignorance of Law excuses no man and the date and writing of the Will is not effectual but the words of the Will shall be construed as they were spoken at the time of his death And therefore if a man Deviseth a Mannor in Fee a Tenancie escheateth and after the Devisor dieth the Devisee shall have the Tenancy because parcel of the Manor at the death of the Devisor when the Will taketh effect yet when the will made not A woman Deviseth Land and after takes husband which dies the Woman dies the Devise is good because she is discovert when it took effect as she was when she made her will and marriage cannot countermand it which was not of effect in her life Also because it intends no exception for the generality of the words As if she had Devised all her plate and after bought plate and died the Devisee should have all his plate at the time of her death for the ampleness of his words declares his intent to be benificially taken for the Devisee Lovelas and all the Justices for the Plaintiff to the contrary That Land purchased after the making of the Will cannot pass by the words nor intent of the Testator because he had not the 12. acres at the time of the writing and publication of the Testament it is no presumption that afterwards he would have and is as if he had died when he writ and published the Will and therefore cannot have an intent to give it and the death which is the Confirmation of the Will follows the first Acts thereof viz. the writing and publication of it for every Act founded upon discretion consists of 3. parts The first Inception which is writing of the Testament here The Second Progression which is the publishing of the Testament begun The Third is Consummation which is the self same and continues one through all these parts or otherwise the Act is void of discretion And by Lovelas it is proved That the Commencement is to be considered in Wills because if a woman Covert Devise Land by her Will and publish it and her husband dies and after she dies
is not lawfull but that he shall be barred by the Fine with Proclamations and the five years notwithstanding his Infancy for that the five years are once attached in his Ancestor and then they ought to incur for the pursuit of a Claim within five years is a Condition in Law which shall bind an Infant Those which argued with Stowell for the better intelligence of the Statute of 4. H. 7. ca 24. which gives five years to every stranger and of the reason of making it thought the Fines and their force at the Common Law and the incidents thereof which consists in three points 1. The nature of the Fine and the puissance of it 2. The preservation of the antient right by Claim 3. What persons may make the Claims 1. Fines are as antient as any Court of Record and at the Common Law they bind all strangers but those which have defect which Enters not or Claim within a year by 17. E. 1. So Non-claim after the year and day was peremptory upon a Fine or Recovery in a Writ of Right Executory and not Executed as is a Fine sur Conusans de droit and Render 7. E. 3.335 Because transmutation of Possession gave occasion to a stranger to take notice and to bring his Action or enter within the year and a day after Recovery in Right tryed by Battail or great Assise barred a stranger if he had not defect as Nonage was for the great notice of it because publike and more notorious then in other Actions And a Proclamation shall be made before Judgement upon a Recovery in right by default for to give notice of it And from thence use is derived to make Proclamation in formedon as it is in 7. H 4.19 upon the confessing of the Action Quaere by what Law and so Fines after Recovery in a Writ of Right was of the greatest force 2. But the avoyding of a Fine by one defeats it against all although their Right was bound before by their Nonclaim which sets at large all other Rights above them although they make not claim within the year and day 16. E. 2. As if the Lord defeats a Fine at the Common Law by deceit he restoreth the right to him which Levies the Fine And if the state which passes by the Fine be defeated the right Paramount is restored although it was barred before by Nonclaim As the Feoffee upon condition if an Abator levies a Fine one year passeth the Heir is barred by Nonclaim the Abator enters upon the condition broken the Heir now shall have Mort. d' Auncestor against him and after the Statute of 4. H. 7. an Action brought within fives years shall defeat the Fine against himself and all others having right Paramount although he hath not Judgement and Execution until seven years after Proclamation Claim is defined by Dyer to be a Challenge of the Ownership or Property that he hath not in Possession but is detained from him by wrong There are four Claims for defeating of Fines whereof two are by Record viz. Action Reall and Entry of the Claim at the foot of the Fine two by Acts in the Countrey viz. by Actuall Entry and by Claim and so notwithstanding the Puissance of Fines at the Common Law the Law hath provided those Claims for to preserve the Ancient right 3. Those which are strangers to the Fine and have present right ought to make Claim and shall avail all in Remainder or Reversion their Non-claim binds all in Remainder and Reversion because all of them have but one year by the common Law after the Fine levied And such mischief was a great cause why the Statute of 34. E. 3. ca. 16. which out Nonclaims was made But before this time W. 2. ca. 1. 13. E. 1. hath provided for the Donor and Donee that Nonclaim shall not bind them as it did before 13. E. 1. as it is like But an Infant was not bound at a time certain to make Claim by the Common Law It is proved by Implication of the Statute of W. 2. ca. 1. and 18. E. 1. de modo levandi fines observe in their Exposition because he hath not discretion to consider of his right nor to conceive what Action he shall bring nor when or how to Enter or Claim or to do Acts which require intelligence and in the same degree are Non-sane a man in prison and beyond Sea But a woman Covert was bound to make Claim by the Common Law because she is not mentioned in any of the Acts and hath a Husband which may make Claim for her And therefore Infants and such are at large always and bound to no time for to make their Claim by the Common-Law And if the Father Disseisee dyeth within a year and day after the Fine Levied before the Statute of Nonclaim his Heir within age he need not make Claim because he is not bound where the right discends to him more then he is when he hath a present right when the Fine was levied nor Infant in Remainder or Reversion is not bound by the Nonclaim of the particular Tenant And so howbeit that Fines at the Common Law were of so great force yet the former right was considered and time given for to preserve it and Infants were exempt out for this time And after when Nonclaim was repealed and outed in Fines and to make their Claims and because the Law was unreasonable that those in Remainder or Reversion should be bound by Nonclaim of particular Tenants and the Law of Nonclaim being outed in process of time Fines became too feeble and were in effect but Feoffments of Record whereby the security of Inheritance was taken away which was cause of great Contention between Subjects and therefore the Statute of 4. H. 7. intending to reform three things First to magnifie Fines againe Secondly to preserve the Ancient Right if it be pursued within a certain time Thirdly of not binding of persons of defect nor feme Coverts unless they are also parties to the Fines but favoured those which had defects untill their impediment removed and then gave them time sufficient to pursue their right That which is excepted out of the Act is out of the provision of the Act and there is no Ordinance for it but is so apparantly exempted out of the Act as if no Act had ever been made As a Feoffment of a Mannor except an Acre or of all Lands in Dale except White Acre is voyd for those Acres as if no Feoffment had been made but a saving goes to them touched and not exexmpt The word having in the Statute of Fines 4. H. 7. shall be expounded of them which have right at the time of the Fine Levied and Proclamations made and also of the using of the Action or Claim c. And not only at the time of the Action or Entry The exception goes not but to those before bound The ampleness of the Exception is measured by the ampleness of the
Purview And therefore Stowell if he is bound by the Purview he is afterwards excepted and if he is not bound by the Purview he needs not to be excepted and so he is at large and out of the body of the Act which consists of the Purview and of the Exception Acts of Parliament are positive Laws consisting of Letter and sence which together make the Law And the Common Law is ancient to all positive Laws and this is to be considered to come to the sence of the positive Law viz. to put such sence to the Letter which excludes all mischiefes and inconvenience Those which Levie Fines are Parties their Heirs are Privies because there is privity of blood between them strangers are they which are not Parties to the Fine nor privies And the Fine excludes now Privies by 4. H. 7. before not Parties here and therefore it is no Mystery that the Letter of the Act will extend to them no Laches untill all the time is past Because they have Election to protract time untill the last of the five years or last day so that they within five years pursue intends Heirs also of those of full age for such sence stands best with equity reason which most avoids rigor and mischief Things within the Letter and yet out of the sence and intent of Statutes as 36. E. 3. and 4. H. 7.7 Doctor and Student 148. An Infant named a Disseisor vouched a Record and failed he shall not be imprisoned Notwithstanding W. â— ca. 25. Nor an Infant Baily or Receiver found in arâ—…rage of account shal not be committed to the next Gaol Notwithstanding W. 2. ca. 11. Nor an Infant which is convict of Ravishment of another Ward shal not be imprisoned for the Kings Fine notwithstanding Merton Cap. 6. Not if a woman Infant be Ravished and consent to the Ravisher within twelve years there the Heir shall not enter notstanding R. 2. ca. 6. But Infants are bound by Laches for a Title favoured for the Inheritance as Doctor and Student 148. An Infant shall be bound by Cessavit or Waste because an injury done by his Act and he shall purchase and the Law will presume if he hath policy to get a thing that he hath reason to defend himself So if an Infant Lord enter not for Mortmain within the year or before a Villain hath sold because he had but Title to the thing that it was never in him But Doctor and Student 29. and 27. Assises 32. Laches of Entry upon Discent or Warranty binds not an Infant because they have favour for Inheritance for Waife Stray Wreck or for Goods taken from them and offered to Images or taken by Enemies and not retaken before the Sun sets or sold in a Market Overt or Acts an Infant as Executor 35. E. 3.45 or as King before 213 or for necessity as an Obligation for meat and drink Doctor and Student 104. The Common Law is the foundation of this Act of 4. H. 7. and if the Father dies within a year after the Fine his Heir Infant is at large fol. 372. otherwise the imperfections which may happen sometimes within five years are to be considered as those which are at the time of the Fine or right then And because that the Statute provides for the Infant in the exception and in the Fine it will not be amiss in the middest And if one which hath a future right dies within five years his Heir within age shall have five à fortiori he which hath a present right as here because it is of greater estimation then a future If a stranger to a Fine cometh of Non-sane memory or is in prison the third year after Proclamations made and after the five years cometh of Sane memory or out of prison he shall not be concluded because constrained and acts involuntary but if he or she taketh Husband or go beyond Sea in the third year and after five years is discovert or within the Land he shall be bound because Acts voluntary An Expounder which adheres only to the Letter of the Statute of 4. H. 7. without adding reasonable sence will admit many absurdities as by the Letter of the Statute if an Infant which hath present right is excepted dies within age his Unkle being his Heir and of full age shall be barred So if an Infant by Entry within age avoyd the Fine after full age permit the Conusee to be for five years in possession without Claim he shall be barred by the Letter which saith that he shall take Action or Entry within five years after full age So an Infant being Diseisee in his Mothers belly when the Fine was Levied is not accepted by the Letter of the Act because his age is accounted from the time of his birth by intent of the Act here for every thing which is within the intent of the makers of the Act although that it be not within the Letter and intent also and of those exceptions the Letter binds none to five years after full age which were within age when the Fine was Levied and ingrossed and many years may be between the one and the other yet he that is born after the Fine levied and is within age when it is ingrossed goeth not at large but is bound to five years after full age as well as he which was born an Infant when the Fine was levied and ingrossed And if the Disseisee at full age when the Fine is levied die before the Proclamations his Heir within age then and when all the years pass is bound by the Letter because the Letter excepts him which hath right when the Fine is levied But the intent of the Exception intended to except those which had â—ight and are Infants when the five years commence so it shall be if the Disseisee cometh of Non-sane Memory or in prison before the Proclamations and after five years he cometh to sane-Memory or forth of Prison he shall have five years after this by the intent of the Exception Two Joint-Tenants Disseises the one within age the Disseisor levies a Fine four years passe after the Proclamations he of full age dies the Infant shall have other five years after his full age for all by Bendlos and severall five years shall be for severall Titles As A. disseiseth a woman sole taketh her to wife and have Issue A. is disseised and dies after a Fine levied by the Disseisor and before the Proclamations the Issue being of full age after the Mother dies the fifth year passe the Issue is bound as Heir to his Father because in this respect he hath but five years together But as Heir to the Mother he shall have five years to be accounted from the death of the Father for notwithstanding it is the self-same Land he hath severall rights the one the last as Heir to his Father and th' other the first right as Heir to his Mother And in respect of them hath severall times
So the Husband maketh a Feoffment of the Land of his Wife upon the condition which is broken the Feoffee levies a Fine the Husband dies in the fourth year after Proclamations having Issue by the Wife after the Wife dies and five years passe the Heir is barred to enter as Heir to the Father for the Condition but shall have five years from the death of his Father as Heir to his Mother for her right for the cause aforesaid by Saunders Ireland and Scotland are severall Realms But Scotland was holden of the Crown of England and was within the Fee and â—igniory of the Crown of England and he which is in any of the two Realms shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots Lunaticks and they which have the lethargy shall be comprehended in the words of Non-sane-memory as well as Mad-men For Zouch Peace which is the end of all Law described and the necessity and benefit thereof and those Laws which carrie most peace are the most estimable And the Statute which Ousts Nonclaim was to the universall trouble of all the Realm for the avoyding whereof and to make Fines to have their antient force the Act of 4. H. 7. was made and the Preamble of it is to be considered because it is a Key to open the minds of the Makers of the Act and the mischiefs that they intended to remedy and the preamble shews that the Makers of the Act were of Opinion that Fines ought to be of greater force for to avoid contention then they were before the Statute of Non-claim and now is used to the contrary viz. to the universall trouble of the Kings Subjects and therefore they were Enemies to former rights because that stirred up many Suits and made the Purview strongly against it Et lex si prospiciat majori parti retilis est All Infants are bound by the generall Purview which containeth them in the Exceptions As an Infant levies a Fine Proclamations pass he shall not have error yet within age for no Infant is excepted But he that is not Party to the Fine by Southcot and Walsh he is excepted out of the generall Purview in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute for that he had not right at the time of the Fine levied but then the right rested in his Ancestor which was disseised for the Exception is always an exemption of that which is contained before in the generall words otherwise could not be excepted As a Feoffment of a Mannor except such an Acre which is not parcell of it or a Lease of all Lands of the part of the Father except Lands of the part of the Mother is a void exception because this exception was not in the Feoffment nor Demise or right or not right is not the matter but claim or Nonclaim within five years is the matter where a Fine is pleaded to conclude any And this Tried by issue by the one or the other maketh an end of the matter Catline a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant shall make void the Fine and the Tenant shall be restored to the land because he claims signiory and services out of the Land and no right to the Land when the Fine was levyed and therefore is out of the purview which extends not from whom he claims or had right in possession Reversion or Remainder to the thing comprised within the Fine when the Fine was Levyed upon matter rising before The first saving giveth five years after proclamation to those which have right and their Heirs with a Condition annexed to it viz. so that they pursue their Title Claim c. within five years after Proclamations and as the saving is general to all Heirs notwithstanding they have their imperfections of Nonage Insanity c. So is the Condition general and extends to all Heirs whatsoever they are and this was the cause of the Judgement for otherwise the saving shall be for all heirs and the So shall be of all Heirs within age and then the So is not so large as the saving And so the Heir within age is bound to the Condition of the first saving as well as he is saved in the same because general tranquillity is more favored then an Infant and no time shall be gained by exposition or equity beyond the words of the act where the Act as here to strains all men to a time certain for the common tranquillity of the people and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there And therefore if one of the Terms limited by 4. H. 7. be adjourned because the Statute saith then next ensuing all the Proclamations before are void until the Statute of 1. Mar. cap. 7. Rastall Fines 12. because time limited by the act ought to be pursued and once attached in part ought to be continued So the 5. County upon Exigent ought to be the next to the fourth or it is discontinuance and Allocatur Comitatus shall not aid but is error And therefore an Infant at the Common law shall be bound to year and day otherwise f. 365. where by the Statute of 4. H. 7. The five years Commence in the father being of full age Non-claim within the time limited by the Common Law shall lose right and infancy there shall not aid the party as 7. H. 6.32 Nonclaim by the Lord of his villain by a year and day which hath fled into ancient Demeasne So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire So wood of another within a Forrest of the Kings seised into the Kings hand shall be forfeited by Nonclaim within the year and day before fol. 57. So if a Bastard die seised and Mulier claims not So 2. H. 7.10 one shall lose his appeal of Murther if he bringeth it not within the year and day So by the custom of some Mannor one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori time shall be peremptory where it is limited by the Statute for the common repose of the Realm which shall be more favored then the private profit of any single person be he Infant of non sane memory c. by Carus and Dier the right of a Mulier within age is bound by discent of the bastard because the Law in this case is a binding Law by Southcot and Sanders contrary because infancy shall excuse Laches of entry 31. ass 18. 22.36 ass 2. 33. E. 3. The second saving giveth new 5. years to other persons and hore Stowel is the same person which had five years with his ancestor by the first saving because the saving and the so is in the Copulative and the word
was indicted before the said 15. of divers Treasons and express none in certain and ex illa causa and causis to proceed against him according to the Law whereupon he was arraigned and condemned thereupon accordingly and after the said attainder was confirmed by Act of Parliament which recites the said attainder and confirms it and besides ordains That the said attainted persons shall be attainted of high Treason c. And the attainder upon the indictment and the confirmation by Parliament were adjudged void 1. For that the Indictment taken before 15. is not an Indictment taken before 8. for the lesser number will not include the greater but the contrary and there may be two Indictments one taken before 15. and the other before 8. and for that the number is exprest there is certaintie what Indictment the Queen intended for misprision of time place and number shall make the thing void when they are limited for certainty and take away incertainty as of the time of 7. E. 3.26 one brings a Writ and Recites that it is contained in the Articles made in the time of King Edward Father of the King Edward the Third that no Sheriffe should put into Inquests c. and declare over according to the Statute the Writ was abated by Award for that the Articles that is to say Articuli super Chartas cap. 9. was made in the time of Edward the First and not in the time of King Edward the Second which was Father to King Edward the Third So E. 3.25 a Statute Merchant was made to pay 16. E. 3. and the party sued Execution and the Writ supposed the summe to be paid 14. E. 3. and by the suite the Feoffee was ousted and sued his Writ of Errour in the Kings Bench for the Kings Bench because it is the highest Court. shall revers Error upon suits in the Chancery according to the order of the Common Law So a defeasans which â—…tes a Statute to be made the 10. day of May where it was the first is void because time certain and that to which Acts are referred is materiall because there may be two Statutes the one the first the other the tenth day Misprision of the place as 38. H. 6.34 one pleads Letters Patents dated at Westminster where it did beare date at another place Naught because the place is materiall and is circumstance and witnesse of verity and certainty So by Commission to arraign one upon an Indictment at Dale in the County of C. where he was Indicted at another place in the same County there may not be arraigned by this authority for the reason aforesaid Misprision of number as 23. Assises placit 7. Writ of Redisseisâ—n abate because the Sheriffe tooke with him but one Coronor where Merton cap. 3. appoint two at the least So in a Precipe there ought to be twelve Summoners So 8. H. 7. pla ultima the number limited by the Act 3. H. 7. cap. 1. concerning the Star-Chamber ought to be observed So an accountant found in arrearages shall not be committed to Prison if there be not two Auditors because W. 2. cap. 12. saith auditorum So 2. E. 3.8 A Writ of Attaint supposed that the Verdict passed before 4. Justices and the Record proves that before 2. there is no Warrant to take this Attaint But 31. E. in the Booke of Assises pl. 1. a Procedendo supposed that the Assise was arraigned before 2. where it was before 3. good because no falsity there because the greater comprehends the lesse not on the contrary 2. By Anderson which was of Counsell for the Defendant and which in part confessed that the arraignment was not duly made yet said that it was not void but voidable See there the Office of Justices for Treason and their Authority for judgement given where the due circumstances of Law are not observed is not void but voidable by Error as 7. E. 4.3.11 H. 7.4 and 2. Mar. 1. Judgement given upon a Plea of Land 21. H. 6. and 21. E. 4.4 and 62. where a Fine levied without Originall is voidable by Error and by him and Lovelace this Writ of Error is taken away here because a thing defeasable confirmed by Parliament is made indefeasable The counsell of the Earle to the contrary clearly that the Authority given to the Mayor and the others by the second Commission is to proceed upon one Indictment and he proceeds upon another and so exceeds his Authority and therefore shall be void Also they are no Justices of the Treason expressed in it And there is not any such Indictment and no Treason in certain is expressed in their Commission But the Relation is generall to treasons contained in the Indictment where in truth there is not any such Indictment and so the relation of a thing incertain in it self to a thing which is not done the thing referred is void otherwise it is of a thing certain as before fol. 169. A Lease of all his Lands in D. which he hath by his Mother where 2. E. 4.27 before fol. 191. releases all his right in them and hath no Land there by the Mother but by purchase with his Father this Lease and Release are void for the cause aforesaid But otherwise it is where he leases and releaseth all his right in White acre in Dale which he hath by his Mother or hath by his Father or Purchase because the saying there which he hath by his Mother is surplusage because it was certain enough before all the parts of the Commission shall be considered together and fulfilled as of every other Deede As for the last part of the Letter of Atturney although as well to deliver seisen as to take by the words of the first part So here because they have authority to arraigne the Plaintiffe upon the Indictment onely taken before fifteen and he was arraigned by Indictment before eight of them all is void and Coram non Judice And it is not resemblable to the Cases put by Anderson fol. 349. because there they have authority upon the Cause and the Cause was within the Jurisdiction of the Court and the Order is misused in which Case the Acts shall not be void but voidable But where one is assigned to doe one thing and he doth another as here this other is meerly void and without Authotity as 9. E. 44. by Choke He who Arbitrates another thing then is committed to him makes such Arbitrement void Anderson and Lovelace for the Defendant the Plaintiffe shall be taken by this Statute to be attainted or at least concluded to say otherwise because the recitall of the Act is an Estoppell to all because every Subject is party and ptivy to an Act of Parliament and the Statute shall not be void to all intents And the Expounder ought not to make Exposition for to confound the Text by 27. H. 8. c. 10. A woman may refuse her Joincture if assigned after Marriage implies that if it were assigned before
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
and the Defendant shew a matter in Law which upon the Law discussed proves the said matter alledged by Plaintiste true or false there he ought not to take a traverse for then the Jury shall try this matter in Law which properly belongeth to the Court to discusse Per Curiam 1. Appropriation of an Advowson ought alwayes to be made to a body Politicke or Corporation Spirituall being Patron of the said Advowson and such Parson onely is capable of an Appropriation and no other and by the Law such Parson in Parsonee may not grant over his Incumbency no more then an Incumbent of a Parsonage presentable at this day nor any other shall have it because it is appropriate to his Parson 3. E. 3.1 The Case of the Templers that by their dissolution the Appropriation was dissolved And yet was first ordained when such Parsons by incroachment and sufferance were made Parsons in Parsonees which could not say Service nor Administer the Sacraments as Deane and Chapter Nuns Abottesles c. which was a thing horrible by the Lord Dyer 2. Every Appropriation shall be made by the King for the losse which he may have otherwise as King by reason of the Tenure and by the or dinary Supreame or Inferiour for the interest that they ought to have in seeing the Cure served by the Patron to whom the Appropriation shall be made and those three are Actors in the Play as Dyer said But here the Appropriation made by the King which is also Supreame ordinary by the Statute of 25. Hen. 8. which transfers to him the Authority of the Pope is good As the Deane of Wells Assigne to the King good by the Court because he is Supreame ordinary by the Statute of 25. Hen. 8. in Sir John Pollards Case against Waldron and here the King doth three things First he grants the Advowson Secondly he maketh the Appropriation as Supreame Ordinary Thirdly he giveth his consent as King fol. 501. if time of Lapps be devolved to the King hee shall present as Supreame Patron in respect that the Advowson is holden of him mediately or immediately If the Appropriation be made without License of the King be the Advowson holden of him or of a common Parson the King shall seise the Advowson and shall have the Presentments untill hee be satisfied of the Fine by his Prerogative and as in the name of a distresse 21. E. 3.5 And there it is said That the Appropriation is not Mortmaine because it is not any transmutation of the possession nor Substraction of Services but the Tenure remaineth as it was before 3. The Appropriation may be made by words future when the Church is full although that the Incumbent hath the Fee and Inheritance of the Church and none shall medle with it which is his in his life but otherwise it is of present words and the proper time to appropriate it is when the Church is void because then it may be executed presently But the Patron cannot present when it is full by future words scilicet that he shall be incumbent when the Church shall be void For that he hath not Title to Present before the avoydance If the King presents to an Advowson and appropriate the Church to a Deane and Chapter which maketh a Lease for yeares in the life of the Incumbent this is a voide Lease after the death of the Incumbent by Plowden for that at the time of the making of it they had nothing in the Rectory and the Appropriation was not executed untill after the avoydance 4. An Usurpation may not be upon a Parson in Parsonee for that he is perpetuall Incumbent and two Incumbents cannot be in one Church 38. H. 14.39 H. 6.21 and 27. and there cannot be ousted by wrong nor have right of Advowson for he is not out of Possession and if one presents to such an Advowson Appropriate and the Clerk is admitted Instituted and Inducted by six moneths yet the Church is not become Presentative nor by any other Act except onely where the Parson in Parsonee himselfe presents for there volemi non sit injuria by Manwood and Dyer the dissolution of the Corporation to which the Advowson is Appropriate is a disappropriation of the Advowson and the Lord of whom it is holden may Present If a Deane and Chapter seised of a Mannor to which an Advowson is Appendent and the Church is Appropriate to them and after they make a Feoffement of the Mannor with the Appurtenances this disappropriates the Advowson for by some it passeth Appendent by the common Law because the Appropriation destroyes not the Appendency But now by the Statute which maketh lay Persons capable of Parsonages Appropriate they are severed from Mannors by the intent of the Act and by the grant of the Parsonage Appropriate which now may be granted to a common Parson and the Advowson shall passe Foure answers to the foure exceptions of the Plea First The first exception is because the Patent is not pleaded with a Non obstante of the Statute of Mortmaine and therefore not good by Dyer But Plowden held the contrary for that the Grant is good untill Office found and then hee may well pleade a licence for that time also the Patent is Excerta scientia which countervailes the clause of Non obstante for that implies that the King was knowing of the Law for ignorance indeed may be allowed in the King ignorance in Law not So if the King grant Lands to his Villain the Land passeth untill Office but it is no infranchisement because if he was his Villain or not is a forrain matter and not apparent to the King And the Kings Grant shall not enure to two intents where one is forraine matter The clause of Non obstante is requisite in a Patent to be Sheriffe for life 2. H. 7. because the Statute saith by precise words That he shall not be Sheriffe above one yeare So a Patent to a Murtherer for pardon and that he shall not finde sureties for his good behaviour ought to have a Non obstante 10. E. 3. because this Statute avoided the Patent by precise words without such surety But the Statute of Mortmaine doth not so here but giveth entry or seisure for a paine admitting the Grant to be good The second exception was that the Patent made not them Parson by expresse words by Dyer The second exception was answered by Plowden who said because the words amounted to as much and for that the Kings appeared to be so that it should not be void because Ex gratia mero motu The third exception made by Dyer was that they did not plead that they entred But Plowden answered that because the Patent granted them power to retaine c. And also they pleaded that they were seised which implies an entrie and in the Common Pleas use upon possession executory shall say seised onely without saying that he entred and was seised The fourth exception that was made
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS