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A93927 The reading upon the statute of the thirteenth of Elizabeth, chapter VII. touching bankrupts, learnedly and amply expained, by John Stone of Gray's Inn, esquire. Stone, John, d. 1640. 1695 (1695) Wing S5730; ESTC R43936 72,205 137

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opinion that after the death of her Husband she shall be in bondage again quod Burton negavit but if she marry the Lord then by all she is infranchised for ever Britton fol. 78. She is infranchised for ever Natura brevi B. 78. G. I will conclude with the first authority by Fitzherbert Brittons opinion seems reasonable if she divorce not her self or acknowledge not her self in Court of Record in favour of Liberty and because she and her Husband are but one person in Law and of the same condition with him There be divers things favoured in Law as Womens dowers the King Lords Holy Church ancient Records Devises Infants Purchasors and possessions But next life Liberty of all things is most favoured 18 E. 4.6 No amercement lies against the Sheriffs return yet in a writ of Libertate probanda if the Sheriff returns that he hath no wrît of nativo habendo depending before him one may offer the contrary in favorem libertatis Quia propensiores esse debemus ad liberandum quam ad obligandum It hath been made a Question upon the Statute 39 Eliz. that appoints the Lands Tenements and Hereditaments of Accomptants to be sold which they had at the time when they fell into Arearages whether if the Accomptant shall manumit a villain he shall be nevertheless sold and the best opinion of him that read upon the Statute in this place was that his liberty could not be revoked for here were neither Lands Tenements nor Hereditaments and so here 27 Assizar Enfranchisement for a time by act in Law but if the Lord will manumit his villain for a day by his voluntary grant he is at liberty for ever The Tenant dies without heir the Question is this A Lord is a Bankrupt and dies a Tenancy escheats if the Seigniory or the Tenancy shall be sold I take it as I have concluded the Tenancy that is the Land shall be sold first see the words of the statute Primo Jacobi The Commissioners may proceed in the execution of the Commission in such sort as they might have done if the party Offender were alive this makes an end of the question for if he were alive and the Tenancy escheated the Land should be sold And therefore I shall not need to put you Cases at Common Law where the Tenancy escheating shall be bound to that where the Land was tyed 6 H. 4.1 Tenant in tail discontinues and dies and leaves a Seigniory to descend to the issue in tail a Tenancy escheats in a Formedon by the issue the Tenancy shall he Assets 14 H. 8 4. Fitzherbert cestui que use of a Seigniory a Tenancy escheats the Feoffee shall hold the Land to the use of the Feoffer 46 E. 3.4 Tenant in tail of a Seigniorty a Tenancy escheats Tenant in tail discontinues and dies without issue the Donor shall have a Formedon of the Land 3. A Commission is awarded D. is felo de se the Question a Commission is awarded and the Bankrupt becomes felo de se Office is found if the Almoner shall have his goods or the Commissioners may sell them for the Lord Almoner hath all the goods and chattels of Felons of themselves and all Deodands as appears by our Books and his Charter which I have seen 6 E. 6. Dier fol. 77. The King leases Richmond fee with all Deodands and after grants to the Almoner the term expires the grant to the Almoner void because the other lease was not recited 2. Mar. Dier fol. 107. The King grants to the Archbishop of Canter Deodands in D. and to the Almoner all in general Hales is felo de se Plow Dame Hales the Bishop is attainted the King shall have the Lease It is true as it appears in Dame Hales case That when two titles come together that is the Kings and a subjects the Kings shall be preferrd As if a villain be a fool natural the King not the Lord shall have him If a villain be felo de se the King not the Lord shall have his goods Then a Bankrupt is felo de se shall the King or the Creditors have his goods I think the Creditors For if the Bankrupt in life had no authority to dispose them as it is in Tibnabams Ca. much less shall he dispose of them by his death And admit the Almoners Patent were before the Statute of primo of the King yet both the King and the Almoner by Act of Parliament have given away their title to the Creditors 4. I have already argued that the heir of the Bankrupt is in by descent now the Case is he is within age and an office is found and that the Land is held of the King in capite the Question and the hardest question in my Case is whether after an office of all this matter found the Commissioners may sell And I think they may For this office finding the whole matter notwithstanding a tenure in capite a dying seised of the Tenant and the minority of an heir is found yet nothing vests in the King For when an Act of Parliament shall appoint the Land to go another way and the course taken according to the Statute is found in the Office the King his Officers in the Law shall consider of all the whole matter in Concreto and not in abstracto and shall challenge nothing for the King which belongs not to him as is seen by a Devise made by Tenant in capite according to the Statute of 32 H. 8. of Wills 5. The Commissioners imprison the Bankrupt in his own House Two questions first whether the Commissioners may imprison him by the Statute of 13. which gives them authority to dispose of his body as they shall see good in their discretions when as the Statute of primo appoints an imprisonment upon a special cause of refusal as if there were no Law general to imprison him in divers cases expressa nocent Vide my Moote Book I think they may It is true that Leges posteriores priores contrarias abrogant but this is not a contrary Law but a strengthning and a confirmation of the former Law in a particular nor doth it revoke the former no otherwise than that where by the Statute of 27 H. 8. Leases shall be under the Dutchy Seal This doth not take away the Authority of the Great Seal but that Grants may pass under the Great Seal since the Statute And for sureness now a days they put many times both Seals to them 2. Question is whether this Imprisonment in his own House be such a Dealing in the Commission by the Commissioners as is intended by the Statute of primo That his dying afterwards shall not alter the Case For if it be a lawful Imprisonment then here is a Dealing if not contrary for Ea possimus quae jure possimus for as it is said by Herle for a Maxime that all Leets Hundreds and in 2 E. 3. all Ports and Cities are the Kings and the Lords
Gavelkind without Issue by the Custome there Reppes Case the Child was ripped out of his Mothers Belly and so after the death of the Feme the Baron could not be Tenant by the Courtesie But this Question rises upon the Case put in Pains Case Lands are given to a Feme and her Heirs Males and she hath Issue a Daughter and dies the Husband shall not be Tenant by the Courtesie for although a Man shall be Tenant by the Courtesie notwithstanding the Estate tail be spent yet his Estate must begin by an Heir heritable to the Estate Here in our Case the Son was the Heir and by him the Father would have been Tenant by the Courtesie to all other his Wifes Lands but not to this But although a Female cannot be Heir that hath a Brother yet since the Statute of Donis and by the Equity of that a Daughter may be Heir by Cook in Shelley's Case notwithstanding that he had also a Son fol. 103. and so here he may be Tenant by the Courtesie for this Land by the Daughter and of other Land by the Son if the Wife had been Tenant in tail of other Lands to her and her Heirs Males 5. Tenant by the Courtesie is and Tenant in tail in reversion makes a lease to commence presently hath Issue and dies Tenant by the Courtesie dies if his Issue shall avoid the Lease This Question is grounded upon the words of the Statute of 32 H. 8. which gives power to Tenant i● tail to make Leases Provided always that this Act c. shall not extend to any Leases to be made of any Mannors c. being in the hands of any Farmer or Farmers by vertue of any old Lease unless the same old Lease be expired surrendred or ended within one year after the making of the new Lease and upon this Clause hath risen many Questions as Tenant in tail makes a Lease for Forty years not warranted and Ten years after makes a Lease for Twenty One years to another warranted Within a year Tenant for Forty years surrenders Tenant in Dower surrenders to the Issue in tail upon condition Tenant in tail makes a Lease c. Tenant in Dower enters for the condition and dies and Tenant in tail dies if the Issue may enter Tenant in tail makes a good Lease for One and Twenty years Tenant for years surrenders upon condition Tenant in tail makes another Lease for One and Twenty years or three lives the first Tenant in tail enters for the condition broken By Philips the second Lease is good Cook contra in Elmers Case lib. 5. And my Question is whether Tenant by the Courtesie be within those words Farmers c. and he is not Foster in his Reading upon this Statute vouched one Richards Case That Tenant by the Courtesie was no such Farmer Points upon the Statute 1. IF a Feme Covert sole Merchant by the Custom of London shall be within the first Branch or Division of this Statute which is using the Trade of Merchandizing or getting their living by c. she is That there is such a Custom in London and mentioned and allowed in our Books Custom Br. 43. Ley Br. 74. 1 E 4. fol. 6. An Action being brought in C. B. for ones Board in London he would wage his Law not And the difference put between Customs which go with the Lands as Gavelkind Borough English c. and Customs of Courts good within the Town but not here but a recovery by such Custom may well be pleaded here in this Case Littleton Billing saith A Feme Covert sole Merchant by the Custom of London shall be impleaded sole here 35 H. 6. fol. 28. The Question was Whether the property of the Kings Jewells could be altered or forfeited because they were pawned and forfeited in London By Needham in the Exchequer Chamber upon an Information Custom Brook 5. and Pledges 28. 21 H. 7.17 Departure Brook 10. in case of a Departure because he had intituled himself by a new matter that is by a Custom which he might have pleaded 9 E. 4.35 A Feme removed by Habeas Corpus objected by Pigot that she and her Husband were both arrested for the Femes debt because a sole Merchant and prayed that she might be remanded for they have no remedy here this had been allowed and granted to him had not the Woman come in charged with a Reddidit So upon an Exigent The Customs of London have been confirmed by Parliament 1 E. 37. R. 2. and admit that she could not be sole sued here as in the Courts of London yet if a Contract made by her shall bind the Husband by the Custom the Husband shall be sued here and it shall be said the Contract of the Husband as 21 H. 7. 2. The Husband shall be bound by the Contract of his Wife if he command before or agree after and it shall be accounted his folly to suffer his Wife and so they be both Bankrupts To put cases how the Husband shall be prejudiced by the Act of his Wife 49 E. 3.25 The Husband shall not be charged with the debt of the Wife which she owed before marriage after her death but if an Action during the Coverture were brought against the Baron and Feme and Judgment were had against them and she dies the Husband shall be charged 20 H. 6.22 If the Wife buy any thing by the Husbands commandment or that by his allowance comes to his use he shall be charged 9 E. 4.24 Debt against Baron and Feme the Baron appeareth the Feme makes default the default of the Wife is the default of the Husband Nat. Brevium 120. G. A man shall be charged by the Contract of his Servant or his Wife if he gives them Authority otherwise not 12 H. 7.24 The Baron shall pay Mony in the Spiritual-Court which was charged for corporal punishment of the Wife for a slander And so it is at our Law for all Slanders and Batteries as we see every day 20 H. 7. Kello 61. A Feme Disseisor takes Husband who occupies the Land without notice or cognizance of the Husband yet he shall pay damages I conclude her Merchandizes are his by the Common Law and by the Custom 3. For all the Reasons aforesaid the Outlawry of the Husband shall make him a Bankrupt by the Statute and shall make the Wife a Bankrupt by the Custom and the Statute Which is plain against all using Trade of Merchandizing and getting their living by Buying and Selling and that if he be non solvent as he must needs be by his Outlawry then she must be non solvent but whether the Creditors by the Commission shall have the Goods or the King by his Outlawry That is a Question that comes not within the compass of this Case but I shall move that some other time 4. But I put the Husband to be dead before the Commission and whether his Goods or Lands shall be sold afterwards is a Question but