and dye these shall go to the Executor or Administrator not the successor of such a person And albeit such things be granted to them and their successors yet their executors and administrators and not their successors shall have it But if a Corporation aggregate as Dean and Chapter Mayor or Cominalty and the like have any goods or chattels in right of their Corporation and any of the Heads or Members thereof dye the Executors or Administrators of such person shall not have them but they shall continue in succession with the Corporation An Executor or Administrator shall have the benefit of a pardon Coo. 6. 80. Dyer 201. granted to the deceased and shall have advantage of any error in any outlawry against the deceased and have restitution of the goods forfeir thereupon The Executor or Administrator of a woman that hath a husband shall have by right of his Executorship or administration all Actions Husband and Wife Coo. super Litt. 351. Plow 294. 192. Rights and Titles to any chattels and possibilities and things of that nature which the wife had before the marriage and which sell to her during the marriage for these things the husband shall not have by the intermarriage after his wives death as he shall have all the rest of her goods and chattels execept he have them as executor or administrator to her as he may be And if such a woman have any goods or chattels as Executrix to another her executor or administrator not her husband shall have these also for she hath these goods in anothers and not in her own right If I have any goods or chattels in Iointenancy with another as if a lease be made of lands to me and another for years or a horse or other 〈◊〉 Sect. 281. Perk. Sect. 525. 526. Litt. Sect. 320 321. chattell personall be given or granted to me and another in these cases if I die my executor or administrator shall not have any part of these goods or chattels but the other surviving Iointenant shall have them all But otherwise it is of the goods and chattels that I and another have in Common And therefore if I and another have goods and chattels in that nature as before and he or I grant that which doth belong unto us thereof unto a stranger in this case the stranger and him of us two that hath kept his part are tenants in Common of the things and therefore if either of us die the part of him that dieth in the goods and chattels shall goe to his executor or administrator and not to the other Tenant in Common If I have a Judgement for land in a reall or mixt action and for damages recovered in the same Suit and I dye in this case my executor 〈◊〉 Executor 53. 84. â—17 or administrator not my heire shall sue execution for and recover the damages but not for the land So if I recover damages against another for the detaining of my Charters and dye my executor or administrator shall recover the damages but the heire shall have the Charters and the heire must sue his Scire facias for the Charters ere the executor can sue for the damages Also if I recover any debt or damage in any personall action my executor or administrator shall recover and have this See more infra at Numb 39. The power and interest which the Executor hath is wholly by Coo. 6. 18. 9. 38. 5. 27. Plow 280. 9. Ed. 4. 47. 36 H. 6. 7. Fitz. Administrator 2. 6. the Will And hence it is that an Executor whether he be absolute 26. What an Executor may doe by vertue of his Executorship And the power of an Executor Administrator oâ— Ordinary or conditionall whiles he is Executor may do any thing as Executor except only sue for debts and duties due to the Testator aswell before the Probate of the Will as he may do after for before the Probate he may enter into and seize the goods and chattels whatsoever they be or give power to another so to do and if any of them be taken or kept from him he may have an action of trespasse or a replevin to recover them he may give or sell any of the goods or chattels he may pay any of the debts due from and receive or release any debts due to the deceased But it is otherwise in the case of an Administration for in as much as his power and interest is given to him wholly by the Administration therefore he can do nothing untill the Administration be granted And yet in this case as to the goods taken away before the Administration the Administration shall have such a relation as to give the Administrator an action for them But otherwise after the Administration is granted the interest and power of the Administrator is equall to and with the power and interest of the Executor And yet it is otherwise of the power and interest of the Ordinary For howsoever it seemes by the ancient Common Law he might seize Coo. 8. 135. 9 39. Dyer 255. Westm 2. cap. 20. 31 Ed. 3. c. 11. preserve give grant and dispose the goods of the intestate to pious uses yet might he not sue for the goods or debts due to the intestate no more then he might be sued for any debt due from the intestate and at this day he may only keep and preserve the goods of the deceased until administration be granted and sue him in the Court of the Ordinary that doth detaine the goods from him and perhaps may sue him that shall take the goods out of his possession for he may not sell or give the goods of the deceased nor receive or release any debts for in case where there is an Executor made that is capable c. he is not to meddle at all with the estate untill the Executor refuse and where there is no Executor that the party is dead intestate the Ordinary is presently to commit the Administration to the nearest of the kinred which when he hath done his power is at a end for it is doubted of some whether he may repeale an Administration without cause or not but it hath been clearly held by all that he may not dispose of the estate afterwards and that he hath not power to enforce the Administrator to give portions to children out of the estate and that if he do goe about it either before or after the granting of the Letters of Administration the Administrator may have a Prohibition * Hill 13. Ia. Co. B. Henslowes case Trin. 3. tac Co. B. Davis case Hill 2. Car. Co. 9. Fotherlies case And accordingly divers have been granted And yet notwithstanding it seemes this course is usuall and Prohibitions not often granted at this day * Litt. Sect. 69. Plow 281. Broo. Executor 129. An Executor or Administrator may after the death of the deceased enter into the house where the deceased lived and where he
him by the Statutes that he cannot afterwards revoke it and grant it to another without cause i. e. unlesse the first administration be illegally granted as when it is granted to a stranger and noâ— to the next of kinne or the like or unlesse the first administrator cannot or wiâ—l not administer for in these cases he may without doubt grant the administration to another And yet in these cases where there is a former administration granted regularly all acts that the first administrator doth lawfully execute and doe as administrator as sale of goods payment or receit of debts making Releases and the like are good and shall bind the next and succeeding administrator And therefore if the Plow 281. Coo. 6. 18 19 Dyeâ— 339. Ordinary after the death of a man Intestate doth grant the administration of his goods to a stranger and then the next of kinne doth sue by Citation to have it repealed and the first administrator hanging that Suit in the Spirituall Court doth sell the goods of purpose to defeat the second administration and after the first letters of administration are revoked by sentence and the first sentence annulled and the administration is committed to another in this case the second administrator cannot recover these goods or have any remedy for them And yet perhaps if there be any fraud in the case an executor may have reliefe upon the Statute of 13 Eliz. But if the first Suit and sentence be by Appeale avoided then all that the first administrator doth is void and the second administrator may recover the goods notwithstanding the sale And if the Coo. 6. 19. first administration be upon condition all the acts the administrator doth before the condition is broken are good and therefore iâ— if he give or sell the goods the subsequent administrator cannot avoid it If a man die Intestate and have not bona notabilia and the Bishop Coo. 8. 135. of the Diocesse grant Letters of Administration to one and after the Archbishop doth grant Letters of Administration to another in this case the effect of the first administration is suspended untill the other be repealed and declared by sentence to bee void If there be a Will and it is concealed and thereupon an administration Plow 281. 9 H. 5. 5. is granted and after the Will is produced and proved in this case the administration is ipso facto determined and all the acts the administrator hath done ab initio are become void See more in the next Question If a Will bee made by an Ideot and an Executor appointed therein Dyer 36. What Acts done by one Executor or Administrator may be avoided by the subsequent Executor or Administrator and what not and the Executor take upon him the administration and after the Will is avoided for the weaknesse of the Testator in this case it seemes that all the Acts the Executor doth before the avoidance of the Will are good and not to bee avoided by the Admistrator If there bee a Will made and an Executor appointed and the 3 H. 7. 14. Ordinary cite the Executor to come in and prove the Will and he doth not come and thereupon the Ordinary doth grant the administration to another in this case all acts done by the Administrator are good and shall binde the Executor if hee may and shall afterwards take upon him the Executorship But otherwise it is where the Ordinary doth grant the Administration before the Executor be cited to appeare or before the time given him to take upon him the administration for in this case nothing that he doth shall binde the Executor When there is an Administration granted and it is afterwards upon Câ—o. 6. 18 â—9 Pâ—â—w 282. Coo. 8. 143 135. a Suit by condition only repealed in this case all acts done by the first Administrator are good and shall binde the subsequent Administrator But in case where the first administration is upon a Suiâ— by appeale by sentence annihilated and declared void there all acts done by the first Administrator are void and shall not bind the subsequent Administrator And therefore if the Ordinary of the Diocesse grant an Administration that doth belong to the Metropolitan to grant in which case the Administration is void all Acts done by the Administrator are void and may be avoided by the succeeding Administrator But when the administration doth belong to the Ordinary of the Diâ—cesse to grant and the Metropolitan doth grant it in which case it is only voidable in that case all acts upon and by vertue of the first administration before the second administration is granted are good If an administration be granted to a stranger and afterwards it is revoked and granted to the next of kinne in this case all lawfull Wâ—son versus Pack-man M. 37. 38. Eliz. B. R. acts done by the first Administrator before and hanging the Suit are good and unavoidable by the subsequent Administrator and yet perhaps if the first Administrator waste the goods it may bee hee may be charged for this by the subsequent Administrator or by a Creditor Where the Executor by the Will is not to administer untill a Plow 281. 282. Coo. 6. 19. 34. H. 6. 14. certain time in this case the administration of the goods is to be granted untill that time and all acts done by such an adâ—inistrator before that time are good and shall binde the Executor So where an Executor is made or an administration is granted upon condition which is after broken so that the Executorship or Administration is determined yet in this case all acts done by him before this time are good If there be a false and a true Will and the Executor of the false 4 H. 7. 13. Plow 282. Will prove this Will first and afterwards the Executor of the true Will doth disprove and avoid the first Will in this case hee may also avoid all acts the first Executor doth The same Barres and Pleas regularly that a man may have to Coo. 5. 33. Dyer 30. 80. Coo 8. 132. 134. 21 H. 6. 19 Dâ—er 2. 27 H. 8. 6. Coo. 9. 108. 〈◊〉 H 4. 21. Actions brought by the deceased himself in his life a man may have 3â— What shall be said a good barre in debt or other Action brought by or against an Executor or Administrator and what not to baâ—re the Action and Suit of his Executor or Administrator after his death But an Executor or Administrator may have besides the same Pleas and Barres to Actions the deceased might have had as Non est factum Per Duresse Non Assumpsit and the like divers other Pleas and Barres to Actions in respect of his estate and condition as Executor or Administrator For if he never meddle with the goods and chattels of the deceased and yet be sued as Executor or Administrator he may plead Ne unque i. e. he did never intermeddle as Executor or Administrator and if this
134. Dye 185. 32. returned by the Sheriffe against the executor or administrator and not before a new execution is directed to the Sheriffe to levie the debt de bonis Testatoris and if there be none of them to be found in his hands then to levie them de bonis propriis And therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a plenè administravit generally or plead specially that he hath no more but to satisfie a Iudgement or the like and upon tryall this issue is found against him and it is found he hath in all or part enough to satifie the debt in these cases the Judgement is de benis Testatoris and thereupon an Execution is as in other cases to levie the debt de bonis Testatoris in the hands of the Executor or Administrator and for the costs de bonis propriis And upon the returne of the Sheriffe a speciall execution doth issue forth to levie the money de bonis Testatoris Et si constare poterit that he hath wasted the goods then that he shall make the execution d bonis propriis And hâ—reupon also the Plaintiffe may if he will have a Capias against the body or an Elegit against the lands of the Executor or Administrator and no other course of proceeding can or may be had against the Executor or Administrator in this case An action of debt was brought against two Executors and one Dyer 21â— of them did appeare and confesse the action and the other made default and thereupon Judgement was given to recover against them both de bonis Testatoris in their hands and execution accordingly and upon this execution the Sheriffe did returne a Devastavit against the Executor that made default only and hereupon a Scire facias went out against him alone and afterward an execution against him alone de bonis propriis Assets in this case is said to be where one dieth indebted and Termes of the Law Coo. super Litt. 374. maketh his Executor or dyeth intestate and the Executor or Administrator Assets Quid. hath sufficient in goods or chattels or other profits to pay the debts or some part thereof this is said assets in his hands and for so much he shall charged All those goods and chattels actions and commodities which were the deceaseds in right of action or possession as his own and 3â— What shall be said to be Assets in the hands of an Executor or Administrator to charge him Or not so continued to the time of his death and which after his death the Executor or Administrator doth get into his hands as duly belonging to him in the right of his Executorship and Administration and all such things as do come to the Executor and Administrator in liew or by reason of that and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargable to a Creditor or Legatee And herein these things are to be known 1. That Assets in the hands of one of the executors shall be said to be Assets in the hands of all the executors Kelw. 51. 2. That Assets in any part of the world shall be said to be Assets Coo. 6. 47. in every part of the world and therefore if that point be in issue and it appeare that there is Assets in the hands of any one of the executors or in any County or place whatsoever the Iury must find that there is Assets 3. All goods and chattels of what nature or kind whatsoever that are valuable as oxen kine corne c. Coo. super Litt. 388. shall be esteemed Assets But such things as are not valuable as a Presentation to a Church and the like shaâ—l not be accounted assets 4. All the goods and chattels that come to the executor or administrator in the right of their executorship or administration and Coo. super Litt. â—88 5. 3â— that are by Law given to them by vertue thereof in the right of the deceased for which See before at Numb 25. and which Dyer 361. Kelw. 63. are in possession shall be esteemed Assets in his hands a Coo. super Litt. 54. Dyer 36â— And therefore if a Feoffment be made to the use of the Feoffor for life and after to the use of his executors and assignes for 20 yeares in this case it seemes this 20 yeares shall be said to be assets in the hands of the executor of the Feoffor b 20 H. 7. 4. Broo. aâ—sets 22. And goods pledged to the deceased and not redeemed or the money wherewith it is redeemed when it is redeemed shall be said to be assets in the hands of the executor or administrator c See Before Numb And if the deceased doth appoint that the executors shall sell his land to pay his debts the money that is made of the land when it is sold shall be said to be assets in his hands 5. All the goods and chattels in action or in possibility Coo. super Litt. 124. 5. 31. Broo. Assets 24. Dyer 264. 121. 2 H. 4. 21. Coo. 6. 58. Kelw. 63. Dyer 362. at the time of the death of the deceased that are afterwards recovered and are gotten in possession into the hands of the executot or administraror when they are so recovered ate esteemed assets in his hands But they are never accounted assets untill they are recovered and come in possession and therefore if there be debts owing to the deceased upon Statutes or Obligations or otherwise these are never esteemed assets in the hands of the executor or administrator untill he hath recovered them So likewise if there be debt or damages recovered by a Iudgement had by the deceased but no execution is done untill execution be made this shall not be esteemed assets in the hands of the executor or administrator So if the executor bring an action of trespasse against another de bonis asportatis in vita Testatoris and he have a Iudgement for damages in this case untill he hath recovered it by execution it shall not be esteemed assets in his hands And if the Indgement be erroneous and the execution avoidable in this case albeit it bee recovered and gotten in possession yet it shall Curia Mich. 13. B. R. not be esteemed assets And therefore if one sue another and recover against him as Administraror of I S and after a Testament made by I S is produced and proved and thereby an Executor is made in this case the money recovered by the Administrator shall not be said to be assets in his hands as to any of the Creditors because the Executor may recover it from him or the debtor will have it againe And if the Executor or Administrator do never recover and get the thing into his possession he shall never bee Coo. 1. 98. Plow 84. 292. charged especially there where he hath done his best to get
within a year and a day after the fine levied and 10. The time of claime and within what time he that hath right to land must make his claime c. to prevent the barie of the fine execution thereupon or else he was barred for ever but this barre by non-claime is now gone and if such a fine without Proclamations bee levied at this day hee that hath right may make his claime at any time to prevent the barre and avoid the force of the fine Parties to fines void of impediment at the time of the fine levied Stat. 1 R. 3. ch 7. 4. H. 7. ch 24. are barred of the land presently and shall have no time to avoid Parties the same fine by entrie claime c. And privies in bloud and privies in representation claiming by the same title which their Ancestor Privies that levied the same fine had shall be barred by the same fine presently and that whether they have any impediment or not Estrangers to fines being all such as are neither parties nor privies Estrangers 1. That have present right and no impediment who have right to the land whereof the fine is levied and See the Sta. Plow 374. Co. 9. 105. have no impediment naturall or legall shall have time to make their claime c. within five years after the fine levied and Proclamations had and no longer And therefore if lessee for years tenant by Elegit Statute or a Copiholder in fee or for life be ousted and he in reversion disseised they shall have but one 5. years between them to make their claime c. and if they claime not within that time they are all barred for ever for they have all present right and may bring their action presently but otherwise it is where the tenant for life and he in reversion be disseised for in this case he in reversion is not barred by the first five years after the fine levied for in that time he can have no action therefore he shall have time to make his claime 5. years after the death of the tenant for life g Plow 356. 375. If a disseisor levie a fine with Proclamations of the land whereof the disseisin was the disseisee must make his claime within the first 5. years after the Proclamations had and if he happen to die within the five yeares his heire shall not have 5. years more but so much time more as to make up the time incurred in his father or other Ancestors time 5. years and albeit he be an Infant at the time of his Ancestors death yet he shall have no longer time h 19 H. 8. 7. Plow 374. Dyer 3. If a tenant in taile be disseised and the disseisor levie a fine the tenant in taile or his issues must make their claime within the next five years after the Proclamations passed otherwise they be barred for ever The like it is in the lachesse of him in remainder or reversion i Co. 100. And if in these and such like cases he that hath present right and is without impediment bring upon himselfe any impediment as if being within the Realme at the time when the fine is levied he doe afterwards goe beyond the Sea or the like in these cases he shall have no longer time then the first five years after the proclamations had Estrangers to fines pestred with impediments of Infancy Coverture See the statutes Plow 359. Dier 3. Plow 367. 377. 2. That have present right and impediment Madnesse Idiocy Lunacy Imprisonment or absence out of the Realme at the time of the levying of the fine and having then any present interest or right shall have five years time after Infant the infirmity removed to make their claime c. And therefore an Infant regularly shall have time for five years after he come to his full age to make his claime c. although he be in his mothers wombe at the time of the fine levied And yet if my fathers brother disseise him and levy a fine with proclamations and a year after the proclamations my father dyeth and after and within five years my uncle dyeth in this case I by reason of my infancy shall have only so much time to avoid the same as at the death of my father remained to come of the five years next after the proclamations and not a new five years because I claime by the same title that my father had So if my father or other ancestor be disseised and the disseisor levy a fine with proclamations and my father or ancestor dye within five years after the proclamations in this case I shall not have a new five years but only so much as remaineth of the old five years to make my claime c. Madmen Non sane memorie Plow 366. 375. and Lunatickes being strangers to the fine shall have the like time to make their claime c. as Infants have and yet if this infirmity happen after the fine levied and before the last proclamations be made these persons are not bound to the first years but shall have five years time after they be cured of their maladies Women Plow 375. 376. Women Covert Covert estrangers to the fine shall have five years time after they be discovert to pursue their right But if a feme sole estranger to a fine have present right and after the fine levied she take a husband and so five years passe after the proclamations had in this case she is barred and shall have no further time to claime Estrangers to fines imprisoned at the time of the fine levied shall have the same time and liberty Infants have but if such imprisonment Plow 360. 366. 375. Imprisonment happen after the time of the fine levied and before the last proclamation made it seemeth they shall have five years after the inlargement And estrangers to fines being out of the Realme at the time of the levying thereof shall have five years time after Out of England Plow 366. their returne to enter or claime c. But if they be in England at the time of levying of the fine and after goe beyond the Seas and suffer the five years after the proclamations to passe in this case they shall have no longer time except they be sent in the Kings service and by his commandement k 〈◊〉 Sr. Tho. Cottons case 27 Eliz. And if the party be beyond the Sea at the time of the fine levyed and never return but dye there it seems in this case the fine will not barre his heire at all Estrangers to fines that have divers defects or infirmities as 3. That have divers defects Infancy Coverture non-sanity of minde imprisonment absence Plow 375. Dier 133. out of the Realme to avoid fines shall have time for five years after the last of the infirmities removed But if they have divers impediments and they be all
happen in possession If rent be reserved to be paid at two termes and it is not said by 13 H. 4. Avowry 240. Co. 8. 95. 10. 47. Bro. Done 57. Fitz. Done 2. equall portions yet it shall be so taken and it must be so paid If one be possessed of a terme of years of land and grant it by In other respects deed to I S for his life and after his death to I D in this case the whole terme is granted to I S and his executors administrators and assignes shall have it and not I D. But if a terme were so devised Dâ—vise by Will contra And if one give or grant to another his horse or his bookes for his life and that after his death they shall remaine Remainder to another the remainder is void and the first shall have it for ever for the gift or grant of such a thing for an houre is a gift of it for ever See more in Vse Numb 7. And it is now time that we come to the other parts of a Deed and first to a Condition CHAP. VI. Of a Condition A Condition is a kind of Law or bridle annexed to ones act 1. Condition Quid. Termes of the Law Co. super Lit. 201. staying or suspending the same and making it uncertaine whether it shall take effect or no. Or as others define it It is modus an Equality annexed by him that estate interest or right to the land c. whereby an estate c. may either be created defeated or enlarged upon an incertaine event And this doth differ from a Limitation which is the bounds or compasse of an estate or the time Limitation Quid. how long an estate shall continue And this sometimes is contained 27 H. 8. 16. Co. 2. 70. in a Testament or Will and sometimes in a deed And when it is in a deed it hath no proper place assigned it but it may be in any part of the deed howbeit for the most part it is placed next after the Habendum or next after the Reservation of the rent It is also sometimes annexed to and depending upon estates and sometimes annexed to and depending upon Recognizances Statutes Obligations contracts and other things Conditions are also contained in Acts of Parliament and Records But of these we speake not here in the ensuing matters which are especially to be applied to such Conditions as are usually contained in deeds and annexed to the realty i. to estates in feesimple feetaile for life or years And of these Conditions there are divers kinds For some 2. Quotuplex Co. super Lit. 201. Plow Colthirsts case Co. 8. 43. are in deed or Expresse i. when the condition is expressed by the party in legall terms and by expresse words in writing or without writing knit to the estate as if I enfeoffe a man of land rendring rent at a day on condition that if it be not paid it shall be lawfull for me to reenter And some are in law or Implied i. when the condition is tacitè created by the law without any words used by the party The first sort of conditions also are some of them precedent or executed i. when the condition must be fulfilled â—re the estate can take effect as where an agreement is between me and I S that if he pay me 10 l. at Michaelmas he shall have such a ground of mine for 10. years or I make a lease of land to I S for 10. years provided that if he pay me 10 l. at Michaelmas he shall have the land to him and his heires and in these cases by the performance of the condition the estate is acquired And some of them are Subsequent and Executory i. when the estate is executed but the continuance thereof dependeth upon the breach or performance of the condition as where a lease is made for years on condition that the lessee shall pay 10 l. to the lessor at Michaelmas or else his lease shall be void and in this case by the performance of the condition the estate is held and kept These conditions also are some of them in the affirmative i. that doe consist of doing as providing that the lessee shall pay the rent or pay 10 l. to the lessor c. And some in the Negative i. that consist of not doing as provided that the lessee shall not alien c. And some of them are in the Affirmative which imply a Negative as provided that if the rent be unpaid that the lessor shall reenter which implieth a Negative viz. not paid Conditions also are some of them collaterall i. when the act to be done is a collaterall act as that the party shall pay 10 l. goe to Rome or the like And some are inherent i. such as are annexed to the rent reserved out of the land whereof the estate is made And some of them also are Restrictive contain a restraint as that the lessee shall not alien or do wast or the like And some are compulsory as that the lessee shall pay â—o the lessor 10 l. such a day or his lease shall be void And some of them be single i. to doe one thing only And some copulative i. to doe divers things And some disjunctive i. when one thing of divers is required to be done And some conditions Co. super Lit. 201. make the estate whereunto they are annexed voidable only by entry or claime And some of them make the estate void ipso facto without entry or claime And sometimes they tend to destroy estates sometimes to make or to enlarge estates and sometimes neither to make nor destroy but only to clogge estates as where a lease is made rendring rent on a day on condition if it be not Lit. Sect. 327. paid that the lessor shall enter on the land and keep it till the rent be paid And all these waies conditions may be lawfully made Ineâ—â—e potest donationi modus conditio sive Causa The conditions in law or implied are either by Common law Co. 8. 44. 3. 65. Lit. 325. 378. F. N. B. 205. or by Statute law The first sort are some of them founded on skill as where an office is granted there is a condition tacite implied that if the grantee doth not execute it faithfully according to the trust the grantor may put him out And some are without skill as where an estate is made for life or years of land there is this condition implied that if the lessee doe wast he shall forfeit the place wasted or if the lessee make a feoffement of the land he shall forfeit his estate and the lessor shall enter And where an estate â—s made in fee of land this condition is implied that the feoffee shall not alien it in Mortmaine And these conditions doe somtimes give a recovery and no entry as in the case of wast And sometimes Co. 4. 121. they give an entry and no
if the feoffee shall Co. 5. 96. super Lit. 208. 207. pay to the feoffor tenne pound such a day that then he shall have By and to whom money shall be paid upon a condâ—tion the land to him and his heirs otherwise that the feoffor shall reenter or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day and before the day the feoffee sell the land in this case the seller or the buyer either of them may tender the money at the day and this will be a good performance of the condition for he that hath interest in the land on the one side or in the condition as party or privy on the other side may tender and performe the condition to save the estate If lands be mortgaged or which is all one if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void before the day the mortgagor or feoffor die in this case the heire or executor of the feoffor the Ordinary the Gardian in Chivalry or Socage of the heire of the feoffor or any other by either of their commandement precedent or assent subsequent may pay this money at the day and payment or tender of it by either of them at the day is a good performance of the condition * Lit. Bro. Sect. 12 5. And so also it seemes is the law upon a devise of land to I S paying to Testament I D twenty pound if I S die his heire or executor may pay the twenty pound and this is a good performance of the condition But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound this will be no good performance of the condition And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot the payment or tender by any one in his behalfe shall be a good performance of the condition And if a feoffement be made on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void no time is set for the payment of this mony the feoffor die before any payment or tender made in this case his heire cannot tender it and so perform the condition If a feoffement be made on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void and the feoffor die before the day and I S alone pay it this is a good performance of the condition If a feoffement be made on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another in this case the money may be paid to the feoffee himselfe or if he be dead to his heires and this payment is a good performance of the condition And if the words of the condition be That if he pay to the feoffee his heires or assignes c. in this case payment to either of them is a good performance of the condition so as if in this case the feoffee make a feoffement over it is in the election of the first feoffor to pay the money to the first or second feoffee and if the first feoffee die to pay it to his heire or the second feoffee But payment to an executor or administrator in this case is not a good performance And yet if the words of the condition be that if he pay to the feoffee without words heires executors c. tenne pound such a day in this case the payment may be made to the executor or adminstrator of the feoffee after his death and such a payment is a sufficient performance of the condition And if the words of the condition be that if the feoffor pay to the feoffee his heires executors or administrators c. in this case payment to either of them is a good performance of the condition But payment to an assignee in this case is not good And if the words be that if he pay to the feoffee and his heires c. in this case payment to his executors or to his assignes is not a good performance of the condition So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued If a feoffement be made on condition that if the feoffor shall To tender money Pas 9 Jac. 5. Sir Richard Lees case tender twelve pence to the feoffee such a day the feoffement to be void and afterwards the feoffee is disseised of the land and after the feoffor doth tender the twelve pence to the feoffee at the day this is a good performance of the condition If a feoffement be made to two men on condition that they To reinfeoffe shall reinfeoffee the feoffor or make a lease to him by a day and before Dier 69. 41 E. 3. 25. the day one of them die and the survivor doth reinfeoffe or make the lease this is a good performance of the condition And so also it seemes the law is if both the feoffees be living for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it If a feoffement be made on condition that the feoffee shall infeoffe Plow 23. 3 H. 7. 4. 21 H. 6. 10 the feoffor of the Manor of Dale by such a time and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger and then at the time appointed makes a feoffment of the Manor according to the condition in this case this is a good performance of the condition But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor and then doth make a feoffement of the Manor according to the condition this is no good performance of the condition And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it and some of them only doe grant this Annuity this is no good performance of the condition If there be a feoffement made upon condition that the feoffee 44 E. 3. 22. To make a lease shall make a lease of land to the feoffor for life the remainder to I S in fee and the feoffee make a lease to the feoffor for life and after by another deed doth grant the reversion to I S this is a good performance of the condition If a feoffment be made upon condition
that hath no title and in the second case any person that shall claim under another and hath title or that shall claim under the lessor claim or enter or otherwise disturbe the lessee this is held to bee no breach of the covenant Sed quere of the first case for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed and a covenant in law and that howsoever the covenant in law is extended only to evictions by title yet that the covenant in deed shall be extended further And therefore that if A make a lease for years to B and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons that if a stranger in this case that hath no right doth interrupt B that he may have an action of covenant as when such a promise is by word an action of the case will lie upon it And if the lessor covenant with his lessee that he hath not done Curia Jervis versus Peade Mich. 40. 41 El. B. R. Action of the case any act to prejudice the lease but that the lessee shall enjoy it against all persons in this case these words against all persons shall refer to the first and be limited and restrained to any acts done by him and no breach shall be allowed but in such an act Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257. The covenant in law upon the words Demise or Grant also for the quiet enjoying of the thing demised is generall against all persons that have title during the Terme and extendeth to the heir after the death of the lessor as against himself onely and shall charge the Executors or Administrators for any disturbance in the Executors life of the covenantor but not for any disturbance afterwards he that doth sue therefore upon this covenant must shew that he was molested or evicted by one that had an elder title If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land and doth not say what bond in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. â—ee before 7 E. 4. 6. Bro. Grant 164. quiet enjoying If one covenant with another to acquit him of all charges issuing out of the land and after by Parliament the tenth part of the To free from incumbrances and charges value not of the issues of all lands are given to the King in this case it seems the covenant shall not extend to this But if the Parliament had given the tenth part exituuÌ„ terre the covenant would have extended to this as well as to rents commons and such like things wherewith the land is charged If A covenant with B to make such assurance or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise To make assurances of land in this case albeit B be learned in the law himself yet he may not devise this assurance but some other learned in the law must advise otherwise A is not bound to make it And if A covenant with B to make such assurance of land by Co. 5. 19 20. Dier 361. per Just Bridgeman a day as B or his heirs shall devise in this case B or his heires must first devise the assurance before A is bound to doe any thing And therefore if one sell land for money and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare provided that if the vendee make default in the assurance then if he doe not pay twenty pound to the vendor that then the vendee shall stand seised to the use of him and his heires and the vendor tender no assurance the twenty pound is not paid in this case the land is in the vendee freed from the covenant And therefore in these and such like cases where a man is to make such assurance as A or his heirs or their Counsel shall devise A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed and to tender it to him that is to seale it for untill then there can be no breach of covenant But if A bee bound to make a feoffement lease or other assurance of land to B by a day in this case B need not to demand it or tender the assurance for A at his perill must doe it otherwise he doth breake his covenant a Trin. 20 Jac. B. R. Steed versus Spike And yet if in this case B doe get the assurance drawn and tender it to A it seemes A is bound to seale it or otherwise hee doth breake his covenant * Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B by a day at the costs of B in this case A must doe the first act viz. notifie to B what manner of assurance he will make that he may know what money to tender and when the money is tendred A must see that hee doe make the assurance accordingly at his perill and if he fail in either of these the covenant is broken If A be bound to make such assurance to B as by the Counsell Co. 5. 20. learned of B upon request made shall be devised in this case it is sufficient if the advise be given to B and that he do make it known to A and it is not needfull it be given to A immediately And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise and I S doth devise a reasonable deed of bargain and sale and hee tender it to A to seal in this case A is bound to seal it presently and he shall not have time to advise with his Counsell upon the deed but if he be illiterate and cannot read the deed he may refuse and delay to seal it untill he can get some body to reade it which he must doe as soon as he can And if one bee bound by Experientia covenant to make an assurance upon request the covenantee must request and tender an assurance also and he must tender such a one also as is reasonable otherwise the covenant will not bee broken by the refusull or neglect to doe it as if one be bound to make a feoffment to A upon request in this case A must get a naked deed of feoffment drawn without warranty or covenants and tender it And if the covenant be to make such a lease as the former in this case the second lease must not differ from the former
rents during the terme in these cases it seemes the executors and administrators also will be charged after his death If a lessee be ousted by one that hath title it seemes an action Dier 257. of covenant will lie for this ouster against the executor or administrator upon the covenant in law if he were put out in the life time of the lessor and not otherwise for if there be tenant for life the remainder in fee to another and the tenant for life by the words demise or grant doth make a lease for years and dye and after he in the remainder doth enter and put out the lessee for years in this case he cannot upon this covenant in law charge the executors or administrators of the lessor But upon an expresse covenant for quiet enjoying he may Assignees or Grantees In some cases an assignee shall be charged though he be not named Co. 5. 16. and in some cases shall not be charged though he be named and in some cases he shall be charged when he is named as when the covenant doth extend to a thing in esse parcell of the demise there the thing to be done is appurtenant and quodammodo annexed to the thing and shall bind the assignee though he be not expresly named as a covenant to repaire c. But if the covenant be annexed to a thing not in esse before but de novo to be erected on the thing as to set up a new house or the like in this case it will not bind the assignees unlesse they be named in the covenant And if the covenant be to doe a thing meerly collaterall in that case it will not bind the assignees albeit they be named expresly Also when a contract is personall only and a man doth bind himselfe and his assignes his assignes shall not be bound hereby as if one demise sheep or other stock of cattell or any other personall goods for any time and the lessee doth covenant for him and his assignes at the end of the terme to deliver them in as good plight as they were at the â—ime of the demise or such a price for them and the lessee assigne them in this case this covenant will not bind the assignee but the executors and administrators of the first lessee are bound hereby So if one demise a house and land Executors with a stocke or summe of money for years rendring rent and the lessee doth covenant for him and his assignees to deliver the money at the end of the terme in this case an assignee shall not be bound by this covenant as the executors and administrators of the lessee shall If a lessee covenant to repaire the houses demised or to discharge Co. 5. 17. Dier 27. Bro. descent 50. the lessor de omnibus oneribus circa terram or the like in these cases and such like albeit assignees be not named in the covenant yet assignees and assignees of assignees in infinitum al others that shal come to the land by the act of law or by the act of the parties shall be bound and charged by this covenant If a lessee covenant for him and his assignes to build a new house upon the land demised within seven years and the lessee assigne it Co. 5. 17. over in this case the assignee is chargeable But if a man covenant for him and his assignes to make a feoffment obligation or the like in this case the assignee shall not be charged albeit he be named And if the lessee covenant for himselfe or for himselfe his executors and administrators only to build a new house upon the land demised and the lessee assigne over the land in this case the assignee is not bound by this covenant If a lease be made rendring rent and if it be arere that the lessee Thins case vers Cholms ley Trin. 36 Eliz. C. B. his executors and assignes shall forfeit three shillings four pence nomine poenae and the lessee assigne the terme in this case it seemes the assignee shall be charged with the nomine poenae And in all the cases before where a covenant is broken an action Bro. covenant 32. of covenant may be brought But herein note that howsoever in Note divers of the cases before assignees are chargeable upon a covenant yet the lessee himselfe is not hereby discharged but the lessor or grantee of the reversion hath election to charge which of them Election he will And therefore if a lessee covenant for him and his assignes to repaire and the lessee assigne in this case the lessor may have his action of covenant against either of them And if a lessee covenant Hil. 16 Jac. B. R. Curia Bret versus CumberlaÌ„d for him his executors administrators and assignes to repaire the houses demised and he in reversion doth grant away his reversion and the lessee assigâ—e his estate in this case albeit the grantee of the reversion have accepted the rent of the assignee of the terme yet he may still have an action of covenant against the executor of the lessee upon this covenant So if a Patentee covenant for him and his assignes to repaire and he assigne the King may have his action against either of them If A and B doe covenant for themselves jointly without more Co. 5. 23. words the covenant is joint and one of them cannot be charged without the other But if they covenant for themselves severally the covenant is severall and they may be sued apart And if they covenant jointly and severally then the covenant is joint and severall and they may be sued either way at the election of the covenantee Where the deed it selfe wherein the covenants are contained Dier 20. Co. 5. 23. 10. Wâ—â—â—n a covenant shall be said to be gone and discharged And when not And how or the estate on which the covenants as accessary to the principall doth depend is gone and determined there regularly the covenants are gone also And therefore if a lease for life or years be surrendred whereby the estate is gone or a deed become void by rasure or the like and there be covenants contained in the deed by these meanes the covenants are gone also But this surrender doth not discharge the breach of covenant which was before the 40 E. 3. 27. Bro. Surrender 47. Covenant 41. Hil. 4 Jac. B. R. Moile vers Austin surrender For if a Parson lease his glebe for years and after resigne whereby the lease for years doth become void in this case the covenants of the lease as to the time before the resignation shall be said to be in force still Where a covenant is become impossible to be done by the act of God as where one doth covenant to serve another seven Co. 1 98. Plow 286. years and he die before the seven yeares be expired by this the covenant is discharged Where there is an expresse covenant in a deed
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
sum this is no discharge of it And yet a release of the promise is a discharge of it And if A promise to me that if Hil. 16 Jac. B. R. Briscoe versus Heires I S doe not pay to me an hundred pound 1 Octobris that hee doth owe me that A will pay me the hundred pound 1º Novembris and I 10º Septembris release to him this debt or all actions demands in this case this release is not good to discharge this promise But by a release of the promise the same is discharged If a man release to another all actions and doe not say further Of actions Bro. Release 29. which he hath against him this is as good a release as if these words were inserted Quod necessario subintelligitur non deest And all these releases must be made by apt words and such as Co. 9. 53. law shall judge sufficient for that purpose And in all these cases care must be had there be no mistake Bro. Release 56. 58. for mistakes will make releases and confirmations void as well as other grants And therefore if A make a release to B in this manner Noveritis c. me A de B remisisse c. B omnes actiones quas idem B habet versus A whereas it should be quas idem A habet versus B this release is void If there be Lord and tenant and the Lord purchase the tenancy 8. What shall be said a Release in law Or not And how Co. super Lit. 264. by this means the services are released and extinct in law And if the Lord disseise his tenant and make a feoffment in fee by deed or without deed this is a release in law of the seigniory Of a seigniory Of a right to land If a disseisee disseise the heir of the disseisor and make a feoffment Co. idem with or without a deed this is a release in fee in law of the right And if he make a lease for life this is a release in law of the right so long as the lease doth last If a creditor as an obligee or the like make a debtor as the Of a right of action Co. super Lit. 264. 8 E. 4. 3. 21 E. 4. 2. obligor c. his executor by this means the action is released by act of law and yet the duty remains still for the executor may Executor retain so much of the goods of the testator And if the creditor be a woman and she mary with the debtor by this the debt is released in law And if there be two obligees or debtees and one of them being a woman is maried to the obligor this is a release in law of the debt albeit the creditor be an infant But if there be a woman executrix to the debtee and she take M. 30 31 El. B. R. Adjudge Co. 8. 136. the debtor to husband this is no release in law And if an obligor be made administrator of the goods and chattels of the obligee this is no release in law Where divers join in any suit or action to recover any personall Co. 6. 25. 5. 22. Bro. Release 84. 94. stat 23 H. 8. ch 3. 9. The force and virtue of it And how it shall enure and be construed and taken thing of which they are to have the joint benefit or interest when the law doth not compell them to join there the release of one of them shall bar all the rest And therefore if two men join in an action of debt trespassel or the like and one of them alone 1. In respect of the persōs And where a release made by one shall binde another And where not And where a release made to one shall enure to others Or not doth release to the defendant this is a barre to the other plaintiffs also So if a statute or an obligation be made to two or more and one of them release it to the conusor or obligor this is a discharge of the whole duty and a bar to the rest so that they can make no use of the statute or obligation But if divers be charged in any action and they for the discharge of themselves only join in a suit or action where also they can doe no otherwise being compelled by law to join in this case the release of one of them shall not hurt the others And therefore if divers join in a writ of Error Attaint or Audita querela and one of them release to the defendant in the writ this will not bar the rest of their remedy but they may goe on in their suit notwithstanding If there be two or more executors and one of them alone release 1◠H. 7. 4. Executors a debt or duty to the testator before judgement had in a suit had by all the executors against the debtor this will bar all the rest But otherwise it seems it is after judgement had If a writ of ward be brought by two and one of them release Co. super Lit. 205. this shall not bar his companion but shall enure to his benefit for hereby he shall have the whole ward A release made to the tenant in tail or for life of the right Lit. Sect. 452. 470. Co. super Lit. 275. 290. 267 268. Co. 8. 351. to the land shall avail and enure to him that hath a reversion or remainder in deed And so è converso A release made to him that hath a remainder or reversion will avail and enure to the benefit of him that hath the estate tail for life or years precedent As if a disseisor make a lease for life and the disseisee release to the tenant for life this shall enure to the disseisor So if he or a tenant for life make a lease for life the remainder for life the remainder in tail the remainder in fee and the disseisee or first lessor doth release all his right to any one of them in remainder this shall enure unto and benefit all the rest And if the husband make a lease of his wives land to one for life the remainder to another in fee and the wife after his death doth release all her right in the land to him in remainder this shall enure to the lessee for life If a disseisor make a lease for life and the disseisee release all Co. super Lit. 275. his right to the tenant for life this shall enure to the benefit of the disseisor But if the disseisee release no more to the tenant for life but all actions this release will not benefit him in remainder or reversion after the death of the tenant for life If a disseisor make a feoffment to two in fee and the disseisee Lit. Sect. 472. release to one of the feoffees this shall enure to both If tenant in tail be disseised by two and he release to one of Co. super
Lit. 276. them this shall enure to both But if the Kings tenant bee disseised by two and he release to one of them this shall not enure to the other So if two jointenants make a lease for life and then disseise the tenant for life and he release to one of them in this case his companion shall have no benefit by it If tenant in fee simple be disseised by two or two doe abate or Lit. Sect. 472. 522. intrude and he doth release to one of them the other shall have no benefit by this But if tenant for life doe after a disseisin done to him release to one of the disseisors this shall enure to both And if two disseisors be and they make a lease for life or Co. super Lit. 276. years and after the disseisee doth release to one of the disseisors this shall enure to them both and to the benefit of the lessee for life also And if lessee for years be ousted and he in reversion disseised and the lessee release to the disseisor the term of years is hereby extinct and the disseisee may take advantage of it and enter presently But if two jointenants in fee be disseised by two disseisors one of the disseisees release to one of the disseisors all his right this shall enure to the other for this extendeth but to a moity If a release be made by a woman of her dower to the guardian Co. super Lit. 266. in Chivalry this shall enure to the heir and he may take advantage of it If tenant for life be disseised by two and he in the reversion and the tenant for life join in a release to one of the disseisors Co. super Lit. 276. this shall not enure to the other But if they doe severally release their severall rights their severall releases shall enure to both the disseisors If mortgagee upon condition after the condition broken be Co. idem disseised by two and the mortgagor that hath the title of entry doth release to the one disseisor this shall enure to both And like law is for an entry for mortmain or a consent to ravishment c. If there be Lord and two jointenants and the Lord release to Co. super Lit. 269. one of them this shall avail his companion If tenant in fee simple make a feoffment in fee and after the Lord release to the feoffor this shall not enure to the feoffee to extinguish the seigniory But if he release to the feoffee this shall enure to the feoffor to extinguish the seigniory If there be Lord and tenant and the tenant make a lease for Co. super Lit. 279. life the remainder in fee and the Lord release to the tenant for life the rent is hereby wholly extinguished and he in remainder shall take advantage of it as when the heir of a disseisor is disseised and the disseisor makes a lease for life the remainder in fee and the first disseisee doth release to the tenant for life this shall enure by way of extinguishment to him in remainder viz. to the lessee for life first and after to him in remainder If two tenants in common of land grant a rent of forty shillings Co. super Lit. 267. out of it and the grantee release to one of them this shall not enure to the other But if one bee tenant for life of lands the reversion in fee to another and they join in the grant of a rent out of the lands and the grantee release either to the tenant for life or to him in reversion this shall enure to the other and extinct the whole rent If two men gain an advowson by usurpation and the right Co. super Lit. 276. Patron release to one of them this release shall enure to them both If two be bound jointly and severally in any obligation or Co. 5. 59. super Lit. 232. Lit. Sect. 376. other especialty and the obligee c. release to one of them this shall enure to discharge the other also if it be a good release as to him that makes it But otherwise it is in case of a release made by the King And if two do a trespasse to another together and he to whom Prerogative it is made doth release it to one of them this shall enure to discharge the other If husband and wife and I S purchase to them and the heirs To husband and wife Dier 319. Co. super Lit. 273. 276. 14 H. 8. 6. of the husband and after I S release all his right in the land to the husband the wife shall have no benefit by this but it shall enure to the husband alone And if there be two women joint disseiseresses the one take a husband and the disseisee release to the other in this case the husband wife shall take no benefit by this And if the disseisee release to the husband this shall enure to him and his wife and the other woman And if one that hath a rent out of my wives land release it to me and my heirs this shall enure by way of extinguishment and my wife will have advantage of it And yet if the words be grant and release the rent to the husband and his heirs in this case the husband may take as a grant if he will But here note in all these cases of releases when one man Co. super Lit. 232. Note will take advantage of a release made to another he must have the release to shew and plead If I bee disseised and I release to the disseisor all actions I Co. 10. 51. 22 H. 6. 1. have or may have against him this is but personall and shall not be expounded to bar my heir after my death of his remedy neither will it bar me of my remedy against his heir after his death So if I deliver goods to another and afterwards I release to him all actions and then he die by this I am not barred so but I may sue his executors See more in Confirmation chap. 18. Numb 7. A release of all actions without any more words is better Co. 8. 153. 5. 28. 70. Kelw. 113 Co. super Lit. 286. 290. 292. 289. Lit. sect 492. 505 506. 512 513. Bro. stat 39. 2. In respect of the thing released Of all actions then a release of all actions reall onely or a release of all actions personall onely for by a release of actions or a release of all manner of actions without more words are released and discharged all reall personall and mixt actions then depending and all causes of suit for any reall or personall thing as Appeals for the death of an ancestor conspiracies suits by Scire facias to have execution of a Judgement detinue for charters And if two conspire to indite me and I release to them all actions and after they goe on with their conspiracy by this release I am barred to
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
release is a bar to the writ of Error So if a judgment be given upon a false verdict in a reall action a release of all actions reall is a bar in an attaint By a release of all actions personall without more words are Of actions personall Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending and all causes of personall actions wherein a personall thing only is to be recovered and therefore hereby are discharged all causes of suing out of actions of debt trespasse detinue or the like Also all mixt actions as actions of wast Quare Impedit an assise of novel disseisin writ of annuity appeal of maihme and the like And if debt c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict and the defendant bringeth awrit of attaint or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution by this release the defendant in both cases is barred of his suit Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only as debt damage or the like as if the plaintiffe in a personall action recover any debt c. or damages and be outlawed after judgement in this case in a writ of Error brought by the defendant upon the principall judgement this release will bar him But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing this release is no bar as if a man be outlawed in an action personall by processe upon the originall and bring a writ of Error and then release this is no barre to him If a man by wrong take or find my goods or they be delivered Lit. Sect. 497 498. 500. to him and I release to him all actions personall notwithstanding this release I may in this case take my goods again albeit I be barred of my action by this release Neither is this release a bar in an appeal of robbery or death Neither will it bar in any case where a release of all actions will not bar Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release Nor for any rent of sum of nomine pene when the release is before the same day or nomine pene happen Neither is it a bar in such reall actions wherein damages are recoverable only by the statute and not by the common law as in a writ of dower entry sur disseisin in le per Mordancester Aile c. By a release of all debts without more words are discharged Of debts Co. super Lit. 76. 291. Fitz. Audita Querela 3. and released all debts then owing from the relessee to the relessor upon especialties or otherwise all debts due also upon statutes And therefore if the conusor himself or his land be in execution for the debt and he hath such a release he must be discharged and so he cannot be upon a release of all actions By a release of all duties without more words is a relessor Of duties Co. 8. 153. super Lit. 291. barred and the relessee discharged of all actions judgements and executions also of all obligations And if the body of a man be in execution and the plaintiffe make him such a release hereby he shall be discharged of execution because the duty it selfe is discharged And if there be rent or services behind to the Lord from his tenant and the Lord make such a release to his tenant by this it seems the arrearages are released This word is of somewhat a more large extent then actions Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits for by a release of all suits without more words is released and discharged as much as by a release of all actions And hereby also are discharged al executions in the case of a subject But in the case of Prerogative the King it doth not release executions And this doth not release a covenant before it be broken By a release of all quarrels without more words all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates quarrells controversies reall and personall and all causes of such actions are released and discharged So likewise by the release of all controversies or by the release of all debates But this will not bar the relessor of any causes of suit that shall arise after and was not at the time of the release as the breach of a covenant which shal be after albeit the covenant be before is not discharged hereby By a release of all covenants without more words all covenants Of Covenants Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged Qui destruit medium destruit finem And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case to him at the end of the terme as it was at the beginning of the terme and the lessor before the end of the terme release to the lessee all covenants this doth discharge the covenant But this release doth discharge nothing else but covenants By a release of all Statutes from the conusee to the terre-tenant Of Statutes Co. 10. 47. without more words the Statute is discharged And yet if he release all his right in the land of the conusor this will not discharge the land of execution By a release of all errors and writs of error all errors and Co. 2. 16 Lit. Sect. 503. Of Errors writs of error and that before they be brought are extinct and discharged And if a man be outlawed in a personall action by processe upon originall and make such a release this will barre him By a release of all warranties or covenants reall all warranties Lit. Sect. 148. Of Warranties then made and being are for ever discharged By a release of all legacies without more words a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies barre himselfe of all the legacies given him in presenti or futuro so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular this is a barre to him of this legacy for ever And yet a release of all demands in this case is no discharge of this legacy By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent the day of paiment be come or not But a release of all actions will not
That the debt recovered against the defendant shall be levied of my goods and chattels c. And these also are much of the nature of the former kinde of Recognisances And all Prerogative Obligations made to the King are of the nature and have the force of a Recognisance Statutes and Recognisances are sometimes single without any Defeasance and sometimes they are double i. e. With a Defeasance or Condition upon the performance whereof the same are to be avoided The Debtor or he that doth enter into the Statute or Recognisance Conusor Co. â—â—e is called the Recognisor or Conusor and the Debree or hee to whom it is made is called the Recognisee or Conusee To make a good Statute or Obligation of Record the 3. What shall be said a good Statute or Recognisance and what not First in respect of the persons before whom it is acknowledged forme prescribed must bee pursued 1. In respect of the persons Dyer 35. Litt. Broo. Sect. 484 511 F. N. B. 267 a. before whom And therefore the Statute Merchant or Staple or the Recognisance founded upon the Statute of 23 H. 8. may not bee acknowledged before any others besides the persons appointed by the Statutes Neither may any other Recognisance bee acknowledged before any but such as either have power ex Officio and by their Offices to take them or have speciall Commission so to doe And therefore a Recognisance Dyer 220 taken by a Constable is void If a Recognisance bee made to the Lord Keeper and two others and it bee acknowledged before himselfe this is void as to him 2. In respect Secondly in respect of the manner of making it of the manner of making and acknowledging of it And therefore if the substantiall forme appointed by the Statutes be not observed it will be void If therefore a Statute Merchant be not Hollingworth versus Ascughe Pasche 35 El. Co. B. Adiudge sealed with the Seale of the Dâ—btor and there bee not a Seale of two peeces annexed to it this is no good Statute neither can it take effect as a Statute howbeit in this case if it be delivered by the party it may take effect as an Obligation But if Obligation the variance from the Statutes bee only in some circumstance this will not hurt a Statute or a Recognisance And therefore it is held That albeit there bee no time set for the payment of the money in the Statute yet the Statute is good for then it is due presently And albeit the Statute be written Perk. 3. Iustices Co. B. Trin. 22 Iac. with anothers hand and not with the hand of the Clerk of the Statutes or the like yet is the Statute good enough And if a Statute Staple bee not sealed with the Seale of the party that doth acknowledge it yet it seemes it is good enough for the Statute doth not require it but a Recognisance within the Statute of 23 H. 8. cannot bee good except the Seale of the party bee to it for so are the words of the Statute If a Recognisance or a Statute bee to pay money at severall Coo. 8. 153. dayes it is good enough and if the Conusor faile one day Execution may bee sued of the whole Statute Every Statute Staple or Merchant not brought to the Clerk of the Recognisances within foure Moneths next after Stat. 27 Eliz. cap. 4. the acknowledging to enter a true Copy thereof shall bee void against all persons their Heires Successors Executors Administrators and Assignes onely which for good consideration shall after the acknowledging of the same Statute purchase the Land or any part lyable thereunto or any Rent Lease or profit out of it The proceedings upon a Statute or Recognisance to have Fitz. Accompt 97. Execution in toto Broo. Statute in toto Stat. Actâ—â— Bartel de Mercatoribuâ—â—â—7 Ed. 3. c. 9. F. N. Br. 130 131 132 Dyer 1â—0 15 H. 7. 15. Coo. 4. 69. 7 H. 7. 12. Plow 61 62 82. Coo. super Lit. 290. Stat. 2 H. 8. c. 6. 5 H. 4. c. 12. 2 R. 3. 7. 14 Ed. 3. â— Lit. Broo. Sect. 194. 123. 226. Dyer 299. Coo. 5. 87. 4 82 59 66 Stat. 1 â—il 6. c. 10. â—iâ—ch 116. the fruit and effect thereof is not like to the proceedings in other 4. All the proceedings upon a Statute or Recognisance and the manner and order of Execution thereupon cases of Suits upon Obligations and the like to reduce them to judgement but as they are in their own nature much like to the nature of a judgement so is the proceeding and execution thereupon much like to the proceeding and execution upon a Iudgement And therefore the Conusee may if hee please bring an Action of debt upon a Statute and wave all other proceeding or otherwise if he like not this course he or if he be dead his Executor or Administrator and if his Executor be dead the Executor of his Executor may assoone as the same is forfeit have present Execution of it after this manner Hee must bring his Statute to the Mayor and Clerk or other Officer before whom it was acknowledged and there if they finde the Record of it and the day to be past for the payment of the money they are to apprehend and imprison the body of the Conusor if he be a lay-person and can be found within their jurisdiction and if he cannot be found there they are to certifie the Record into the Chancery which also if they refuse to doe they may be compelled unto by a Certiorare Certiorare And if that Certificate be faulty or execution be not done upon it by reason of the death of the Conusee or otherwise the Conusee or his Executor or Administrator may have another Certificate And thereupon in case of the Statute Merchant he shall have a Writ of Capias out of the Chancery directed to the Sheriffe of the County where the Conusor lives to apprehend and imprison him if he be not a Clergy man and this is to be returned in the Common-Pleas or Kings Bench. And when the Conusor is taken he shall have time for a quarter of a year to make his agreement with the Conusee and to sell his lands or goods to satisfie the Conusee And for that purpose he may sell his lands or goods albeit he be in prison and his faile is good and lawfull And if in that time he doe not satisfie the Conusee or if upon the Capias the Sheriffe returne Capias a non est inventus then by another Writ or by divers Writs if the lands or goods lie in divers Counties called an Extendi Facias And in the case of a Statute Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his lands and goods returnable in Chancery And this Extendi Facias Quid. Writ is a Commission directed to the Sheriff
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
the Testator that the heires of I S shall have it will help for albeit a Devise of land in writing may be revoked by a verball subsequent declaration or by any act crossing or controlling that Devise yet a Devise becomming vold by that meanes cannot be made good by any such verball decâ—aratioâ— subsequent to the same Countermaund So if one give any goods or chattels to I S and he die before the Testator in this case and Se◠〈◊〉 Numb 14. by this meanes the Devise is become void and the Executor of I 〈◊〉 shall not have it And yet if a Devise be of land to A for life the remainder to B in Taile and A die before the Testator it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding And if one devise land or goods to the wife of 〈◊〉 S. and afterwards her husband dieâ—n and she marry with another man and then Plow 3â—â— the Devisor dieth this is a good devise notwithstanding and not avoided by either of these Accidents If one devise a Terme that he hath to A for life the remainder to such persons as shall be occupiers of White Acre at the death of A Per Iustice Iones M. 9. Iac Co. B. this Devise albeit in his beginning it be good yet if the Devisor die before A it seemes now to become void for he that will take by way of Executory devise must take as an immediate purchasor and be capable and knowne at the time of the death of the Testator If I give to I S 20l if he marry my daughter and she dye before he marry her in this case and by this meanes the Legacy is become Swinb 356. void If I give a debt owing to me to I S and afterwards I receive Perk. Sect. or release the debt hereby the devise is become void If a man make a Will and give Legacies and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors and he or they after his death all refuse to take upon them the Administration yet in this case the Legacies remaine good and are not become void And in this case the course is to grant the Administration of the goods to him to whom it doth belong and to annex the Will to the Administration and then the Administrator is to performe the Will as the Executor ought to do It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given whereof read Swinb part 7. Sect. 22. And when the thing devised is dead or spoiled howsoever by Swinb 357. this meaneâ— the Devise is not become void yet it looseth his effect and is as if it were void See more supra at Numb 5. In all these cases when the disposition of the Legacy is pure and 〈◊〉 Where a Legacy shall goe to the Executor when the Legateâ— dâ—th die before he dâ—th receive it And where 〈◊〉 no time is set for the performing of it or there is a set time for Swinb 350. â—55 35â— the doing of it and the Legatee die before the time and where the disposition of the Legacy is conditionall and a time set for the doing of it if the Legatee live till that time or the condition be performed in all these cases the Executor or Administrator of the Legatee shall have the Legacy and the same remedy to recover it that the Legatee himselfe had But if the Legatee die before the condition be performed contra And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it or the condition be to be performed by another and there be no default in the Legatee or if the disposition be modall or the Legacy that was at first upon condition be afterwards repeated without condition or it be referred to a condition to be afterwards set downe and none is set downe in these cases the Legacy is not lost by the death of the Legatee but shall go to his Executor or Administrator as for Example If one devise 20l. to W S to be paid within 4 yeares after the death of the Testator and Broo. Devise 27. 45. Swinb 350. 355. Dyer 59. Swinb 358. 356. â—low 345. the Legatee die before the 4 yeares expired in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy If one give to W S 20l. when he cometh to 21 yeares of age and he die before he come to the age of 21 yeares in this case his Executor shall not have the Legacy But if the Devise be thus I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares and he die before he come to the age of 21 yeares in this case his Executor shall recover the Legacy So iâ— one give to I S 20l. when he shall be married and he die before marriage in this case his Executor shall not have it But if one devise thus I give to W S 20l. towards his marriage and he dye unmarried in this case the Executor shall have and recover the Legacy So if one do give to W S 20l. when the Executor of the Testator shall dye in this case if W S die before the Executor the Executor or Administrator of W S shall not have the Legacy If one devise goods or chattels to I S and I â— die before the Testator the Executor or Administrator of I S shall not have this Legacy When any chattell reall or personall is given to an Executor by a Plow 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will the Executor hath an election given him by the Law to have 14. Where an Executor upon a Deâ—iâ—e to him hath an Election to have the thing devised as Executor or as Legaâ—ee And when he shall have it in the one righâ— or iâ— the other and what act shall make a declaration of his Election and take it in the one right or in the other viz. as Executor or as Legatee and by his speciall entry or seising of the thing or some speciall declaration his election is to be made And if the Executor doe enter generally as most doe and never make any declaration which way or by which right he will have it as most Executors use to do he shall be said to have it and the Law shall Adjudge it in him as Executor and not as Legatee But if by any subsequent words or deeds he shall declare his mind to be otherwiâ—e he shall be in as a Legatee ab initio And yet if once he doe any such act as is proper to an Executor this is a disagreement to the Legacy ab initio and after that it seems he cannot take as Legatee but must take as
or his Deputy or Officiall as the Custome of the Country is or the Dean and Chapter in time of vacation of the Bishop shall grant the Administration and the Administration shall be had from him but if there be bona notabilia in the case viz. if the party deceased have Coo. 5. 29. 3â— Dâ—er 30â— F. N. 〈◊〉 120. Plow 2â—7 281. 〈◊〉 6. â—8 19. Dyer 339. See inâ—ra at Numb Bona notabilia goods or chattels of the value of five pounds or upwards lying and being at the time of his decease in divers Diocesses in this case the Archbishop or Metropolitan of the Diocesse wherein the party dyed or Sede vacante the Dean and Chapter being Guardian of the Spiritualties and not the Ordinary of the particular Diocesse shall grant the Administration and it must be had from him for if the Ordinary of the particular Diocesse grant it when it ought to be granted by the Metropolitan the Administration is void not only as to the goods that lie within the other Diocesse but also as to the goods lying within the same Diocesse And so is it also if it be granted by the Ordinary of another particular Diocesse as if A die within the Diocesse of Lincoln the King being indebted to him at the time of his death and the Administration of his goods and chattels is granted by the Bishop of London this Administration is void And if the Metropolitan doe grant an Administration when it ought to be granted by the Ordinary of the particular Diocesse the Administration is voidable by sentence of the same Court out of which it is granted If one die in Ireland and have nothing but an Dyer 305. Especialty for money and that Especialty doth lie in England the Ordinary of the Diocesse within which that place is where the Especialty doth lie shall commit the Administration and if the Ordinary of another Diocesse grant it the Administration is void And therefore the case was A Merchant in Ireland was bound in an Obligation of 40 l. to one I S in London and the Obligation was made in Ireland but remained alwayes in London and the Merchant dyed intestate in the County of Bedford in England and a Bishop of Ireland did commit the Administration to one and the Archbishop of Canterbury did commit it to the wife of the Intestate who had the Obligation in this case the last Administration was adjudged good And it was there held that the Administration shall bee granted by the Ordinary of the place where the Especialty doth lie at the time of the death of the Intestate and not by the Ordinary of the place where the debt began And in cases where the Administration is grantable by the Ordinary and others as Stat. 31. Ed. 3. c. 11. 21. H. 8. c. 5. Litt. Bâ—oo Sect. 233. 415. Fitâ— Excomengment â—3 Coo. 9. 39. 40 3 40. Dyer 339. 〈◊〉 H. 7. 14. before such persons having power to grant it may not grant it to whom they please but as they are bound to grant it and cannot refuse so to doe so are they directed and appointed to whom they shall grant it For it is appointed by a speciall Law That the Ordinary shall depute the next friends of the Intestate to administer his goods if they desire it and the Administration is to be committed to the widdow or next of blood or both to the Intestate and where there be divers in equall degree and they all sue for it the Ordinary may accept them all or refuse some of them and commit the Administration to the rest only and if some of them only sue for it he may grant it to them alone So that now the Law and course is to grant the Administration to the nearest of kinnâ— to the deceased As 1. to the husband or wife and if there bee none such 2. to the children sonnes or daughters and if there be none such 3. to the Parents Father or Mother and if there be none such 4. to the brothers or sisters of the whole blood and if there bee none such 5. to the brothers or sisters of the haâ—â—e blood and if there be none such 6. to the next of kinne Uncles c. And if these come in time and desire the Administration the Ordinary may and must grant it to them and cannot grant it to any other if they be capable of it as most men are â—nd if divers of these in equaâ—â— degree desire it the Ordinary may grant to which of them hee pleaseth howsoever in this case it seemes most just and equall to grant it to them all unlesse he have â—â—me speciall reason to admit some and to exclude the rest and if none of these that are next of kinne shall desire it but suffer the time to slip in this case the Ordinary may grant it to whatsoever stranger hâ— please And yet then perhaps the next of kinne may by Suit get the same Administration revoked and a new Administration granted to him See infra at Numb 41. An Administration may and must be granted in writing under Dâ—er â—94 â—itz Admin 5. 34 H â—6 〈◊〉 Plow 27â— 22. How an Administration may be granted and what shall be said a good Administration or not Seale for by word of mouth it may not be granted and it may be granted as well upon condition as absolute and it may be granted as well for a part of the estate as for the whole And therefore if a man have goods in two Provinces and he make a Will of his goods in one of the Provinces and die Intestate for the goods in the other Province an Administration may be granted for the goods in this Province Also an Administration may be granted during or untill a certaine time or continually And therefore if a man make a Will and appoint an Executor for seven yeares after the seven years ended the Ordinary may and must grant an Administration of the goods So if one doe appoint another to be his Executor to be his Executor a year after his death the Ordinary may and must grant the Administration for that yeare untill the power of the Executor doth take place And all these Administrations are good If an Executor die after he hath proved the Will and he hath Staâ— 2â— Ed. 〈◊〉 c. 4. Coo. 5. 9. Plow 286. 34 H. 6. 14. 23. Who shall administer after the death of an Executor or Administrator and who not and how an Executor of an Executor shal charge and be charged made a Testament and appointed an Executor therein in this case this Executor also shall be Executor to the first Testator as he is to the second and he shall have all the benefit and be subject to all the charge that the first Executor had and was subject unto and yet the goods of one Testator shall not be subject to the debts of the other but each of the Testators goods shall be subject to the
And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time c Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dyeâ— 575. And if I make a Fcoffment in Fee gift in tail or lease for life rendring Rent and the rent is behind and then I dye in this case the arâ—erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell So if a Rent be granted out of land to me in Fee-simple Fee-tail for life or years and it be not paid to me in my life time these arrerages shall go to my executor or administrator and not to any other d â— N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church and it be behind and the Parson dye in this case the executor or administrator not the successor of the Parson shall have the arrerages e Dyer 275. And if I be seised of land and possessed of a stock of cattell and let it to another for years and he covenant by the Lease to pay me and my wife our heirs and assignes 100l by the year during the term in this case after my death and my wives surviving me her executor or administrator and not my heir shall have this payment f Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees and after grant me the trees for years or if he make me a Lease of the land first for years and after doth grant me the trees for a number of years to begin after the end of the term of the land in both these cases I have the trees in the nature of a chattell and if I dye my executor or administrator shall have them g Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D in this case if I dye my executor or administrator shall have it as a chattell h See supra at Numb 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition and therefore that shall not go to my executor But so much of her wearing apparell as she hath superfluous and more then necessary for her shall go to my executor or administrator after my death And the charters and evidences that do concern any of my chattels which my Broo. chatâ—els 12. executor or administrator is to have shall go with the same chattels So also any Charters whatsoever if they be pledged to me for money shall go to my executor or administrator untill the money be paid But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance shall not go to my executor or administrator after my death But matters of trust and such things as are personall as offices of trust wardships by reason of a Tenure in Socage or Jure naturâ— or the like shall not go to the executor or administrator after the death oâ— him that hath them So an Plow 29â— Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow So an executor or administrator shall not have the Incidents of a house as glasse doores wainscot and the like no Kelw. 118. See before at Numb 7. more then the house it selfe nor pales wals stauks fish in Ponds Deere or Conies in Parkes Pigeons in Pigeon houses or the like If a Lease for yeares of land be granted to me and my heires Secondly iâ— respect of the case or to me and my successors and I dye my executor or administrator Coo. 10. â—7 Litt. Sect. â—40 Fitz. Accompt 56 F. N. B. â—20 and not my heire shall have this terme The same law is if a wardship or the next advowson of a Church be granted unto me and my heires or if a Covenant or an Obligation be made to me and my heires for in all these cases this is still a chattell in me that shall go to my executor or administrator and hee onely shall take advantage by it And if my heire or successor happen to get the Deed the executor or administrator may recover it from him And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease in this case if I dye my executor or administrator notwithstanding shall have it during the terme h Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit assignes to a Bishop and his successors and he dye his executor or admistrator not his successor shall have it And if a man be possessed of a terme of yeares of land and grant it by deed or give it by Will to me and my heires or to me and my heires males or devise Coo. 895. 10. 87. Plow 524. it by Will to A for life the remainder to me and my heires in these cases I shall have these terms of years as chattels and after my death my executor or administrator shall have them h Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares and I dye my executor or administrator not my heire shall have this rent i M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S and for one halfe yeare after and I dye in this case the half yeares rent shall goe to my executor or administrator and not to my heire And if I be seised Dyer 5. of land in Fee and make a Lease for years of it rendring rent and then devise this rent to a stranger and the devisee dye in this case his executor or administrator shall have it And if Lessee for life make a Lease for yeares absolutely this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live and shall go to the executor or administrator after his death If I have a box chest or trunk wherein my writings that doe Broo. Executors 145. 9â— Fitz. Executors 111. concern my inheritance do lie and the same is open and not sealed or locked in this case my Executor shall have it but if it be locked or sealed contra for then it shall goe to him that is to have the writings as incident thereunto And yet if there be any money plate or any other such like thing in the chest also my Executor shall have that thing The Incidents of a house as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26â— nailes or otherwise to the windowes the wainscot fixed by nailes skrewes or irons put
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâ—ant by Knights service in Capite be seised of a Mannor whereunto an Advowâ—on is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â— Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câ—riam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. â—itz Covenant 17. Dâ—er 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ— 46.
it and cannot If one covenant to make a Lease for yeares to the deceased his executors or administrators and after his death the Lease is made to the executor or administrator accordingly in this Coo. 5. 34. case this Lease shall be said to be assets in his hands and he shall be chargable for so much to any Creditor And whatsoever the executor or administrator must be forced to sue for by the name of executor or administrator being recovered shall be esteemed assets in his hands 6. Albeit the thing be extinct and gone as Coo. 1. 87. Broo. Leases 63. to the executor and administrator himselfe yet it may have his being and be accounted assets as to the Creditors and Legatees And therefore if an executor or administrator have a Lease for yeares of land in the right of the deceased and afterwards he doth purchase the Fee-simple of the land whereby the Lease is drowned yet in this case this Lease shall continue to be assets as to the Creditors and Legatees still c Trin. 7. Ia. B. R. Simmons case Coo. 8. 130. And if the Debtee make the Debtor his Executor or the Debtee dye intestate and the administration is committed to the Debtor in these cases this debt shall be said to continue and shall be esteemed assets for so much as to other Creditors And if a woman Executrix have goods worth 20l. and she marry with one of the Creditors to whom 20l. is owing in this case it seems the husband may not retain the goods to pay himselfe but they shall be assets to other Creditors And yet if the Debtor make the Debtee his executor he may retaine so much as to satisfie his own debt and that he doth so retain shall not be said to be assets in his hands as to any other Creditor And if I S Bâ—rnets case Hill 8. Iac. Plow 184. have goods to the value of 20l. and he is bound to B and C in 20l. a piece and he dyeth intestate and after D doth administer and then B dyeth and maketh D his executor in this case D may retain this to satisfie his own debt and it shall not be said to be assets in his hands as to any other 7. The goods and chattels of other men in the hands of the executor or administrator Kelw. 63. Coo. 6. 5â— Dyer 362. that were in the possession of the deceased if he had no right to them or if he had and they do not belong to the executor will not make the execuâ—â—r or adminisâ—â—ator chargable for these shall not bee esteemed assets in his hands And therefore if the goods of another man be amongst the goods of the deceased and these come all together into the hands of the executor or administrator these goods that are the goods of another shall not be said to bee assets in the hands of the executor or administrator And if the executor doth receive a rent that doth belong to the heir this rent shall not be said to be assets in his hands and hence it is that if Doct. St. lib. 2. cap. 3. the deceased were outlawed at the time of his death that his goods and chattels are not no be accounted assets for they are none of his 8. * Coo. â— 30. Dyer â— If an executor of his own wrong to whom 20l. is owing doth enter upon so much of the goods of the deceased as is worth 20l. intending to pay himself this shall be esteemed assets in his hands to make him chargable for so much to any Creditor or Legatee 9. * 27 H. 3. 6. It the deceased have goods worth 20l. and owe 20l. to A and 10l to B and he compound with A for 10l in this case he shall be said to have assets and be charged to pay the debt of B also 10. If a man have a Lease for years worth 20l. per annum at the rent of 5l and he die in this case not the Coo â—5 31 10 H. 7. 5. whole value of the land but so much as is above the rent shall bee said to bee assets in the hands of the executor or administrator The Probate of a Testament is the producting and insinuating Swinb 251 264. 40. Probate Quid. Quotuplex of it before the Ecclesiasticall Iudge Ordinary of the place where the party dyeth or other that hath power to take the same And this is done in two sorts either in common Form i. e. upon the oath of the executor or party exhibiting it upon his credulity that the Will exhibited is the last Will and Testament of the party deceased which is the ordinary course and this the Ordinary may accept if he will Or per testes i. e. which is when over and besides his oath he doth also produce witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such Will proved if they think good And this course is used only where there is a suspition of the Will and the Caveat is entred or where there is a feare of contention and strife between the kinred and friends of the party deceased about his goods for a Will proved in common form may be called into question at any time thirty yeares after and when the Will is thus exhibited into the Bishops Court the same is to be kept by his officers and the Copy thereof in parchment under the Bishops Seale of his office to be certified and delivered which parchment so sealed is called the Will proved The Probate of the Will as having respect to the 41. Where the Probate of a Will is necessary and where not And by and before whom And in what time it must be proved goods and chattels is in some respect necessary for howsoever Coo. super Litâ— 292 Perk. Sect. 481. as touching any Frâ—e hold of lands devised it is not all materiall and howsoever the Executor before Probate may receive and release debts and do most other acts as Executor yet he cannot sue for any debt due to the Testator And if the Executor delay the Probate the Ordinary may be Processe compell him to come in and accept or reâ—use of the Executorship And when it is proved it must be proved by the Executors or one Perk. Sect. 49. 〈◊〉 2. 486. Coo. 9. 36. â—â— Testament â—â— 5. Plow 280. â—tat 23 H. P. cap. 9. 2â— H. 8. c. 5. See before at â—an 21. of them at least and if all the goods of the deceased be within the same Diocesse wherein he lived and dyed the Executor must prove it before the Ordinary of the Diocesse or before his lawfull Commissary or Deputy or before the Archdeacon or his Deputy or Commissary as their composition is or if the goods be in a Peculiar then before him that