were granted Joynt-Tenants may have several estates A Joynt-Tenant cannot grant a Rent-charge but for terme of his own life A Joynt-Tenant may make a Lease for life or for years of his part or Release and the Lessee for years may enter although the Lessor die before the Lease begin and his heire shall have the Rent but the Survivor the Reversion A Joynt-Tenant may have a Writ of Partition by the Statute of the 31. of H. 8. cap. 32. A Partition made by Joynt-Tenants or Tenants in Common of Estates of Inheritance must be by Indenture by Word 't is void CHAP. VII TENANTS in COMMON Tenants in Common are those that hold Lands and Tenements by several titles They may joyne in action personal but they must have several actions Real They may have a Writ of Partition by the Stat. of 31. H. 8. cap. 32. IF one Parcener Joynt-Tenant or Tenant in Common take all the other have no Remedie but by Ejectione firme or such like or Waste Gavil-kinde-Lands Tenant by the curtesie of Kent whether he have Issue or no untill he marry and so forth he may not commit Waste CHAP. VIII TENANT in DOWER A Woman shall be indowed of all sorts of inheritance of her husband where the Issue that she had by him may inherit as heire to his father by meetes and bounds of a third part She shall have house-roome and meat and drink in common for forty dayes But she may not kill a Bullock within those 40. days after the death of her husband in which time her Dower ought to be assigned her The Assignement by him that had the Frank-Tenement is good but by him that is Guardian in Soccage or Tenant by Elegit verte Elegit or Statutes or Lessee for years is not She is to demand her Dower on the Land She shall recover dammages when her husband dyed seized from the death of her husband if the heire be not ready at the first day to assigne her Dower She shall have all her Chattels real againe execept her husband sell them he may not charge them or give them by his Will and likewise her bonds if the money were due in the life of her husband and all convenient apparel but if she have more then is fit for her degree it will be assets A woman shall be barred of her Dower so long as she detaineth the bodie of the heire being Ward or the Writing of the sons Land A woman shall not be endowed of any lands that her husband joyntly holdeth with another at the time of his death Dower of Gavil-kind Lands If the woman shall be endowed of one half so long as she is unmarried and chaste and it may be held with the heire in Common It is of Lands and Tenements and not of a Faire or such like where the Heire loseth not his inheritance there she loseth not her Dower Joynture IF a woman have a Joynture be fore marriage she may claim no Dower 27. Hen. 8. If it be made during marriage she may enter into her Joynture presently If she enter or accept of it she shall not be endowed If she shall be expulsed of any part of her Joynture she shall be endowed of the residue of her husbands Lands CHAP IX Tenant for terme of Life TEnant for terme of life is he that hath Lands or Tenements for terme of his life or another mans life and none of lesser estate may have a Free-hold If a Tenant for life sowe the Lands and die before the corn be reaped his Executor shall have it but not the Grasse nor other fruit If a Tenant for life be impannelled upon an Inquest and forfeit Issues and die they shall be levied upon him in the Reversion and so likewise if the Husband on the Lands of the Wife CHAP. X. Tenant for Terme of yeares Tenant for terme of years is where a man letteth lands or tenements to another for certain yeares HE may enter when he will the death of the Lessor is no let and may grant away his terme before it begin but before he enter he cannot Surrender nor have any action of trespasse nor take a release He is bound to repaire the Tenements The Lessor may enter to see what Reparations or Waste there is and he may distraine for his rent or have an action of debt If Tenant for life or years granteth a greater estate then he hath himselfe he doth forfeit his terme CHAP. XI Tenant at Will Tenant at Will is hee that holdeth lands or tenements at the Will of another THe Lessor may reserve a yearely rent and may distraine for it or have an Action of debt the Lessee is not bound to repaire the Tenements The Will is determined by the death of the Lessor or of a woman Lessee by her marriage or when the Lessee will take upon him to doe that which none but the Lessor may doe lawfully it determineth the Will and Possession and the Lessor may have an action of Trespasse for it The Lessee shall have reasonable time to have away his goods and his corne But he shall lose his Fallow and his dung carried forth CHAP. XII REMAINDER A Remainder is the residue of an estate at the same time appointed over and must be grounded upon some particular estate given before granted for years or for like and so forth And ought to begin in possession when the particular estate endeth there may bee no mean time between either by Grant or Will No remainder can be of a Chattel personal a Remainder cannot depend on a matter ex post facto as upon Estate tayle upon condition That if the Tenant in Tayle sell then the Land to remain to another is a void Remainder CHAP. XIII REVERSION A Reversion is the residue of an estate that is left after some particular estate granted out in the Grantor as if a man grant Lands for life without further granting the Reversion of the Fee-simple is in the Lessor CHAP. XIV WASTE WASTE lieth against a Tenant by the curtesie for life for years or in Dower and they shall lose the place wasted and treble dammages Waste lieth not against a Tenant by Elegit Statute-Merchant or Staple but account after the debt or dammage levied Waste or account will lie against a Tenant in Mortgage because he had Fee conditionall Waste is not given to the heire for Waste in the life of his Father Waste is given against the Assigne of the Tenant for life or of anothers life but not against the Assignee of a Tenant in Dower or of the curtesie it is to be brought against themselves It is Waste to pull up the formes benches doors windowes walls Filbert-Trees or Willows planted CHAP. XV. DISCONTINUANCE DIscontinuance is where a man that hath the present possession by makeing a larger estate then he may divesteth the inheritance of the Lands or Tenements out of another and dieth and the other hath right to have them but he may not enter
to him and his heires until B. die without heire of his body for in the one case the Donor hath but an Estate Tayle and in the other a Fee simple determinable hath a possibility of Revertor for if B. die without heire of his body then whether A. be living or dead shall revert to the Donor but such possibility of Reversion for he that hath but such a possibility hath no Estate nor hath he power to give his possibility but in the other case the Donor hath Estate in Fee and therefore he hath power to dispose thereof at his pleasure Remainder A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates whereupon it doth depend as if S. seised of lands in Fee demiseth the same to B. for life the remainder to C. and the heirs of his body the remainder to D. and his heirs In this case I. S. hath a particular Estate of the Lessor is then also disposed to C. and D. ut supra whereby B. hath an Estate for life C. a Remainder in Tail and D. a Remainder in Fee depending in order upon the particular Estate in possession and in every Remainder five things are requisite First That it depend upon some particular Estate Secondly That it pass out of the Grantor Donor or Lessor at the time of the creation of the particular Estate whereon it must depend Thirdly That it veste during the particular Estate or at the instant time of the determination thereof Fourthly That when the particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Fifthly That the person or body to whom the Remainder is limitted be either capable at the time of limitation thereof or else in potentia propinqua to be thereof capable during the particular Estate If Lands be given to I. S. and his Heirs the Remainder for default of such Heir to I. D. and his Heirs that Remainder is void because it doth not depend upon any particular Estate But if Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good for it is not limited to depend upon a Fee-simple but upon a particular Estate which is onely called an Estate for life of I. B. descendable if Lands be given to B. for 11. years if C. do so long live the Remainder after the death of C. to D. in Fee this Remainder is void for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years but if a Lease be made to B. for life the Remainder to the Heires of C. who is then living this Remainder is good upon a contingency that if C. dye in the life of B. for that Remainder may well pass out of the Leassor presently without be yaunce without any inconveniency because onely the inheritance separated from the Free-hold is in abeyance if Lands be given for life with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void because it died not vest or settled either during the particular Estate or at the time of the determination thereof for until I. S. die no person is thereof capable by the name of the Heir But if Lands be given to I. S. for terme of his life the Remainder to his right Heir in the singular number and the Heirs of his body and after I. S. hath issue a Son and dyeth that is a good Remainder and the Son hath thereby an Estate Tail for although it were unpossible that such Remainder should vest during the particular Estate because during his life none could be his Heir yet it might be and did vest at the instant of his death which was at the time of his determination of the particular Estate Concerning the fourth thing if a man seised of Lands in Fee granteth out of the same a Rent or Common to Pasture or such like things which before the grant had no being to I. S. for terme of life the Remainder to I. D. in Fee this Remainder is void because of this thing Granted there was no Remnant in the grant to dispose And because some heretofore have been of opinion that albeit the same cannot take no effect as another Grant of a new Rent or Common Vtres magis valeat quam operat This is a rule in Law that a thing enjoyed in a superior degree shall not pass under the name of a thing in any inferior degree and therefore if Lands be given unto two persons and unto the Heirs of one of them unto the Husband and Wife and Heir of the Husband and he that hath the Estate of Inheritance granteth the Version of the same Land to another in Fee such Grant is void because the Grantor was thereof seised in a superiour degree viz. in Possession and not in Reversion as appeareth 22. Ed. 4. fol. 2 13. Ed. 3. Brook title of Grants 137. And concerning the first and last thing if a Lease be made of Land for term of life the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein being this Remainder is meerly void albeit the Kings Majesty by his Letters Pattents do create such Corporations during the particular Estate for at the time of such grant the Remainder was void because then there was no such body corporate thereof capable or potentia propinqua to be created and made capable thereof during the particular Estate but the possibility thereof was then forraign and probably intended The like law is if a remainder be limited to I. the Son of T. S. who had then no Son and afterwards during the particular Estate a Son is born who is named John yet this Remainder is void for at the time of such a Grant as was not to be probably in tender that T. S. should have any Son of that name Also before the dissolution of Abbies if a Lease of Land were made to I. S. for life the Remainder to one that then was a Monk such Remainder was void for the cause before alledged albeit we were deraigned during the particular Estate But if such Remainder had been limited to the first begotten Son of I. S. it had been good and should accordingly have vested in such a Son afterwards born during the particular Estate Rights A Right in Land is either cloathed or naked a Right cloathed is when it is wrapped in a possession Reversion or Remainder a naked Right which is also most commonly called a Right is when the same is separated from the possession or Remainder by dissessin discontinuance or the devesting and separating of the possession as for example if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee in this case I. S. hath a Right cloathed with a Remainder
not fixed with Screwes Tenant in tayle may make a lease for such lands or inheritance as have been commonly letten to farm if the old lease be expired surrendered or ended within one year after the making of the new But not without impeachment of Waste nor above 21 years or three lives from the day of the making reserving the old Rent or more 32. H. 8. By Indenture of Lease by Tenant in tayle for 21 years made according to the forme of the Statute rendring the ancient or more Rent If the Tenant in tayle die it is a good lease against â—his Issue But if a Tenant in tayle die without Issue the Doner may avoid this Lease by entrie 32. H. 8. 28. And if he in the Remainder do accept the Rent it shall not tie him for that the Tayle is determined the Lease is determined and void Ed. â— 19. The Husband may make such a Lease of his wifes lands by Indenture in the name of the husband and wife and she to seale thereunto and the rent must be reserved to the husband and his wife and to the heires of the wife according to her estate of Inheritance A Lease made by the husband alone of the Lands of his wife is void after his death But the Lessee shall have his Corne. By the husband and wife voidable if it be not made as aforesaid If a man do let Lands for years or for life reserving a Rent and do enter into any part thereof and take the profit thereof the whole Rent is extinguished and shall be suspended during his holding thereof The aceptation of a re-demise to begin presently is suspension of the Rent before any entrie otherwise of a re-demise to begin in suturo Reservations and Exceptions THere are divers words by which a man may reserve a Rent and such like which he had not before or to keep that which he had as Tenendum reservandum solvendum saciendum it must be out of a Messuage and where a distresse may be taken and not out of a Rent and it must be comprehended within the purport of the same Word Exceptions of part ought always to be oâ— such things which the Grantor had in possesion at the time of the Grant The heire shall not have that which is reserved if it be not reserved to him by special words If a man make a Feoffment of Lands and reserve any part of the profits thereof as the grass or the Wood that reservation is void because it is repugnant to the feoffment A man by a Feoffment Release Confirmation or Fine may grant all his right in the Land saving unto him his Rent-charge c. Things that are given only by taking and useing As pasture for four Bullocks or two loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his life and no longer without speciall Words Exceptions of things as Wood Myne Quarrie Marle or such like if they be used it is implied by the Law that they shall be used and the things without which they cannot be had is implied to be excepted although no c. But otherwise if they be not used then the way and such like must be excepted An Assignee may be made of Lands given in Fee or for life or for years or of a Rent-charge although no mention be made of the Assignee in the Grant But otherwise it is of a promise Covenant or Grant or Warranty If a Lessee do assigne over his terme the Lessor may charge the Lessee or assigne at is pleasure But if the Lessor accept of the Rent of the Assignee knowing of the assignement he hath determined his acception and shall not have an action of debt against the Lessee for Rent due after the assignement If after the assignement of the Lessee the Lessor do grant away his Reversion the Grantee may not have an action of debt against the Lessee If a Lessee do assigne over his interest and die his Executor shall not be charged for rent due after his death If the Executor of a Lessee do assigne over his interest an action of debt doth not lie against him for rent due after the assignement If the Lessor enter for a condition broken or the Lessee do surrender or the terme end the Lessor may have an action of debt for the arrearages A Lease for years vending rent with a condition that if the Lessee assigneth his terme the Lessor may re-enter The Lessee assigneth the Lessor receiveth the Rent of the hands of the assignee not knowing of the assignement it shall not exclude the Lessor of his entrie A thing in a Condition may be assigned over for good cause as just debt as whereas a man is indebted unto me 20. pounds and another do owe him 20. pounds he may assigne over his Obligation unto me in satisfaction of my debt and I may justifie the suing for the same in the name of the other at my own proper costs and charges Also where one hath brought an action of debt against I. N. which promiseth me that if I will aide him against I. N. I shal be paid out of the sum in demand I may aid him An assignee of Lands if he be not named in the condition yet he may pay the money to save his Land But he shall receive none if he be not named the tender shall be to the Executor of the Feoffees Assignee shall alwayes be intended he that hath the whole estate of the assignor that is assignable a Condition is not assignable and not of an Executor or Administrator if there be such an assignee the law will not allow an assignee in the law if there be an assignee indeed so long as any part of the estate remaineth to the assignor the tender ought to be made to him or his heires it serveth yet a colourable payment to the heire shall not veste the estate out of the assignee as a true payment will viz. Covenant CHAP. XXXVI SURRENDERS A Surrender is an Instrument testifying with apt words that the particular Tenant of Lands or Tenements for life or years doth sufficiently consent that he which hath the next immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeildeth or giveth the same to him for ever Surrender ought forthwith to give a present possession of the thing Surrendred unto him which hath such an estate where it may be drowned A Joynt-Tenant cannot surrender to his fellow Estating of things that may not be granted without a Deed may be determined by the Surrender of the Deed to the Tenant of the Land Lease for years cannot surrender before his Term begin he may grant he cannot surrender part of his Lease Surrenders are in two manners In Deed. In Law A Surrender in Law is when the Lessee for years doth take a new Lease for more years A Surrender
rather beat him then suffer him to take or carry them away CHAP. XLIV How far other mens Contracts and misdemeanours do binde us A MAN shall be bound by many Trespasses of his wife but not to sustain corporal punishment for it For Murder Fellony Battery Trespass borrowing or receiving of money in his Masters name by a Servant the Master shall not be charged unless it be done by his command or came to his use by his assent If I command one to do a Trespass I shall be a Trespassor or otherwise if I do but consent There is no accessary in Trespass We shall be charged if any of our family lay or cast any thing into the high way to the noisance of his Majesties Liege People Every man is bound to make recompence for such hurt as his beasts shall doe in the corne or grass of his neighbour though he knew not that they were there and for his Dogs Beares c. if they hurt the goods or Chattell of any other for that he is to govern them A man shall not be charged by the contract of his wife or his servant if the thing come to his use having no notice of it But if he command them to buy he shal be charged though they come not to his use or had notice therof If a Wife or Servant use to buy or sell if he sell his Masters Horse and exchange his Oxe for wheat that cometh to his Masters use his Master may not have an action of Trespass for it but he shall be charged for the corn and the other need not to shew that he had warrant to buy for him If a man-servant that keepeth his shop or that useth to sell for him shall give away his goods he shall have Trespass against the Donee But if I deliver my Goods to another to keep to my use and he do give them away I shall not for the Donee had notice whose goods they were as in the case of the servant If a man make another his general receiver which receiveth money and maketh an acquittance and payeth not his Master yet that payment dischargeth the debtor If a servant keep his Masters fire negligently an action lieth against the Master Otherwise if he bear it negligently in the street If I command my servant to distrain and he doth ride on the distress he shall be punished not I. If a man command his servant to sell a thing that is defective generally to whom he can sell it deceit lieth not against him Otherwise if he bid him sell it to such a man it doth A Contract or a promise made to the wife is good when the husband doth agree so it is to a servant and it shall be said to be made to the husband and Master himself If a man taketh a wife that is in debt he shall be charged with her debts during her life if she die he shall be discharged CHAP. XLV Wills and Testaments Having hitherto treated of such contracts as de take effect in the life time of the parties with their differences it is now to deale with Instruments which take effect after their Deaths that those things which they have preserved with care and gotten with paines in their life might be left to their posterity in peace and quietnesse after their Death of which sort are last Wils and Testaments There are two sorts of Wils Written and Nuncupative ANuncupative Testament is when the Testator doth by Word onely without writing declare his Will before a sufficient number of Witnesses of his Chattels onely for Lands passe not but by writing It may for the better continuance after the making be put in writing and proved But it is still a Testament Nuncupative A written Testament is that which at the very time of the making thereof is put in writing by which kind of Testament in writing only Lands and Testaments pass and not by word of mouth only Two things are required to the perfection of a Will by which Lands pass viz. First writing which is the beginning Secondly the death of the Devisor which is the finishing In a Will of Goods there must be an Executor named otherwise of Lands A man may make one Executor or more simply or conditionally for a time or for parcel of his Chattels If no Executor be named then it still retaineth the name of last a Will and shall be annexed to the Letters of Administration in regard of the Gift Gavil kinde Lands may be devised by custome Lands bolden In Socage tenure all is devisable Knights Service 2 parts 3 in writing FEAR fraud and flattery three unfit accidents to be at the making of a Will A woman may make a Will of the goods of her husband by his consent and license by Word is sufficient and of the goods she hath as Executor without his consent but she cannot give them unto him A boy after his age of fourteen and a Maid after her age of twelve may make a Will of their goods and Chattels by the Civil Law The will of the Donor shall be alwayes observed if it be not impossible or greatly contrary to the Law A Devisor is intended Inops consilii and the Law shall be his Counsell and according to his intent appearing in his Will shall supply the defect of his words A Prerogative Will is five pound in another Diocess A man may not traverse the Probate of a Testament or Letters of Administration directly but he may say against the Testament that the Testator never made the party his Executor CHAP. XLVI DEVISES A Devise ought to be good and effectual at the time of the death of the Devisor The Devisee may not enter into the terme or take a Chattell but by the delivery of the Executor But he may sue for it in Court Christian Into Frank-tenement or inheritance he may enter Devisees are Purchasees as if a Lease for years be Willed to a man and his Heires the Heire shall have it for Heire is a name of purchase here A Reversion of Lands or Tenements will pass by the name of Lands and Tenements in a Devise If a man devise all his Lands and Tenements a Lease for years doth not pass where he hath Lands in Fee and also a Lease there otherwise it will If a man devise all his goods a Rent-charge which he had for years will pass and all other his personall Chattells And if a man give all his moveables to one he shall have all his Horses Cattell pans and personall chattells and all his immoveables to another he shall have all his Corn growing and fruit on his Trees and the chattells reall A man may devise Lands or goods to an Infant in the mothers belly or goods to the Church-wardens of D. There is great diversity where the property is devised and when the occupation is devised A man may devise that a man shall have the occupation of his Plate or other chattells during his life or
without a Deed is void if the Reversion be not in the reserâ—or if a Rent be granted from the Reversion it is a Rent-seck He which is not seized of a Rent-seck is without remedie for the same The gift of a peny by the Tenant in name of seizin of a Rent-seck is a good possession and seizin No Rent may be reserved upon any Feoffment Gift or Lease but only to the Donor and his heires not to any stranger A Rent-charge is extinct by the Grantees purchase of parcell of the Land but by the purchase of any of his Ancesters it shall not it shall be apportioned like Rent-service according to the value of the land but if the whole Land discend of the same inheritance the rent is extinguished By the grant of the Reversion the rents and Services pass If Rent be granted to a man without more saying he shall have it for terme of his life If the Lord accept of Rent or service of the Feoffment he excludeth himself of the Arrerages of the time of the Feoffment For a Rent-charge behind one may have an Action of annuity or distrain Distress For what when and where a man may distrain A man may distrain for a Rent-Charge Rent-Service Herriot service and all manner of Service as Homage Escuage Fealtie Suite of Court And Relief c. HErriot custome must be seized and for Amerciaments in a Leete upon whose ground soever it be in the liberty a man may not distrain for rent after the Lease is ended nor have debt upon a Lease for life before the estate of Frank-Tenement be determined A man may not distrain in the night but for dammage Feasant A man may not distrain upon the possessions of the King but the King may distrain of any Lands of his Grantee or Patentee A man may not distrain the beasts of a stranger that come by escape untill they have been Levant and Couchant on the ground but for dammage Feasans A man may not distrain the Oxen of the Plough nor a Mil-stone nor such like that is for the good of the Common-wealth nor a Cloke in a Taylors shop nor victuals nor corne in sheafes but if it be in a Cart for dammage Feasans A distress must be always of such things as the Sheriff may make a Replevin A man may not sever horses joyned together or to a cart If a man put cattell into a pasture for a week and afterwards I. N. doth give him notice that he will keep them no longer and the owner will not fetch them away I. N. may distrain them dammage Feasans If a man take beasts dammage Feasans and driving them by the high way to a pound the beasts enter into the house of the owner and the taker prayeth the delivery of them and the owner will not deliver them a Writ of Rescous lyeth If a man distrain goods he may put them where he will But if they perish he shall answer for them If cattell they ought to be put in a common pound or else in an open place where the owner may lawfully come and feed them and notice given to him thereof and then if they die it is in default of the owner Cattell taken dammage Fesans may be impounded in the same land but goods or Cattell taken for others things may not Sheep may not be destreined if there be a sufficient distress besides No man shall drive a distress out of the County wherein it was taken No distress shall be driven forth of the hundred but to a pound Overt within three miles A distress may not be impounded in several places upon pain of five pounds and treble dammage Fees for impounding one whole Distress Four pence The executor or administrator of him which had Rent or Fee-Farme in Fee in Fee-tayle or for life may have debt against the Tenant that should pay it or distrain and this is by the Statute 32 H. 8. So may the husband after the death of his Wife his Executor or Administrator So may he which hath Rent for another mans life distrain for the arrerages after his death or have an action of Debt 32. H. 8. But if the Landlord will distrain the goods or cattell of his Tenant and do sell them or worke them or convert them to his own use he shall be executor of his own wrong CHAP. XXIII Diseizin of Rents Three causes of Diseizin of Rents-Service Rescous Replevin Inclosure Foure of Rent-Charge Denyer Inclosure Forestalling is a Diseizin of all FOrestalling is when the Tenant doth with force and armes way-lay or threaten in such manner that the Lord dareth nor distrain or demand the Rent Denyall is if there be no distress on the Land or if there be none ready to pay the Rent c. And of such diseizins a man may have an action of Novell diseizin against the Tenant and recover his Rent and arrerages and his dammage and costs and if the Rent be behind another time he shall have a Redisseizin and recover double dammage Rescous and Pound-breach IF the Lord distrain when there is no rent nor service behind the Tenant may not rescue otherwise if another distreine wrongfully but no man may break the Pound although he did tender amends before the cattell were impounded If the Lord come to distrain and see the beasts and the servant drive them out of his fee the Lord may not have Rescous because he had not the Possession but he may follow them and distrain but not dammage feasans CHAP. XXIV COMMON COMMON is the right that a man hath to put his beasts to pasture or to use and occupy ground that is another mans There be divers Commons viz. Common in gross Common appendant Common appertinant Common because of neighbourhood viz. the termes of Law The Lords of Wastes Woods and pasture may approve against their Tenants and neighbours with common appertenant leaving them sufficient Common and pasture to their Tenants As if one Tenant surcharge the Common the other Tenants may have against him a Writ de admensuratione pasturae But not against him that hath Common for beasts without number neither may the Lord enclose from such Tenants if he do the Tenant may bring an assize against him and recover Treble dammage but the Lord may have a quo jure and make the Tenant shew by what title he claimeth CHAP. XXV WAYES The Kings high-way is that which leadeth from village to village A common high-way is that which leadeth from a village into the fields A private way is that which leadeth from one certain place unto another 3. Ed. 3. IN the Kings high-way the King hath onely passage for himself and his people and the Frank-Tenement and all the profits are in the Lord of the soyle as they be presented at the Leete Of a Common high-way the Frank-Tenement and profits are to him that hath the land next thereto adjoyning and if it be stopped and I be damnified by it I have no remedy
in Deed must have sufficient words to prove the assent and will of the Surrenderer to Surrender and that the other do also thereunto agree The husband may Surrender his Wifes Dower for his life and her Lease for ever By Deed Indented a man may Surrender upon condition CHAP. XXXVII RELEASES A Release is the giving or discharging of a Right or Action which a man hath or claimeth against another or out of or in his lands A Release or Confirmation made by him that at the time of the making thereof had no right is void if a right come to him afterwards unless it be with warranty and then it shall barr him of all right that shall come to him after the warranty made Release or confirmation made to him that at the time of the Release or Confirmation made had nothing in the Lands is void it behoveth him to have a Free-hold or a possession and privitie A Release made to a Lessee for years before his entrie is void A man may not release upon a Condition nor for a time nor for part But either the Condition is void and the time is void and the Release shall enure to the partie to whom it is made for ever for the whole by way of extinguishment But a man may deliver a Release to another as an Escrowe to deliver to I. S. as his Act and Deed if I. S. do perform such a thing or Release upon a condition by Deed indented may be good A Joynt-tenant or a Rent-charge may release yet all the Rent is not extinct nor yet if he purchase the lands his fellow shall have the Rent still If the grantee release parcell of a Rent-charge to the Grantor yet all the Rent is not extinct A Release to charge an estate ought to have these words Heires or words to shew what estate he shall have A release made to him that hath a Reversion or a remainder in Deed shall serve and help him that hath the Frank-tenement So shall a Release made to a Tenane for life or a Tenant in Tayle inure to him in the Reversion or Remainder if they may shew it and so to Trespassors and Feoffees but not to Disseisors A Release of all manner of Actions doth not take away an entrie nor the taking of ones Goods againe nor is any Plea against an Executor A Release of all demands extinguisheth all Actions Reall and Personall appeales Executions Rent-charge Common of Pasture Rent-Service and all right and Seizure and all right in Lands and propertie in Chattels But not a possibility or future duty as a Rent payable after my death and such like CHAP. XXXVIII CONFIRMATION Confirmation is when one ratifieth the possession as by Deed to make his passession perfect or to discharge his estate that may be defeated by another entrie AS if a Tenant for life will grant a Rent-charge in Fee then he in the Reversion may confirme the same Grant Whereas a man by his entrie may defeat an estate there by his Deed of Confirmation he may make the estate good A Confirmation cannot charge an estate that is determined by express Condition or limitation To confirm an estate for an houre if it be for Tenant for life it is good for life if to Tenant in Fee for ever A lease for years may be confirmed for a time or upon condition or for a piece of the Land But if a Frank-tenement be it shall enure to the whole absolutely A Confirmation to charge an estate must have words to shew what Estate he shall have To confirm the Estate of Tenant for life to his heires cannot be but by Habendum the Land to him and his heires And therefore it is good to have such a Habendum in all confirmations In a Confirmation new service may not be reserved old may be abridged A Confirmation made to one Disseizor shall be voidable to the other so shal not a Release CHAP. XXXIX CONDITION There are two manner of Conditions one expressed by Words another implyed by the Law the one called a Condition in deed the other a Condition in Law ESTATE made and the condition against the law the Estate 's good the Condition's void If the Estate beginneth by the Condition then both are void Bonds with Conditions expresly against the Law are void Conditions repugnant the estate good the Condition void Conditions impossible are void the Estate good it shall not enlarge any estate By pleading a man may not defeat an Estate of Frank-Tenement by force of a condition in Deed without he shew the Condition of Record or in writing sealed yet the Jurie may help a man where the Judges will take their Verdict at large of Chatttels he may Promise doth make a Condition but when it doth depend upon another sentence or hath reference to another part of the deed it maketh no condition but a qualification or limitation of the sentence or of that part of the Deed as provided that the person of the Grantee shall not be charged He which hath interest in a Condition may fulfill the same for safeguard of himself Between the parties it is not requisite the Condition be performed in every thing if the other do agree but to a stranger it must If the Obligee be partie to any Act. by which the Condition cannot be performed then the Obligor shall be discharged So he shall be by the Act of the Condition Where the first Act in the Condition is to be performed by the Obligee and he will not do it there the Obligation is not forfeited Where no time is set if the Condition be for the good of a stranger or of the Obligee then it is to be performed within convenient time if for the good of the Obligor at any time during their lives Immediately shall not have such a strict construction but that it shall suffice if it be done in convenient time If a man be bound to pay money or farm Rent he must seek the parties But if he be bound to perform all payments if he render his farm on the land it sufficeth If the Feoffee or Feoffor die before the day of payment the tender shall be to the Executor although the heire of the Feoffee do enter if the heire be not named vide Assignee in assignement The money must be tendred so long before Sun-set that the receiver may see to tell it To pay part of a Sum at the day cannot be satisfaction for the whole sum as a horse or a robe is But before the day or at another place at the day of the request and acceptance of the Obligee is full satisfaction An Acquittance is a good barr if nothing be paid In all cases of Conditions a payment of a certain sum in gross touching Lands or Tenements if lawfull tender be once refused he which made the tender is discharged forever And the manner of the tender and payment shall be directed by him that made it and not by him that