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
be found for him this will barre the Plaintiffe And if he doe intermeddle and take upon him the administration be may plead if the case be so that he cannot recover the goods of the deceased for he shall bee charged for no more then what he can gâ—t in his possession Or he may plead that he hath fully administred all the goods and chattels of the deceased and hath nothing left to administer or he may plead that he hath paid so much of his own money as the goods in his hands do amount unto Or if he be sued for debts due by obliligations or such like Especialties entred into by the deceased hee may plead that there are debts due and yeâ— to pay on Iudgements had against the deceased or that there are debts due and yet to pay on Recognisances or Statutes entred into by the deceased and that he hath no more then enough to satisfie them Or he may plead that there are Iudgements had against him for other debts of the deceasEd in equall degree with the debt sued for and that he has no more then enough to discharge them so as these former debts on and for which these Iudgements were had and Statutes given bee bonà fide duâ— and the Iudgements Recognisances and Statutes in truth continued for the same for if there be any fraud in the case viz. that either the Iudgements Recognisances or Statutes werâ— at first entred into or are afterwards continued of purpose to deceive or delay others of their due debts when either the debt is satisfied or compounded for lesse or the like in these cases this plea will not serve but this matter being disclosed by the Plaintiffs pleading he will avoid it And if he be sued for a debt due upon a simple Contract or promise of the Testator he may plead there are debts to pay due by Obligations and other especialties entred into by the deceased and that he hath no more then enough to satisfie those debts and this will barre the Plaintiff in his Action And therefore if an executor or administrator plead a Iudgement in barre of an Action of debt upon an Obligation hee must shew also that the Suit whereupon the Iudgement was had was upon an Obligation for if it were on a simple Contract it is no barre And if the Executor be sued for debt on an Obligation he may plead he made voluntary payment of other debts due upon Obligations or gave new security for them in his own name before the Suit began and that he hath no more then enough to satisfie them But to plead such a voluntary payment or giving of new security after Suits begun upon this Obligation now in Suit is no good plea. If an Action bee brought against an Executor or Administrator on an Especialty for money it is no good plea in barre of this Action to plead a Statute or Recognisance with Defeasance to performe Covenants when there is no Covenant broken If a Suit be against an Executor or Curia Trin. 37 Eliz. Administrator for a Legacy it seemes it is no good plea to plead a Bond with Condition for performance of Covenants or for the doing of any other collaterall thing that is contingent only and not yet broken Is is no good plea in an Action for an Trin. 39. Eliz. B. R. executor or administrator to say that the deceased was Out-lawed An Executor or Administrator may make himself chargable of 38. Where and in what case an Executor or Administrator shall be charged by his own act or pleading upon his own goods and where Execution shal bee de bonis propriis and where not his own goods either by omission as when he being sued upon 2 H. 6. 12. Dyer 185. 80 Coo. 9. 90 94. 9 H 6. 57. 3â— H 6. 45. Broo. Executor 141. 105 Litt. 〈◊〉 Sect. 29. Klew 61. Broo. Executors 164. an Obligation or the like and there is a Iudgement against him or the deceased in force and he hath but enough to satisfy that Iudgement and he doth not plead this in barre of the present action but doth suffer the Plaintiffe to recover against him in this case he must satisfy this second debt out of his own estate or by Commission and that either by doing as when he doth any act that is a waste in him and thereupon a Devastavit is returned against him for in this case he must answer so much as he hath wasted out of his own estate or by saying as when a Suite is against and he doth plead such a false plea therein as doth tend to the perpetuall barr of the Plaintiffe in the action and yet it is of a thing that doth lie within his perfect knowledge as when hee doth plead he is not Executor nor did ever administer â—s Executor and upon tryall of this issue against him it be found hee is a rightfull or wrongfull Executor in this case he must satisfy this debt out of his own estate whether he have Assets or not and the execution had upon the Iudgement had in this Suite shall be de konis propriis And if an executor or administrator be sued and he plead to the action plenè administravit and upon tryall it is found against him in this case if he have any of the goods of the deceased left in his hand the execution shall be of them but if he have none of the goods of the deceased left the execution shall be and he shall be charged for so much as is found to be in his hands de bonis propriis But where he is sued upon a promise made by the Testator and he plead non assumpsit to it and where he is sued upon a Deed made by the Testator and he plead no â—est factum to it or the like and these issues upon tryall are found against him or when he shall confesse the action or suffer a Iudgement to go by default against him or plead any vain plea in all these cases he shall not be chargable of his own estate neither shall the judgement and execution in these cases be de bonis propriis but de bonis Testatoris only for the debt and de bonis propriis for the costs And yet if an executor or administrator shall entreate a Creditor to forbeare his debt untill a day and then promise to pay him by this promise he hath made himselfe chargable as for his own debt howbeit it shall be allowed him upon his Account But in all these cases and such like where a man shall be charged of his own estate and the execution shall be de bonis propriis Atworths case Micâ—h 38. 39. Eliz. it seemes the Iudgement is alwayes de bonis Testatoris and the course is this the first execution is against the executor de bonis Testatoris and not de bonis propriis And after a Devastavit 34 H. 6. 45. 46 Ed. 3. 9. Fitz. Executor 9. Coo. 5. 32. 8.
with Proclamations and he in the remainder suffer the 5. yeares to passe in this case he is barred of his entrie upon the alienation for the forfeiture but it hath been held that if the tenant for life die that he shall have another 5. years time to bring his Formedon in the remainder So if the husband make a feoffement of his wives Plow 357. 368. 372. land to another upon condition which is broken and he levieth a fine of this land and the husband hath issue by his wife and dieth and the first 5. yeares passe and then his wife dieth hereby he is barred of the title by the condition but he shall have 5. yeares more to make his claime as heire to his mother But if lands be given to H for the life of A the remainder to B for life the remainder to H in fee and H is disseised and after the disseisor levie a fine and 5. years passe in this case H is barred both of his present and future estate and shall have no further time to make his claime c. and yet if Cestuy que vie and he in the meane remainder die H shall have another 5. years to make his claim to preserve his remainder In like manner it is if land be given to H for the life of A the remainder to him for the life of B the remainder to him for the life of C and he is disseised and the disseisor levieth a fine with Proclamations in this case some say H for his present right shall have 5. years by the first saving of the Statute and 5. years after the death of A by the second saving of the Statute If one disseise a feme sole and after mary her and have issue by her and the husband is disseised before mariage or after and then a fine is levied with Proclamations and the husband dieth first and afterwards the wife dieth within the 5. years the issue being of full age the 5. years passe hereby he is bound as heire to his father but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case â—â— How a fine shall enure and work feoffement or the like there the fine shall not passe any thing nor work by way of Estoppell but only by way of corroboration and shall be guided by the precedent agreement And therefore if a feoffement be made to two and their heires and after a fine is levied to them two and the heires of one of them this shall enure as a release and shall not alter the estate but if there be no precedent agreement it shall work as it may Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent and by indenture at the same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment and after a fine is levied sur conusance de droit come ceo c. accordingly in this case this fine shall enure as a fine sur release because the Conusee hath the fee before and it shall not enure by way of Estoppell albeit it bee a fine sur conusance de droit come ceo c. And Estoppell Extinguishment therefore the rent and condition shall remaine in this case and not be extinct A fine may be avoided for many causes as by the death of the parties See before at Numb 6. part 2. F. N. B. 20. f. Stat. 23. El. ch 3. after the conusance before the recording of it or by covin in the 12. Where a fine may be avoided or not And how 1. By a writ of error procuring of it Also it may be avoided for other causes as for some error in the proceeding in the suing out of the fine and this is done by writ of error but this error then that shall not make a fine voidable must be notorious because the thing is done by consent and it is a rule in Law Consensus tollit errorem And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine and both of them be within age whiles either of them be within age they may avoid the fine as against them both But if there be tenant for life and he in remainder in taile being an Infant and they two levie a fine and he in the remainder reverse it for infancy this shall not avoid the fine as to the tenant for life also A fine also is and may be sometimes avoided or at Plow 358. 359. Co. 9. 106. least lose much of his force by the claim entry or action of him that hath right to the land for if the estate contained in a fine be 2. By a claime entrie c. And by whom a claim c. may be made once within 5. years after Proclamations lawfully defeated the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations In like manner if there be tenant for life the remainder for life the remainder in fee and the first tenant for life alien and the alienee levie a fine with Proclamations and the second tenant for life claim or enter c. this doth make void the fine both against him and against him in remainder also for it is a rule That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied may make a claime or entrie to prevent the bar of the fine As tenant for his own or for anothers life tenant for years he in reversion or remainder after an estate for life or years a Copyholder or the Lord a Gardian in nature or nurture may avoyd a fine And this they may do for themselves and others for others without authority precedent or assent subsequent and the claim of one of them in this case shall availe the other And by authority also any other man may make a claim entry c. in this case for him that hath right and so he may doe also without any authority precedent if the party for whom he doth it doe afterwards agree and assent unto it But a stranger of his owne head unlesse perhaps it bee for an Infant cannot make such a claime or entry to prevent the barre of a fine except hee that hath the right doe give him authority before it be done so to doe or doe agree
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
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
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
other is extinct It is a discharge in writing of a summe of money or other 10. Acquitance Quid. Termes of the law duty which ought to be paid or done As if one be bound to pay money on an obligation or rent reserved upon a lease or the like and the party to whom the money or duty should be paid or done upon the receipt thereof or upon some other agreement betweene them maketh a writing under his hand witnessing that he is paid or otherwise contented and therefore doth acquite and discharge him of the same The which is such a discharge and barre in the law that he cannot demand and recover the same againe contrary thereunto if the acquitance be shewed The obligor is not bound to pay money upon a single bond 22 E. 4. 6. 41 E. 3. 25. 1 H. 7. 15. 22 E. 4. 6. Bro debt 43. Oblig 10. 11. Where a man is not bound to pay money without he hath an acquitance unlesse the obligee will make to him an acquitance or release Nor is he bound to pay it before he hath the acquitance And in this case the obligor may compell the obligee to make him an acquitance And so also it is in case of a Statute Merchant one is not bound to pay the money thereupon before he hath the acquitance or release of the plaintife But otherwise it is in case of an obligation with a condition for there a man may averre paiment And because Statutes Recognisances and Obligations are often used and tend to the strengthening of the Common Assurances of the kingdome we may not in any wise passe them over but must take some surveigh of them And first of a Statute CAP. XX. Of a Statute A Statute is a Bond or Obligation of Record But this word is 1 Statute Quid. Terms of the Law Stat. de Mercatoribus Acton Burnell 11 Ed. 1. sometimes used in another sense viz. for a Decree made in Parliament called an Act of Parliament And of these Obligations there are three kinds 1. A Statute 2 Quâ—tuplex Statute Mechant Quid. Merchant 2. A Statute Staple 3. A Recognisance The Statute Merchant is a Bond acknowledged before one of the Clerks of the Statute Merchant and Mayor and chief Warden of the City of London or two Merchants of the said City for that purpose assigned or before the Mayor chief Warden or Master of other Cities as York Bristow or the like or the Bailisse of any Burrough or Village or other sufficient men for that purpose appointed and Authorised Sealed with the seal of the Debtor or Recognisor and of the King which is of two pieces the greater whereof is kept by the Mayor or chief Warden and the lessor by the said Clerk And the form of it is thus Novertis c. me A B teneri C D in Centum libris solvend eidem ad Festum S. Mich. proxim Et nisi fecero concedo quod currat super me haeredes meos districtio paena in Statuto domini Regis edito apud Westin Dat. c. And this albeit at first it was ordained and used for Merchants only yet at this day it is and may be used and given by any others and is become one of the common Assurances of the Kingdome The Staple doth signifie this or that Town or City whither the 27 Ed. 3. Stat. 2 cap. 1 â—â—3 c. Merchants by common order and commandement doe carry their Statute Staple Quid. commodities as Wooll and the like to utter by the great And the 27 Ed. 3. Stat cap. 9. 22 H. c. â— Coo. super Lit. 289. 15 H. 7. 16. Statute Staple is either properly or improperly so called That which is properly so called is defined to be a Bond of Record acknowledged before the Mayor of the Staple in the presence of one or two Constables of the same Staple and is sealed with the Seale of the Staple and sometimes also with the Seale of the party the which it seemes is not necessary And this is founded upon the Statute of 27 Ed. 3. cap. 9. and was invented and is used only â—or Merchants and Merchandizes of the same Staple This is of the same nature the Statute Merchant is That which is improperly so called is also called a Recognisance which is also a Bond of Record Recognisin â— Quid. testifying that the Recognisor doth owe to the Recognisee a summe of money And of these there are divers kinds for thre is one Recognisance founded upon the Statute of 23 H. 8. cap. 6. The forme whereof is this Noveritis c. me A B teneri C D in Centum libris solvend eidem ad Festum S. Mich. proxim Et si defecero in solutione debi praedict volo concedo quod tunc currat super me haeredes executores meos poena in Statuto Stapulae debit pro Marchandisis in eadem emptis recuperand ordinat provis Dat. c. And this is alwayes to be acknowledged before the chiefe Justice of the Kings Bench or of the Common Pleas in the Terme time or in their absence out of Term before the Mayor of the Staple at Westminster and the Recorder of the City of London for the time being And it is to be sealed with the Seale of the Conusor and with the Seale of the King appointed for that purpose and with the Seale of the chiefe Justice Mayor and Recorder before whom it is acknowledged and they before whom it is taken doe subscribe their names to it And this was ordained and may be and is used by Merchants or any other whomsoever for paiment of debts or assurance of other things And this also is of the same nature the Statute Merchant is And both this and the two former are much of the nature of judgements had upon Suits in the Courts of Kings Coo. 8. 153. Bench and Common Pleas and therefore they are called Pocket Pocket Iudgements judgements There are also divers other kinds of Recognisances that are See Statute 33 H. 8. c. 22 39. 3 H. 7. c. 1 10 H. 6. c. 1 Dyer 315. 307. F N B. 251. f. 132 c. 133. a. 68. a. taken by and acknowledged before the Lord Keeper Master of the Wards Master of the Rolls Master of the Chancery Justices of the one Bench or of the other some of which are called Bailes Barons of the Excheker Judges in their Circuits Baile Justices of the Peace Sheriffs and others some whereof are by the Common Law and some by certaine Statutes And amongst these some are without Seale and recorded only and some are sealed and recorded also And some of them are in a sum certaine as the Recognisances taken in the Common-Pleas for Baile are and some of them are incertaine as those Recognisances that are taken for Baile in the Kings Bench which are after this manner Si Judicium redditum c. tunc volo concodo
by a day of the same land and before the day the feoffee enter Littl. Sect. 3â—8 into a Statute or a recognisance this land shall be subject unto execution untill the feoffor reenter for the breach of the condition If one be disseised of land and then enter into a Statute this Coo. 2. â—9 land shall not be subject to execution and yet if the Conusor do after recover the land by entry or action it shall be lyable to execution The goods and chattels whereof the Conusor is solely possessed Stat. de Merâ—â—t r. bus Co. 3. 11. 12. â—lâ—â— 52â— Coo. c. â—â—1 5. 92. Dyer 6â— and possessed in his own right and the goods and chattels of which he is joyntly possessed with another and the goods and chattels he hath in the right of his wife are liable to execution But the goods or chattels that he or his wife hath as Executor or Executrix to another or as pledged only it seems are not subject to execution And if the Conusor deliver goods to another to deliver over to I S these goods before they be delivered over are liable to execution And if hee have leases for yeares in the right of his wife and die before execution be done it seemes these leases are liable to execution Sed quaere But if the Conusor have goods in his custody of another mans or have goods he hath distrained in the nature of a distresse these are not liable to execution All the lands tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time Coo. 3. 12. Stat. de Mer catoribuâ— any time after into whose hands by what means soever the same are betide and come at the time of execution are subject and liable to the execution But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into are not liable to execution And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias are liable to the execution But the goods and chattels he had and did Bonâfide do away before the time of execution done are not liable to the execution And of all these things before subject to execution the Conusee may take all or part at his pleasure And therefore if the Conusor 4. In respect of the quantity 〈◊〉 Stâ—â—â—â— 4. 2. 25. Pâ—â— 72. Sâ—◠〈◊〉 have sold his lands to divers persons or have sold some of his lands to divers persons or to one man and keep the rest in his hands or it descend to his heire the Conusee may sue execution upon the lands in either of their hands at his election so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor he may notwithstanding have execution upon the residue in the hands of the Conusor or in the hands of his heire and yet so that in some of these cases his execution may be afterwards avoided and he he compelled to sue execution againe The Cognisee upon other Recognisances shall have the same Weston 2. chap. 13. Plow 72. Coo. 3. 12. Dyer 30â— Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or common-Common-Pleas by Fieri facias or Levari facias all his goods and chattels and by Elegit the Moity of his lands and all his chattels besides the Cattell of his plow and implements of husbandry But in these cases he cannot take the body of the Conusor in execution unlesse it be upon a new Suite or in case of baile in the Kings-Bench Howsoever by the Common-law after a full and perfect execution had by extent returned and of record there shall never be any Stat. 32. H 8. chap. 5 â— Where a man shal have a Reextent or â— new execution And where not reextent yet by a speciall Act of Parliament it is provided That if after lands c. be had in execution upon a just or lawfull title wherewith all the said lands c. were liable tied or bound at such time as they were delivered or taken in execution they shall be taken or recovered away from him before he hath received his full debt and damages in this case after a Scire facias had against the Conusor his heirs executors administrators or purchasors he or his executors or administrators if he be dead shall have a new execution to levie the residue of the debt and dammages then unsatisfied Wherein these things are to be observed 1. In case where the Coo. 4. 66. 82. Plow 61 15. H. 7. 15 Coo. super Litt. 99. Kitch 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution there hee may and must bring his action and recover damages and these damages shall goe toward his satisfaction for in this case and for this disturbance hee shall not hold the land a day the longer And where he is hindred by his own neglect or act in the taking of the profits of the land as where his debt is 40l and he hath 10l a yeare delivered to him by which be may satisfie himself in four yeares and within the time hee make a conditionall surrender to the Conusor and enter for the condition broken in this case hee shall not hold the land over neither shall he have any Reextent And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed in this case he shall have no new execution nor reextent within this Statute for where the Conusee hath remedy in praesenti for part or in futuro for all or part this Statute extendeth not to it And therefore where the Conusee is hindred in the taking of the profits of land by the act of God as by fire overflowing of water or the like or the act of the party Conusor or any by or under him as when one is bound to A in a Statute of 100l and after to B in a Statute of 200l and B extendeth the land first and then A extendeth the land and taketh it away from B or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor or the wife of the Conusor doth claime her dower and put out the Conusee or one disseise his lessee for life or out his lessee for years and then acknowledge a Stature and after execution is sued against him and then the land is delivered to the Conusee and after the lessee for life or yeares doth enter in all these cases because by the Common law the Conusee may hold
shall save the Obligee harmlesse against an unlawfull Deed or that hee shall not save his land or that he being a Tradesman shall not use his Trade and yet it seemes a condition that a man shall not use his Trade in oâ—e place or at one time or if he doe that he shall pay so much by the year unto another is not a condition against Law or that a man being an Officer an Officer pro bono publico shall not exercise his Office or the like this condition is voyd and makes the Obligation and so the whole Deed voyd But when the thing to be or not to be done by the condition is such a thing as the omission or commission thereof in its nature is not malum in se but only against some maxim of Law as that a man shall make a Feoffment to his own wise or is but malum prohibitum only as that a man shall erect a Cottage contrary to the Statute of 31 Eliz. or is repugnant to the state as that a Feoffee of Land shall not alien it or take the profits of it or that a Tenant in Taile shall not suffer a Recovery of his Land or the like in these cases the conditions only are voyd and the Obligations remaine single and without a condition And yet perhaps if the Obligors be sued upon these Obligations they may have reliefe in equity Equity 2. When the matter or thing to be done by the Condition is such a Perk. Sect. 735. Coo. super Litt. 207. Fitz. Oblig 17. 27 H. 8. 29. 21. Ed. 4. 54. 42. Ed. 3. 6. thing as in its nature is impossible to be done at the time of the making Impossible of the Obligation there the Obligation is good and the Condition only is voyd And therefore if I be bound in an Obligation with Condition that I shall stand to the Award of certain persons c. provided that the Award be made before the tenth day of May next and provided that I have warning 15 dayes before the 10th of May and this Obligation is made the 9th day of May this is a voyd Condition And so if I be bound in an Obligation with condition that I will goe to Rome within three dayes or that I will make an estate of white acre in Dale worth 10l per annum when reverâ it is worth but 5l per annum or that I will bee non-suit in such an Action or assure such a piece of ground when in truth there is no such Action or piece of ground this condition is voyd and the Obligation remaines single and good So if the condition be That Hill 17. Iac. B. F. whereas A had a judgement against B the Obligor for 20l. and the Obligee hath acknowledged satisfaction if therefore the Obligor shall before such a day get a Warrant from A whereby the Obligee may be saved harmlesse for the same acknowledgement That then c. this condition is voyd and as it seemes the Obligation also for that it is not only impossible but against Law also But when the thing to be done by the condition is a thing possible at the time of the making of the Obligation and after by matter ex post facto by the Act of God the Act of the Law or the Act of the Obligee it is become impossible in this case the Obligation and the Condition both are become voyd And therefore if a man be bound with a condition that he shall appear the next Tearm in such a Court and before the day the Obligor dieth hereby the Obligation is saved So if A be bound to B that I S shall marry Iane G by such a day and before the day B himselfe marry with Iane G hereby the Obligation is discharged 21 Ed. 4. 53. and B shall never take advantage of it 3. When the Condition of an Obligation is so insensible and incertaine that the meaning cannot be known there the Condition Insensible Incertaine only is void and the Obligation good As if an Obligation bee made by A to B with condition that A shall keep B without dammage against I S for 10l in which the Obligee is bound to the Obligor this Condition is void and the Obligation single * Pasche 9. Iac. B. R. So if the Condition be That A shall pay his part of the summes of money that shall be levied for the trying of the Customes of M unlesse the word levied be used for taxed in that Countrey the Condition is insensible and void So if A be bound to B with Condition to save him harmlesse and say not for what or against whom this Condition is void and the Obligation single But if any sense or certainty may be made of it the Obligation and Condition shall be both good 4. When the Condition of an Obligation in the matter of it is repugnant 2 H. 6. 44. 21. H. 7. 24. 30. to the Obligation it selfe there the condition is void Repugnant and the obligation good And therefore if the condition of an obligation be that the Obligee shall not have benefit by the obligation or that he shall not sue for the money in the obligation or the like this condition is void and the obligation single And yet this by a Deseasance made after the obligation may bee See Defeasance done 5. When the thing to be done by the condition is to be done 10 H. 6. 14. 21. Ed. 4. 10. â—T â—n 7. Iâ— B. R. beyond the Sea it hath been held that the condition is void and Not tâ—â—able the obligation single because the thing was not triable here But it seemes the Law is otherwise now and that the matter is triable here and the condition good And in all other cases where a Deed in generall is void for Misnosmer disability or otherwise there an Fitz. Oblig 2. 11. obligaition is void All Bonds with conditions for the enjoying of spirituall livings contrary to the Statute of 13 Eliz. Chap. 20. are void by the Statute of 14 Eliz. chap. 11. If any Ladyes or Gentlewomen be drawen by slattery of threatning to enter into any Obligation simple or conditionall to pay any money not truly due they may be relieved by a course in the Chancery for which see the Statute of 31 H. 6. chap. 39. No Sheriffe or his Officers shall take any Obligation by colour 5. When an Obligation shall be void for that it is made to another 1. 0â— to the Sheriff or to the Sheriff in another manner then is appointed by the Stat. of 23. H. 6. ch 10. Stat. 23. H. â— chap. 10. of their offices of any person in their ward but only to themselves and in the name of their office with condition with sureties sufficient that the Prisoner shall appear at the day in the Writ And all others taken in any other forme shall be voyd And persons that are in his ward by
cannot afterwards accept it or intermeddle with it But herein this difference must be observed That where there bee many Executors named and made and they being cited soâ—e of them only do appear and refuse to accept it â—he rest of the Executors being then living and after some or one of the rest of the Executors prove the Will or take upon him the Executorship in â—â—is case and notwithstanning this refusall they that doe refuse may afterwards at any time at least during the life time of their Co-executors that did accept it accept thereof and intermeddle therewith as far forth as either of the rest And therefore in this case howsoever the Executors refusing shall not be charged in any suite against all the Executors for any thing due from the Testator but they may by â—heir plea avoid it yet the Executors accepting cannot sue for any thing due to the Testator nor be sued for any thing due from the Testator but they must sue and be sued in the names of themselves and their Co executors that do refuse also And if there be 3 Executors and two of them prove the Will and the third refuse yet this third Executor alone may release any debt due to the Testator But if there be but one Executor made and â—e alone or if there be many made and they do all together refuse before the Ordinary to take upon him or them the administration in this case the Testator is so farre forth said to be dead intestate and thereupon therefore the Ordinary may grant the administration of the goods of the deceased and then the Executor or Executors can never after accept thereof or intermeddle therewith And if one or more of the Executors refuse and the rest accept if he or they which accept die before he or they that refused accept it seemes in this case they can never afterwards accept it but the Administration must bee granted If one be sued as Executor or Administrator and he plead to the Suit ne unques Executor i. e. he was never Executor or Administrator See the cases before if he have not in truth intermedled before this Plea is a refusall of the Executorship or administration and therefore he can never afterwards accept or intermeddle with the Executorship or Administration Every intermedling with the goods of the deceased or with the office and work of an executor shall not be said to be such an administration Coo. 9. 37. 〈◊〉 34. Dâ—er 105. â—eâ—w 63. Bâ—oo as to amount unto an acceptance of the executorship or administration and so to make a man chargable as executor or administrator And therefore if a man that is an executor or administrator do only lay up and preserve the goods of the deceased or command Administrator 35. 36. Fitz. Administrator 7. 〈◊〉 Execâ—tor 165. 〈◊〉 H. 6. 6. Dyer 13â— another to take away the goods of the deceased from one that hath them in his keeping or see the deceased buried in a decent manner and for that purpose use and if need be sell some of his goods to do it or make an â—nventâ—ry of the goods and chattels of the deceased or prove the Testators Will with his owne money or take his own goods lying amongst the goods of the deceased or take and use some of the goods of the deceased only by mistake or as a trespastâ—r or by the delivery of another or take and dispose any of the goods of the deceased when the executor or administrator doth challenge them as his owne and in his own right or if he redeeme any of the goods of the deceased with his own money when they are pledged to the full value and the day of redemption is past as neither of these acts will make a stranger an executor of his own wrong Exâ—â—tor of his own wrong so nâ—ither will they amount to an acceptance of the executorship and make the executor or administrator chargable as executor or administrator But if a man that is an executor or administrator shall sue by that name for any debt due to the deceased or being sued by that name for any debt or duty due from the deceased shall imparle to the Suite or plead any other plea besides ne unques Executor or shall take into his hands the goods of the deceased and convert them to his owne use and alte the property by sale gift or otherwise and all this as the goods of the deceased and so it shall be intended against him if he do not declare the contrary that he doth take and use them as his own c. or if he deliver the goods of the deceased to Creditors or Legataries in satisfaction of their debts or Legacies or receive any debt due to the deceased and give a release for the same or release any debt due to him before it be paid or pay any'debt due from the deceased except it be with his own money any or either of these acts will amount unto an acceptance of the Executorship and therefore after an Executor or Administrator hath done any such act he can never after refuse the Executorship or Administration If a woman sole be made an Executrix to another and she marry â—â—oo Executor 14â— a husband before she intermeddle with the estate and then her husband doth administer this is such an acceptance as will bind her and she can never afterwards refuse it The Executor or Administrator shall have by vertue of his Executorship 25. What things an Executor or Administrator shall have by vertue of his Executorship or Adminstration And what not First in respect of the nature of the thing or Administration all the chattels reall and personall of the Coo. super Litt 209. 38â— Perk. Sect. 60. â—loâ— 293. Doct. St. 39. 76. Perk. Sect. 8â—3 Coo. 4. 65. 63. 7. â—7 Keâ—â— 118. Testator as well those that are in possession as Leases for years of Land Rent Common or the like Grants of next Advowsons and Presentations Wardships of heirs by reason of tenures in Capite or Knights Service corn growing and cut trees and grasse cut and severed cattell money plate houshold stuffe and the like as also those that are in action as right and interest of executions upon Judgements Statutes Obligations Causes of action and the like He shall have also all other things that are of the nature of chattels b Coo. supeâ— Litt. â—9 Dyâ—t â—â—0 283. Dyer 24. Broo. Executor 143. And therefore the executor or administrator shall have the two years of the heir female that is in Ward a relief or an advowson that is fallen and yet if a Bishop have title to present by the vacation of a Church and then he dye in this case the King and not the executor or administrator of the Bishop shall present And if the Lord have a greater estate in the Seigniory then for life or years it is said the executor or administrator shall not have the relief
hath assets in his hands to pay all men and besides untill this be done he cannot deduct to satisfie his own debt first and barr other men by Plea But of the other side when he hath made and exhibited a true and perfect Inventary of all the goods and chattels it shall be presumed against him that he hath so much as is contained in the Inventary and no more unlesse more can be proved by Witnesses 3. The third thing whereof the Executor or Thirdly in Probate of the Will See Probate infra at Numb Administrator is to take care is to prove the will if there be any And this the Ordinary will compell him to do but otherwise he may do any thing as Executor save only sue actions as well before Probate as after 4. The fourth thing whereof the Executor or Administrator must take care is to sell and make money of the goods Fourthly in payment of Debts and Legacies and the order of payment of Debts and Legacies Coo. 9. 88. Plow 184. 545. Dyer 80. Doct. St 75. 76. 77. 78. 132. Stat. 33. H. 8. cap. 39. Coo. 5. 28. 4. 54. 59. 60. 8. 132. Dyer 232. 32 21 Ed. 4â— â—21 Bâ—oo Executors 88. 172. Coo. 8 132. Dyer 32. Plow 279. 280. Broo. Executâ—rs 103. Kelw. 74. and chattels and to receive the debts due to the deceased and then to pay the Debts and Legacies due to the Creditors and Legataries wherein the Executor or â—dministrator must be very cautious and wary And for this purpose let him observe That all the debts must be paid before any Legacies be paid or delivered and if there be not enough besides to pay the debts any thing given by way of Legacy may be sold to make money to pay the debts and the Legataries must loose their Legacies for Lâ—gatarii contendunt de lucro captando Crediteres autem de damno vitando And in payment of debts this decorum must be observed 1. Amongst persons that are Creditors the executor or administrator himselfe shall be preferred so that if any debt be due to him he may deduct to satisfie himselfe first albeit others loose their whole debt thereby and especially then when his debt is in equall degree with others debts 2. After the executor or administrator is served and satisfied his debt then the King is to be preferred so that if there be any debt due to him and he begin his Suit for it before any other man can get a Judgement for his debt against the executor or administrator his debt shall be paid before any others 3. After the King is served and satisfied his debt then the debts of common persons must be paid And these also must be paid in this order or manner 1. The debts due by Record by any judgement had against the deceased in any judiciall proceeding in any Court of Record 2. The debts due by Statutes or Recognisances ented into by the deceased for the debts due upon judgements must be satisifed before these sit judâ—cium prius velposterius 3. The debts due by Obligations and penall and single Bils for these are in equall degree and these are to bee paid after Statutes and Recognisances And yet if the Statute or Recognisance be only for performance of Covenants and no Covenant is broken an Obligation for the payment of present money shall be discharged before it 4 The debts due for rent upon Leases of Land or grants of rents but some say that debts due for rent in the Testators life time be the rent reserved upon Leases made by or without deed for years or at will are in equality of degree with debts due upon Especialties 5. The debts due for servants wages and workmen 6. The debts due upon shop-books and verball Contracts and yet it is said Addition to Iust Dodridge 92. by some That Legacies are to be paid before debts due by shop-books bills unsealed or contracts by word Quod non credo And amongst debts also that are in equality of degree those that are due are to be paid before those that are not due and those whose day of payment is already come before those whose day of payment is not yet come And yet if the Creditor whose day of payment is already come doe not sue for his debt untill his debt whose day of payment is at a day to come become due the Executor or Administrator may satisfie which of them he will first And amongst debts that are due and already to be paid those that are first sued for are to be first paid Or if the Creditors begin their Suites together the Executor or Administrator may pay which he will of them first and to pay debts in any other order is dangerous And therefore for the purpose if the deceased are two severall debts of 10l a piece to two severall Creditors by severall Obligations and the Executor or Administrator hath enough only to pay one of them he that can first get Iudgment and Execution shall first be satisfied and if the Executor or Administrator doe afterwards pay the other his debt he must satisfie the first out of his own estate If one that hath a debt due to him from the deceased upon a simple Contract or the like sue the Executor or Administrator for it and there bee debts due to others upon bonds and bills unsatisfied in this case the Executor or Administrator may not pay this debt nor may hee suffer the Plaintiffe to recover in his Action for if he doe and he have not Assets besides to satisfie the debts due upon Bills and Bonds he must satisfie so much out of his own estate as hee hath so paid or suffered to bee recovered from him for in the case of an Action brought he is to plead and to set forth these debts upon Especialties and to say that he hath no more but what is sufficient to satisfie them c. and thereby he shall barre the Plaintiffe in his Action In like manner it is if one that hath a debt due to him from the deceased upon an Obligation sue the Executor or Administrator thereupon and there be debts due to others upon Iudgements Statutes or Recognisances and the Executor or Administrator suffer the Plaintiffe to recover the debt due upon the Obligation for want of pleading the Iudgements c. or doth voluntarily pay that debt and he hath noâ— Assets besides to pay the debts due upon Iudgements c. in this case he must pay so much out of his own estate towards the satisfaction of the said debts due upon Iudgements c. as he hath paid of the debt due upon the Obligation But here it must be noted that no Iudgement or Statute that is discharged or is left and suffered to lie by agrement to barre others of their debts shall be any barre to others that sue for their due debts upon Obligations c. and Covin therefore if any Executor or Administrator shall
plead any such Iudgement c. in barre of any other debt sued for by any other Creditor the Creditor may by speciall pleading set forth this matter of Covin and avoid the plea and barre of the Executor or Administrator If one Creditor whose debt is in equall degree and presently due and to be paid begin a Suit against the Executor or Administrator for his debt and hee hath notice that the Suit is begun against him or the Action is laid in the County where the Executor or Administrator doth dwell or as some have said in London in both which cases it seemes he is bound to take notice thereof at his perill and after this Suit begun hee doth make voluntary payment of another debt in equall degree in all respects for which no Suit is begun this is a devastavit in the Executor or Administrator and if he have not Assets to satisfie him who began his Suit first he shall be compelled to satisfie so much thereof as he doth voluntarily pay to the other and that out of his own estate And yet an Executor or Administrator may make voluntary payment of any debt due by Record as by Iudgement Statute c. after such a Suit begun and justifie it If two Creditors in equall degree to all purposes begin to sue for their debts at one time in this case the Executor or Administrator cannot safely make voluntary payment to either of them unlesse he have enough to pay them both but his safest way is to pay him first that in a due and legall proceeding for he may not covinously help one of them to a Iudgement sooner can first recover it by Iudgment and Execution And yet if in this case no Suit be begun the Executor or Administrator may make voluntary payment to either of them in equall degree of his whole debt albeit he have no Assets left to pay unto the other any part of his debt If A and B be two Creditors in equall degree and A begin his Suit first and after B doth begin his Suit and it happeneth that B bonâ fide without any Covin or agreement between him and the Executor or Administrator doth get Iudgement and Execution first in thiâ— case the Executor or Administrator may make payment â—o B first of all But if the Executor or Administrator doth by any Covin and agreement help B to his Iudgement and Execution first and by this meanes he is first satisfied if there be not Covin enough left to satisfie A he must satisfie him out of his own estate If two Suits begin at or about one time upon two severall Obligations and the Executor is forced to plead to them both before either of them hath a Iudgement so that he cannot plead the Iudgement that the other hath against him and he hath not Assets to satisfie both the debts sued for and after the Plaintiffs in both the Suits get Iudgement and Execution Quaere what the Executor or administrator may doe in this case And here note by the way that it is policy for a Creditor that hath cause to sue an executor or administrator to bee doing bâ—times and to get judgement and execution assoone as he may for it falleth out in this case That he that doth first come shall bee first served After all the debts are paid in such order and manner as before then is the executor or administrator to pay and to deliver the Legacies and herein the executor may preferre himselfe so that if any Legacy be Doct. St. 34. Plow 54â— Swinb 110. 114. given to him he may detaine and deduct it albeit there be nothing left to discharge the Legacies given to others and after he hath satisfied himselfe he may satisfie and deliver what Legacies he will albeit there bee not enough to satisfie all the Legatees or he may pay to each of the Legatees a part of their Legacy and deduct a part out of every Legacy where there is not enough to satisfie all the Legacies But if any particular thing as a Lease or a horse or the like be given this must be delivered accordingly and may not be sold by the executor or administrator to pay others all or any part of their Legacies and if there be enough to pay all the Legacies they must be paid all according to the Will and it is said by some that if an executor or administrator make no Inventary of the goods that he must pay all the Legacies whether he have Assets or not The last thing an executor or administrator is to take care of Swinb Part. 6. Sect. 17. is to make an account for it is â—eld that an executor or administrator Fifthly in making an Account is not bound in Law or Conscience to make restitution for personall wrongs wherein this is to be known That the Ordinary may if he will call the executor or administrator to account concerning the goods and chattels of the deceased either generally or particularly as the case requireth and that with or without the Creditoâ—s or Legataries instigation within a year or what time he will unto which account he may call all the Crâ—ditors and Legataries and therein the executor or administrator must shew what he hath received and what he hath laid out and provâ—â—â— in such sort as the Ordinary shall like And then if it be found he hath faithfully and fully administred the Ordinary may acquit him of the burthen and then hee is discharged of all Suits in the Spirituall Court but this account and discharge will not help nor availe him at all to discharge him of Suits at the Common-Law The Office and duty of the Ordinary after the death of any Coo. 5. 83. 9. 39. Litt. Broo. Sect. 233. F. N. B. 120. Dâ—er 23. Doct. St. 132. person within his Diocesse is if he hear of any Will made and any Executor appointed to cite the Executor and to compell him to come in and prove the Will and to accept and take upon him the administration of the goods or to refuse it and if the Executor Broo. Executor â—0 Testament 27. Stat. 31. Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. c. 5. refuse or if there be a Will made and no Executor appointed the Ordinary must commit the administration cum testamento annexo to whom he shall think fit and take Bond of the admistrator to performe the Will And if there be no will made he is to grant the administration of the goods to the next of kinne if he or they require it and if not to whomsoever besides shall desire it or if no body seek it he may grant letters to whom he will ad colligendum bona defuncti and thereby take the goods of the deceased into his own hands and then it seemes hee is to pay therewith the debts and Legacies of the deceased so farre as the same will reach in such order as the Executor or administrator is
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
hurt and for some cause make void the deed as in some cases it may there it shall not relate But if relation may helpe it as in case where a feme sole deliver an Escrow and before the second delivery she is married or dieth in this case if there were not a relation the deed would be void and therefore in this case it shall relate So if one disseise me of two acres of land in D and I release to him all my right in my lands in D and deliver it to an estranger as an Escrow c. untill a time and before that time he disseise me of another acre there in this case this release shall not by relation extend to this other acre to barre me of that also But as to collaterall acts there shall be no relation at all in this case And therefore if the obligee release before the second delivery the release is void and will not barre the party obligee of the fruit of his obligation If a man that is party or privy in estate or interest or one that doth justifie in the right of one that is such a party or privy shall 9. When and where a deed must be shewed in Court And how long it shall abide there And who may take advantage of it Co. 10. 92. super Lit. 267. 317. 225. 231. 5. 74 Lit. Sect. 375. plead a deed in any Court although he claime but parcell of the originall estate yet in this case he must shew the originall deed to the Court and the reason of this is to the end that the legall part of the deed the triall whereof belongeth to the Judges may approve it selfe i. that it may be seen whether the composition of words be sufficient in Law or not and then that it may appeare whether the estate be with Condition Limitation or with power of revocation c. to the end that if there be any such thing in it and there be no other part of it the other party may take advantage of it and then that it may appeare to be without resure or interlining and the like and also that it may appeare to be well sealed and delivered the triall whereof doth now belong to the Country But strangers to estates that are neither parties nor privies shall not be compelled to shew the deed though they make use of him And when a deed is thus shewed in Court it must remaine in that Court all the Terme wherein it is shewed in the custody of the Custos brevium and at the end of the Terme if the deed be not denied the Law doth adjudge the possession of the deed in him to whom it doth belong But if the deed be denied then it is to be kept there untill it be determined Also when a deed is shewed in Court the adverse party may take any advantage by it that it will afford him as if a feoffement be made by deed poll on condition and the feoffee doth breake the condition and the feoffor doth enter and the feoffee doth sue him and makes his title by that deed the feoffee may take advantage of the Condition Any man that that occasion to use or plead a deed may set forth 10. Where one may say his deed was delivered at another time or in another place the delivery thereof to be at any time after the date of the deed Dier 315. 12 H. 6. 1. Co. 2. 4 5. and in some cases he must doe so if he will have any advantage by it As if he plead a release to an obligation and it beareth date before the obligation in this case he must averre that it was delivered after or it will not availe him But a man may not in pleading set forth the delivery of a deed to be before the date of the deed And yet if it be so that a deed be dated after the time of the delivery of it the deed is good and therefore if he that doth use such a deed doe plead and set it forth as a deed made before the time of the delivery and the party that made it plead non est factum to the deed a Jury upon the triall may finde the truth of Estoppell the case but if hâ— by his pleading set forth the deed to be delivered before the time of the date then the Jury is concluded aswell as the party himselfe for a Jury is estopped to finde any thing contrary to that which is apparently admitted in the record In 12 H. 6. 1. debt brought by an executor the defendant pleaded the release of the Testator which did beare date after the death of the testator but he did averre the delivery of it in the life time of the testator and the Court did not allow of this plea. Sometimes Antiquity added a place where the deeds were made Co. super Lit. 6. as Datum apud B and this was in disadvantage of him to whom the deed was made for if the deed be in generall and without this addition he may alleage the deed to be made where he will An Co. super Lit. 261. obligation made beyond the Seas may be sued here in England in what place the obligee will and if it beare date at the Burdeux in France it may be alleaged to be made in quodam loco vocat Burdeux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place in Islington or not it is not traversable in that case Non est factum is an answer to a declaration whereby a man 11. Non est factum Quid. And where this may be pleaded to a deed or not denieth that to be his deed whereupon he is impleaded If any deed or writing be used against a man in any Court and it want writing sealing or delivery or it be not sealed written and delivered as before is set forth the party that is sued upon it or against whom it is pleaded may plead this plea to it So also if a deed by any Alteration of rasure c. become void in this case the party may plead this plea to avoid it So also where a deed doth become void or lose his virtue by the not reading or not true reading of it to an illiterate man or by refusall or disagreement as in the cases before the party may plead this plea to avoid it But in all cases where the deed is voidable and so remaineth at the time of the pleading as if an Infant or man of full age by duresse seale and deliver a deed or if an obligation be well sealed and delivered by two and the deed be joynt and the obligee sue one of them in these and such like cases the party bound by the deed may not plead Non est factum for in the first and such like cases he must avoid it by speciall pleading with conclusion of Judgment si Action c.
and in the last he must plead in abatement of the writ c. And if an obligation or any other deed be by any speciall act of Parliament made void the party that is bound by it cannot plead this plea of Non est factum to it but he must avoid it by speciall pleading of the matter and taking advantage of the Statute and so with conclusion of Judgement si Action c. And now we come to the Exposition of deeds CHAP. V. Exposition of Deeds IT is further to be observed that Deeds for the most part consist of these things viz. the Premisses Habendum Tenendum Reddendum or reservation Condition Warranty and Covenant And in the Premisses there is sometimes a Recitall and somtimes an Exception contained but all these are not essentiall parts of a deed for a deed may be good albeit it have not all these parts or it be not so formall and orderly drawn and made The Premisses of a deed is all the forepart of the deed before the Co. super Lit. 6. 7. Co. 11. 51. 2. 55. Plow â—96 Habendum And yet this word is sometimes taken for the thing 1. Premisses Quid. demised or granted by the deed And the office of this part of the deed is rightly to name the grantor and grantee and to comprehend the certainty of the thing granted either by expresse words or by that which by reference may be reduced to a certainty and the exception or thing to be excepted if there be any And in this part of the deed is the Recitall if there be any in the deed for the most part contained And herein also is sometimes though improperly set downe the estate The Habendum of a deed is that part of the deed which doth 2. Habendum Quid. begin with To have and to hold And this doth properly succeed Co. super Lit. 6. 7. 10. 107. the Premisses And the office hereof is to set downe againe the name of the grantee the estate that is to be made and limited or the time that the grantee shal have in the thing granted or demised and to what use And herein also is sometimes though needlesly set downe againe the thing granted But the deed that doth usually consist of all these parts may be good notwithstanding some of 3. Where a deed is good notwithstanding some seeming fault in the Premisses or Habendum them be omitted and it be not so formally made For an estate may be made by a deed without any Habendum at all As if one give or grant land to another and his heires without any more words in the deed or if one give or grant land to another and limit no estate without any Habendum in the deed and seale and deliver this deed and make Livery accordingly in both these cases the deed is good and in the first case an estate in fee simple is made and in the last case an estate for life is made And if the name of the grantee be not contained in the Premisses yet if it be in the Habendum it may be good enough As if one give or grant land Habendum to B and his heires and he is not named in the Premisses yet this is a good deed to make an estate in fee simple And yet if the thing granted be only in the Habendum and not in the Promisses of the deed the deed will not passe it And therefore if a man grant Plow 152 Dier 96. Perk. Sect. 251. blacke acre only in the Premisses of a deed Habendum blacke acre and white acre white acre will not passe by this deed But if the thing newly added be implied in the thing granted by the Premisses of the deed as being an incident thereunto or otherwise or it be the same thing and expressed in other words only in these cases the Premisses and the Habendum may stand together As if one grant a manor Habendum the manor with the Advowson appendant to the manor or if one grant a Reversion of land by the name of a reversion in the premisses Habendum the land it selfe in both these cases the deed is good and the advowson and reversion will passe So also if livery of Seisin be made of the thing newly added in this case perhaps it may passe by the Livery And if the thing granted be lefâ— out in all or in part in the Habendum yet the grant is good And thereof if one grant land to A Habendum to A his heires c. or if one grant white acre and blacke acre to A Habendum white acre to A and omit black acre yet these deeds are good and all that is contained in the premisses of the deed doth passe in both cases And if a feoffement be made to one Habendum Lit. 1. Co. super Lit. 46. Co. 6. 35. New Terms of the Law tit Assignes to him and his heires without the word Assignes this is a good feoffement and the estate thereby made is assignable as where a lease is made to one his executors and administrators without the word Assignes this is a good Lease and assignable So if one grant land to A Habendum to him for 100. years or Habendum to him and his assignes for 100. years these are as good leases as the lease that is made by these words Habendum to A his executors administrators and assignes for 100. years So if a lease of land be made to A Habendum the land to him and his heires for 100. years this is a good Habendum and the word heirs is void and it shall goe to his executors c. As also where land is granted to A Habendum to him and his Successors for 100. years this is a good lease and the word Successors void for it shall goe to executors c. And if a lease be made Habendum for years and say not how many years this is a good Habendum and a lease for two years A Recitall is the setting down or report of somthing done before 3. Recitall Quid. 4. Where it is needfull or not When a man is to take any new estate from the King of a thing Co. 1. 45. Dier 77. whereof there is any estate in being there the former estate if it be good and of record must be rehearsed and recited in the deed or else the second grant will not be good but in case of a common Person there needs no such recitall neither when a man is to derive an estate out of a former or assigne over a terme of years is it needfull there should be any recitall of the former estate in being 5. Where misrecitâ—lâ— will hurt a deed or not If one recite or rehearse an estate made foâ— terme of years and Co. 1 74. then after grant over that terme to another and mistake in the recitall this mistake may make all void As if a Fieri facias come to a Sheriffe to levy a debt