two the other Moity to the other two the first two are Jointenants with themselves and Tenants in common with the last two and so è converso they are Jointenants of a Moity and Tenants in common of the whole and two Praecipes shall be sued against the four and by the four but for the two joint Praecipes for and against them Jointenants TWo Jointenants in Fee one a Minor makes a Lease for life he of full age dies the other recovers a Moity in a Dum fuit infra c. Tenant for life dies the Heir of the other Jointenant enters the Infant outs him he brings an Assize some think it is maintainable For when he brought a Dum fuit infra c. and recovered a Moity now he defeats the Lease for his moity and makes it as if the other had made the Lease for life only which makes a severance of the Jointure Two Jointenants by twelve pence one grants all that belongs to him upon Condition the Lord grants the Seignory of one with Atturnment the Feoffor Enters for breach of the Condition he shall hold by twelve pence and the other by twelve pence also for there is no Apporcionment Though one Jointenant cannot infeoffe his Companion yet his Companion and another he may and the Livery made to the other shall vest the Estate in both If a Reversion be granted to Tenant for life and a stranger the Jointure of the Fee is severed for Tenant for life hath a Fee in the moity Executed If the Reversion be granted to Tenant in tail and a Stranger the Fee remaines in Jointure And if the Husband be Tenant for life and the Reversion is granted to him and his Wife the Jointure remains for there is no Moities between them If a Lease be made to two Habendum one Moity to one the other to the other for life and after a Confirmation is made to them and their Heirs the Joynture of the Fee is severed for the Confirmation inures according to the Nature of the Estate But if the Reversion had been granted to them in Fee they had been Joyntenants for the particular Estate had been drowned If there be two Tenants in Common for life and the Reversion is granted to two Jointly and one Purchaseth the Estate of one Tenant for life and the other of the other The Joynture is severed For the Purchase being at severall times presently upon each purchase the fee was executed If a Seignory be granted in fee to two one takes an Estate of the Tenancy pur auter vye cesty que vye dies The Jointure remains because they were Jointenants at the beginning Two Jointenants for life and one is bound in a Statute and then grants his Estate yet it is liable to execution during his life but 't is otherwise of an Estate for years for in the one the Land is bound by the Statute in the other not If a Recovery be had against one Jointenant his Companion shall not avoid it for the Right was bound but it is otherwise of Charges for the possession is only chargeable If one Jointenant in Fee takes a Lease by Indenture of his Moity from a stranger the Survivor shall avoid it Land is given to two and the Heirs of their bodies the remainder to their right Heirs they are not Jointenants of the Fee If one Jointenant makes a Lease for five years on Condition that the Lessee doth such an Act by a day he shall have for twenty years and he dies before the day the Condition is void as to the Survivor If there be two Jointenants for life one makes a Lease for years and dies the Survivor shall not avoid it for the same Estate which he had continues now and there is no difference if they had a Feesimple some think the contrary for the Survivor hath not the Freehold of his Companion as he hath the Fee where they are Jointenants in Feesimple for his Estate determins by his death But all agree that if A. and B. be Jointenants for the life of C. and A. makes a Lease for life and dies B. shall not avoid it for the Estate which he had continues Two Jointenants in Fee are disseised by the Father of one who dies and the son enters he is remitted to all the land his Companion shall enter with him And it is not like the case where two are disseised and a Dissent cast during the Nonage of one and he enters and is remitted for a Moity his Companion shall not enter because that this priviledge is given him in respect of his person more than in respect of the Land Neither is it like the case where Tenant in tail enfeoffs one Daughter and she dies she being within age she is remitted and yet her Companion shall not have Advantage of it because the Right was not in them before If a Fem Jointenant for years takes Husband and she dies the Survivor shall have all Two Jointenants of two Acres the Land is confirmed to them in Fee of one Acre to the use of one and of the other to the use of the other they are severall Tenants of the Freehold of the Acres for the Freehold is drownd to the Confirmation to the use Tenant for life makes a Lease for life the remainder to his Lessor and a Stranger they are not Jointenants but the Stranger shall take all for he could not give a Fee to him that had it before As if Tenant in tail infeoffs the Donor or if one Jointenant his Companion and a Stranger the Stranger takes all If two Jointenants makes a Lease for life and one grants his part of the Reversion during the life of the Lessee some think this is a severance of the Jointure If one Jointenant makes a Lease for years the Remainder to the right Heirs of A. if the Lessor dies in the life of A. the Survivor shall have the Reversion for the Lease for yeares was no severance of the Jointure neither could it support the contingent remainder Judgement IN Debt upon a Recovery in trespass the plaintiff recovers there where the action was brought a Writ of Error depending in B. R. upon trespass and after the Judgement given in debt the Judgement in trespass is reversed Quaere what remedy he shall have for the debt recovered for it is a Recovery in the C. B. which he cannot reverse in another Court and though he might yet the Execution of the debt being past he cannot be restored to that by the Reversall in the first Writ of Error in the trespass Lease IF a Lease be made for years and after the Lessor makes another Lease for life to commence after the end of the term the second Lease is void although there be Atturnment for a Freehold cannot passe out of any person that hath a greater Estate reserving an Estate until the Freehold commences but if the Lease had been but for years it had been otherwise
the delivery of the Deed before Livery be made If the Mannor of D. be given by Deed with all the Woods and within the Deed there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another or gives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Wlll yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to them a hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. p. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attains his age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Issuing out of any Land for he cannot take it as a Legacy and an Annuity does not lie against Executors for the Testator was never charged A Jointure
Critica Juris Ingeniosa OR CHOICE CASES IN THE COMMON-LAW Never published by any other Author Digested under Alphabeticall Heads By H. B. Esq Optimum est quod quaeritur LONDON Printed for C. Adams at the Talbot near S. Dunstans Church J. Starkey at the Mitre near Temple-Bar T. Basset in S. Dunstans Church-yard in Fleetstreet 1661. To the Reader THIS Piece which now entertains your Eie was originally if I may so term it a Rhapsody of Cases wherein the Author did not so much consult his Method as the choice of his Matter for as they proceeded from his hand they had no Coherence amongst themselves except such as were voucht to warrant the Reasons of others and most of them too more naturally referring to their own proper Heads and Divisions under which it was necessary to reduce them according to that form I had propounded to my self So that it was not difficult to presage how great a Trouble must be encountred in the Attempt to contrive so great a Confusion into any considerable Order But imagining the effects of my labour might reward my pains I was easily prompted to undertake it for my own private accomodation and not out of any vain glorious design to obtrude it upon the world for it is very well known I opposed a three years importunity to render it publick yet in fine considering that my own Reputation stood responsible no further than for giving it this shape into which you now see it form'd I thought I might with the greater freedom comply with the desires of those who so long and so earnestly had invited it to the Press For the work it self it hath gained a very fair reputation For I know no book that depends meerly upon the strength of its own reason as this doth that ever was entertained with so great an esteem as this hath been by all persons that pretend to the knowledge of the Law But the most signal mark of its worth was set upon it by that person who in the Fabrick of those everlasting Monuments of his Fame his Reports and Institutes hath vouchsafed to honour this Treatise so far as to make himself indebted to it for many of his Materials as will be obvious and visible to any mans observation that hath the least acquaintance with them You will find upon a serious perusall that few of the Cases herein contained are any where else to be found unlesse they were borrowed from hence That the Author was a person of a most refined Theory And that the work it self is a Systeme of the sublimest speculations in the Law wherein there is nothing Vulgar Trite or usuall and yet every thing usefull You will perceive that in the Cases that are controverted as some of them be the Arguments on both sides are derived from such apt and natural Topicks and the Contest managed with so even and equall a strength of Reason that it is often left a measuring cast Besides the Generall Benefit this Piece will oblige the Students of the Law with a more particular Advantage for out of it they may furnish themselves not onely with Quaeres and Moot Points for their Exercises in their respective Societies the want whoreof is so generally lamented but they will also find many of these Problemes debated upon either side So that they are not onely accommodated with Subjects for their quarrels but are also arm'd with weapons both offensive and defensive It would too much resemble flattery for any man to assert the infallibility of his Treatise in every particular It is a prerogative to which few books in the Law I had almost said none ever arrived For Littleton who no doubt as he writ in the quality of a Father was most accurate in his Composition lest the Judgement of his Son might derive a blot from his own pen. And notwithstanding the work is considered as the most accomplished piece of that nature that was ever yet extant and his honourable Interpreter makes his name and the Law Equivocall Yet he himself shuts up that Discourse with so modest an Epiphonema that it plainly implies his own esteem of it was very different from that which the World hath since bestowed upon it And the same Learned Commentator although he was sufficiently positive and peremptory in vindicating the Authority of his Author yet when he comes to reflect upon his own Labours he is found to make use of the same Epilogue for those Truths which depend meerly upon Fancie and Opinion without the assistance of any known Principle to support them as many Cases in the Law do have a certain fatal period beyond which they seldom survive and from hence it is that what was reason an Age since ceaseth to be so now And some Decisions have a shorter Date for the Judgements that are given in one Court and that too upon the most solemn Debates are often times Reverst in another before the breath is cold that pronounced them For when the Determination of a case must be fetcht out of its self there is nothing so uncertain and mutable as the Conclusions that are made thereupon And thus it fares with many of these cases being govern'd by some particular circumstance which leads them out of the common Road and distinguisheth them from others So that when I consider the Niceties that are contained in it and how critically they are decided I cannot but admire so many of them are reputed for Law I confesse you will meet with some passages that are not agreeable to the received opinions of this Age but most that are which puts me in mind of a Character that was given it by an ingenuous and intelligent person in the Law That there are in it multa falsa plura vera plurima ingeniosa To conclude although my particular Interest in this piece be so inconsiderable that I cannot rationally affect any reputation by it Yet if there be any thing that relates to my own endeavours that may accidentally purchase a generous reception from any ingenuous spirit it shall be an ample compensation for the labour and pains that have been bestowed upon it Farewell Errata Pag. 2. l 23. after life add the remainder for life p. 25. l. 12. r. parol l. 32. add for p. 70. l. 14. dele not p. 75. l. 10. r. pur auter vye l 16. r. pur p. 77. l. 26. for confirmation r. freehold p. 85. l. 12. r. did p. 99. l. 5. r. his p. 122. l. 21. r. estovers 141. l. 6. r. acre p. 160. l. 12. r. by p. 171. l. 9. r. some think p. 185. 23. dele If. l. 24. for heard r. hard p. 23. l. 7. for deluge r. delayd p 230. l. 18. for suing r. saving p. 232. l. 7. r. vested p. 89. for Disablement r. Disability An Alphabeticall Table of all the Principal Heads contained in this Book A ABsence pag. 1 Acceptance ib. Administrator 4 Advantage 5 Agreement 6 Aid 7 Alien ibid. Annuity 9 Appendant 10
part of a fourth part if the Reversion passed severally for then the Reversion and the Fee are Executed for the fourth part A Gift in tail is made rendring during the life of the Donor Socage tenure and after his death Knight service the Wife shall be endowed of the Knights service If a Rent be granted for life and after by another Deed the Grantor releases all his Right in the Rent and if it be behind that the Grantee and his Heirs shall distrain the Wife shall not be endowed for it is still but a Rent Seck and the distress a Penalty 8 H. 4. 18. A Disseisor having a Wife makes a Lease for life the Lessee makes a Lease to the Wife for her life the Husband accepts the Deed and agrees to it the Husband dies the Wife disagrees to the Lease the Lessor Enters against whom she brings Dower It is cleer if a Disseisor having a Wife makes a Lease to A. for life who makes a Lease to B. for life and the Disseisee releaseth to B. the Wife of the Disseisor shall be endowed for the Release does not countervail an Entry and Feofment If a Disseisor be Disseised and the Disseisee releaseth to the second Disseisor that takes away the Dower of the first Disseisors Wife But in the first case the Husband is remitted and no possession in the Wife whereupon a Release may operate and so she may disagree and claim her Dower If an Estate be confirmed in a Rent Seck and if it be behind that it shall be lawfull for him and his Heirs to distrain the Wife shall not have Dower for it is stil but a Rent Seck and the Distresse but a penalty Tenant in tail of a Rent discontinues it with Warranty the Issue having a Wife is barr'd in a Formedon by the Warranty and Assetts yet his Wife shall be endowed for the Grant was void by the death of Tenant in tail and the Issue had possession in Law and might have distrained and though he determined his Election yet it shall not prejudice his Wife If the Husband disagrees to a Remainder the Wife shall not be endowed otherwise to a Dissent If a Rent Charge is granted the Grantee dies the Heir cannot prevent the Wife of her Dower by bringing his Writ of Annuity The Son endows his Wife Ex Assensu Patris the Son is attainted If she shall retain her Dower Some think she shall not for she claims from the Son and Ne unques accouple in loyall Matrimony is a good plea. If Tenant for life surrrenders upon Condition and the Lessor marries and dies the Wife is endowed against the Heir the Lessee enters for the Condition broken the Wife shall not have the Reversion for the Freehold which was the Wives Title is taken away by the Entry If the Grandmother recovers Dower against the Mother she hath taken away all the estate of the Mother for she comes in upon an Eigne Title But otherwise if the Father had been infeoffed So if the Lessor disseiseth his Tenant for life and marries and dies and the Wife is endowed by the Heir the Lessee enters c. And if Lessee for life had died before the Wife had been endowed she shall not be endowed for the Heir was Remitted or if she had been endowed and the Lessee had died the Heir shall out her If the Mother recovers Dower against the Son the Grandmother recovers Dower against the Mother and dies the Son shal enter and not the Mother But if the Dower of the Mother had been by Assignment of the Heir it had been otherwise For he shal be concluded by his own Assignment Quaere For some think the Reversion is not taken away from the Mother in Casu penultimo If a Feoffment be made to A. to the use of B. the Wife of A. shall be endowed A. marries and sells his Land his Wife arrives at her age of nine years the Husband dies she shall be endowed though the Husband had no possession when she was nine years old For if the Husband aliens his Land and after the Wife is attainted and pardoned the Husband dies she shall recover her Dower If a woman Elopes the Husband aliens his Land and after they are Reconciled she shall have her Dower for in these cases the Title of Dower is not consummate until the death of the Husband But if a man marries an Alien and then sells his Land and she is Endenized and the Husband dies she shall not have her Dower If a Tenancy Escheats the wife of the Lord shall not be endowed of the Seignory A woman Intitled to have Dower disseiseth the Tenant and she is disseised by another to whom the Disseisee releaseth she shall not have her Dower for her Dower was suspended in the possession of the Disseisor as well as if it had been in her own possession for the Disseisor is in as the woman was and though her Dower should have been Revived if the Disseisee had entred yet this Release doth not amount to an Entry and Feoffment If Land be given to A. and his Heirs Males as long as he hath Issue Female of his body A. dyes having a Daughter the Wife is endowed and the Daughter dies without Issue the wife loseth her Dower for there is a difference between a Condition in Deed and in Law for if the Issue of Tenant in tail dies without Issue yet his wife shall keep her Dower for it is a Condition in Law And yet if an Estate tail be made upon Condition that if the Donee dies without Issue that it shall be lawful for the Donor to re-enter the Wife of the Donee shall not lose her Dower for the Condition does not take effect untill the estate be determined by the Condition in Law upon which determination she is endowable A. seised in Fee grants a Rent Charge and aliens and takes an Estate in Fee-simple or in tail and dies seised the Wife Recovers in Dower and then she surmises that her Husband died seised and prays a Writ of Enquiry of Damages 14 H. 8. 6. She shall hold it charged for she hath admitted her self dowable of the second Estate A. has a Wife and is seised of four Acres and makes a Feofment of three of the Acres with Warranty and dies the Wife brings her writ of Dower against the Feoffee and he vouches the Heir Now if the Wife may stop the Judgement viz. That she shall not recover immediately against the Heir is the question for then she hath lost her Dower of the fourth Acre as some think she hath because it was her own folly that she did first recover her Dower of that Election IF a Rent be granted in Fee and the Grantee grants it over for yeares the Grantee for years hath no Remedy if it be denied him for he shall not have a writ of Annuity for the Election is given only to the first Grantee and his Heirs and the Election runs
before Entry he in Reversion may enter as upon the Disseisor of his Tenant but if he dye and his Heir in by Descent he cannot enter After a Discent the Disseisee abates the wife of the Disseisor recovers dower by confession if the disseisee may enter A Lease for life is made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry the Lessee is disseised and a discent cast the Lessee dies the Lessor may enter for the Land was alwayes recontinuable by Entry If Lessee for years upon Condition be outed after the term and a dissent cast the Lessor shall enter for breach of the Condition Escheat IF Lessee for yeares makes a Feoffment and the Lessor dies without Heir the Lord shall not enter for the Escheat for it is a good Feoffment against him A. infeoffs B. so long as Paul's Steeple shall stand B. dies without Heir if the Land shall Escheat Vide Attainder Bastard Estate IF a Lease be made so long as A. and B. shall be Justices if one of them be removed the Estate is determined for the time was in the Copulative and a Collaterall determination But if it had been during their lives and one of them had died the Estate had continued A. hath Issue a Son and a daughter Land is given to the daughter and to her Heirs Females of the body of the Father begotten she hath not Estate tail but for life only Inst If a lease be made to a Dean and Chapter for their lives they shall have a Fee for they never die If a Rent of twenty shillings a year be granted until the Grantee shall receive twenty pound the Grantee hath an Estate but for twenty years for it is certain So if it had been granted untill A. shall arive at his full age he takes but for years If Land of twenty shillings a year value be granted until he shall receive twenty pounds out of the Issue and profits and Livery be made he takes an Estate for life by reason of the uncertainty of the profits If A. makes a Lease for life reserving a Rent and if it be behind that he shall enter and retain til he hath received the Rent out of the profits of the Land all the Estate of the Lessee is defeated 30 E. 3. 7. If A. hath two Daughters and the Eldest gives Land to the youngest and to the Heirs of the body of the Father begotten there passeth but an Estate for life for the donor is one of the Heirs and it cannot be an estate tail in her self of her own making and it cannot inure to the other for she is not Heir But if it had been given to the youngest the eldest being born out of the Realm it shall go to him Estopple IF a Praecipe be brought against the Father of the Sons Land and he loseth and the Son after the decease of the Father brings a Writ of error to reverse the Recovery and Judgement is affirmed the Recoveror may enter upon the Son for by bringing his writ of Error he is Estopped to say that his Father was not seised If an Infant delivers a deed which bears date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date neither shall a Fem Covert Husband and Wife seised and to the Heirs of the Husband the Husband makes a gift in tail the Wife recovers against the donee in a Cui in vita supposing that she hath a Fee and dies and the donee dies and the Issue of the Husband and Wife brings a Formedon in Reverter and though he was Heir to the Wife he shall be Estopped to say that he had a lesser estate than in Fee yet the Issue who claims by the Husband shall not be Estopped Vide Dower Estover A. seised of an house on the part of his Mother and Estovers are granted to him in Fee and he dies without Issue the Estovers are extinct If there be two disseisors of a house and they have Estovers granted to them to be imploied in the same house and the disseisee releaseth to one the Estovers remain for part If one hath Estovers in certain in ten Acres of wood and five of them descend to him he shall not take the whole out of the residue Exchange IF A. exchanges twenty Acres with B. for ten of equall value B. is impleaded and loseth ten Acres vouching A. and recovering in value he shall have all the ten Acres again which he gave to A. and retain the ten Acres Residue without Warranty for the folly of A. If A. exchangeth Land with B. in Fee who infeoffs a stranger one enters into the Land of A. by Title Paramount he cannot enter upon the Feoffee of B for the privity of the Exchange is determined by the Feofment If A. and B. exchange Land and A. makes a Lease for life B. is impleaded and recovers in a Warrantia Chartae and hath execution of other Land the Tenant for life dies A. enters upon whom a stranger enters by Title Paramount he hath no remedy for the Land rendred in Value for that doth not go in privity as the Exchange doth If A. and B. exchange Land and A. dies in a Praecipe against B. he vouches the Heir of A. who enters into Warranty and cannot bar the Demandant by which he recovers and B. over in value the Demandant enters if B. may enter upon the Heir or is chased to his Habere facias ad valentiam Some think he may enter for a descent is not material against a Condition as this is for if there had been an express Condition he might have entred and so he may now But if part of the Land exchanged had been recovered against B. he could not have entred for he shall not be his own Judge of the portion But where all is recovered the whole Exchange is avoided and therefore he may enter If one Exchangee makes a Feofment of his part the other shall not enter upon the Feoffee for the Condition is determined and dissolved But Quaere if after the Feofment the other may vouch If two Acres are exchanged for a Mannor and a stranger enters by title Paramount into one Acre he shall enter into all the Mannor for it is an entire thing And Quaere if he shall retain the other Acre Execution IF Tenant in tail with a Remainder over with VVarranty recovers in value and dies before Execution he in Remainder shall sue Execution because he is privy If Tenant in tail dies without Issue If a man Recovers in value Land in Burrough English Quaere if the youngest Son shall sue Execution But if the Issue in tail recovers in a Formedon and dies without issue before Execution the Donor cannot enter or have Execution If tenant in tail discontinues and dies leaving a daughter his Wife Privement Enseint with a Son the daughter recovers
a Title Paramount was congeable As if a Disseisor makes a Lease for life and the Lessee makes a Feofment and the Disseisee releaseth to the Feoffee the Disseisor cannot Enter But if the Heir of the Disseisor who is in by descent makes a Lease for life the Lessee makes a Feoffment and the Disseisee releaseth to the Feoffee the Lessor may enter for the Disseisee could not 9 H. 7. 25. pet Fineux If an Infant makes a Lease for life and the Lessee grants his Estate with Warranty the Infant brings a Dum fuit infra Etatem and the Tenant vouches the Grantor who enters into Warranty and loseth the Demandant Releaseth to him and his Heirs some think the Release is void for he is Tenant only to answer the Action but a Release which is to enlarge an Estate must inure upon a privity of Estate And therefore a Release made to Tenant by the Curtesie in Fee after he hath granted over his Estate is void and yet an Action of Wast shall be maintainable against him by the Heir and he shall Atturn If a Lease be made for life the Remainder for life the Tenant for life dies and before the Entry of him in Remainder the Lessor Releaseth to him in Fee that shall inure according to the words But in a Writ of Entry in the Per if the Tenant vouch him by whom c. who enters into Warranty and the Demandant Releaseth to him that inures by way of Extinguishment If a woman who hath cause of Dower Releaseth to the Guardian that takes away her Title and Estate though the Gardian had but a Chattle and the Heir shall Advantage of it It was said in the case of the Dum fuit infra aetatem if he had Released in tail a greater Estate should not have passed for though it doth not appear by the Dum fuit infra aetatem what Estate he claims for the Writ is generall yet when he enters generally into the Warranty he shall not be said to have a Fee against the Demandant but the Demandant shall make an Averment that he did not make the Devise but only for life A Release made to the Patron when the Church is full doth not extinguish an Annuity otherwise if it had been in the time of vacation 21 H. 7. 41. but a Release to the Ordinary peradventure will not avail Tenant for life grants a Rent Charge a Release to him in Reversion will not extinguish it no more than if he in Reversion grants a Rent Charge a Release to Tenant for life will extinguish it If there be two Disseisors and one makes a Lease of a Moity for years reserving a Rent with a Re-entry for not payment the Disseisee releaseth to the other who did not make a Lease he shall have the whole Freehold of all the Land and the Lessee shall not pay the Rent to him for he comes to the Reversion by Title Paramount and not by any Privity A. outs his Termor for years and then makes a Lease for years the first Termor releaseth to the second the first Lessor may enter and have the Land against them both for by the Release the Right of the first Termor was extinct As if a Rent Charge be granted to the Disseisor c. and it doth not fortifie the Estate of the second Lessee during the first Term for if the first Lease had bin for twenty years and the second but for a year yet by the Release of the first Lessee to the second all the first Estate shall be extinguished But if he had been Tenant for life and the Disseisee Releaseth to the Disseisor now during his life the Lessor cannot enter otherwise if he had been Tenant for years for in one case the Disseisor had a Freehold in him which might be fortified and in the other case but a Chattle Although the Husband cannot give any thing to the Wife immediately yet if a Disseisoresse makes a Lease for life the Remainder to her self in tail the Remainder to A. in Fee and marries the Disseisee who releaseth to Tenant for life that will inure to his Wife If an Infant Disseisor makes a Feoffment and the Feoffee dies seised and his Heir enters to whom the Disseisee releaseth yet the Infant shall have a Dum fuit infra aetatem and shall recover for he demands the possession to which he had more Right than the Disseisee and the Tenant ought to answer to the Demise and not to the Right As if the Heir of the Disseisor who is in by Descent brings an Assize against his Disseisor it is no plea for him to plead the Release of the Disseisee for he demands the possession to which he had more Right than the Disseisee So if the Disseisor recovers in an Assize by erroneous Judgement against his Disseisor and the Disseisee releaseth to him that hath recovered and the other brings a Writ of Error it is no plea for him to plead the Release for the intent of the Suit was to correct the Error upon the Record If a Disseisor makes a Lease for life and the Lessee makes a Feoffment to A. who obtains a Release from the Disseisee the Disseisor brings a Consimili Casu some think he shall recover but if the Heir of the Feoffee who is in by Descent c. gets a Release it is cleer the Disseisor may have an Action and the Tenant ought to answer to the Demise and not to the Right of the Land in both cases If a Disseisor enters upon his Feoffee for breach of a Condition the Feoffee shall not have a Writ of Right though the Right of the Disseisee be released to him before the breach of the Condition So if the Disseisee enters upon the Heir who is in by Descent and makes a Feoffment or releaseth of such an Heir and the Heir re-enters or if one who hath a Title brings a Formedon in Remainder against an Abator and recovers by default See the rest of the case in 9 H. 7. 25. In all these cases he to whom the Release was made or the Right was given shall not have a Writ of Right but it shall goe in advantage of him that Removes the possession for being one hath a right in possession and recontinues it that draws the very right to it and the Right by it self shall not be left in the other Note that in all these cases the Right comes after the possession but if the Right were before the possession and then the possession is removed the Right remains in the person to whom it was given As if the Heir of the Disseisor who is in by descent enfeoffs A. and several other Feoffments are made and after the Land comes to the Heir again and the Disseisor enters upon him and he outs him Now if the Disseisee brings a Writ of Right upon his first possession he shall be deluge by vouching of the Feoffees but he may have a Writ of
of A. only I have a Reversion for the life of B. for they were two Estates but here was but one Estate and all that Grant was irrecoverable if A. survived then the possibility of the surviving of A. doth not make a reversion in the first Lessee But it is as if I am Lessee for the life of C. and I grant my Estate upon Condition that if D. dies living C. that I shall re-enter I have no Reversion notwithstanding this Condition for if the Condition be sufficient for me to enter upon an Occupant Quaere If the Bastard endows the wife of the common Ancestor Quaere in whom the reversion shall be If Tenant for life surrenders upon Condition and the Lessor marries and dies and the Wife is endowed against the Heir and after Tenant for life enters for breach of the Condition and not by the Wife and no default in the Heir yet the Wife shall not have the reversion of the Land after the death of Tenant for life for the Freehold which was the cause of her Dower was taken away by an Eign Title If a Lease be made for life reserving a Rent and the reversion is granted to the Lessee for his own life the Grant is void and he shall pay the rent but if the grant of the Reversion to another for the life of the Lessee that had been good for he shall have the rent and take a Surrender without Livery A lease is made to A. and B. for their lives and after the Reversion is granted to C. during the lives of A. and B. they make partition and A. dies the Question is if the first Lessor shall have his part after his death or C some think the Grant of the reversion was good for if the Tenant for life had entred into Religion C. should have the Land Quaere of this forreign Intendment but if the Reversion doth passe the Rent shall passe as a Rent Service And if the first Estate had been upon Condition to cease C. should have had it during their lives then it seems the Partition severs the Reversion for though by the first Grant he was intitled to have the Reversion so long as either of them lived that was in respect of the Jointure and when that is severed so is the reversion so that the first Lessor shall have it after the death of Tenant for life and not C. Quaere If a Lease be made for twenty years rendring a Rent and the reversion is granted for ten years that is a good Grant and he shall distrain for the Rent Quod nota If Husband and Wife accept a Fine Sur conusans de Droit come ceo c. of the Wives Land from B. and they render it to him in tail yet the Reversion is in the wife only for the Husband had nothing but by reason of the Coverture If the Donor confirm the Estate of the Donee in tail that is a Grant of the Reversion in Law A Recovery is had against Tenant for life upon a false Oath he in Reversion dies without Heir Tenant for life brings an Attaint and reverseth the Judgement To whom the Reversion is recovered is the Question Vide Remainder Reviver IF the Tenant makes a Lease for years to the Lord and he makes a Lease for life and the Tenant enters the Seignory is revived after the death of the Tenant for life notwithstanding there was a Disseisin and the Lord was the Disseisor by the Statute If the Tenant enfeoffs the Lord upon Condition and enters for the Condition broken the Seignory is revived But if the Lord grants his Seignory in Fee to one who hath the Tenancy with a Condition and after the Feoffor enters for the Condition broken before or after the Seignory is gone in both cases If the Lessor recovers in Wast against the Lessee for life who comes to the Seignory after the Wast committed the Seignory shall be revived but otherwise if Wast had been made after the Seignory accrued If after a Dissent the Disseisor comes to the possession again the Entry of the Disseisee is revived If a Bastard dies seised leaving Issue who endows his mother the Mulier may enter for the Wife is endowed by an Eign Title and so the right is revived If a Disseisee enters upon a Dissent and dies seised and the Heir endows his Mother the Entry of him who was in by Descent is revived If the Tenant enfeoffs the Heir of the Lord upon Condition the Lord dies the Condition is broken the Seignory is revived If the Grantee of a Rent Charge in Fee grants to one that if he pays to him or his Executors twenty Shillings by such a day that he shall have Rent in Fee the Grantee dies without Heir the second Grantee pays the money to the Executors according to the appointment the Rent is revived A. having Common Sans number in tail in two Acres purchaseth one Acre and then hath Issue and dies so that the Common in one Acre desdescends to the same Issue if the Common shall be revived in the other If the Issue had recovered one Acre against the Grantor by a Title before the Grant there it shall remain in the other Acre for then it is as if but one Acre had been charged at the first but upon a Dissent there can be no apporcionment for it is gone and suspended for all or revived in the residue for all for Common without Number is intire and cannot be severed but Common certain may be apporcioned upon a Dissent If the Lord disseises his Tenant and is disseised and the Tenant enters the Seignory is revived If Tenant for life aliens in Fee to the Grantee of a Rent in Fee by his Lessor and the Lessor enters for a forfeiture the Rent is revived Seisin LOrd and Tenant the Lord having a Son dies the Tenant makes a Feoffment the Son hath Seisin of the Rent by the hands of the Feoffee if this Seisin be sufficient for the Son to maintain an Assize against his Disseisor after Severance of the Jointure IF Two Jointenants make a Lease for life and after one grants his part to a stranger for the life of the Lessee some think it is a severance of the Jointure If two Women Jointenants be Mesnes and one of them marries the Tenant the Moity of the Mesnalty is suspended and the Jointure severed Vide Jointenants Statutes THe Husband is bound in a Statute Merchant after he and the Wife levy a Fine of the land of the wife to A. the Husband dies the Statute shall not be extended in the hands of A. for nothing passed from the Husband but the Estate which he had during the Coverture which is determined by his death and A. shall have the same benefit which the Heir of A. should have had or as he should have if the Wife had been discovert and had granted it for it is lawfull for a Fem covert to grant her Estate by Fine and
regardant makes a Lease for one and twenty years to the Villain rendring a Rent according to the statute and dies within the term if the Issue being remitted to the Freehold of the Villain may enter into the Mannor and out the Villain Upon a plea in Bar of an Assize the parties are adjourned and after the Tenant pleads a Release made after the Darrein Continuance bearing date in a forreign County and after at the Venire fac return'd the Tenant pleads that after the Darrein Continuance he hath purchased the Mannor to which the Plaintiffe is a Villain he shall not have this plea for he shall not delay the Plaintiff by his plea but once where the matter of fact happens de puisne temps for he is at no mischeif if his plea be true But in shewing a Record after he shall plead it if it be in the same Court. And here the Villain shall not be enfranchized for the Plea was pleaded before which now he ought to maintain but if he answers his Villain de Novo that is an Enfranchisement Voucher THe youngest son of an Abator hath Land by descent by the custom of Borough English or by reason of an Estate tail made to his Father and a second Wife in a Mortdancester brought against him he shall vouch notwithstanding the Counterplea given by the Statute for the Statute extends but to Heirs at common Law and therefore if an Abator hath Issue two Daughters and makes a Feoffment and dies and one of them takes a Feofment and an Assize is brought against her she shall vouch for she is not sole Heir but if she had been sole Heir then cleerly she shall not vouch though she doth not come to it as Heir And if an Abator and a stranger being Tenants in a Mortdancester vouch they shall have the Voucher If Feoffee with Waranty to him his Heirs and Assigns makes a Lease for life the Tenant for life in a plea vouches the first Feoffor and recovers in value Land held of the Feoffee if the Feoffee shall have his Seignory For if the Reversion of the Land recovered be in the Feoffee then he shall not avow and if he shall not Quaere if Lessee for life shall vouch as Assignee being that he hath not all the Estate And it is cleer if the Feoffee had made a Lease for life the remainder in Fee the Lessee shall vouch as Assignee and if he recovers in value the remainder shall be in him in whom it was before 28 Ass p. 18. 11 Ass p. 3. If the younger brother and a Stranger abate and the Stranger dies now a Mortdancester doth not lie or if an Abator makes a Feoffment and retakes an Estate to himself and another and the other dies the Voucher does not lie for him and yet before an Assize of Mortdancester and Voucher did lie If a Feoffment be made with Warranty to one his Heirs and Assigns the Feoffee makes a Feoffment over the second Feoffee enfeoffs the Son of the first Feoffee he shall vouch for he may be Assignee of his Father being he does not come in as Heir Lord by Escheat Mortmain or of a Villain c. shall not be said Assignees Land is given to Husband and Wife and to the Heirs of the Husband he makes a Feoffment with Warranty and dies the Wife brings her Cui in vita the Feoffee vouches and recovers in value by reason of the Warranty after the death of the Wife he shall vouch again by reason of the Warranty aforesaid So if a Woman brings a Writ of Dower and the Feoffee vouches by reason of the Warranty he shall vouch again after the death of the Wife because the Voucher and Recovery in value was onely in respect of the Freehold but if he had once recovered in value of the Fee he should never vouch again by reason of the first Warranty for he hath the effect of it and also the Warranty is gone with the Estate But if Tenant in Frankmarriage recovers in value he shall vouch again but it is otherwise of Tenant for life If Tenant in tail to him and his Heirs Females the remainder to him in Fee makes a Feoffment with Warranty and dies the Heir Female recovers and the Feoffee recovers over in value he shall vouch again after the Estate tail is spent by reason of the first Warranty If the Tenant vouches and at the Sequat sub suo periculo the Tenant and the Vouchee make Default whereupon the Demandant hath Judgement to recover against the Tenant and after he brings a Seire fac against the Tenant to execute the Judgement if the Tenant shall have a Warrantia Chartae against the Vouchee But if a stranger brings a Praecipe quod reddat against the Tenant some think that he shall vouch for by the first Voucher and the Judgement given against the Tenant the Warranty was not defeated nor the possession of the Tenant but if the Tenant had judgement to recover in value against the Vouchee he shall never vouch again by reason of this warranty for the warranty hath lost its force being he had Judgment to recover in value by reason of it for if he should recover again he should have 2 Recoveries upon one warranty It was holden cleerly that if the tenant hath Judgment against the Vouchee he shall recover no land in value but that the Vouchee had at the time of the Judgment And note upon a Summoneas ad Warrantizand if the Sheriff returns the Vouchee warned and he makes default the Tenant shall have a Cap. ad val and recover in value but if he returns that he hath nothing then after the Sicut alias pluries a Sequatur sub suo periculo shall issue and there if the Vouchee makes default he shall not have Judgement to recover in value for the Warranty is not confessed and it is uncertain whether he had any thing but in the Cap. ad val it appears that he has Assetts A. seised of two Acres at Common Law and one in Borough English and makes a Gift in tail to a Stranger of one of the two Acres and dies the Donee is impleaded and vouches the eldest Son and recovers in value the other Acre out of his possession as he shall do in this case being he vouches him alone and not the youngest where the eldest hath assetts the question is if he be impleaded for that Acre he hath recovered if he shall vouch the eldest and the youngest If that Acre in Borough English shall be lyable by reason of the said Warranty in Law being it is not the Warranty which descends but the Warranty in Law commenceth first in the Eldest Son for the Recovery in value shall be said in lieu of the first Land given yet it is always to be intended having regard to the estate of the Reversion descended from the Father the Reversion left in the Eldest Son and then the Acre of the youngest is not lyable