imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.
this shall remain is a limitation of time when this shall vest and not a condition by Hinde and Montague 6. Admitting that it be a condition yet a remainder may depend upon a condition By Hales Hinde and Montague and adjudged accordingly 7. The Plaintiff hath not conveyed to himself Title to have benefit of the breach of the condition if it be broken By Montague Pollard Serjeant for the Plaintiff Except that the Form of the Plea is sufficient 1 Because he doth not aver his continual residence after the Remainder happened but after his entry which may happen to be long time after and so although that he hath performed the words of the condition which hath not satisfied the intent thereof yet he hath not performed the condition because the intent was That he should have all the Mannor So 21. H. 6.10 A man is bound that his Feoffees of the Mannor of D. should grant a Rent of 40. s. to the Plaintiff He had three Feoffees and two of them grant the said Rent to him and there all the Justices said That it shall be intended all the Feoffees so that alwaies the intent of the condition ought to be as well performed as the words of the condition and here the intent of the condition appears to be That Hospitality shall be kept upon the Grange continually from the beginning to the end of the Term which is the death of the Husband and the Wife and here he hath not shewed that he entred within as short time as he conveniently could after the death of the Husband and Wife and therefore because he hath not shewed and averred this he hath not shewed the performance of the condition and therefore his plea is not good For in all cases where the time is issuable he ought also to shew it certainly and therefore in 32. H. 6. it is held That if a man plead a Lease for years made to him that he ought to shew what day the Lease was made because it is issuable So in 33. H. 6.44 In debt by an Executor the Defendant saith That the Testator made the Plaintiff and one R. his Executors at L. the which R. is alive and not named judgement of the Writ and the Plaintiff confessing it saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff his sole Executor in Middlesex and the Defendant saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff and R. his Executors after this time and the Plea of the Defendant was not held good for that the day on which the Plaintiff and R. were made Executors is uncertain So 3. H. 6.33 In Trespass the Defendant pleads in Bar the day of the retaining of the Plaintiff who traverseth the Bar and the Defendant enforced to shew the day certain Matter in Law As to the matter in Law it seemeth to him that the Remainder is void because it ought alwaies to be limited to take its effect after the partricular estate ended and not during the particular estate for if it be limited and appointed to take its effect during the particular estate then it shall be utterly void As if A. Leases to B. for life the Remainder for life and if B. dies that it shall remain over to a stranger in Fee this Remainder is void for that it is appointed to take effect immediately after the first estate for life ended for if the Remainder in Fee should commence then it shall avoid the Remainder for life so if a Lease be made to two the Remainder over in Fee after the death of the first of them this Remainder is void because the Survivor shall have the Land So in the principal case it is given to the Baron and Fem for their lives the Remainder to the eldest son for life upon conditon That if the eldest die living husband and wife that then it shall remain to the Defendant for life which cannot be for the first estate at this time continues and if the Remainder shall be good it drowns the estate of husband and wife and therefore the Remainder void and also for that it is limited to commence upon condition which enures alwaies in privity therefore if a lease for life be made rendring rent and upon condition That if the Rent be arear that then it shall remain to a stranger in Fee if the Rent be arear and not paid the remainder is void for the Remainder which commence upon condition is not good otherwise it is if an estate be made for life upon condition That if the Tenant for Life dies it shall remain over this Remainder is good because that it commenceth upon the Determination of the I state the which is certain and therefore no condition because conditions are alwaies incertain and may be performed or broken and as our Law is for to know the time certain when the things pass from one to another and namely Free-hold because the Law hath it in greater estimation then other things and so to prevent contention hath ordained Ceremonies to be used as in every Feoffment Livery and in every Grant Reversion or Rents c. That Attornment shall be made the which are points certain containing time and by them Estates pass Rules to know when Remainders are good The Law hath appointed that every Remainder shall have three things by the matters aforesaid as Notes and Rules certain for to discern when good The first is an Estate precedent made at the same time that the remainder Commences and that the particular Estate continue when the Remainder vests and that the remainder be from the Donor at the time of Livery and if any of the said three things fail the Remainder is void And therefore for the first point if the Lessor confirm the state of his Tenant for years the Remainder in Fee this Remainder is vold for that the Estate for years was made before the Remainder So if a Lessor disseise his Tenant for Life and after makes a new Lease to him for Life the remainder in Fee this Remainder is void because it is a Remitter to his Estate So an Estate precedent was not made at the time of the remainder and therefore the Remainder is void So the Heir endows his Mother Remainder in Fee by reason of Relation and so the precedent Estates are made before the Remainder appointed Secondly That the particular Estate continue when the remainder vests as 21. H. 7.12 per Frowick Lease for Life upon Condition That if he doth not such an Act that his Estate shall cease and that then the Remainder over is void because the Estate precedent is determined before the Remainder appointed and the Remainder must vest during the particular Estate Thirdly because the Remainder passes from the Lessor at the time of the delivery as Hales Hinde and Montague say and as it is proved by the Cases before cited So Perkins 12. and 19.
probat And by him the Ordinary ought not to suffer the Executor to refuse after he hath once medled with the Goods of the Testator for if before the probat he had released a Debt and after he proves the Will this hath made the release good Walsh probat maketh the Release of the Executor made before good because it is a consummation of the Will and refers to the death Dier Chief Justice If the Ordinary commit and after the Metropolitan commit to another because the intestate hath Goods of the value of 10 l. in diverse Dioces 10. H 7.18 this disproves the authority of the first Administrator and avoids his mean Acts and by Keeble the second Administrator shall have Trespass against the first for taking of the first Goods So 7. E. 4.12 Executor pleads that he hath proved the Testament the action of the Administrator depending against him a good Bar because the power of the Administrator disproved and mean acts avoided by Probat of the Testament and the Executor which is made not knowing of it if he agree after good seems to be 3. H. 7.14 The Ordinary ought to award Proces against the Executor to come in for to prove the Testament before he commits the Administration The Probat here disproves the Administration for ever and proves the Executor to be full Executor from the death of the Testator and is not like to the cases before fol. 239. because the mean time in which no Executor and this time the Ordinary hath authority The Seal of the Ordinary put to the administration is but matter in fact and no estopple and the executor shall not be inforced to sue in the spiritual Court to recall this but shall avoid it by Plea or by matter in fact as 44. E. 3.16 A. bringeth Debt against B. as administrator and sheweth certainly how his Deed was as he ought B. saith he and another are executors Judgement of the Writ and shew forth the Testament to prove it A. offers to aver that he died intestate B. saith to it he shall not be received contrary to the Testament proved and under Seal to take the Plaintiff from his averment but that he shall have it and try it by the Country also the taking of Letters of Administration discharges not a Suit against those which were executors of their own wrong before 21. H. 6.8 2. R. 3.20 So 34. H. 6.14 in debt by the Administrator the Defendant received to avoid Letters of Administration by saying the dead made an executor and taking issue upon it Chapman against Dalton A Man makes a Lease for 21. years by Indenture and Covenants with his Lessee Tr. 7. El. in the K. B. Covenant and his Executors to make a new Lease for 21. years after the expiration of the first to the Lessee and his Assignes the Lessee dies and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor and adjudged good 1. That the executor is an Assignee in Law to whom the Lease ought to be made and so the executor of an executor by the Common Law 2. That the Lease ought to be made to the Lessee if he were alive or to his Assignes in Deed and if he die Assignee in Deed then to his executor and although that the Covenant be in the Copulative in the Letter yet it shall be expounded disjunctive in sense for to avoid absurdity or impossibility 3. Admitting that the word Assignee were void or omitted out of the deed yet this shall be made to the executor for that the intent was such which shall be performed where the words could not Baber and Wray argued for the Defendant as it is abridged by Ash fol. 50. Fleetwood and another apprentice for the Plaintiff Every Covenant and Grant shall be taken most strong against the Maker and most available to the other And if the words thereof have a double sense that which is for the benefit of the Grantee shall be taken then the word Assigned here shall be drawn to so effectuall sense for the avail of the Grantee And if the word Assignee as the Councel on the part of the Defendant would have it applied to a limitation viz. in the sense of an Habendum to him and his Assignes for 21. years it is void and conveys no benefit to the Grantee because if I Lease to A. for 21. years and his Assignes shall have this as largely as I do vest this Lease in him and his Assignes because the Law gives power to him to assign it to another Assignee hath two senses in the one it signifies the person to whom the thing granted or given shall be afterwards conveyed by him which hath the thing as the Lessor Grants to the Lessee for years That he or his Assignes shall have twenty Carts of Wood annually in such a Wood Assignee there hath the sense of the person to whom he shall Assign the Lease So one warrants Land to the Feoffee his Heirs and assignes there the second Feoffee shal vouch So I sell a Horse upon Condition That if I pay 40 s. to him or his Assignees that I shall have the horse again Assignee there is he to whom he grants the horse but such Assignee is not in our case because he hath not any estate first made and such a one is Assignee after the thing granted in the second it contains the person to whom the thing which is to be made and is not made shall be made as I am bound to make a Feoffment or give a horse to you or your Assignee there the Assignee is such a person which you shall name to me to receive and the Assignee in this sense is before the things done or granted and Assignes in this sense is in the first also But with this in the first sense we have not to do here there are Assignes in Deed and Law in Deed where you name such a one to whom I shall make the Feoffment or give the horse in Law where you name no man to receive then the Executor shall have it because the Law saith That they are your Assignes to such purpose and present your person as to receive any Chattels real or personal So 27. H. 8 2. Executor is an Assignee in Law to take a Rental where the Lessee bound himself to deliver it to the Lessor or his Assignes at the end of the Term a true rental and the Lessor made no Assignee he is an ill expounder which confounds the Text. And therefore here and the Copulative shall be taken for or the Disjunctive for otherwise the sense will be absurd that the Lessee if he had been alive at the end of the first Lease should not take a new Lease until he names his Asasignee or impossible as joyning his assignee in law with him because he cannot have an Executor in his life So in our Law a copulative is taken as a disjunctive and a disjunctive as a
their Husbands is contrary to the intent of the Statute and the intent ought to be thought on because the Purviewe extends not further then the intent of the makers of the Statute as the Wife infeoffs the Father of him with whom she intends to marry for to regive the Land to them after their intermarriage for lives or remainder in tayle to the Wife the Father doth so they have issue the Wife after the death of the Husband levies a Fine to other uses their issue may not enter yet it is with in the words of the Act of 11. H. 7. because the Father gave it to them But this cometh from the Wife her selfe by circumstance And the Father was but as an Instrument of it and therefore out of the intent of 11. H. 7. which restraineth the generalty of the letter of the Statute and maketh the Cases within the words out of the penalty of the Statute by the intent of the Makers As Infants and mad Men are excepted out of the Cases of Fellonies made by any Statute so neither those nor a Fem covert shall be concluded in the intent of the Statute which maketh them accessary which shall give them Meat Drink or other ayde to them which shall commit such an Act. So if a bargaine for Land be made before a Writ brought against him and the suite depending Livery and Seisen is made It is not Champarty 19. R. 2. because he ought to performe the bargaine made upon just consideration notwithstanding W. 2. Cap. 49. and Articul super Chart. Cap. 11. So a barr fee is within the letter but not the intent of the Statute of 32. H. 6. cap. 10. because appointed to the Sheriffe in the beginning by the order and discretion of the Court for his labour and attendance when the Prisoners are brought to their delivery 21. H. 7.16 So Wreck if a Man Dog or Car escapes alive shall be kept that the party may have his goods if he claimes within the yeare by W. 1. cap. 4. is intended of such things which will endure so long and not perish in the meane time as are Lemans Oringes c. So a rent granted by tenant in tayle for a release of right in other Lands is good 44. E. 3.21 because for the benefit of the estate tayle And W. 2. De donis c. intends not to restraine that which amends the estate tayle So Parsonages and Vicarages are within the words but out of the sense and intent of 1. E. 6. cap. 14. which inlargeth the words of the Statute and maketh that Cases within the like mischeife shall be within the Purview by equity as by the Book of entrys fol. 406. a man shall recover double damages for costs sustained with force by equity of 4. H. 4. cap. 8. which gives this for disseisen of the Land So that Executor which cometh first by distresse shall answer by equity of 9. E. 3. cap. 5. which speaketh of Executors by equity of Gloucester the Lessor shall have wast against the Lessee for half a yeare or for twenty weeks which pleads yeares So 1. E. 6. cap. 12. which takes away Clergy for stealing Horses takes it away also for one Horse because included in the Plurall Number and therefore Plowden disallows 2. E. 6. cap. 33. which taketh away Clergy for the stealing of one Horse as a superfluous Statute and was made in vaine And so 1. E. 6 cannot of Law but morall vertue which reforme the Law and the other equity is Quasi equality because in the like reason in the like Law Sobye against Molins TIthes shall be payd for the Boughs of Hornebeame H. 17. El. in the Kings Bench. Attachment upon prohibition Hasell Sallows Maple and such Trees which are not fit for building and so of the Trees themselves although that the Trees and Boughs are above the age of one and twenty yeares for they are not great Trees which are exempted and priviledged of Tithes by the Statute of 45. E. 3. cap. 3. or rather by the Common Law in affirmance of which this Statute was made as appeareth 50. E. 3.10 But Tithes shall not be payd for Ashes Oaks and Elmes Beech and such like Trees which are fit for building and of the age of twenty yeares nor for the Branches of them which are of the age of twenty yeares Quere if the Branches are within such age as the Timber trees which use to be lopped and lopt if Tithe shal be payd for them and it seemeth Tithes shall be payd of them by the Book The use at this day is upon suggestion to have a prohibition that the party shall be bound by Obligation or Recognisans to the King to preferr a Bill of attachment against the party which sues in the spirituall Court if he requires it and upon it to declare and joine issue or demurr upon the right of Tithes and award consultation which Plowden held vicious First for that the Defendant is not Actor and therefore may not have consultation upon such proceedings Secondly For that the Judgement upon the Attachment ought to be to acquit or attaint the party of the Contempt and not proceed upon the right of Tithes Thirdly For that the Plaintiffe cometh into the Court voluntarily Scilicet by his Recognisans to exhibit his Attachment where he ought to be brought in voluntarily by Process Fourthly Because the suggestion of the Attachment is false Fifthly For that if the Plaintiffe will not proceed the Defendant hath no remedy but a Recognisance forfeited to the King But Plowden held it to be the best course after the prohibition that the Defendant sues out a Scire facias against the Plaintiffe Quare consultatio concedi non debeat And upon this the Plaintiffe may declare and the matter shall be tryed and the Defendant may have consultation and then he will be an Actor Sanders and Archers Case ARcher gave Poison to Sanders to Poison his Wife H. 18. El. the Report of the opinions of Dyer Cheife Justice and Barham Justices of Assises in Warw. and Sanders gives this to his Wife in a roasted Apple which did eate part of it and gave the residue to their daughter being an Infant and after the Wife recovers and the Infant dyes and it was adjudged Murder in Sanders for which he was hanged but not in Archer for he was acquit to be no accessary to this Murder First For that Sanders had an evill intent of Murder at the beginning of his Act to kill his Wife and therefore the consequent of his Act by which the Daughter dyes shall be adjudged according to the commencement So if a man shoots at one and kills another or lyeth in waite to kill one and kills another otherwise it is where he hath no ill intent of killing any as to lay poyson to kill Rats and one eates of it and dyeth Secondly The consent of Archer to kill the Woman may not bee conjectured further then he gave it
be a general because the not referring to the science of the Judges as he doth if he saith generally contra formam Stat. c. a Statute hath no words in vain Whiddon for the Plaintiff A general Statute shall not be recited as 27. H. 8. of Conveyance of the possession to the Use So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line So an Executor of an Executor shall have account without recital of the Statute of 25 E. 3. cap. 5. So 5. H. 7.17 Information for Liveries good without reciting of the Statute Misrecital of the surplusage shall not make the mattor bad as 21. H. 6.1 by Newton one as an Executor shall not bring an action of Debt upon a Contract made with himself he shall not shew the Testament for that the naming of him Executor is surplusage So 33. H. 6.19 by Danby in Detinue against two as Executors They shall not plead that another is Executor with them because they are not charged as Executors But Detinue is cause of Action and the naming of them Executors is surplusage A man shall not aver that which by the Statute is made apparent as the Lord shew that he entred into the Land within the year because his Tenant aliened to the Dean and Chapter he shall not aver that it is Mortmain because it appeareth now nor here that it is a pretenced right because he counts that the Defendant nor his Ancestors c. were not in possession the space of a year before the Lease and then is pretenced Conveyance to the Action as the Lease is here shall not be pleaded So certainty is the substance it self as appeareth 34. H. 6.4 by Prisot in decies lantum If the Plaintiff sheweth such part of the Record as conveys him to his Action it is sufficient without shewing all But a Writ judicial ought to recite the Record certainly out of which it issueth because the Record is the substance and effect there and not only the Conveyance a stranger to the Deed or thing as the Plaintiff here is to the Lease that he pleads shall not shew the certainty of it as 35. H. 6.8 after fol. 148.13 H. 7.19 By Fineux au ancient Major in Trespass justifie the taking of goods because the Plantiff was out-lawed without shewing Pattent because he is now as a stranger to them for it belongeth to the successor and not to him So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1 by Strange Lessee in Debt against him for Rent reserved may say That the Estate of his Lessor was upon Condition for which broken such a one had entred before the Rent arear Judgement if Action without shewing what condition Sanders to the same intent The Statute here although penall yet because it is beneficial for the Common Wealth viz. for to avoid maintenance subordination of witnesses c. Things taken out of the Works thereof taken by equity and the words obscurely expounded most strong for the Common wealth and words are but the image of the Statute and the life thereof in the minds of the makers and Expositors of it and which approach nearest to their minds are the true Expositors and words should be inclinable to the mind So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus viz. as to right to be bound but as to the possession is a discontinuance before fol. 57. and after fol. 137. So the heir may demand the heritage of his Mother aliened by his Father if he onely Levied the Fine Yet Gloucester cap. 3. saith Whereof no Fine is Levied intends lawfull Fines by the Father and Mother before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee Yet 21. E. 3.21 shall be delivered to the extendors because prised too high it shall he delivered to the praisors for the price after f. 172. So if the Plaintiff be nonsuit in a second deliverance the Defendant shall recover Dammages by the equity of 7. H. 8.4 Return irreplevisable shall be awarded and so by this means the Plaintiff is barred and so the intent of the makers directs the words and equity of Statutes Lessee for years hath a right Estate and Title to Enter right because by Bracton he hath jus utendi fruendi in alieno libero Tenemento an Estate because a Remainder in Fee is good upon a Lease for years and a Remainder is not good without an estate precedent Title because 7. H. 7.11 a Termor may falsifie a faint Recovery against his Lessor by the Common Law So 9. H. 6.64 by Strange I grant to B. That if my Tenant for life dies living my self that he shall have for 10. years B. may maintain because he hath colour yet he hath nothing and is in doubt if he shall have it for 10. years or not Then if the Leffee for years hath such interest that by the Common Law he may maintain there is no need of a remedy for all other the Statutes before avoid maintenance the suit depending for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after Account shall not abate for default of form if it hath substance 36. E. 3. cap. ultimo After fol. 190. If one be found guilty of an offence which is pardoned by Parliament Judges ought not to proceed to judgement yet it is not pleaded because they are bound to take notice of it for it appeareth to them by judicial knowledge 26. H. 8 7. by Fitz. H. But if A. kill B. in the presence of the Justices and C. is found guilty of it 7. H. 4.41 by Tirwit and Gascoin the Justice ought to respite judgement because he knoweth the contrary but not to acquit C. because he cannot judge of his own knowledge 22. E. 4.47 where it was granted by Parliament That A. should have a Writ with Proclamation out of the Chancery against one G. to answer divers trespasses which were contained in the Act of Patliament and the Writ was abated by award because it did not mention those Trespasses in certainty because a private Act and there not recitall or misrecital shall hurt And as to the cerainty of the Term he shall not shew it because he is a stranger to it As the Defendant shall plead Joyntenancie of the Plaintiff without shewing of whose gift All the Court say That Declarations ought to have certainty So that the Defendant may know to what thing he ought to answer after fol. 193. and 3. H. 7.12 So 3. E. 4.21 In Debt for a sallary against a Successor declares That he was retained with his Predecessor and shews not who retained him because a stranger may retain him the County shall abate by the better opinion for the incertainty good by Brook Laborers 39. and the truth is That
it ought to be conjoyned to certainty as 9. H. 7.3 by Fineux and 6. H. 4.7 Debt upon payment at two days whereof the one is come abates by shewing of the Plaintiff the same because he hath shewed falsity So 20. H. 6.30 one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly which ought to appear alwaies to the Court but not in one manner as sometimes by the replication in Assizes sometimes by Verdict as in aquare impedit the value of the Church In Ward the value of the Marriage in Detinue the value of the goods as in 20. H. 6. Champerty was brought which was not Warranted by any Statute and there Newton said That if the party could not shew to them some Statute by which it is Warranted that they would award that the Writ should abate And for that which hath been said that he needs not to recite the Statute and therefore misrecital is not material it seemed to them That howbeit he need not yet if he recites it and there is none such then he hath failed of his substance for the Court will not aid him nor think he intendeth any other thing then what he hath shewed and by this abundance in reciting more then needs hurts the party many times And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 Fitz. H. Count 15. of forging of false Deeds the Writ was of Diversa facta and minimenta c. and he counted but of one onely and by assent of all the Justices it was awarded That the Writ should abate and so abundance abated the Writ And if one maketh Title in Assize in his plaint where he need not yet if it be not formall all shall abate and yet it was abundance and more then he was compelled to do So in the principal case And where it was said That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared they held that admitting this to be a confession yet this binds nor the Court which is a third person as appears by 10. E. 4. Wherein Trespass of Cattle taken brought by the Lessee for years the Defendant said That the Lessor held of him by Rent which was Arear and he took the beasts for it the Plaintiff said nothing Arear and there although the Defendant had admitted the Writ good yet the opinion of the Justices was That the Writ should abate for that the Lord was Defendant And so if the Defendant will admit good an appeal brought by the wife of the death of her Father yet the Court ought to abate it although the party affirm it and a Demur-is a Confession of all matters in Fact but not of matters in Law For by the Demurrer he puts it to the Judgement of the Court and confesseth not the Law against himself although the King may wave the Issue and so Demur in Law and recover afterwards fol. 236. and he hath many other prerogatives yet shall he be bound by misrecitall or by misusing or misconceiving of his Action and there shall abate the Writs where he is sole party as in the case of a common person à fortiori where another is party with the King as here the Plaintiff ought to shew certainty of the Lease here by Cook by other Justices not In Decies tantum certainty of the Summ received here because he shall not recover ten times as much and may not without shewing in Champerty the certainty of the first plea here because privy to the Record So in Trespass if the Defendant pleads Franck-Tenenemt the Plaintiff intitles himself by a Lease made by him the Defendant will shew that he made a Feoffment and that he entred for Forfeiture he ought to shew the name of the Feoffee and certainty of the Feoffment because he is privy and in all cases of privies he ought to shew the certainty as 2. H. 7.6 in Bar of Dower the Heir pleaded detainer of evidences he shall shew certainty for he is privy to them that he affirms to appertain to him of a bag sealed with Charters not 18. H. 8.1 because the bag sealed is certain Indictment cujusdam ignoti good Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices as an Attaint shall not 14. H. 7.13 nor the Statute which augments bread by evil making nor things out of the words shall not be taken by equity But the words may be expounded beneficially as Treason by the Statute 25. E. 3. for killing of a Master so of a Mistris are of one effect 19. H. 6.47 but not by equity but rather within words Plural number contains singular by Hales So here pretenced Rights and Titles as shall be punished for forging one false Deed yet 1. H. 5. cap. 3. speaks of false Deeds So for Entry into one Tenement yet 5. R. 2. cap. 7. speaks of Entry into Tenements under this word any the lesser Estate is contained in the greater as 23. H. 6.10 prohibits that a Sheriff shall Lease his County to farm in any manner shall not Lease part thereof after fol. 124. contrary by Hales This Lease here made by one in possession is out of the Statute because it is not averred to be a pretenced right viz. the bargain and Lease to be made for maintenance contrary Cook for this was the point of the Statute as 9. H. 6.26 if published onely yet the Stat. is in the Copulative for forging and publishing this within the Statute but ought to aver That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute So here the Lease ought to be averred for maintenance for this is the point of our Statute Montague Chief Justice He that is in possession may buy the pretenced right of another he which is out of possession if he promise or bargain to depart with the Land when he shall get the possession is within the Statute and maketh it void by the Common Law wherefore the Statute affirms it and adds a greater pain to the thing done against the Common Law and the Statute shall be meant to avoid a bargain of Right when out of possession he which hath possession but one hour alwaies may sell or it shall be a hard Exposition Acts expounded against the words of the Statute because Law and Reason allows it As Tenant hanging a Precipe Infeoffs his Son and Heir 6. E. 3. fol. 274. after fol. 204. good contray to the words of the Articuli super Chartas cap. 2. because the Son may not maintain to the Father but is bound to aid his father So an Heir may abet his Mother for to bring an appeal as W. 2. Cap. 12. So a Trespass in a Park without hunting shall not be punished by a year before refers to the Clause before onely so that the Clause being in possession Reversion or Remainder
Title to his body accrued in respect of his signiory which is more ancient then the Apprentice 49. E. 3.3 the Kings Tenant in London Devises to his wife for life and dies without Heirs the devise is good as it seems by the Book and yet taketh not effect until after the death of the Kings Tenant and preferred before an Escheat to the King yet both their Titles comes at one instant but the Title of the Wife adjudged the elder because some part of it Commences in the life of the Devisor albeit it taketh effect after his death an Obligee is a Felo de se the Survivor shall have the Obligation by the better opinion 8. E. 4.4 Walsh Chomley Benlos and Carus for the Defendant A Dead man cannot have property for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his otherwise the Forfeiture shall be to the prejudice of others which after his death ought to have the goods and the law hath respect to the Commencement of the Act as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound he forfeits nothing and it is not Felony if then he kils another yet is of Sane memory when he died of the wound So 33. Ass 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant adjudged Treason Felonies done by others may be punished in their life time in person Goods Chattels and Lands A Felon of himself hath prevented the death by Execution and forfeiture of his Land which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance and the only means to make him forfeit that which he may forteit viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life because he took away the means of the Judgement which should have been given against him in his life as he should have if he had killed another and when Judgement by the Law cannot be given the Law supplies it otherwise as 3. E. 3. a Felon flies out of the Sanctuary and will not render himself but is killed he forfeits his Goods and the King hath the year day and waste and so an Inquest there shall be equivalent to the Judgement because he himself is the cause that it cannot be given against him by carus my horse strikes A. I sell him to another A. dies he shall be forfeit So the King shall have the Goods of a Villain which gives himself a mortal wound yet the Lord hath seised them after the wound and before the death of the Villain So the Attainder of the Husband in his life shall be a Forfeiture of the Term of his wife So this Act here and if once Title be given to the King Nullum tempus occurit Regi as in 50. E. 3. the Husband Joynt-Lessor for years with the wife receives money of one Attainted which by the Attainder belongeth to the King the Husband dies the wife her self holdeth it this found after the King hath the Term in Execution for his money as he should have had in the life of her Husband if it had been found then and now found by office shall relate to the life of the Husband Curia this is Murther here and not Homicide because upon malice prepenced and is an offence against nature the Law of God and King to kill a Subject and deprive him of one of his Mystical Members as Brooks terms it whereof he is the head and by the breaking of his peace and for the ill example given to others and therefore Felo de se Forfeits to the King all his Goods Debts and Chattels 8. E. 2.3 E. 3.301 362.22 E. 3. before f. 259. Stamford fol. 188. I. and Stamford Prerogative fol. 46. 8. H. 4.2 by Tillesâ—…y and ex consequenti cannot make Executors nor have Administors neither shall the Bishop have them because out of the Church is no cause of Forfeiture 19. H. 6.63 by Paston 8. E. 4.4 by Needham and Litl and 27. H. 8.9 by Montague and if he repents he is reconciled and hath the rights of the Church before his death yet he shall Forfeit those to the King for this offence But a Felo de se Forfeits not Lands his wives Dower nor Corrupts his bloud 3. E. 3. 22. E. 3. before fol. 259. because those cannot be without attainder in Deed. Appellee in Battail is killed he forfeits his land by Benlos and Brown because this killing is equivalent to Judgement and Execution but Weston held the contrary without express attainder by Judgement for to favor the inheritance and by Dier because the three Writs of Escheat for attainder are Register the 16. pro quo suspensus est utlagatus or abjuravit if the Appellor vanquish the Appellee in battail there his land shall Escheat because there Judgement shall be given after that he shall be hanged 8. E. 3. the husband adheres to the enemies of the King in Scotland and dies there 8. E. 3. fol. 388. or is killed in levying War against the King here he forfeits his Lands the Dower of his Wife and his bloud is corrupted for this is an attainder in Law 7. H. 4.46 by Markham and Stamford fol. 198. a. this which causeth the death ought to be said Feloniously done He that refuseth the trial of the Law forfeits Goods and Chattels as 3. E. 3. 13. H. 4.13 4. H. 7.18 Stamford fol. 183. C. he which flies for Felony Stamford Prerogativae fol. 46. A. he that challengeth without cause above 35.40 E. 3.42 20. E. 4.5 Stamford fol. 185. he that taketh Clergie if he be found guilty of Felonies which refuse the Judgement of Law 14. E. 4.17 he that stands mute of malice for those are the Acts of refusal of the Law And from the time of those which appear of Record the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger not for to be Felony because in the mean between the wound and death he suffers himself voluntarily to escape for if the escape should be Felony then that escape had been Felony at the time of the escape by Brown A. and B. Joynte-Tenants for years A. Grants to C. That if he paies 10. l. before Michaelmas then he shall have his Term yet he shall not have the Term because the condition precedes the Grant as 14. H. 8.22 by Brudnel until the 10. l. paid the Joyncture continues and it is not but a Communication but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor for there the Title is granted in deed in the estate in his life So here this Act in his life gives Title to the King and the office by relation executes the Title then and the Survivor
is not lawfull but that he shall be barred by the Fine with Proclamations and the five years notwithstanding his Infancy for that the five years are once attached in his Ancestor and then they ought to incur for the pursuit of a Claim within five years is a Condition in Law which shall bind an Infant Those which argued with Stowell for the better intelligence of the Statute of 4. H. 7. ca 24. which gives five years to every stranger and of the reason of making it thought the Fines and their force at the Common Law and the incidents thereof which consists in three points 1. The nature of the Fine and the puissance of it 2. The preservation of the antient right by Claim 3. What persons may make the Claims 1. Fines are as antient as any Court of Record and at the Common Law they bind all strangers but those which have defect which Enters not or Claim within a year by 17. E. 1. So Non-claim after the year and day was peremptory upon a Fine or Recovery in a Writ of Right Executory and not Executed as is a Fine sur Conusans de droit and Render 7. E. 3.335 Because transmutation of Possession gave occasion to a stranger to take notice and to bring his Action or enter within the year and a day after Recovery in Right tryed by Battail or great Assise barred a stranger if he had not defect as Nonage was for the great notice of it because publike and more notorious then in other Actions And a Proclamation shall be made before Judgement upon a Recovery in right by default for to give notice of it And from thence use is derived to make Proclamation in formedon as it is in 7. H 4.19 upon the confessing of the Action Quaere by what Law and so Fines after Recovery in a Writ of Right was of the greatest force 2. But the avoyding of a Fine by one defeats it against all although their Right was bound before by their Nonclaim which sets at large all other Rights above them although they make not claim within the year and day 16. E. 2. As if the Lord defeats a Fine at the Common Law by deceit he restoreth the right to him which Levies the Fine And if the state which passes by the Fine be defeated the right Paramount is restored although it was barred before by Nonclaim As the Feoffee upon condition if an Abator levies a Fine one year passeth the Heir is barred by Nonclaim the Abator enters upon the condition broken the Heir now shall have Mort. d' Auncestor against him and after the Statute of 4. H. 7. an Action brought within fives years shall defeat the Fine against himself and all others having right Paramount although he hath not Judgement and Execution until seven years after Proclamation Claim is defined by Dyer to be a Challenge of the Ownership or Property that he hath not in Possession but is detained from him by wrong There are four Claims for defeating of Fines whereof two are by Record viz. Action Reall and Entry of the Claim at the foot of the Fine two by Acts in the Countrey viz. by Actuall Entry and by Claim and so notwithstanding the Puissance of Fines at the Common Law the Law hath provided those Claims for to preserve the Ancient right 3. Those which are strangers to the Fine and have present right ought to make Claim and shall avail all in Remainder or Reversion their Non-claim binds all in Remainder and Reversion because all of them have but one year by the common Law after the Fine levied And such mischief was a great cause why the Statute of 34. E. 3. ca. 16. which out Nonclaims was made But before this time W. 2. ca. 1. 13. E. 1. hath provided for the Donor and Donee that Nonclaim shall not bind them as it did before 13. E. 1. as it is like But an Infant was not bound at a time certain to make Claim by the Common Law It is proved by Implication of the Statute of W. 2. ca. 1. and 18. E. 1. de modo levandi fines observe in their Exposition because he hath not discretion to consider of his right nor to conceive what Action he shall bring nor when or how to Enter or Claim or to do Acts which require intelligence and in the same degree are Non-sane a man in prison and beyond Sea But a woman Covert was bound to make Claim by the Common Law because she is not mentioned in any of the Acts and hath a Husband which may make Claim for her And therefore Infants and such are at large always and bound to no time for to make their Claim by the Common-Law And if the Father Disseisee dyeth within a year and day after the Fine Levied before the Statute of Nonclaim his Heir within age he need not make Claim because he is not bound where the right discends to him more then he is when he hath a present right when the Fine was levied nor Infant in Remainder or Reversion is not bound by the Nonclaim of the particular Tenant And so howbeit that Fines at the Common Law were of so great force yet the former right was considered and time given for to preserve it and Infants were exempt out for this time And after when Nonclaim was repealed and outed in Fines and to make their Claims and because the Law was unreasonable that those in Remainder or Reversion should be bound by Nonclaim of particular Tenants and the Law of Nonclaim being outed in process of time Fines became too feeble and were in effect but Feoffments of Record whereby the security of Inheritance was taken away which was cause of great Contention between Subjects and therefore the Statute of 4. H. 7. intending to reform three things First to magnifie Fines againe Secondly to preserve the Ancient Right if it be pursued within a certain time Thirdly of not binding of persons of defect nor feme Coverts unless they are also parties to the Fines but favoured those which had defects untill their impediment removed and then gave them time sufficient to pursue their right That which is excepted out of the Act is out of the provision of the Act and there is no Ordinance for it but is so apparantly exempted out of the Act as if no Act had ever been made As a Feoffment of a Mannor except an Acre or of all Lands in Dale except White Acre is voyd for those Acres as if no Feoffment had been made but a saving goes to them touched and not exexmpt The word having in the Statute of Fines 4. H. 7. shall be expounded of them which have right at the time of the Fine Levied and Proclamations made and also of the using of the Action or Claim c. And not only at the time of the Action or Entry The exception goes not but to those before bound The ampleness of the Exception is measured by the ampleness of the
was indicted before the said 15. of divers Treasons and express none in certain and ex illa causa and causis to proceed against him according to the Law whereupon he was arraigned and condemned thereupon accordingly and after the said attainder was confirmed by Act of Parliament which recites the said attainder and confirms it and besides ordains That the said attainted persons shall be attainted of high Treason c. And the attainder upon the indictment and the confirmation by Parliament were adjudged void 1. For that the Indictment taken before 15. is not an Indictment taken before 8. for the lesser number will not include the greater but the contrary and there may be two Indictments one taken before 15. and the other before 8. and for that the number is exprest there is certaintie what Indictment the Queen intended for misprision of time place and number shall make the thing void when they are limited for certainty and take away incertainty as of the time of 7. E. 3.26 one brings a Writ and Recites that it is contained in the Articles made in the time of King Edward Father of the King Edward the Third that no Sheriffe should put into Inquests c. and declare over according to the Statute the Writ was abated by Award for that the Articles that is to say Articuli super Chartas cap. 9. was made in the time of Edward the First and not in the time of King Edward the Second which was Father to King Edward the Third So E. 3.25 a Statute Merchant was made to pay 16. E. 3. and the party sued Execution and the Writ supposed the summe to be paid 14. E. 3. and by the suite the Feoffee was ousted and sued his Writ of Errour in the Kings Bench for the Kings Bench because it is the highest Court. shall revers Error upon suits in the Chancery according to the order of the Common Law So a defeasans which â—…tes a Statute to be made the 10. day of May where it was the first is void because time certain and that to which Acts are referred is materiall because there may be two Statutes the one the first the other the tenth day Misprision of the place as 38. H. 6.34 one pleads Letters Patents dated at Westminster where it did beare date at another place Naught because the place is materiall and is circumstance and witnesse of verity and certainty So by Commission to arraign one upon an Indictment at Dale in the County of C. where he was Indicted at another place in the same County there may not be arraigned by this authority for the reason aforesaid Misprision of number as 23. Assises placit 7. Writ of Redisseisâ—n abate because the Sheriffe tooke with him but one Coronor where Merton cap. 3. appoint two at the least So in a Precipe there ought to be twelve Summoners So 8. H. 7. pla ultima the number limited by the Act 3. H. 7. cap. 1. concerning the Star-Chamber ought to be observed So an accountant found in arrearages shall not be committed to Prison if there be not two Auditors because W. 2. cap. 12. saith auditorum So 2. E. 3.8 A Writ of Attaint supposed that the Verdict passed before 4. Justices and the Record proves that before 2. there is no Warrant to take this Attaint But 31. E. in the Booke of Assises pl. 1. a Procedendo supposed that the Assise was arraigned before 2. where it was before 3. good because no falsity there because the greater comprehends the lesse not on the contrary 2. By Anderson which was of Counsell for the Defendant and which in part confessed that the arraignment was not duly made yet said that it was not void but voidable See there the Office of Justices for Treason and their Authority for judgement given where the due circumstances of Law are not observed is not void but voidable by Error as 7. E. 4.3.11 H. 7.4 and 2. Mar. 1. Judgement given upon a Plea of Land 21. H. 6. and 21. E. 4.4 and 62. where a Fine levied without Originall is voidable by Error and by him and Lovelace this Writ of Error is taken away here because a thing defeasable confirmed by Parliament is made indefeasable The counsell of the Earle to the contrary clearly that the Authority given to the Mayor and the others by the second Commission is to proceed upon one Indictment and he proceeds upon another and so exceeds his Authority and therefore shall be void Also they are no Justices of the Treason expressed in it And there is not any such Indictment and no Treason in certain is expressed in their Commission But the Relation is generall to treasons contained in the Indictment where in truth there is not any such Indictment and so the relation of a thing incertain in it self to a thing which is not done the thing referred is void otherwise it is of a thing certain as before fol. 169. A Lease of all his Lands in D. which he hath by his Mother where 2. E. 4.27 before fol. 191. releases all his right in them and hath no Land there by the Mother but by purchase with his Father this Lease and Release are void for the cause aforesaid But otherwise it is where he leases and releaseth all his right in White acre in Dale which he hath by his Mother or hath by his Father or Purchase because the saying there which he hath by his Mother is surplusage because it was certain enough before all the parts of the Commission shall be considered together and fulfilled as of every other Deede As for the last part of the Letter of Atturney although as well to deliver seisen as to take by the words of the first part So here because they have authority to arraigne the Plaintiffe upon the Indictment onely taken before fifteen and he was arraigned by Indictment before eight of them all is void and Coram non Judice And it is not resemblable to the Cases put by Anderson fol. 349. because there they have authority upon the Cause and the Cause was within the Jurisdiction of the Court and the Order is misused in which Case the Acts shall not be void but voidable But where one is assigned to doe one thing and he doth another as here this other is meerly void and without Authotity as 9. E. 44. by Choke He who Arbitrates another thing then is committed to him makes such Arbitrement void Anderson and Lovelace for the Defendant the Plaintiffe shall be taken by this Statute to be attainted or at least concluded to say otherwise because the recitall of the Act is an Estoppell to all because every Subject is party and ptivy to an Act of Parliament and the Statute shall not be void to all intents And the Expounder ought not to make Exposition for to confound the Text by 27. H. 8. c. 10. A woman may refuse her Joincture if assigned after Marriage implies that if it were assigned before
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS