to smile and alledge that it cannot defend it selfe in bello Grammaticali which I easily confesse but what then what can they inferre from hence will they therefore utterly condemne the use thereof me thinkes they should not but might give Lawyers leave to speakin their owne Dialect But what if some take exceptions at this word having occasion to meete with it here what would they do should they read the volums of the Law where instead of bellum they shall find guerra instead of Sylva they shall sind boscus and subboscus with a thousand the like Surely as saith Erasmus they might commend or else condemn what they could not understand or happily understanding might admire from whence such uncouth words should proceed for their better information if I thought they would thank me for my labour I could tell them that because the Saxons Danes and Normans have all had some hand or at least a finger in our lawes therefore through the commixtion of their several Languages it comes to pass that such difficult termes and harsh Latin words if I may so call them are frequenly obvious in the books and writings of the Law And indeed I see no reason why any man should object or cavil against the usage of such words though they be not classical seeing that aswel in the Art of Logick as in Philosophy there are found many words which they call Vocabulaartis vocables of Art which can no better stand according to the strict rules of Grammar then the ancient words of Law which cannot be changed without much inconvenience Acra Acra in English an Acre seemeth to come from the Latin word ager an acre is taken to be a quantity of Land containing 40 perches in length and 4 in breadth Master Crompton in his Jurisdiction of Courts saith that a Perch is in some places more and in some places less according to the different usages in different Countries and so then it must needs be of an Acre But ordinarily or for the most part a Perch is accounted and esteemed to contain 16 foot and an half in length I take it to be the same with that measure which we call a Rodde or Pole A Perch in Law-latin is called pertica or perticata See the Ordinance made for measuring of Land anno 34. Ed. 3. in Pulton's abr titl Weights and Measures Quaren Quarentena in English a Furlong or Furrow long Firlingus or firlingum is the same it hath been sometime accepted and taken for the eighth part of a mile anno 35. El. c. 6. and I have read that Firlingus or ferlingus terrae continet 32. acras The Latins call it Stadium Abbutt Abbutto is a verbe used by Lawyers to shew how the heads of Lands do lie and upon what other Lands or places denoting for the more certainty what Lands c. are adjacent about the Lands c. abbuttelled And now that I may speak once for all in regard that Lawyers do use to abbreviate their words in writing the reason is not as some ignorantly have supposed because they cannot express their terminations and endings as they ought to be but because of the multiplicity of business which they are to go through oftentimes requiring very suddain dispatch Yet I could wish that the custome of short writing alicui scriptori non esset dispendium but I fear me too many hereby take occasion to be wilfully ignorant which otherwise peradventure they would not do Militis Miles amongst the Latins signifieth a souldier and in this place and the like Miles is to be Englished a Knight which as Master Cambden noteth is derived from the Saxon Gnite or Cnight The Heraldes will enform you of divers and sundry orders of Knights if you please to consult with them or their writings thereabouts A Knight at this day is and anciently hath been reputed and taken for one who for his valour and Prowess or other service for the good of the Common-wealth performed hath by the Kings Majesty or his sufficient Deputy on that behalf been as it were lifted up on high advanced above or separated from the common sort of Gentlemen The Romans called Knights Celeres and sometimes Equites from the performance of their service upon horse-back and amongst them there was an order of Gentility stiled Ordo Equestris but distinguished from those they called Celeres as several Roman Histories do plainly testifie The Spaniards call them Cavalleroes The French men Chivaliers And the Germanes Rieters all which appellations evidently enough appear to proceed from the Horse which may be some restimony of the manner of the execution of their warlike exercises And surely it is a very commendable policy in States to dignifie well deserving persons with honorable Titles that others may thereby be stirred up to enterprize and undertake Heroick Acts and encouraged to the imitation of worthy and renowned vertues Armig. Armiger in English signifieth Esquire from the French Escuier and perhaps an Esquire may be called Armiger quasi arma gerens from his bearing of armes Ancient Writers and Chronologers make mention of some who were called Armigeri whose office was to carry the shield of some Nobleman Master Cambden cals them Scutiferi which seems to import as much and homines ad arma dicti they are esteemed and accounted of amongst us next in Order to Knights Clerici Clericus in English we read Clerke It hath with us two sundry kindes of acceptations In the first sense it noteth such a one who by his practise and course of life doth exercise his pen in any the Kings Majesties Courts or elsewhere making it his calling or profession hereupon you shal find in the current of Law mention made of divers Clerkes as for example The Clerke of the Crown The Clerke of Assise The Clerke of the Warrrants The Clerke of the Market The Clerke of the Peace with many others In the second sense it denoteth such a one as belongeth to and is imployed about the Ministry of the Church that being his function in which signification it is to be taken in this place and in the like for I for my part did never find Clerk in the first sense appropriated to any as an addition simply We have the use of the word Clericus from Clerus or Clerecutus signifying the Clergy that is to say the whole number of those which properly so called or rather strictly are de Clero domini i. e. Hereditate sive sorte domini for Clerus cometh from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Greekword signifying the same with sors in Latine namely a lot or portion The Habendum Habend ' THe Office of the Habendum is to name again the Feoffee and to limit the certainty of the estate and it may and doth sometimes qualifie the generall implication of the estate which by construction and intendment of Law passeth in the premisses for an example whereof see Bucklers case in the second Book of Sir Ed. Cokes Reports and Throgmortons case
person When any thing is granted that is not certain as one of my horses then the choice is in the Grantee When several things are granted then it is in the choice of him that is to do the first Act. A man cannot grant nor charge that which he never had A man may charge a Reversion A Parson may grant his tythes or the Wool of his Sheep for years A thing in action a cause of a suite right of entrie or a Title for a condition broken or such like may not be given or granted to a Stranger But only to the Tenant of the ground or to him that hath the Reversion or Remainder A thing that cannot begin without a Deed may not be granted without a Deed as a Rent-Charge Fayer c. Every thing that is not given by delivery of hands must be passed by Deed the right of a thing reall or personall may not be given in not released by Word a Rent of condition or a re-entrie may not be reserved to one that is not partie to the Deed. All things that are incident to others pass by the grant of them that they are incident unto A man by his Grant cannot prejudice him that hath an elder title If no estate be expressed in the Grant and Livery and seizin be made then the Grantee hath but estate or life But if there be such Words in the Grant which will manifest the Will of the Granter so his will be not against the law the estate shall be taken according to his intent and will All Grants shall have a reasonable construction and all Grants are made to some purpose and therefore reason would they should be construed to some purpose All Grants shall be taken most strong against him that made it and most beneficiall to him to whom it is made To Grants of Reversion or of Rents c. there must be Attornment otherwise nothing passeth if it be not by matter of Record ATtornment is the agreement of the Tenant to the Grant by writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorne unto you or I do become your Tenant or I do deliver unto the Grantee a peny by way of seizin of a Rent or pay or do but one service onely in the name of the whole it is good for all It must be done in the life-time of the Grantor Without Attornment a Signiory a Rent-charge a Remainder or a Reversion will not pass but by matter of Record Without Attornment services pass not by the sale of the Manor nor from the Manor but by bargain and sale inrolled Attornment must be made by the Tenant of the Free-hold when a Rent-charge is granted By the Attornment of the Termor to the Grantee of a Reversion with Liverie and the Rent also though no mention be made thereof before attornment a man may not distrain nor have an action of waste By fine the Lord may have the Wardship of the body and Lands before the attornment of his Tenant The end of attornment is to perfect Grant and therefore may not be made upon condition or for a time A Tenant that is to perfect a Grant by Attornment cannot consent for a time nor upon a Condition nor for part of a thing granted But it shall enure the whole absolutely If the Tenant have true notice of all the Grant then such Attornment is void Attornment necessary upon a Devise CHAP. XXXIV LEASES A Lease for years must be for a time certaine and ought to express the terme and when it should begin and when it should end certainly And therefore a Lease for a year and so from year to year during the life of I. S. but for two years it may be made by Word or Writing If I Lease to I. N. to hold untill a hundred pounds be paid and make no livery of seizin he hath estate only at Will A Lease from year to year so long as both the parties please after entrie in any year it is a Lease for that year c. till warning be given to depart 14. H. 8. 16. A Lease beginning from henceforth shal be accounted from the day of the delivery from the making shall be taken inclusive from the day of the making or of the date exclusive If Lands discend to the heires before his entrie he may make a Lease thereof A man lets a house cum pertinent no lands pass but if a man let a house cum omnibus terris eidem pertinent there the lands thereunto used pass If a man lets Lands wherein is Coale-mines quarries and such like if they have bin used the Tenant may use them if they be not open if the Tenant for them imploy them not on the Land it is waste likewise marle the land is the place where the Rent is to be paid and demanded if no other place between the parties be limited Trespass is not given for paying of the Rent to the Lessor howsoever it be payable there And if a man let lands without impeachment of Waste and a Stranger cut down the trees and the Lessee doth bring an action of Trespass he shall not recover for the value of the Trees but for the Crop and bursting of his close and the heire of the Lessor shal have such trees and not the Executor of the Lessee unless they be cut by the Lessee and enjoyed by the Grantee without Waste Lessee for years or for life Tenant in Dower or by the curtesie or Tenant in tayle after possibility c. have onely a special interest or property in the trees being upon the ground growing as a thing annexed unto the Land so long as they are annexed thereunto But if the Lessee or any other sever them from the Land the property and interest of the Lessee in them is determined and the Lessor may take them as things that are parcell of his Inheritance the Interest of the Lessee being determined To accept the rent of a void Lease will not make the Lease good But avoidable it will If the Husband and Wife do purchase Lands to them and the heires of the Husband and he make a Lease and die his Wife may enter and avoid the Lease for her life but if she die leaving the husband who afterward dies before the terme ends the Lease is good to the Lessee against the heire Where it is Covenanted and granted to S. I. that he shall have five Acres of land in D. for years this is a good Lease for consessit is of such force as dimisit If a man make a Lease for 10 years and afterwards maketh another lease for 21 years the latter shall be a good Lease for eleven years when the first is expired If the Lessee at his cost do put glass in the Windowes he may not take the same away again but he shall be punished for Waste and so of Wainscot and seeling if it be
did accept it as that he paid the sum in full satisfaction and that he accepted thereof in full satsfaction An acquittance is a good bar c. Where a man is bound to pay money to make a Feoffment or renounce an Office or the like and no time is limited when the shall do it then upon request he is bound to perform it in so short a time as he may Buâ— where the time is limited if he doe refuse before the day it is no matter if he be readie to perform it at the day Where a Covenant or Condition is to marry or Enfeoff a stranger by such a day the refusall of the stranger is no Plea as that of the Obligee is The Obligee is to be ready on the Land at his own perill a Stranger must be requested if he refuse the Obligation is forfeited wherefore it is good to have these words if the Stranger do there unto assent Entrie THe determination of an estate is not effected before entrie When any person will enter for a Condition broken he must be seized on the same course and manner he was when he departed from his possession It behoveth such persons as will re-enter upon their Tenants to make a demand of the rent If the Lessor demand before he die his heire may enter If the Lessor distrain he may not re-enter The Lessor may accept of the Rent and yet re-enter but if he receive the next rent he may not for that establisheth the Lease Entry into one acre in the name of more is good it doth not extend into two Counties By the Entry of the Husband the Francktenement shall be in the wife and so of such like In Gavill-kind Land the eldest son only shall enter for the breach of a Condition Demand THe Land is the place where the rent is to be paid and demanded if there be no other place appointed And there the Lessor himself or his sufficient Attorney a little before Sun set in the presence of two or three sufficient witnesses shall say here I demand of I. B. 10. l. due to me at the Feast of c. for a Messuage c. Which he holdeth of me in Lease by Indenture c. and there remain the last day the rent is due to be paid until it be dark that he cannot see to tell the money CHAP. XI WARRANTIES There are three manner of Warranties Lineall Collaterall By Discent VVArranty Lineall is where a man by his Deed bindeth him and his heires to Warranty and dieth and the Warranty doth discend to his issue Warrantie Collaterall is in another line so that he to whom it diseendeth cannot convey the title that he hath in the Testaments by him that made warranty Warranty by Disseizin is where he which hath no right to enter entreth and maketh a warranty this is by Disseisin and barreth not Line all Warranty barreth him that claimeth Fee and also Fee-taile with assets in Fee if he sell his son may have a Formedon Collaterall Warranty is a barr to both except in some cases that be remedied by Statute as Warranty by Tenement by the curtesie except he hath enough by discent by the same Tenement Tenant In dower for life not remedied but do barre the heire and him in reversion AWarranty diseendeth alwaies to the heir at the Common law viz the eldest Son and followeth the estate and if the estate may be defeated the Warranty may also It barreth not the second Son in Gavill-kind although all the sons shall be vouched and not the eldest alone Yet he only shall be barred To plead a Warranty against him that made it or his heires is called a Rebutter Where Fee or Frank-tenement is Warranted the party shall have no advantage if he be not Tenant Where a Lease for years is warranted it shall be taken by way of Covenant and good if he be outed The Feoffor by the words dedi concessi shall be bound to warranty during his own life CHAP. XLI COVENANTS COvenants are of two sorts expressed by words in the Deed or implyed by the Law A covenant in Deed is an agreement made by the Deed in writing between two persons to performe some things and sealed for no writ of Covenant is maintainable without such a specialty but in London c. When a Covenant doth extend to a thing in being parcell of the demise or thing to be done by force of the Covenant is quodamodo annexed or appertaining to the thing demised and goeth with the land it shall bind the assignee if he be not named as to repair the houses it shall bind all that shall come to the same by the act of the law or by the act of the party But if the Covenant do concern the land or thing demised in some sort the Assignee shall not be charged although he be named as to make a Wall at anothers bodies house or to pay a sum of money to the Lessor or to a stranger But the Lessee his executors and Administrators shall be charged If the Covenant do extend to a thing that had no being but to be made new upon the Land it should binde the Assignee if he be named because he shall have the benefit of it If a man make a Lease for years and the Lessee covenanteth and granteth to pay c. to the Lessor his heirs and assignes yearly during c. ten pound his Executors shall have it A Covenant in Law upon a demise or grant the Assignee in Deed or in law may have a Writ of Covenant An Obligation to perform all Covenants and grants is forfeit on the breach of a Covenant in law A Covenant in Law is not broken but by an elder title A Covenant in Law may be qualified by the mutual consent of the parties CHAP. XLII How Chattels personal may be bargained sold exchanged lent and restored AContract is properly where a man for his mony shall have by the assent of another certain goods or some other profit at the time of the contract or after In all Bargaines Sales Contracts Promises and Agreements there must be quid pro quo presently except day be given expresly for the payment or else it is nothing but communication If a man do agree for a price of wares he may not carry them away before he hath paid for them if he have not day expresly given him to pay for them But the Merchant shall retain the wares until he be paid for them and if the other take them the Merchant may have an action of trespass or an action of debt for the money at his choice If the bargain be that you shall give me ten pound for my Horse and you do give me a penny in earnest which I do accept This is a perfect bargain you shall have the Horse by an action of the Case and I shall have the money by an action of debt If I say the price of a Cow is four pounds and you
is equall in every point to the power and charge of an Executor a man may have an action of the case against the Executor or Administrator upon the assumption of the Testator upon good consideration or debt for Labourers wages by the Statute And if a man make an Infant his Executor the Ordinary may commit the Execution of the will to the Tutor of the Child to the Childs behoof until he be of the age of 17. years and if he be granted for longer time it is void An Administrator dur ante minoritate may do nothing to the prejudice of the Infant he may not sell any of the goods of the deceased unless it be upon necessity as for the payment of debts or that they would perish nor let a Lease for a longer time then whilst he is Executor An infant upon the true payment of a debt due to the Testator may make an acquittance and it shall be good For a Child may better his estate but not make it worse CHAP. XLIX HEIR IF a man die seised of any Lands and do not dispose of them by his Will they do descend to his Heir as aforesaid And he shall have not onely the Glass and Wainscot but any other of such like things affixed to the Free-hold or ground as Tables Dormant Furnances Fat 's in the Brew-house or Dye-house and the Box or Chest wherein the Evidences are the Hawks and the Hounds the Doves in the Dove-house the Fish in the Pond and the Deer in the Parke and such like He shall be charged by specialty for the debts of his Ancestour so long as he hath assets if the Executor or Administrator have not sufficient No Law nor Statute doth charge the Heir for the wrong or trespass of his Father but by express words Widow THe Widow shall have all her apparell her bed her copher her chains borders and Jewels by the honorable Custome of the Realm except her Husband unkindly give any of them away or be in debt that it cannot be paid without her Bed c. yet she shal have her necessary apparell What things are Arbitrable and what not THings and Actions personall incertaine are Arbitrable as Trespasse taking away of a Ward c. But things certain are not arbitrable but when the submission is by specialty if they be not joyned with others incertain as debt with trespass c. Matters concerning the common-wealth some are not arbitrable as criminall offences felonies and such like concerning the crime In the submission three things are to be regarded First that it be made in writing with the parties Covenants or bonds subsequent and sufficient to binde them their heires Executors and Assignes to performe the Award which shal be thereupon made that both the Arbitrators may know their power and the parties revoke not their power For all is void that is not contained in the Submission or necessarily depending thereupon And the Arbitrators labour lost if they want means to compell the same to be executed Secondly that there be power given to them sufficient to do all things necessary for the ordering of the controversies as to appoint times and places for their meetings to examine and decide the matters committed and to bring their parties with their proofs evidences and witnesses thither together before them and to punish the place defective and to expound and correct such doubtfull sentences and questions as may arise upon their Award afterwards inconvenient to either parties contrary to equity and the Arbitrators good meaning which inconveniencies not before by them seene at the making of the Award Tempor is filia veritas Thirdly convenient time and place are to be limitted for the yeelding up their Award to the parties or to their assignes Six things to be regarded in an Arbitrement 1. THat it be made according to the very submission touching the things committed and every other circumstance 2 That it be a finall end of all controversies committed 3 That it appoint either partie to give or doe unto the other something beneficiall in appearance at least 4 That the performance be honest and possible 5 That there be a mean how either part by the Law may attain unto that which is thereby awarded unto him 6 That every partie have a part of the Award delivered unto him For if it faile in any of these points then is the whole Arbitrament voyde and of none effect Examples there of 1 AN Award that the parties shall obey the Arbitrament of A. M. is void for power may not be assigned 2 An Award that any of the parties shall be bound or do any other Act by the advice of the Arbitrator is not good except it be in the submission so but that the parties shall be bound or make assurance by the advise of Counsel is good 2 An Award that the parties shall be non-suited is not good because it is no final end for the party may begin again that the party do withdraw his sute is good If the submission be of divers things and the Award onely of some of them yet is the Award good for that part as if the Submission be of all Actions real and personal onely or if it be onely de possessione 3 If to submit themselves to the Arbitrament of all trespasses and it is awarded that the one shall make amends to the other and nothing is awarded for the others benefit this Award is void So it were if one of them should go quite against the other if the Submission were not by bond for an Award must be final obligatory and satisfactory to both parties An Award that either party shall release to the other all actions and that because the one hath trespassed more then the other he shall pay to the other first is good In debt or trespass of goods taken that the Defendant shall retain part and the Plaintiffe to have the rest is not good 4 An Award that one of the parties shall do an act to any Stranger the act is void if the parties be not bound Or if it be that he shall cause a Stranger to enfeoffe or be bound to the other partie because he hath no means to compel the stranger 5 An Award is void if it be neither executed nor any means by law for the execution thereof as if it should be awarded that one should pay the other 10 pounds this is good for he may recover the same by an action of debt But if it were awarded the one should deliver to the other an acre of Land or do such like act Executory it were void if it be not delivered straight-way or provision made by bond or otherwise to compel the payment thereof according to the Award if the submission be not by specialty 6 Indentures of Arbitrament must be made of so many parts that every person may have a part Arbitramentum aequum tribuit cuique suum AN Award is commonly made by Lay-men and shall be taken according