because of such alienation but is put to his Writ If a man seized in the right of his Wife or if a Tenant in Tayle made a Feoffment and died the Wife might not enter nor the Issue in Tayle nor he in Reversion but are put to the Waction Now the wife may enter by the Statute 3 2. H. 8. and a recovery suffered by the Tenant by curtesie or by the Tenant after possibility of issue extinct or for terme of life is now made no discontinuance Such things that pass by way of a grant by deed without livery and seizin cannot be discontinued as a reversion or Rent-charge Common c. A Release or Confirmation without Warranty maketh no discontinuance CHPP. XVI DISCENTS DIscents which take away entries is where a man disseizeth another and dieth and his heire entreth or maketh a Feoffment to another in Fee or in tayle and he dieth and his heire entreth these discents put a man from his entrie A discent during minority marriage non sanae mentis imprisonment or being out of the Realm do not take away an entry Discents of Rents in gross the Lord notwithstanding may distrain A dying seized of a terme for life or of a Remainder or Reversion doth not take away an Entrie he must die seized in Fee and Frank-Tenement A diseizin cannot be to one joynt-Tenant or Parcener alone if it be not to the other If a condition be broken after a discent the Donor Feoffor or his heires may enter A wrongfull diseizin is no discent unless the diseisor have quiet possession five years without entrie or claime 32. H. 8. CHAP. XVII CONTINUALL CLAIME COntinual Claime is a demand made by another of the propertie or possession of a thing which he hath not in possession but is withholden from him wrongfully defeateth a discent hapning within a year and a day after it is made and now by the statute within five years CHAP. XVIII REMITTER REmitter is when by a new title the Frank-Tenement is cast upon a man whose entrie was taken away by a discent or discontinuance he shall be in by the elder title as if Tenant in tayle discontinue the tayle and after diseizeth his continuance and dieth thereof seized and the land discend to his Issue in that case he is said to be in his Remitter viz. seized his Ancient Estate tayle When the entrie of a man is lawful and he taketh an estate to himself when he is of full age if it be not by Deed indented or matter of Record which shall estop him it shall be to him a good Remitrer A Remitter to the Tenant shall be a Remitter to him in the remainder and reversion CHAP. XIX TENURES ALL lands are holden of the King immediately or of some other person and therefore when any that hath Fee dyeth without heire the lands shall escheate to the Lord. And they are holden for the most part either by Knights service or in Soccage Knights Service draweth to it Ward Marriage and Relief viz. Of Ward Marriage and Relief THe heire male unmarried shall be in Ward untill 21 years of age If he be married in the life of his Anceâ—tors yet the Lord shall have the profit of the â—â—nd till his full age None shall be in Ward during the life of â—he Father If the heire refuse a convenient marriage he shall pay to the Lord the value when he cometh to full age If the Ward marrie against the will of the Guardian he shall pay him the double value of his Marriage but if the heire be of the full age aforesaid he shall pay a relief A relief for a whole Knights Fee is 5 l for half a Knights Fee 50s. for a quarter 25 for more more for less less accordingly A Relief is no service but is incident to a Service the Guardian must not commit Waste viz. Chattels Tenure in Soccage TEnure in Soccage is where the Tenant holdeth of his Lord by fealty suit oâ— Court and certain Rent for all manner of Service The Lord shall not have the Wardship but a relief presently after the death of his Tenant A Relief for Soccoge land is a years renâ— and is to be paid presently upon a discent oâ— purchase As if the Land were held by Fealty and 10s. Rent per annum â—0s. shall be paiâ—… for Relief The next of the kin to whom the inheritance may not discend shall have the Wardship of the Land and of the heire untill his age of 14. years to the use of the heire at which age the heire may call him to account If the Guardian die the heire cannot have an Action of account against the Executor of the Guardian The Executor of the Guardian may not have the Wardship but some other of the next of kin the Husband may not alien the interest of the Wife in the Guardianship nor hold it if she die it may not be sold If another man occupie the Lands of the heire as warden in Soccage the heire may call him to account as Guardian If the Guardian hold the Lands after the heire is 14. the heire shall call him to account as his Bailiff Gavill-kinde THe next of kin shall have the Guardianship of the body and lands untill the heire be 15. years of age Diversities of ages A man hath but two ages The full age of Male and Female is one and twenty A Woman hath six ages THe Lord her father may distrain for ayd for her marriage when she is seven She is double at nine She is able to assent to Matrimony at twelve She shal not be in Warde if she be fourteen She shall go out of Ward at sixteen She may sell or give her lands at 21. No man may be sworn in any Jury before he be 21. before which age all gifts grants or deeds as do not effect by delivery of his own hands are void and all others voidable except for necessary meat drink and apparrel c. An infant may do any thing for his own advantage as to be Executor or such like an Infant shall sue by his next friend and answer by his Guardian Gavill-kind The heire may give or sell at fifteen years of age 1. The land must discend not be given him by Will 2. He must have full recompence 3. It must be by Feoffment and livery of seizin with his own hands not by warrant of Attorney nor any other conveyance BY the Civil Law an Infant may be Executor at 17. years of age An Infant may make a Will of his goods at 14. years of age and a Maid at 12. CHAP. XXI RENTS There are three manners of Rents Rent-Service Rent-Charge Rent-Seck REnt-Service is where a man holdeth his lands of his Lord by certain Rent and so forth Rent-Charge is granted or reserved out of certain Lands by Deed with a clause of distress Rent-Seck is a Rent granted without a distress or Rent-service severed from other service becometh a Rent-seck The Reversion of a Rent
but by presentment in the Leete If a private way be straitned or if a bridge there which another ought to repair be decayed an action of the case lieth But if the way be stopped an Assize of Nusance lieth and the Lessee may have it after the Lessors years begin or the Lessee may have an action of the case if the most part of a Water-Way be stopped an Assize will lie CHAP. XXVI LIBERTIES A Libertie is a royall priviledge in the hands of a subject ALL Liberties are derived from the Crown and therefore are extinguished if they come to the Crown again by escheate forfeiture or such like for the Greater doth drowne the lesser One may have Park a Leete Wayfe stray wreck of Sea and â—enura placitorum by prescription and without allowance in Eyre But not Cognizance of plea nor Cattalla fellonum vel fugitinorum aut ut ligatorum A libertie may be forfeited by misusing as to keep a market otherwise then it is granted A libertie may be forfeited for not using when it is for the good of the Common-wealth as not to exercise the Office of the Clarke of the Market but not to use a market is not Whatsoever is in the King by reason of his Prerogative may not be granted or pardoned by generall words but by speciall CHAP. XXVII Of Chattells Reall Chattells Reall are Guardianships Leases for years or at will c. GUardianship is a Commodity of having the custodie of the body or lands or both where the heire is within age and the Lord of whom the Land is holden by Knights service shall have the same to his own use for it is a Chattell Reall and therefore his Executor shall have it The Guardian must not do waste nor in feoff upon pain of losing the Wardship But he must maintain the buildings out of the Issues of the Lands and so restore it to the heire If the Committee of the King commit the Wardship shall be committed to another if the Grantee he shall lose the Wardship And one of the friends of the Ward being his next friend that will may sue for him If a Lease be made to a man and his heires for 20. years it is a Chattell and his Executor shall have it otherwise if a man Will a Lease to a man and his heires here the word Heires are words of purchase and his heires shall have it If a man grant Proximam advocationem to I. S. and his heires it is but a Chattell for it is but for unicâ vice Writings pawned for money lent are Chattells If a woman have execution of Lands by Statute-Merchant and taketh a husband he may grant it for it is a chattell Of Chattells Personall CHattells Personall are Gold Silver Plate Jewels Utensils Beasts and other Chattells and moveable Goods whatsoever Obligations and Corne upon the ground All goods as well moveable as unmoveable Corne upon the ground Obligations right of Actions money out of bags and corn out of sacks Sunt Cattalla Money is not to be passed by the grant of all his goods and Chattells nor Hawkes nor Hounds nor other things ferae naturae for the propertie is not in any not after they are made tame longer then they are in his Possession as my Hounds following me or my man or my Hawke flying after a foule or my Deer haunting out of my Park But if they stray of their own accord it is lawfull for any man to take and the heire shall have them All Chattells shall go to the Executors Fatts and Furnaces fixed in a Brew house or Dy-house by the Lessee if they be fixed by Tenant in Fee the heire shall have them Now something hath been said concerning Possessions it followeth that it be shewed how they may be conveyed from one man to another CHAP. XXVIII OF CONVEYANCES In every Conveyance there must be a Grantor and a Grantee and something granted The Conveyance of some persons is void of others voidable CONVEYANCE of a Woman Covert is void without the consent of her husband and it ought to be made in her and his name except it be done as Executor to another Of an Infant that which doth not take effect with the delivery of his own hands is void and an Action of Trespass will lie against him for taking the things given Otherwise it is but voidable except it be as Executor or for necessary meat and drink c. for his advantage Voidable Of non sane memorie Royall Voidable or made by duresse Royall VOydable by the parties themselves and their heires and by them that shall have their estates except Non sane himself Grants by Fine VOydable by Writ of Error by an Infant during his nonage and by the Husband for a Fine levied by his Wife alone during their marriage Conveyance of some persons cannot be good for ever without the consent of others as the Deane without the Chapter the Major without the Commonaltie and of other bodies politick that have a common Seale or of a Parson without the Patron and Ordinary If there be no condition in the Conveyance it shall be intended the elder A Conveyance made to a feme Covert shall be good and of effect untill her husband do disagree An Infant may be Grantee so may a Woman Outlawed a Villaine a Bastard and a Fellon A Bastard can have no heire but the Issue of his body lawfully begotten An Infant at the age of discretion by his actuall entry and a woman against the will of her husband may be a disseisor or a Trespassor In all conveyances there must be one named which may take by force the grant at the beginning of the grant A grant made to the right heires of one that is dead is good or Custodibus Eccle. is good for goods All Chattells reall or personall may be granted or given without a Deed. Rent-service Rent-seck Rent-charge Common of Pasture or of Turbarie Reversion Remainder advowson or other things which lieth not in manuall occupation may not be conveyed for years for life in tayle or in Fee without writing The Major or Commonalty or such like cannot make a Lease for years without a Deed. CHAP. XXIX OF DEEDS Three things needfull and pertaining to every Deed Writing Sealing and delivering IN the Writing must be shewed the persons names their dwelling place and degree The things granted upon what consideration the estate whether absolute or conditionall with the other circumstances and the time when it was done No grant can be made but to him that was partie to the Deed except it be by way of Remainder The words must be sufficient in Law to bind the parties as if a man grant omnes terras certa sua a Lease for years passeth not but for Frank-Tenement at least nec per omnia bona sua Exceptio semper ultimo ponenda est THe Habendum must include the premisses A Condition cannot be reserved but by the Grantor and it is proper to follow the
do make a Will and publish the same and afterwards dyeth being of full age or sole notwithstanding this Will is void 10. Vnumquodque dissolvitur eo modo quo colligatur An Obligation or other matter in writing may not be discharged by an agreement by word but by writing 11. He that claimeth a thing on high shal neither have gain nor loss thereby As if one Joynt-Tenant make a Lease o◠his Joyntee reserving rent and die the heire which surviveth shall have the reversion of his Joyntee but not the Rent because he cometh in by the first Feoffer and not under his companion Also where the husband being leased for yeers in right reserving a Rent the woman shall have the residue of the terme but not the rent 12. Debile fundamentum fallit opus When the estate whereunto the Warrantie is annexed is defeated the Warrantie is also defeated 13. Incidents may not be severed As if a man grant Wood to be burnt in such a house wood may not be granted away but he which hath the house shall have the wood also 14. Actio personalis moritur cum persona As if battery be done to a man if he that did the battery or the other die the Action is gone If the Leasor covenant to pay quit-rents during the terme his Executor shall not pay it for it is a personal covenant 15. Things of higher nature do determine things of lower nature As matters of writing do determine an agreement by words If an offence which is murder at the Common law be made high Treason no appeal lieth for it for that the Murder is drowned and punishable as Treason whereof no appeal lieth 16. Majus continet minus Whereby the Custom of a Manor a man may demise for life he may demise to his Wife durante viduitate 17. Majus dignum trahit ad se minus dignum As the Writings the Chest or Box they are in OF PHILOSOPHY 18. Naturae vis maxima NAtural affection or brotherly love are good causes or considerations to raise an use And one brother may maintain a suit for another 19. The law favoureth some persons Viz. Men out of the Realm or in Pison Women married Infants Ideots Mad-men Men without intelligence Strangers that are neither parties nor privie and things done in anothers right A descent shall not take away the entry of a man out of the Realm or in prison or of a married woman or of an infant And a lease made to the husband and wife after the death of the husband the wife shall not be charged for waste during the mariage An Ideot shall not be compelled to plead by his Guardian or next friend but shall be in the Court and he that pleadeth the best plea for himself shall be admitted If a dumb man bring an action he shall plead by his next friend If a Lessee for years grant a Rent-charge and surrendereth the rent shall be paid during the terme to the Stranger A man Out-lawed or Excommunicated may bring an Action as an Executor 20. And a mans person before his possessions Mentioned of corporal pain shall avoid a Deed but not his Goods 21. And matter of possession more then matter of right when the right is equall As if a man purchase several lands at one time held of several Lords by Knights service and dieth the Lord which first seizeth the Ward shall have it otherwise his elder Lord. 22. Matter of profit or interest shall be taken largely and it may be assigned and it may not be countermanded but matter of pleasure trust or authority shall be taken strictly and may be countermanded As licence to him in my Park or in my Garden to walk extendeth onely to himself and not to his servant nor any other in his companie for it is matter of pleasure only otherwise it is of a Licence to hunt kill and carry away the Deer which is matter of profit A Church-way is matter of ease OF POLITICAL 23. NOthing shall be void which by possibility may be good If Land be given to a man and to a woman married to another man and the heires of their two bodies this is a present estate Tayle because of the possibilitie 24. Ex nudo pacto non oritur actio No man is bound to his promise nor any use can be raised without good consideration A consideration must be some cause or occasion which must amount to a recompence in Deed or in Law as money or natural affection not long acquaintance nor great familiarity 25. The Law favoureth a thing that is of necessity As to pay several expences shall not be said to Administer to distrain in the night dammage feasant to kill another to save his own life A servant to beat another to save his Master if he cannot otherwise choose To drive another mans cattel amongst mine own untill I come to a place to shift them is no Trespass 26. And for the good of the Common-wealth As killing of Foxes and the pulling down of an house of necessity to stay a fire 27. Communis error facit jus As an Acquittance made by a Major alone where there be a hundred presidents is good 28. And things that are in the Custody of the law Goods taken by Distress shall not be taken in Execution for the debt of the owner thereof 29. The husband and the wife are one person They cannot sue one another nor make any Grant one to another And if a woman marry with her Obligor the debt is extinct and she shall never have any action if another were bound with him for by the mariage the Action is suspended and an action personal suspended against one is a discharge to all 30. An Obligation with a condition to enfeoff a woman before such a day and before the day the Obligor taketh her to wife the obligation is forfeited because he cannot infeoff her but he may make a lease for years with a remainder to his wife When a joynt Purchase is during the marriage every one shall have the whole When a joynt purchase during the mariage is made and the husband sell the wife shall have a Cui in vitâ for the whole against both and on a feoffment made to one man and his wife and to a third person the third person shall have one moity 31. All that a Woman hath appertaineth to her Husband Personal things and things absolutely reall as Lands rents and so forth or Chattels reall and things in Action are onely in her right notwithstanding real things and things in Action he may dispose at his pleasure but not Will or charge them and he shall have her real Chattels if he survive Of things in Action the woman may dispose by her last Will and she may make her husband her Executor and he shall recover them to the use of the last will of his wife If a Leassee for years grant his terme to a man or woman and to another they are
for years and if he die within the term that it shall remain to M. A. and it is good for the first hath but the occupation and the other after him shall have the property But if a chattell be given to one for life the remainder to another the remainder is voyd For a Grant or Devise of a Chattel for an houre is good for ever and the Devisee may dispose of it but if he do not the other shall have it A man may Devise his Lands he holdeth in Lease but not his Lease under this condition Provided that if the Devisee die within the term then he shall have it If a man Will his goods to his wife and that after her decease his Son and Heir shall have the House wherein they are she shall have the house for term of her life yet it is not devised unto her by express words But it doth appear that his intent was so by the words If a man willeth his Lands to his wife til his Son commeth to the age of 21 yeers and the woman taketh another husband and dyeth the husband shall have the Interest By a Devise a man may have the Fee-simple without express words of Heirs as if Lands be willed to a man for ever or to have and to hold to him and to his assignes c. By Will Lands may be intailed without the word Body as if Lands be given to a man and to his heirs male it doth make an estate tail If a man Will that his Executors shall sell his Lands the inheritance doth descend to the Heir yet the Executors may enter and enfeoffe the Vendee But if Lands be given to the Executor to sell and they receive the profits thereof to their own use and do not sell the same in reasonable time the Heir may enter An Executor may sell if the other will not If Lands be recover'd against Tenant for life or for years by an action of Waste or former title he may not give his Corn. If the Cognizee have sown the Lands and the Cognizor bring a scire he may give the Corn sown If a man Devise omnia bona Cattalla Hawks nor Hounds do not pass nor the Deer in the Park nor the Fish in the Ponds CHAP. XLVII EXECUTORS AN Executor is he that is named and appointed by the Testator to be his successor in his stead to enter and to have his goods and chattels to use Actions against his Debtors and Legacies so far as his goods and chattels will extend Where two Executors are made and one doth prove the Will and the other doth refuse notwithstanding he that refuseth may administer at his pleasure and the other must name him in every action for every duty due to the Testator and his release shall be a good barr If he do survive he may administer and not the Executor of him that died but otherwise if all had refused If one prove the Will in the name of both he that doth not administer shall not be charged If the Executor do once any action that is proper to an Executor as to receive the Testators debts or to give acquittance for the same c. he may not refuse But other acts of charity or humanity he may do as to dispose of the Testators goods about the Funerall to feed his cattell least they perish or to keep his goods least they be stoln these things may every one do without danger When Executors do bring an action it shal be in all their names aswell of them that do refuse as of other But an action must be brought against him that doth administer only and he which first cometh shall first answer An Executor of an Executor is Executor to the first Testator And shall have an action of debt accompt c. or trespass as of the goods of the first Testator carried away and execution of Statutes and Recognizances c. St. 25. Ed. 5. The title and interest of an Executor is by the Testament and not by the Probate but without shewing it they may release the Probate The Justices wil not allow them tosue actions The Executor shall have the wardship of the Body and Lands of the Ward in Knights service but not in Soccage and Leases for years and rent charges for years Statutes Recognizances Bonds Lands in Executions Corn upon the ground Gold Silver Plate Jewels Money Debts Cattell and all other goods and Chattells of the Testator if they be not devised and may devise them But if he do will omnia bona Cattallasua the goods of the Testator pass not neither shall they be forfeited by the Executor An Executor is chargeable for all duties of the Testator that are certain but not for Trespass nor for receipt of rents nor for occupation of Lands as Bailiffe or Guardian in Soccage c. For this is not any duty certain so farr as he shall have Assets If the Executor do waste the goods of the Testator he shall pay them of his own An Executor shall not be charged but with such goods as come to his hands but if a stranger take them out of his possession they are assets in his hands If an Executor take goods of another mans amongst the goods of the Testator he shall be excused of the taking in Trespass Duties by matter of record shal be satisfied before duties by specialty and duties by specialty before charges and Legacies before other duties An Executor may pay a debt or credit of some kind depending the writ before notice of the action but not after notice or issue joyned An Executor may pay debts with his own money and retain so much of the Testators goods but not Lands appointed to be sold Any of these words debere solvere recipere borrowed or any word that will prove a man a debtor or to have the money If it be by Bill will charge the Executor or Administrator but not the Heir if he be not named CHAP. XLVIII ADNINISTRATORS AN Administrator is he to whom the Ordinary of the place where the intestate dwelt committeth the Testators goods Chattel credits and rights For wheresoever a man dieth intestate either for that he was so negligent he made no Testament or made such an Executor as refused to prove it or otherwise is of no force the Ordinary may commit the administration of his goods to the Widow or next of kin or to both which he pleaseth making request and revoke it again at his pleasure The Ordinary may assigne also a Tutor to the intestates children to his sonnes untill twelve year But so that it be not a prejudice to him that is the Guardian and after those years he or she may respectively choose their own Curators and the Guardian may confirm them if there be not good order taken by their fathers Will. As if such a Tutor die the Infant cannot have an Action of account against his Executor The power and charge of an Administrator