were granted Joynt-Tenants may have several estates A Joynt-Tenant cannot grant a Rent-charge but for terme of his own life A Joynt-Tenant may make a Lease for life or for years of his part or Release and the Lessee for years may enter although the Lessor die before the Lease begin and his heire shall have the Rent but the Survivor the Reversion A Joynt-Tenant may have a Writ of Partition by the Statute of the 31. of H. 8. cap. 32. A Partition made by Joynt-Tenants or Tenants in Common of Estates of Inheritance must be by Indenture by Word 't is void CHAP. VII TENANTS in COMMON Tenants in Common are those that hold Lands and Tenements by several titles They may joyne in action personal but they must have several actions Real They may have a Writ of Partition by the Stat. of 31. H. 8. cap. 32. IF one Parcener joynt-Joynt-Tenant or Tenant in Common take all the other have no Remedie but by Ejectione firme or such like or Waste Gavil-kinde-Lands Tenant by the curtesie of Kent whether he have Issue or no untill he marry and so forth he may not commit Waste CHAP. VIII TENANT in DOWER A Woman shall be indowed of all sorts of inheritance of her husband where the Issue that she had by him may inherit as heire to his father by meetes and bounds of a third part She shall have house-roome and meat and drink in common for forty dayes But she may not kill a Bullock within those 40. days after the death of her husband in which time her Dower ought to be assigned her The Assignement by him that had the Frank-Tenement is good but by him that is Guardian in Soccage or Tenant by Elegit verte Elegit or Statutes or Lessee for years is not She is to demand her Dower on the Land She shall recover dammages when her husband dyed seized from the death of her husband if the heire be not ready at the first day to assigne her Dower She shall have all her Chattels real againe execept her husband sell them he may not charge them or give them by his Will and likewise her bonds if the money were due in the life of her husband and all convenient apparel but if she have more then is fit for her degree it will be assets A woman shall be barred of her Dower so long as she detaineth the bodie of the heire being Ward or the Writing of the sons Land A woman shall not be endowed of any lands that her husband joyntly holdeth with another at the time of his death Dower of Gavil-kind Lands If the woman shall be endowed of one half so long as she is unmarried and chaste and it may be held with the heire in Common It is of Lands and Tenements and not of a Faire or such like where the Heire loseth not his inheritance there she loseth not her Dower Joynture IF a woman have a Joynture be fore marriage she may claim no Dower 27. Hen. 8. If it be made during marriage she may enter into her Joynture presently If she enter or accept of it she shall not be endowed If she shall be expulsed of any part of her Joynture she shall be endowed of the residue of her husbands Lands CHAP IX Tenant for terme of Life TEnant for terme of life is he that hath Lands or Tenements for terme of his life or another mans life and none of lesser estate may have a Free-hold If a Tenant for life sowe the Lands and die before the corn be reaped his Executor shall have it but not the Grasse nor other fruit If a Tenant for life be impannelled upon an Inquest and forfeit Issues and die they shall be levied upon him in the Reversion and so likewise if the Husband on the Lands of the Wife CHAP. X. Tenant for Terme of yeares Tenant for terme of years is where a man letteth lands or tenements to another for certain yeares HE may enter when he will the death of the Lessor is no let and may grant away his terme before it begin but before he enter he cannot Surrender nor have any action of trespasse nor take a release He is bound to repaire the Tenements The Lessor may enter to see what Reparations or Waste there is and he may distraine for his rent or have an action of debt If Tenant for life or years granteth a greater estate then he hath himselfe he doth forfeit his terme CHAP. XI Tenant at Will Tenant at Will is hee that holdeth lands or tenements at the Will of another THe Lessor may reserve a yearely rent and may distraine for it or have an Action of debt the Lessee is not bound to repaire the Tenements The Will is determined by the death of the Lessor or of a woman Lessee by her marriage or when the Lessee will take upon him to doe that which none but the Lessor may doe lawfully it determineth the Will and Possession and the Lessor may have an action of Trespasse for it The Lessee shall have reasonable time to have away his goods and his corne But he shall lose his Fallow and his dung carried forth CHAP. XII REMAINDER A Remainder is the residue of an estate at the same time appointed over and must be grounded upon some particular estate given before granted for years or for like and so forth And ought to begin in possession when the particular estate endeth there may bee no mean time between either by Grant or Will No remainder can be of a Chattel personal a Remainder cannot depend on a matter ex post facto as upon Estate tayle upon condition That if the Tenant in Tayle sell then the Land to remain to another is a void Remainder CHAP. XIII REVERSION A Reversion is the residue of an estate that is left after some particular estate granted out in the Grantor as if a man grant Lands for life without further granting the Reversion of the Fee-simple is in the Lessor CHAP. XIV WASTE WASTE lieth against a Tenant by the curtesie for life for years or in Dower and they shall lose the place wasted and treble dammages Waste lieth not against a Tenant by Elegit Statute-Merchant or Staple but account after the debt or dammage levied Waste or account will lie against a Tenant in Mortgage because he had Fee conditionall Waste is not given to the heire for Waste in the life of his Father Waste is given against the Assigne of the Tenant for life or of anothers life but not against the Assignee of a Tenant in Dower or of the curtesie it is to be brought against themselves It is Waste to pull up the formes benches doors windowes walls Filbert-Trees or Willows planted CHAP. XV. DISCONTINUANCE DIscontinuance is where a man that hath the present possession by makeing a larger estate then he may divesteth the inheritance of the Lands or Tenements out of another and dieth and the other hath right to have them but he may not enter
A TREATISE OF THE PRINCIPAL GROUNDS AND MAXIMES OF THE LAWES Of this Nation Very usefull and commodious for all Students and such others as desire the knowledg and understanding of the Laws Lex plus laudatur quando Ratione probatur Written by that most Excellent and Learned Expositor of the Law W. N. of Lincolns-Inn Esquire The second Edition with Additions LONDON Printed by T. N. for W. Lee D. Pakeman R. Best and G. Bedell and are to be sold at their shops in Fleetstreet and Grays-Inn gate 1651. An Analysis of the Laws of England by the honorable and most learned William Noy Esq Atturney Gen and of the Privy Councel to the late King Justice is a constant perpetuall will to render every man his own right It is Naturall According to law whereare considered Law Divine Law of Reason Law Humane Forreign English Common where is treated I. Of law where is considered The law it self which is By Tradition which is General and belongs to * Written Statute Injuries forbiden by that Law Private against The person and goods Publique against the King Commonwealth 2. Of the manner of delivering that Law Civill Ecclesiastical Temporal In peace the Admiral In warr the Marshal * The Person where is considered the Quality as Name the King the subject who is of Baptism Creation Natural who is Politick Free who is Villain In his own Power where is considered Not in his own Power Intention Action there Cause Time Place Efficient Material Formal Final by Nature Action of the person by common law or the Kings Charter The Thing which is universal which is Of natural Right Out of divers causes Particular in which dominion may be gained Where are considered Peculiar which belongs to the King to the Subject according to his prerogative Legal ordinary Regal absolute According to peculiar Custom of place prescription of persons 1. Things or goods themselves which are Real Personal Primary Secondary Simple Compound Of the land Upon it Corporate Incorporate 2. To have ownership which is by Estate and Propriety by Right By his own Right Right of another Single Joint by Possession Possibility Of franktenement Chattels Hereditary Frank-tenement alone in Fee in Tail absolute conditional qualified general special by Law by Gift as Dower curtesy of Engl. for Life or Life of another Real Personal Term of years at Will Animate Inanimate Remote Near reversion remainder Parceners joint tenants Tenants in common Interest and Propriety Use Authority of Action of Entry 3. The manner of acquiring ownership by Law by Purchase Discent or Forfeiture absolute With consideration by Writing by Word by Devise by Record by Deed Fine Recovery Executed Executory with Voucher without Single Double Feoffment Grant with atturny Barg sale inrol'd by Grant Ratification Release Confirmation Render Election Concord Assignment by Common-law by Statute 4. The manner of admitting ownership by operation of Law by act of the party Extinguishment Suspension Discent which takes away Entry Commission Omission Discontinuance Warranty Estoppell Forfeiture II. The manner of delivering the law is By Law By act of the party Immediate Mediate by actions in Courts where are considered Claim Entry 1. The diverse Actions in which Right is given Writs Plaints Original Judicial Real Personal Mixt For the Right The possession For the Person The Goods Of Right of law Of the Kings grace Of Course Magistral Pleas of the Crown Common Pleas 2. The divers Courts where remedy is had here are considered The Courts themselvs Their jurisdictions there Temporal Of the King The subject Superior Inferior Of Record Of Barony The persons Pleas Of the Courts In them Judges Ministers Demand ' Tenant Real Personal Plaintiff Defend ' Of the Crown Common 3. The manner of prosecution in Courts Direct Collaterall By Processe By Pleading with that Pleas Tryall Judgment Execution by the Court-Adjornment by persons in the Court as-Essoin 4. The manner of defeating the Process by Prohibition assignation of Errors 5. The manner of taking away the punishment Flight Pardon CHAP. I. The Laws of England are threefold Common Laws Customes and Statutes THE COMMON LAW THE Common Law is grounded on the Rules of reason and therefore we use to say in Argument That reason will that such a thing be done or that reason will not that such a thing be done The rules of reason are of two sorts some taken from Learning as well Divine as Humane and some proper to itself onely OF THEOLOGIE 1. Summa ratio est quae pro Religione facit ATenure to finde a Preacher if the Lord purchase parcell of the Land yet the whole service remaineth because it is for the advancement of RELIGION 2. Dies Dominicus non est Juridicus Sale on a Sunday shall not be said Sale in a Market to alter the property of the Goods OF GRAMMBR OF Grammer the rules are infinite in the Etymologie of a Word and in the construction thereof what is nature is single 3. Ad proxium antecedens fiat relatio nisi impediatur Sententia As an inditement against I. S. servant to I. D. in the County of Middlesex Butcher c. is not good for servant is no Addition and Butcher shall be referred to I. D. which is the next Antecedent OF LOGICK 4. Cessante causa cessat effectus THe Executor nor the husband after the death of a woman Guardian in soccage shall not have the Wardship because viz. the natural affection is removed which was the cause thereof Some things shall be construed according to the original cause thereof 5. The Executor may release before the probate of the Will because his title and interest is by the Will and not by the probate To make a man swear to bring me money upon pain of killing and he bringeth it accordingly it is felony Outlawry in Trespass is no forfeiture of Land as outlawry in felony is for although the non-appearance is the cause of the Outlawry in both yet the force of the Outlawry shall be esteemed according to the heynousness of the offence which is the principal cause of the Process 6. According to the beginning thereof As if a Servant which is out of his Masters service kill his Master through the malice which he bare him when he was his servant this is petty Treason 7. According to the end thereof As if a man warned to answer a matter in a Writ there he shall not answer to any other matter then is contained in the Writ for that â—as the end of his coming 8. Derivativa potestas non potest esse majus primitiva A Servant shall be stopped to say the Frank-Tenement is belonging to his Master by a recovery against his Master although the servant be a stranger to the Recovery for he shall not be in better case then he is in whose Right he claimeth or justifieth 9. Quod ab initio non valet in tractu temporis non convalescit If an Infant or a married woman
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
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
not fixed with Screwes Tenant in tayle may make a lease for such lands or inheritance as have been commonly letten to farm if the old lease be expired surrendered or ended within one year after the making of the new But not without impeachment of Waste nor above 21 years or three lives from the day of the making reserving the old Rent or more 32. H. 8. By Indenture of Lease by Tenant in tayle for 21 years made according to the forme of the Statute rendring the ancient or more Rent If the Tenant in tayle die it is a good lease against â—his Issue But if a Tenant in tayle die without Issue the Doner may avoid this Lease by entrie 32. H. 8. 28. And if he in the Remainder do accept the Rent it shall not tie him for that the Tayle is determined the Lease is determined and void Ed. â— 19. The Husband may make such a Lease of his wifes lands by Indenture in the name of the husband and wife and she to seale thereunto and the rent must be reserved to the husband and his wife and to the heires of the wife according to her estate of Inheritance A Lease made by the husband alone of the Lands of his wife is void after his death But the Lessee shall have his Corne. By the husband and wife voidable if it be not made as aforesaid If a man do let Lands for years or for life reserving a Rent and do enter into any part thereof and take the profit thereof the whole Rent is extinguished and shall be suspended during his holding thereof The aceptation of a re-demise to begin presently is suspension of the Rent before any entrie otherwise of a re-demise to begin in suturo Reservations and Exceptions THere are divers words by which a man may reserve a Rent and such like which he had not before or to keep that which he had as Tenendum reservandum solvendum saciendum it must be out of a Messuage and where a distresse may be taken and not out of a Rent and it must be comprehended within the purport of the same Word Exceptions of part ought always to be oâ— such things which the Grantor had in possesion at the time of the Grant The heire shall not have that which is reserved if it be not reserved to him by special words If a man make a Feoffment of Lands and reserve any part of the profits thereof as the grass or the Wood that reservation is void because it is repugnant to the feoffment A man by a Feoffment Release Confirmation or Fine may grant all his right in the Land saving unto him his Rent-charge c. Things that are given only by taking and useing As pasture for four Bullocks or two loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his life and no longer without speciall Words Exceptions of things as Wood Myne Quarrie Marle or such like if they be used it is implied by the Law that they shall be used and the things without which they cannot be had is implied to be excepted although no c. But otherwise if they be not used then the way and such like must be excepted An Assignee may be made of Lands given in Fee or for life or for years or of a Rent-charge although no mention be made of the Assignee in the Grant But otherwise it is of a promise Covenant or Grant or Warranty If a Lessee do assigne over his terme the Lessor may charge the Lessee or assigne at is pleasure But if the Lessor accept of the Rent of the Assignee knowing of the assignement he hath determined his acception and shall not have an action of debt against the Lessee for Rent due after the assignement If after the assignement of the Lessee the Lessor do grant away his Reversion the Grantee may not have an action of debt against the Lessee If a Lessee do assigne over his interest and die his Executor shall not be charged for rent due after his death If the Executor of a Lessee do assigne over his interest an action of debt doth not lie against him for rent due after the assignement If the Lessor enter for a condition broken or the Lessee do surrender or the terme end the Lessor may have an action of debt for the arrearages A Lease for years vending rent with a condition that if the Lessee assigneth his terme the Lessor may re-enter The Lessee assigneth the Lessor receiveth the Rent of the hands of the assignee not knowing of the assignement it shall not exclude the Lessor of his entrie A thing in a Condition may be assigned over for good cause as just debt as whereas a man is indebted unto me 20. pounds and another do owe him 20. pounds he may assigne over his Obligation unto me in satisfaction of my debt and I may justifie the suing for the same in the name of the other at my own proper costs and charges Also where one hath brought an action of debt against I. N. which promiseth me that if I will aide him against I. N. I shal be paid out of the sum in demand I may aid him An assignee of Lands if he be not named in the condition yet he may pay the money to save his Land But he shall receive none if he be not named the tender shall be to the Executor of the Feoffees Assignee shall alwayes be intended he that hath the whole estate of the assignor that is assignable a Condition is not assignable and not of an Executor or Administrator if there be such an assignee the law will not allow an assignee in the law if there be an assignee indeed so long as any part of the estate remaineth to the assignor the tender ought to be made to him or his heires it serveth yet a colourable payment to the heire shall not veste the estate out of the assignee as a true payment will viz. Covenant CHAP. XXXVI SURRENDERS A Surrender is an Instrument testifying with apt words that the particular Tenant of Lands or Tenements for life or years doth sufficiently consent that he which hath the next immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeildeth or giveth the same to him for ever Surrender ought forthwith to give a present possession of the thing Surrendred unto him which hath such an estate where it may be drowned A Joynt-Tenant cannot surrender to his fellow Estating of things that may not be granted without a Deed may be determined by the Surrender of the Deed to the Tenant of the Land Lease for years cannot surrender before his Term begin he may grant he cannot surrender part of his Lease Surrenders are in two manners In Deed. In Law A Surrender in Law is when the Lessee for years doth take a new Lease for more years A Surrender
manner therefore I have heard Lawyers say that consideration is still required in a bargain and sale though it be by deed indented and inrolled according to the same Statute Sure I am that regularly in a deed of Feoffament it is not so as formerly is declared and for the reason before expressed Dedisse The word dedi by force of an act of Parliament made 4. Ed. 1. c. 4. commonly called the Statute de Bigamis implyeth a warranty to the Feoffee and his Heires during the life of the Feoffor whereupon Fitz Herbert in his Natura brevium fo 134. h. puts a case to this effect viz. If a man give Lands to one in Fee by Deed by the words dedi concessi c. hereby he shal be bound to warrant the Lands of the Feoffee by vertue of those words and if the Feoffee be impleaded he shall have his writ of Warrant ' Chart. against the Feoffor by reason of the words Dedi concessi c. but not against his Heire for the Heire shal not be bound to Warranty except the Father binde himself and his Heires to Warranty c. by express words in the deed I know some alledg that because as well the Statute as Fitzh mention not onely dedi but concessi also therefore the one without the other implyeth no warranty to whom it may be answered that the Statute it self doth plainly prove against them for the conclusion thereof hath these words ipse tamen feoffator invita sua ratione proprii doni sui tenetur warrantizare and also the Testimony of Sir Edward Coke may be produced herein who affirmeth that the Statute of Bigamis anno 14. Eliz. in the Court of Common Pleas was expounded as above is mentioned namely that dedi did imply the Warranty and Mr. Perkins cap. 2. saith that dedi in a deed of Feoffament comprehendeth in it a Warranty against the Feoffor and so doth not the word Concessi Concessisse I conceive the word concessi in Feoffaments and Grants the implyed warranty excepted which dedi creates to be of the same effect with dedi also with confirmavi especially in some cases to which purpose hear what Littleton speaketh in his Chapter of Discontinuance Also saith he in some case this verbe dedi or this verbe concessi hath the same effect in substance and shal enure to the same intent as the verbe confirmavi as if I be disseised of a carve of Land and I make such a deed Sciant presentes c. quod dedi to the disseisor c. or quod concessi to the said disseisor the said carve c. and I deliver onely the deed to him without any livery of seisin of the Land this is a good confirmation and as strong in Law as if there had been in the Deed this verb confirmavi c. Liberasse The word Liberavi I take to be of the same nature with Tradidi which I have often seen in Feoffaments whereof it is remarkable that Hephron the Hittite when he assured the field of Machpelah to Abraham Gen. 32. 11. used the word trado agrum trado tibi that is to Abraham as Hieromes Translation reads it Feoffasse This word cometh from feudum or feodum which signifieth Fee and is alwayes or for the most part used in Feoffaments as participating of the same nature Confirmasse Concerning the word confirmo somewhat may be gathered from what hath been spoken about the Verb concessisse yet I cannot forget how Hierome renders the expresment of the said assurance of the said field of Machpelah to Abraham for a possession in these words co firmatus est ager c. Gen. 23. 17. And now I come to the second thing considerable in the premisses namely the Feoffee whose addition is generoso Generoso Generosus in English we read Gentleman which some derive from the two French words Gentil-houme denoting such a one as is made known by his birth stock and race Sir Tho. Smith calleth all those Gentlemen that are above the degree of Yeomen whence it may be concluded that every Noble-man may be rightly termed a Gentleman sed non vid versd Master Cowel conceiveth the reason of the appellation to grow because they observe Gentilitatem suam the propagation of their blood by giving or bearing of armes wherby they are differenced from others and shew from what Family they are descended Haeredi assignatis suis Some will have an Heir so called quia haeret in haereditate or quia haeret in se haereditas but to let such conceits of witty invention pass it is certain that an Heir is so called from the Latin word Haeres Littleton in his Chap. of Fee-simple saith that these words his Heirs onely make the estate of inheritance in all Feoffaments and Grants c. Sure then it is necessary for him that purchaseth Lands c. in Fee simple to have the Feoffament run to himself haeredibus suis for if it run onely to himself assignatis suis although livery and seisin be made accordingly and agreeable to the deed yet thereby onely an estate for life shall pass because there wanteth words of Inheritance and without livery and seisin in the case aforesaid onely an Estate at Will shall pass And the reason why the Law is so strict in this thing as in many others for to prescribe and appoint such certain words to create and make an estate of inheritance is as Master Plowden saith in his Commentaries for the eschewing and avoiding of incertainty the very Fountain and spring from whence floweth all manner of confusion and disorder which the Law utterly contemneth and abhorreth what herein hath been said is to be apprehended and understood of persons in and according to their natural capacities Yet perhaps an estate of inheritance may sometime pass in a Deed of Feoffament by words which may have reference and will relate to a certainty for Certum-est quod certum reddi potest as for example You Enfeoffe me and my Heirs of a certain piece of Land to hold to me my Heirs c. and I re-enfeoffe you in as large ample and beneficiall manner as you enfeoffed me in this case they say you have a Fee simple for the reason above expressed So I come next to see what observations the Deed of Feoffament further affordeth Totam ill pec tre cont Very necessary and convenient it is in deeds of Feoffament c. to have the Lands c. thereby intended to be conveyed certainely and expressely to be set downe aswell how much by estimation in quantity they doe containe as the quality of the same whether Meadow Pasture c. being the species of Land which is the genus and the place where and manner how they exist and lye the better to shunne and avoid doubt and ambiguity which oftentimes stirre up occasions of unkind suites and contentions betwixt party and party I know that Grammarians reading the word peciam will be ready