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.
by default against her and her husband had not any other remedy then a Writ of Right before the Statute of W. 2. cap. 3. which gives a Cui in vita and before W. 2. cap. 3. a faint Recovery against Tenant for life bound him in Remainder Litl Release 112. because the Law presumes the Title and case true So a Recovery upon a faint Title by a man of Religion was out of the penalty of the Statute of Religiosis untill W. 2. cap. 23. made a Recovery without Title in such plight as a Feoffment in Mortmain was for the truth supposed by the Law to be therein So here the Recovety is intended to be true and therefore the Plaintiff ought to shew matter if there be any to prove the contrary As in 11. H. 4.19 if the Tenant in a precipe vouch one of the Demandants he ought to shew cause because otherwise the Law will presume that he hath not cause against right So 15. E. 4.4 Contrary entry by Title general averment of Covin by the Plaintiff in Dower was not held good Matter in Law As to the matter in Law it seemeth here that the case is clear out of the words and penalty of the Statute of 11. H. 7. cap. 30. For although 27. H. 8. hath executed the Possession to the use yet this case remains here so as if 27. H. 8. had never been made and the Wife had continued Tenant in Tail in use and out of the words of the first branch because he hath an Estate Tail in the use in the land but hath not an Estate in the land in the use and the Statute speaks of an Estate in the Land and this Hereditament or use which is the matter and substance and the use it self which is the confidence of the thing differ But one may not have the state in Land and use also because suspended yet two may to the use of one of them as Husband and Wife to the use of the Wife and so it shall be intended here Also the first branch speaks of lands c. of Inheritance or purchase of the Husband but here the use is a new thing which Commenceth now and was not in being before and so is not the inheritance or purchase of the Husband and therefore out of the Statute as a Rent granted to one out of lands to the use of the Wife of the Grantor or if the Husband gives a signiory in Tail to the Wife for her Joyncture and the Tenancie Escheat and the Wife suffer a faint Recovery this is forth of the Statute So the Husband makes a Feoffment upon Condition to re-enfeoffee him and his Wife in Tail the Wife suffers a faint Recovery this is out of the Statute because the Feoffment of the Land from the Possession of the Husband and was her purchase and not the purchase of the Husband or his Inheritance for the Condition which is the cause of the gift is a new thing is not within the second branch because the Wife had nothing here of the gift of any of the Ancestors of the husband Nor the third branch because the wife had not possession by the Statute nor by the Feoffees to the use of him in Reversion but he in Reversion hath the present Title and so the Statute shall be intended and therefore he may enter presently If Tenant for Life suffer a faint Recovery but 11. H. 7. saith Enjoy according to their Title intends that he shall not Enter until after the death of his Ancestor because he hath no Title in the life of his Ancestor And therefore when the Wife assents to the Ravisher 6. R. 2. gives title of entry saying habeat titulum intrandi c. intends that he shall not have it in the life of the Ancestor And if the makers of the Statute of 11. H. 7. had intended that the issue in Tail should have entred presently they would have given to him Title by such like words as the Statute of 6. R. 2. hath but the end of the clause which saith That they shall enjoy according to their Title expresses that they intented not so For which causes it is probable that the Defendant is out of the penalty of the Statute and that the Plaintiff might not enter and so shall be Barred Whiddon Serjeant for the Plaintiff Because the Defendant hath said whose Heir he is he shall be taken that he is Heir special for a Plea which hath two intendments shall be taken most strongly against him which pleads it as 3. H. 7.2 in Trespass Release generally is no Plea because it may be taken to be delivered before the Trespass or after So 3. H. 7.8 and 9. and 26. H. 8. Entry to avoid Warranty Collaterall pleaded in Bar is no Plea because it may be intended after the discent for he may enter in the life of the Ancestor or after Also the Plaintiff need not shew how he is Heir because he was once seised by entry But if he had brought a formedon upon the Estate Tail he should because by way of Demand as 6. E. 4.1 Executor brought Trespass for a thing taken out of his Possession he shall not shew his Testament but if he Demands a thing whereof he had not ever possession he shall It is not needfull to shew Covin certainly which is a secret thing and the Law doth not enforce one to shew a thing when by intendment of Law it lieth not in his Conusance as 20. H. 7.7 A woman shall have Dower of a Rent Charge without shewing the Deed of the Grant because it belongeth not to her So the Lord shall have Covin generally for the Ward where his Tenant aliens and re-taketh for life the Remainder to his Heir being it lieth secretly in the breast as suspicion lieth for that he may justisie imprisonment for suspicion of Felony without shewing of the cause of his suspicion So 33. H. 6.5 In Trespass a man buys in a Market Overt the Plaintiff said That the said buying was by fraud between the Defendant and a stranger generally without shewing any thing speciall of the Covin and the Plea the e admitted good So in a Precipe against the Lord of ancient Demeasne and Tenant the Lord shall shew that he is Lord and this Action is brought against him by Covin generally So 9. E. 6.41 He which alleadges Covin ought to shew cause of the Covin and the cause is for that the Recovery or Title was tryed by Verdict because to say that it was by Covin shall not be intended true against a Verdict But Covin generally may be averred against a Recovery not gainsaying or default because this is cause of the Judgement and no Triall Wherefore in this case a man shall aver that this was by Covin generally And as to that which hath been said That execution ought to be shewed of the Recovery that needs not For the Statute speaketh only of the Recovery and without Execution it shall be
or appurtenant unless it be comprised in the premises The Office of the Habendum is for to limit the estate as a grant a Rent and stay there is for life Habendum for a year is for one year 7. E. 3.10 by Trew 7. Ass 1. Perkins fol. 22. The Habendum repugnant to the premises void and the estate before the Habendum shall stand 14. H. 8.13 by Pollard Perkins fol. 34. Contrary 13. H. 7.23 by Fineux a Grant to one and his Heirs Habendum for Life So to two Habendum to the one of them two for life the Remainder to the other for life because it severs the joyncture in the estate So a grant of two acres to two Habendum the one acre to one and the other to the other because it includes the interest of every one in one acre A Lease of land reserving the profits or two acres except one void because parcel of the thing granted Doctor and Student fol. 98. Reversion is a Tenement and ought to vest presently as a Reversion and not at a day to come otherwise it is of land Reverting without estate and agreed of land by the Serjeants for the Defendant Every Deed shall be construed most strongly against the Grantor and if it may be taken to any effect by any reasonable intendment it shall be and the intent of the parties shall be observed as here of using this word Reversion not in its proper signification for then it first ought to vest as in Reversion presently by Attornment and not at a day to come but as a demonstration certain of the land viz. all the land that they have in Reversion and that they will not have the land to pass in the degree of a Reversion but in degree of Demeasne And the Law will That when the intent appeareth incline the words not apt of their proper and common signification to the intent and one word shall have the sense of another as Litl fol. 121. Dedi concessi by the Disseisee shall enure as a confirmation So 17. E. 3.8 Mannor pass by the name of Fee de Chivalry So 10. E. 44. 5. H. 7.1 plead Demise by words of licence to occupie where one word includes in it one thing as here Reversion includes the land the thing included shall pass by the word as 11. R. 2. Piscary pass per a quam and 40. E. 3.45 Soil by Piscary and by Turbary 7. E. 3.342 So Soil and Wear by Gorss for 14. E. 3. Formedon lyeth de gurgite So 6 E. 3.183 By the name of one acre cornubiensi for Cornish acres contain so many A man Grants his Remainder of one acre to have and to hold the same Reversion of that acre good because the Law respects the intent of the matter and applies the words to it So a Gift in Tail reserving the first three daies a Rose and after 10. s. good because one rent in substance A man seised of two acres Leases one for years and after maketh a Feoffment of both Livery in this wherein he hath possession by Attornment the Reversion of the other passeth 7. E. 4.21 So 30. E. 1. Totum Molendinum suum the Reversion of the third of the Mill which was in Dower pass but Tenant for life ought to Attorn upon the Grant Brook grants f. 30. the Habendum explains and corrects the words of the premisses as here the words Reversion of the land to the land it self being the same substance So 7. E. 3.308 A Rent Granted out of a Man nor to take off one acre of the same Mannor nothing shall be charged but this acre in performance of the intent of the parties by the Serjeants for the Plaintiff Anthony Brown Serjeant for the Plaintiff Tenement compriseth a Reversion as 33. E. 3. the King licences to purchase Tenements in Mortmain he purchases a Reversion good Fitzh grants 402. and Cook Alienation fol. 55. is Advowson yet the word Tenement here agrees not with the premisses First because that in the mean time after the first Lease finished at Michaelmas the land is in possession and then it is not a Reversion because no particular estate and therefore may not yest as a reversion as 21. H. 7.11 before fol. 25. Remainder may not vest but during the particular estate and not at the ending of the first estate up on Condition broken So 10. E. 3. dower of a rent reserved upon an estate Tail good so long as the estate continues otherwise it is if the Tail be altered in Tail after possibility or Tenancy by the Courtesie for that the inheritance is determined and the rent is now in another degree 12. E. 3. and 10. H. 7.13 by Keeble if a rent be granted with a cessing during the nonage of the Heir the Wife shall have Dower and Execution shall be staid otherwise the Wife of the Son dying within age for that during the Cesser she had not possession Secondly because the Reversion cannot be granted at a day to come for then he shall have the particular estate in the mean time and shall be Lessor to himself and 38. H 6.38 a man cannot reserve the lesser estate giving the greater without alteration of the Lesser as in 8. H. 7.3 by Vavisor before fol. 152. A. hath rent in Fee and grants this to B. after the death of I.S. void because the Fee passeth presenly if ever and then he should have Franck-tenement of his own grant until I.S. dies And the Estate shall not be so devided without alteration of the whole Estate for a thing in esse cannot be granted to be in esse one time and to be insuspended or differ from the other but a new rent may be granted to commence at a day to come for there he shall not have the particular estate in the mean time because not in esse before after fol. 197. Time material shall void the thing in all viz. both the premisses and Habendum not e converso if it may not pass according to the limitation thereof because time parcel of the parties intent and if it may not pass as to the intent all is void As a man hath a Rent or Term and Grant it if he stay there good if he saies besides Habendum after the death of I. S all is void after fol. 250. So the Remainder void if the Termor enter without Livery Litl 12. But if the Term was to Commence at a day to come the Remainder over there it is void notwithstanding Livery because there is no estate present to which the Livery may be annexed so that the time of Commencement is materiall and Livery before its Commencement is void and Livery shall not destroy the time but the time the Livery and grant every act shall be taken strongest against the makers and most beneficial to him to whom it is made and he hath liberty in another sence to his advantage then the words purport prima facie for every Deed shall be construed
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of
the Devise shall be void So of an infant which maketh his will publisheth it and dieth at ful age it is not of any effect because death without good Commencement giveth not effect And so the Commencement and the intent of it is to be considered in every act So the Disseisee of two acres in Dale releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed the Disseisor before the first of May disseises him of another acre and the release is delivered the 10. of May the right as to the 3. acre shall not pass because the first livery was void to this intent so the consummation of it which is the second livery So I have a Reversion of two acres that I. S. holdeth for life after I purchase the Reversion of another acre which I. S. holdeth for life after I. S. Attourns to B. for all three the third acre passeth not for Attornment passeth not more then was contained in the intent of the first Grant And so here That which is not in the intent at the begining Commencement of the grant shal not be in the intent at the consummation of the same but if he had published his will after he had purchased the new Land there it may be all might pass for by the new publication his intent shall be taken That all that which the words contain at the time of the publication will pass and by him if a man Devise a thing by a name certain as the Mannor of D. or white acre and after purchase the same it shall pass for it shall be taken that he intended to purchase it or otherwise the Will shall be void to all intents 39. H. 6 18. But here when he hath 10. acres and Devises all his Lands they are satisfied in passing of the 10. acres and there is no meaning by the words for the land purchased after the Will because the thing is not named certainly as the Mannor of Dale or White-acre Also he may not Devise the 12. acres because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will because it speaks of having Lands which he may Devise and here he hath not those at the time of the Devise Quaere of the case where he Devises by special name and after purchases it because of the word having Second point if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor Manwood for the Defendant Because it is more consonant to the will of the Devisor and reason That the effect shall take place and the form perish rather then both should perish together as Devisee for life the Remainder over dies in the life time of the Devisor it is a good Remainder and shall have the immediate possession which is the effect yet the form was for to have by Remainder So if a Dean die or a woman Covert taketh another husband before their Devisor dies yet they are especially named Land shall vest in the new Dean and his Successors and in the woman which is now the wise of another according to the intent because it cannot according to the words and if the intent of a man in Conditions shall be performed as 4. H. 7. by Joy he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori the intent in Wils shall be observed where the words cannot and the effect here is that the Heir shall have the Land and it is the form of the limitation that he shall have it by discent 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn good And Parson shall take because it was comprehended in the Devise although he was not named Lovelas and all the Justices besides Walsh to the contrary For by the death of the Devisee the Devise is countermanded for that the Devisee is not in rerum natura when the Devise took effect and in all gifts be they by Devise or otherwise there ought to be a Donee in esse capable when the thing ought to vest or otherwise the gift is void and the word Heirs limits the estate and not the persons which shall take and enables the Devisee as well to alien as to permit it of Discent for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee and a thing at his pleasure And things of sequel which ensue if the estate had been vested first as are Discent Dower Escheat are not good causes to make things vest in others then those to whom limited And therefore the heir shall not have the land here no more then the woman shall have dower or Lord Escheat if he had died without heir which should be so if it had vested in the Devisee And therefore if a man Devise a Lease or goods to I. S. which dies and afterwards the Devisor dies the Executor of I. S. shall not have them The speaking to the Son of the Devisee That he shall be his heir c. is void for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing and those are sufficient in themselves for to make the thing devised pass and not regard words without writing by all the Justices but if he had published the Testament of new the Devisee should have the 12. acres in this case for that it had been as it were a new Testament but not his heirs Delamer against Barnard A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail Remainder to the husband in general Tail 10 El in K B â—…r Remainder in Fee to the brother of the husband and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother being in Remainder in Fee 2. E. 6. The brother infeoffs the Defendant the Husband dies the heir of the first Feoffee enters to revive the use to the Wife and adjudged lawfull 1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use is drawn out of him and setled in the second Feoffee and by consequence all the uses which were created out of the first Fee-simple are discontinued and shall not be revived untill a re-entry of the Feoffee after the death of the husband and that he may enter then notwithstanding the Feoffment of the Brother 2. The Feoffment of the Brother in Remainder is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession nor in esse but only a right which he could not grant neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
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
first and after of the Land in sense and so by exposition the words shall be altered and so marshaled that the intent may take effect So a termor deviseth all his terme to his Son neverthelesse his Will is that his Wife shall have it for her life holden a good devise to both by conversion of the words So a Remainder to the Church of Saint Andrew in Holborne good by devise 21. R. 2. although the Devisee is not capable because the Testator intended that the Parson shall have it Cestuy que use at this day devise that his Feoffees shall be seised to the use of one A. in fee this is a good devise of the Land Adjudged in the Case of Lingen yet after 27. H. 8. he cannot have Feoffees to his use because the intent was that he should have the Land So the Executor shall not sell the Land according to the devise but take the profits for two years to his owne use the heire may enter because the intent of the Testator maketh this a Condition 38. Ass 31. Incertainty in Contracts reduceable to certainty by contingent standeth good As if I lease to one habendum from the death of J. untill such a Feast which shall be in the year 1620. good if J. dye before that otherwise it is void Two properties of a terme as where Lessee for yeares which grants over his terme enters for not payment of Rent and retaineth untill he be paid his Arrerages thereof So of a Conusee of a Statute which hath the Land extended so upon a Lease for yeares of a Mill except the Profits to the Lessor for his life and adjudged a good Exception And if the Lessor enters he hath a property incertain and the Lessee another 39. H. 6.37.8 So it is of Sheepe letten for to compester or a Chain of Gold pledged 5. H. 71. they have one Property and the owner another Cestuy que use devise the Profits and Issues of his Lands fol. 509. b Cestui que use before the Statute of 27. H. 8. Devise his Land and after the Statute publishes his Testament of new the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute Cestuy que use devises that his Feoffees shall stand seized to the use of himselfe for life with remainder over this is a good Declaration of the use during his life yet the Will cannot take effect untill his death Quere of this Case fol. 508. b. Bransbie against Grantham AN Executor having a Terme P. 20. El. in the Kings Bench E. firme as Executor devises the Terme to a stranger and maketh his Sonne Executor and dies the stranger enters into the Land by the Assent and Consent of the Executor And after the Executor enters And adjudged that his Entry was lawfull and the devise voide And by consequence the assent given to a voide thing shall be also void and shall not enure as a new grant but onely and assent to the thing devised 1. Because that the Executor cannot devise any thing which he hath as Executor 2. For that the Executor hath the Terme here to the use of the Testator and no man can make a devise of any thing except that he hath it to his owne use And therefore the Husband cannot devise the Terme of his Wife And then when the Executor dies his Executor hath it by Title before the devise as Executor of the first Testator and the property that the Devisor had as Executor is determined hy the determination of his Office of Executorship which is ended by his death and the last Executor hath it by Relation as immediate Executor of the first Testator So an Executor cannot devise the goods of his Testator and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator because the last Executor hath them as immediate Executor to the first Testator and to his use as if they never had been in the last Testator by Relation Hare against Bickley A Prebendary after Admission and Institution and before Induction and Installation grants an Annuity for him and his Successors The Bishop confirmes it and after the Prebendary is Installed and on the same day of the Installation the Dean and Chapter conconfirmes also and after the Prebendary dieth and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend and Adjudged that it lyeth not because the Grant before Induction was voide Induction giveth to the Probendary the possession Temporall and Freehold and the Confirmation is nothing without the Possession And therefore without Induction a man shall not have a Writ of Right nor Spoliation Trespasse nor Assise otherwise it is of a Quare Impedit For in the first he alledges Esplees but not in the last 26. H. 8.3 But by the Admission and Institution he hath care of Soules and is inabled to administer the Sacraments c. And the Arch-Deacon shall make Induction to the Parson and Vicar but shall not make Installation to a Prebendary but the Deane and Chapter shall doe it No Plenarty against the King before Induction for that it is corporall seisen and possession 38. E. 3.10 So the King confirmes to the Collatee of a Bishop before he is inducted the Confirmation is voide 11. H. 4.7.1 H. 5.1 He which hath the Nomination is Patron and he that presents is his servant Induction is triable by the Countrey So if Parson or not and it shall be tried where the Church is 21. E. 4.7 and 33. A woman recovers in Dower she cannot enter but ought to have seisen delivered to her by the Sheriffe as a Copyholder ought to be admitted by the Lord of the Mannor if it discends to him before he shall have seisen in judgement of Law So a Prebendary Parson or Vicar before he is Inducted or Installed hath not seisen nor is full Incumbent for to charge the Possessions of the Prebond Parsonage or Vicaridge Crosse against Howell THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London and in the 21. H. 8. they bargain and sell certain Land by the name of A B C and D. Master and Wardens of the Craft or Mystery of the Cookes of London to R. D. for money without naming his Heires and the Barganee enters and levies a Fine with Proclamations and five yeares passe And adjudged that the Corporation shall be bound by the Fine and Nonclaime and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed by him which had their Letter of Attorney so to doe is meerly void 1. The bargain and sale was made for the variance of the Indenture from their name of Corporation for they were
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep
thereof he entred this is a departure from the Bar for it is a new matter For the same reason a special agreement in evidence shall not maintain the general issue one witness is not enough nor one Juror for to try an issue if more were warned by the Sheriff 8. E. 3.50 So here the Defendant had but one witness which proves for him which is not sufficient and so judgement shall be given for the King Atkins for the Defendant A witness produced to prove a thing if he saith That he knoweth nothing of the matter his deposition is void so if he depose negatively as to say no more was not entred then so much and if no witness the knowing of the Jurors aid not the tryal of the matter and a Verdict given contrary to the testimony of witnesses good It is not needfull to aver that which of necessity must be intended as that the King hath a Beam there special agreement is an agreement as a Feoffment upon condition is a Feoffment and so this word Agreement includes every agreement by which the evidence well maintains the issue The Statute speaks not of surety and peradventure intends it not and therefore in vain to speak of it and therefore it may be he hath not answered to this exception Agreement in our Law is threefold viz. Executed at the beginning of it with payment intended by the Statute of 25. E. 3. cap. 3. which saith That goods bought by fore-stallers are forfeited to the King if the buyer had made agreement with the seller such agreement is not meant in our case because then the Statute should not be intended in the disjunctive for then the first and the second clause should be all one but the word Or disjoyns the clauses Agreement to an act made by another as in 20. E. 4.9 To a disseisin to his use maketh him a disseisor from the beginning so the party ravished to agree to the ravisher is an agreement executed here because nothing is to be done afterwards and agreement here may not be an executory agreement because the performance shall be afterwards yet both parties accord at one time before 26. H. 8. cap. 3. intends such because it speaks of payment or agreement for first fruits c. and common usage to pay after upon obligation made before proves this which intends agreement executory and here agreement is intended executory because it is not the first nor the second and an agreement executory is Duplex the one certain at the beginning as this of first fruits the other by matter ex post facto upon certainty to be known as here and such agreement executory the Statute will warrant for no Law will punish him in whom there is no default and where he cannot prevent the mischance by no possibility for the necessity of the matter and for that inevitable chance shall not prejudice any 20. H. 7.11 Fineus A man by the Common Law may kill another in his own defence or as a champion for the necessary safeguard of his life and the Tryal of right so notwithstanding the custom of the Realm new Natura brevium 94. b. If enemies of the King steal of Guests the Hoastler is discharged because he cannot resist So if the ship were on fire the casting of the goods on the land without payment or agreement for the Subsidie shall excuse the Defendant so here the extremity of the Tempest doth excuse the vigor of the Statute Sanders the Kings Serjeant Notwitstanding that an agreement conditional is included in the words of the Statute viz. The Collector not agreed with yet every Statute although it be penal shall be taken as the makers intended for the Statute of Waste is If any make waste in Lands which he holdeth by Demise c. yet if his Estate be Ex ligatione it shall be punishable in waste and yet the Statute gives Ex demissione onely suo de assignat and so it is holden 10. H. 6.3 But Gloucester cap. 5. W. cap. 14. nor Martebridge cap. 13. speaks nothing de demissione So quia emptores terrarum viz. W. 3. speaks secundum quantitatem terrae intend valore So 4. E. 4.12 An information for shipping Wooll without sureties of the carrying of Bullion according to the 14. E. 3. the last chapter holden good because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll other then Custom and Subsidie granted to the King and without assent of Parliament and the two last Staâ—intend not for to discharge Bullion but great Subsidies upon Wooll after 3. years so that the mind intent of the makers shall expound the general and doubtfull words of Star and abridge the generalty of them so here it shall be intended an agreement certain Also because the Commons pray the King That he will be pleased to accept of their Grant for that the words of the Statute which is their Grant shall be taken more beneficial for the King and most strong against the Grantors according to the Principle of the Common Law in case of a common person So the Statute of Prerogativa Regis 17. Ed. 2. Rastal wards 13. is the Grant of the Commons to the King which saith The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite whereof the Tenants were seized in their Demeasne as of Fee at the day of their death of whomsoever they hold also by like Knights Service and notwithstanding that Fee is commonly taken to be Fee-Simple yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments Agreements upon which the Common Law giveth no remedy are void and not good as in 19. H. 6.36 Upon an information for the forging of false Deeds the Defendant pleads Arbitrement made viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant and saith also That the Defendant shall be non-suited in the Assize This is no Plea because non-suited founds not in satisfaction and cannot compell him to be non-suited for the award is not good if it be not executed wholly or the thing awarded may be recovered by action and therefore in 6. H. 7.10 In Trespass to say That he hath paid money but he hath not made his windows which the Heir may compel him to do for the concord is intire but wants execution in all and indeed before action brought is not good then it is performed yet not immediately and therefore it was held no Plea So in 27. ass pl. 5. A Baily known pledge the Ox of his Master for Wheat and if he pays not c. he shall keep the Ox alwaies This shall bind the Master because the wheat cometh to his use otherwise
not because he had no recompence So in 17. E. 4.1 In Trespass for the taking of wheat the Defendant pleads That the Plaintiff sold it if he liked it upon view he should have it paying 40. d. and afterwards he saw it liked it and took it this is no good justification because he doth not alleadge payment so here So contracts conditional are good when they are performed but before performance they are onely communications Brook Recorder of London for the Defendant Where matters are to be tryed in the Civil Law there ought to be two witnesses here not necessary For where tryal is by twelve men because the Inquest may give a precise Verdict where there is no Testimony or Verdict or Evidence or Evidence be contrary to the Witnesses as in 14. H. 7.2 the Inquest acquit one indicted of murther he is arrained and acquit the Jury shall say who killed him although they have no witnesses and so witnesses are not necessary but where the matter is to be tryed by witnesses onely for if the witnesses were so necessary then it would ensue That the Jurors should not give their Verdict contrary to the witnesses where the Law is meerly contrary for when witnesses for tryal of the Fact joyn with the Jury if they cannot agree with the Jurors the Verdict of the 12. shall be taken and the witnesses rejected wherefore this point is clear enough And as to this which hath been said by Bradshaw That the deposition of Da. will make against us for that he saith That S. shewed to him that the entry was not made for more then 2000 Kintals Sir this saying is nothing to the purpose for if he cannot say something to prove the issue in which he cometh to depose then it is neither with us nor against us but it is of the same effect in Law as if he had said nothing or that he knew not of the matter and so this point is also clear enough And as to that which hath been moved also by Mr. Attorney That he ought to shew what rate in certain Sir this needs not here because it is expressed in the Statute 12. d. of every 20. s. and of general Statutes every one shall take notice And he argued and said That the agreement here shall be good and is within the intent of the Statute for in many Cases Gifts and Grants made will not be certain at the beginning and yet shall be good for that there is a mean to reduce them afterwards to certainty and yet the nature of Gifts and Grants is to be executed presently and every Gift is an agreement between the parties and so is every Grant and then if Gifts and Grants which are also agreements and the nature of which is to be executed properly at the time of the making of them it shall be good notwithstanding they are incertain at the beginning à fortiori Agreements Executory of things shall be good where they are incertain at the first and to prove that such Gifts and Grants shall be good notwithstanding their incertainty at the first there are many Cases and therefore if the King at this day grant over certain Lands which have come to his hands before and Grant over to the Grantee such Liberties Priviledges and Jurisdictions howbeit that the King knoweth not the certainty of the Liberties c. yet the Grant is good So in 9. H. 6.27 The King grants to the Dutches of York an Island with all Issues and Amerciaments c. there it is holden that the grant is good yet the King knew not what Issues or what Americiaments shall be afterwards forfeited but for that that when they shall be forfeit they will be certainly known and so hath a means to know the certainty of them this is the cause that the Grant shall be good And so in 5. E. 4. the King Granted to one called Garter the Office of the King of Heralds cum seodis prosicuis ah antiquo c. There this Grant purports a certainty of the Fees and Profits belonging to it and therefore good And so in 30. H. 6. The King Grants all such Lands as came to him by Attainder c. it is good although it comprehends no certainty And so if the King will pardon all Riots Pardon is good howbeit it comprehends no certainty 21. H. 6.43 A Parson grants to me his Tythe-wooll the next year or perquisites of his Court the Grants are good So Perkins 17. Feoffment of two Acres to hold the one for life the other in Fee without saying he shall have Fee if he lose both by default he may have Quod ei deforceat for the one and Writ of right for the other So if one grant a rent charge to another the Grantee may avow or have a Writ of annuity So in 9. E. 4.36 per. Litt. Grant 20. s. or a garment good because certain by the will of the Grantor So a Lease for so many years as I. S. shall name is good So Perkins Fol. 17. If I have a black and white Horses and I give one of them to I. S. this gift is good notwithstanding the incertainty by the election of the Donee And although it is not concluded who shall weigh and when yet it is good because there is an Officer in every Port which keeps a Beam and ought to weigh And although the Statute do speak of an agreement certain yet Law the reason aswaies exempts something out of the prohibition of the words of Statutes as 15. H. 7.2 by Keble a Prisoner which breaketh Prison by the words of the Statute is a Felon but if he break it when it is on fire not So 14. H. 7.29 Stamford 25. cap. 5. Jurors severed by a great Tempest shall not be Amerced and their Verdict good So W. 2. cap. 3. Gives not to a Fem Covert Receipt but where the wife is ready to answer yet the wife received by prayer in aid 20. H. 6.48 and there she is received where she is not ready to answer because otherwise she shall loose the recompence by warrantie So W. 2. cap. 1. say That Dones shall not alien yet 5. E. 2. is intended of their Issues so here for to avoid mischiefs c. Harris the Kings Serjeant to the contrary And he argued as the Kings Attorney did that is to say That the evidence which proves the agreement upon condition warrants not the issue which shall be intended a general agreement as if the Derendant in Trespass plead not guilty and give a licence in evidence or in formedon in discendre upon a gift in free marriage if the gift is traversed and a Deed is shewed of the gift in free Marriage the Remainder over in Fee or upon traverse of a Lease for years alleadged without Deed and the Deed is shewed in evidence this evidence warrants not the issue So here an agreement conditional maintains not the general agreement intended in issue the Collector could
the patol Demur in cui in vita per nonage of the second vouchee because he was not heir to the husband and so because penal here in savor of him it is restrained to the heir of the husband onely So by W. 2. cap. 11. an accomptant found in arrearages shall be imprisoned by Auditors and saith not when in 27. H. 6 8. In debt for arrearages of accompt it is adjudged That if the Auditors do not commit the accomptant to prison presently after the accompt and therefore the generality of time is restrained to a particularity by the rule of the Common Law in construction of Statutes and also by the intent of the makers for if the scope and end of the matter is satisfied all the matter and intent of the matter is accomplished and the scope of the Statute here was That the King shall have the Subsidie and the agreement here sufficeth for that because it authorizeth the King to weigh Woad by the Collector when he pleaseth and then the King hath Title of Action and so the surety of the King thereby is referred to will Also such agreement hath been allowed upon the same words of former Statutes for Subsidies Also if the Statute had expressed the agreement in certain yet agreement uncertain should have been good here and out of the penalty because the infringing of the words of the Law without the infringing of the intent of the Law for upon some accidents the law priviledges some things done against the words of the Law of the nature of the Law of this Realm and of other Realms and the Law of God viz. First for to avoid greater inconveniencies Secondly for necessity Thirdly by compulsion Fourthly by involuntary ignorance First for the avoiding of greater inconveniencies as 22. ass pl. 6. where a man of non sane memory and in his rage did great hurt and another man and his parents took him bound him and beat him with rods and here it is holden that they might justifie this in avoidance of greater damage being of non sane memory and yet the Law of nature and of the Realm prohibites battery but this particular case for the avoiding of greater mischief hath one exception and special priviledge So 1. H. 6.9 The Lord contrary to the Statute of Marlebridge may lead the Distress from the Land into another County where the Mannor is for it should be prejudicial to the Lord if he should not carry the distress to his Manor Amongst the Romans they had a Law That every one which should scale the walls in the night should be condemned to death and one in the night did scale the walls in the time of War to discry enemies to the Romans and he by the judgement of the Senate was not onely discharged but had a reward therefore so such interpreting of Laws is a tempering of the rigor of the Law Secondly necessitas non habet legem and therefore it is a good excuse in every Law as 38. H. 6.11 Increasing of water excuseth a default in a precipe quod reddat because he could not appear without danger of death yet the Law abhors every default because it is in contempt of the Court So David did eat bread for necessity although prohibited by the Law of God Thirdly compulsion excuses in Law as the avoiding of an obligation made by dares So if the arm of any man is drawn by compulsion and a weapon in his hand kill another this shall not be Felony nor he damnified because he did it by compulsion Fourthly involuntary ignorance doth excuse as 3. H. 7.1 Kell fol. 268. An infant killeth another it is not Felony because he hath not discretion and it shall be imputed to his ignorance which is involuntary by compulsion of nature so no default in him So Fitz. Nat. br 202. b. if one of non sane memory kill another because his ignorance by compulsion viz. the hand of God and such other things done by ignorance because not to be resisted and this involuntary ignorance is cause of the Act and therefore he which kills another by involuntary ignorance As by thâ— fall of a hatchet out of his hand shall have Sanctuary Deut. 19. But ignorance voluntary is not priviledged as if a man killeth another because this ignorance cometh by his own act and folly which he might have resisted and therefore shall not be priviledged because he himself was the cause of such ignorance if any were à fortiori in all the cases together before mentioned shall excuse for the Law is not offended for the said four causes the incertainty of the agreement here and therefore in as much as the Statute saith The Collectors not agreed with and so gives him authority to agree with the Collector and the Defendant hath made a special agreement with him which is an agreement and so within the words of the Statute if seemeth that by the rules of the Common Law used in construction of Statutes is by the intent of the makers and by all reason and equity shall be adjudged a sufficient agreement and warranted by the Statute and therefore demanded judgement against the King and so it was adjudged But all the Judges were of opinion against the King onely Hales and Montague and afterwards the King sent his Privy-Seal Colthirst against Bejushin 23. Trâ—… E. 6 in the Common Pleas. En Trespass the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret residens esset in and upon the aforesaid Grange and Farm and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life if he also would inhabite there during the Term aforesaid and saith That W. did dye in the life of H. and E. and after H. and E. dyed also and the said B. now Defendant entred without shewing in certain when and took averment that he had inhabited there alwaies after his entry and upon this Plea the Plaintiff Demurs and it was adjudged against him for the Defendant 1. For that the averment of his continual residence is surplusage and therefore the incertainty thereof nil refert by Harris Hinde and Montague 2. It is not a condition compulsary but a thing elegible at the discretion of the Defendant by Montague and then his entry is not material but at his pleasure 3. Admitting that it be a condition yet it is subsequent and in defeasance of his Estate and therefore ought not to be shewed by him which shall have benefit thereby the contrary is of a condition precedent 4. For that it is pleaded by way of Bar and being certain to a common intent it sufficeth and it shall be intended that he entred immediately after the Remainder happened but by Hales Justice this common intent ought to be of a vehement presumption and not indifferent 5. That this word if W. dye then
day of the entry for a Bar good to a Common intent is not good because parcel of the Substance is left out and because Durante termino is for all the Term for that the time which is parcel of the Substance of the Bar ought to be shewed as the Obligee infeoffees fee another before M. he must shew in certain what day he did infeoff him So 3. H. 7.3 the Lord which Leaseth within the year entred for Mortmain for otherwise it shall not be intended for to enter within the year if he doth not set it forth but the Bar is good where such things are limited because that by special and not by general intendment they are omitted as a Feoffment in Bar is good to a Common intent yet it may be That the Feoffor was within age or in prison but such special things shall not be intended by the Law but shall be shewed As to the matter there are principally two things upon which Arguments may be made viz. Maxims and Reasons the Mother of all Laws and the Maxims are the Foundations of the Law and Conclusions of Reason and therefore are holden as firm Principles and Authorities of themselves One is a Remainder shal not be limitted except it be to a person capable at the time as to a Monk profest which afterwards is deraigned after this the Tenant for life dies the Lessee for life shal not have the remainder because he was not a person able at the time of the remainder limited to take it so a remainder to him That the particular Tenants shall name and after he nameth one yet the Remainder is void for the cause aforesaid But 32. H. 6. if the remainder is limited to the right Heirs of Jo. S. who is living and he die before the particular Tenant is good because I. S. shall be intended then dead also because by all presumption and intendment of Law I. S. may have an Heir which the Law will appoint in despight and so will be certain and therefore the Remainder good but shall not be good where it stands indifferent if he to whom the Remainder is limited will be a person able or not Another Maxim is That a Remainder may pass out of the Lessor at the time of the Livery for that Richel saith in Litl 162. the Remainder is void for this cause amongst others so here it passeth not by the first Livery because a Condition precedes the Commencement of the Remainder viz. if W. die living the Husband and Wife then the remainder to the Defendant and so passeth not at the first Livery and therefore void Brook Serjeant to the contrary As to the uncertainty of the time of the Entry the Bar shall be intended the better for the Defendant which is That he entred immediately and the Bar sufficeth which is good to a Common intent And therefore about 20. E. 3. it is holden That if one plead in Bar That one I. S. died seised and R. S. entred as Son and Heir to him whose Estate he hath this shall make the Bar good and yet it may be that he was not Heir for it is not expresly said That he is Son and Heir but that he Entred as Son and Heir and yet in as much as it is pleaded by way of Bar the best shall be intended for the Defendant so here And he argued besides much in effect as Cook did Sanders Serjeant for the Defendant The Bar is good to a Common intent and the best shall be intended for him which pleads it for a Plea in Bar is alwaies made for two causes The one to enforce the Plaintiff to make his replication The other is to compel him to joyn Issue which cannot be joyned upon the replication as it may upon the Bar and then the certainty shall be in it and not of necessity in the Bar and therefore the Bar good if it be good to a Common intent As in Assise the Tenant pleads in Bar a discent to the Plaintiff and to two others and that he hath the state of one and it is a good Plea because it is intended lawfully yet he may have it by Disseisen and then he is a Disseisor to the Plaintiff also for he cannot be a Disseisor to one except he be so to the other So 27. ass 31. in an Assise by the Heir the Tenant saith That the Father of the Plaintiff being Tenant by the courtesie and now in life Leased his Estate to his Father which died and he is in as Son and Heir Judgement if Assise and held a good Bar yet he doth not say That he was the first which entred and yet good So 21. H. 6. 17. here fol. 26. as to the Remainder it shall be good because it is a principle that it shall be taken most strongly against him which made it and therefore in 31. H. 8. If a man gives to a man and to Heirs without his it is Fee yet he giveth not Fee expresly So 18. E. 3. 28. after 170. A good Remainder by word That after the Decease of Tenant for Life the Lands shall return to A. and B. in Fee So a Remainder to the right Heirs of I. S. in Life passeth presently and shall be in abeyance rather than void and that if shall be to the benefit of the Lessee against his own Livery and limitation as alwaies the Law interprets words strongest against the Speakers as in 40. E. 3. 5. 49. E. 3. 1. A Termor counts that he left this as good as he found it and the Wind blew down the House it is not waste but Covenant lies for the special Agreement alters the Law and maketh his words to be taken more strongly against him So the Law taketh the Acts aforesaid strongly against the Makers And therefore if I. give to B. Land upon Condition That if he Marry my Daughter he shall have Fee if he Marries her he shall have Fee for by the Livery it taketh Commencement and by the performance of the Condition it taketh perfection and in the mean time it is ambiguous So a Lease for years upon Condition That one moneth after he shall have Fee he shall have it after the moneth accordingly for the thing passes according to the Covenant most strong against the Donor So a Lease to two upon Condition That if the one die within seven years that then after the death of the other it shall remain to a stranger good and Privies and strangers are all one 24. and 32. he differs because he hath an Estate first given to which the Condition may be annexed and Livery and by imitation shall be taken strongest against him which makes it Three things one shall have by Remainder First he shall have a Remainder to vest Secondly a Possession in Law and Thirdly a Possession in Deed if he be capable at the time of the Possession in Law cast upon him it sufficeth 28. against it as 17. E. 3. 29. and
compulsive so that he shall have prejudice if he doth not but is a thing obligable at the will of the Defendant and then his entry is not material but is at pleasure and therefore the not shewing thereof shall not make the Plea vicious Admitting that it be a Condition yet it is subsequent and in Defeasance of his Estate 30. And therefore shall not be shewed by him but by him which shall have benefit by the breaking of it So if a Condition be enlarged which may be good leaveth that out which is material because it is Surplussage Also it hath no Livery for to convey Title nor hath it enabled him any waies to take the benefit of the breach of the Condition if it were broken because he hath Demurred generally upon the Bar in which the Defendant hath not acknowledged any reversion And so it appeareth not by the Record that he is other then a meer stranger And by the Common Law no man shall take benefit of a Condition but such a one as is privy And therefore 38. H. 8.34 Pattentees of the King after 177. Also if it be a Condition during the Term it shall be intended all the Term as a man bound to perform Covenants is bound to perform all and his Feoffees fol. 30. Yet if he be sometimes absent and his Family there it is good because the Law shall have a reasonable Construction in things alwaies If W. dies then the Remainder is a Limitation and appoyntment of the time when the remainder shall vest But admitting that it be a Condition yet a Remainder may depend upon a Condition which every lawfull owner of the land may give to what person or persons and in what manner and at what time he pleaseth if his gift be not against Law or repugnant as 10. E. 3.39 A man makes to his Termor in surety of his Term a Charter of Feoffment upon Condition That if he be disturbed of any part of his Term that then he shall have Fee he was disturbed and afterwards outed and recovers in Assise which proves that the Franck-Tenant passed upon condition express to the Livery be it mediate or immediate it stales not the Remainder because his Livery shall be taken most strongly against him So 27. H. 8.24 Remainder to a stranger if the gift fail for bearing of the standard So in Plessintons case it is held That the estate of Free-hold there could not Commence upon Condition but the cause wherefore was because he had not the Free-hold upon performance of the Condition which was repugnancie So a Remainder upon condition contrary to the Law or impossible is not good because a Condition unlawfull or impossible may not obtain the thing by doing of it So if the Doâ—… aliens then it shall remain is not good because repugnant for when he hath aliened to one it may not remain to another Remainder ought to have estate precedent for that 9. H. 6.24 Lease to a Monk Remainder over void because a Monk hath not capacity and so the estate which precedes the Remainder void Remainder also ought to be of a thing in esse before and therefore a Grant of a rent out of land remainder in Fee void because the rent was not in esse before and the remainder here passeth presently by the Livery upon possibility to be afterwards performed and vests when W. dies and in the mean time rests in abeyance as 15. H. 7.10 Fee Tail passeth upon possibility That a Fem Covert and a married man may inter-marry and in the mean time the Inheritance viz. The Tail shall be in abeyance but holden there That they are seised in Tail presently and concludes that the Remainder is good and the pleading also and so the Plaintiff shall be Barred Plat against the Sheriffes of London ONe Goodlad was in Execution Ludgate upon a recovery in Debt had against him by plaint in the Guild-Hall of London 4 E. 6. In the Excheq and going with a Baston that is to say a Servant of the Gaolers attending upon him into Southwark in the County of Surrey and the Administrator of him which recovered brings his Bill of Debt into the Exchequer against the Sheriffs for the escape and adjudged that he should recover thereupon But no exceptions were taken to the Bill and the reasons of the Judgement were 1. For that the Action lyeth at the Common-Law by 45. E. 3.9 Debt against one Abbot or Prior and also for that That he had not remedy against him which escaped for by the esape he is discharged for ever against the party and the Goaler also and the Officer which suffers the escape is charged contrary to 13. H. 7.1 But the Action lay not by the Common Law by 42. ass 11. 2. Admitting that it lay not by the Common Law yet it lyeth by equity of the Statute of 1. R. 2. c. 12. which gives an Action against the Warden of the Fleet or by the equity of the Statute of Westm 2. c. 11. which gives an Action against the Gaoler which suffers an Accomptant for to escape 3. The defendants have admitted the action good by their Demurrer 4. That it is an escape because he was out of the Jurisdiction and Authority of the Sheriffs and that his Imprisonment is ended the last instant that he was in London and his escape began the first instant that he came into Southwark and so he was never in prison in Southwark for he had no guard there The effect of every suit contains and implies in it selfe 3. things First to shew the verity of the matter to the Judge thereof which is the duty of the party Secondly to have judgement to recover and execution thereupon and this is the duty of the Judge Thirdly the making of execution for to take the Defendants body and detain it in prison and this is the duty of the Officer and because he only hath offended it is reason that he be punished that is That he answer the loss to the Plaintiff for that he hath not any remedy against him which escapes nor the Gaoler never apprehended him because a personal thing once suspended is extinguished and therefore if the Debtee maketh the Debtor and another which surviveth the Debtor his Executors yet the Debt is extinct and the person of either of them discharged Therefore in respect that after the escape the Plaintiff shall not have other execution and so without any remedie against the Defendant in the first suit the Common Law which is Common Reason provides That the Plaintiff shall have an Action of Debt against the Gaoler in whose default the Execution of the Plaintiff or otherwise the Common Law will be defective in this point And therefore by 45. E. 3. 9. Abridged by Fitz. h. in Title Debt 130. which was before the Stat. of R. 2. where a Prior dative and removeable le ts one in Execution in his Guard for dammages recovered in his Court of Py-powder escape P.
a Recovery as a Fine is without Attornment for the habere facias seisinam recites cum A recuperavit seisinam suam c. because the Husband raised the use First it is his purchase and so within the words of the Statute and if not yet it shall be within the equity and nevertheless it is penal Sanders for the Defendant The Statute here is penal because it goeth in avoidance of Estates and abridges power and therefore not equitable And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty because he vouches an Infant and yet it is adjudged 18. E. 4.16 If he maketh a Feoffment over this Feoffee shall vouch because penall against one shall not extend to another So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before for five years shall not take away the Entry of the disseisee yet if one Abator die seised within five years this discent shall take away the Entry And so if Tenant for life be disseised and the disseisor die within five years and the Tenant for Life dieth he in Reversion or Remainder may not Enter because he was no Disseisor to them and to the discent they had no Title to Enter but the Tenant for Life and taken strictly because it abridgeth the Liberty given by the Common-Law By inheritance is understood Land by dicent as it is proved by a case in 7. H. 4.5 and a cui in vita abated because it was quam clamat esse jus Hereditatem suam whereas it was his own purchase And by 4. H. 5. cap. 3. which speaketh of Lands by purchase or by discent and the disjunctive prove the difference between the words Purchase intends Land by gift or purchase which is by Title Disseisen is not purchase because without Title Now because the Plaintiff hath in the Replication said That the Grandfather of the Defendant was seised in Fee for to prove the Defendant to be within the first Branch the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession for the manner of coming to the Land is Issuable because it may be by Discent Purchase or Disseisen And a Joincture made by a Disseisor to his wife is out of the Statute Recovery without Execution is not a discontinuance Harris Serjeant argues to the same intent And he taketh also that Covin cannot be where the Title is good except that wrong be done by him which hath the Title and this ought to be shewed for here in respect that the Title is confessed to be good in this That it is not traversed nor confessed and avoided this Recovery may not be averred to be by Covin for this avernment is repugnant in it self and it cannot stand together to say that she did right by Covin And as to the Statute he taketh the case here to be out of the words of the Statute And note thou that he argued to all the other points moved to the same purpose that they were arguod before Molineux Justice It is a vain thing to aver this specially which is apparant as the Covin and therefore when the Tenant infeoffes his Son within age by Collusion the Lord shall seise him for a Ward without shewing this Collusion specially So if the Husband will confess an Action the Wife shall have Dower by the Common Law proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant but it was doubted if the Recovery had been by Default but here the Action had been tryed by the Verdict of 12. men the cause of the Covin ought to have been shewed because the Law giveth credence to it As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted because the Law presumes the Verdict to be true untill the Reversal be tryed upon Error in Deed or Record so that the Law hath an indifferent judgement of it viz. to be true or false And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict Also Covin upon a good Title is prohibited because the Statute of 11. H. 7. is generall And so Covin generally averred here without falsifying of the Title is good as 4. H. 7. cap. 20. saith That if a Recovery be pleaded in Bar of a popular Action the Plaintiff may aver it was by Covin generally by the Warrant of the Statute As to the second exception the Stat. expounds it self to be intended of a Recovery without execution Every Fee-simple is an inheritance and then she had an use in the inheritance of her Husband and held that the Wife held the inheritance of her Husband that is to say his Land in use joyntly with her Husband and so within the words of the Statute and if not it shall be within the equity and intent of the Statute and he took without question that the Heir in Tail might enter presently and our the Wife which is Defendant and so held the Plaintiff should recover Hales Justice to the same intent And first to the Covin the Replication is good without shewing cause of it And the Statute is for frail inconstant women and will not make them Judges if the Title of Action be good or not 18. R. 2. cap. 17. gives receipt to him in Reversion where the Tenant for Life is impleaded by Covin of the demandants that the Tenements shall be recoverred and he in Reversion because it speaks generally of Covin 2. H. 6.14 and 11. H. 4.3 For this cause there it sufficeth to say That Tenant for Life pleaded faintly and pray to be received without shewing cause otherwise it is of Covin at the Common Law and 11. H. 7. would have limited the pain to fained recoveries expresly if it had intended so much And the Statute prohibits the Covin onely be the Title good or faint for faint Recoverie by Covin the issue in Tail may falsifie before Warranty made 20. years after the Disseisen yet it commenceth by Disseisen by the intent As if the Father Disseiseth the Son to the intent to make a Feoffment with Warranty to Bar his Wife Recovers against one which outs the Tenant by Covin yet she had not good Title of Dower is a Disseiseress and Covin is apparent here because he never took view voucher essoin or other delays which he might The Statute saith That the Recovery shall be void whereby it is not intended that it shall be executed and shall not be intended to be by Disseisen without shewing The words of 11. H. 7. explain the intent That such Wives who have Lands in use or use in Lands are within the Statute Recovery against Tenant in Tail was good onely for his life before this Stat. and therefore comprises use here because the Stat. shall not be made in vain for Tail in use may do as great prejudice as Tail in possession and so the
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
H. 8. c. 34. to enter for a Condition broken 2. The tender of the Rent on the Feast day is not requisite nor until the last instant of the 40. day 3. Notwithstanding that the Rent be apppointed to be paid out of the Land at the Feast day and not the 40. day by express words yet it shall be so intended by relation to the place last named 4. No demand here is requisite because that the Land which is Debtor is absent the contrary is upon a general reservation and if a Rent seck payable in a forreign County be demanded and denled there it is not a disseisen by Plowden contrary upon the Land The place which was once charged with the payment in the hands of the Lessor remains chargeable in the hands of any other because he hath this as a Liberty and Authority imposed upon it by the Lessor and such Liberty is saved by the Statute of suppression of Monasteries and therefore the Lessor nor the Lessee are not Trespassers by their coming there to tender and receive the Rent Rosse against Pope ROss acknowledged a reconusance to Pope after Levies a Fine to him of patcel of his Land 5. E. 6. In Chancery upon an Audita quetela and afterwards Pope sues Execution and takes the body of the said Rosse and he brings an audita querala in the Chancery and adjudged that it lieth not 1. For that the Land is not debter but the person and the Land is onely charged in respect of the person and not otherwise until Execution sued 2. For that the purchase was before Execution sued otherwise it had been if sued afterwards for then the Land was charged in facto and not chargeable And if any part be discharged by act in Law as discent or act of the party as Surrender Feoffment c. also it shall be discharged because the duty is personall and entire 3. Because that the Conusor shall not have contribution against the Feoffees but they shall have against him and here the Conusee shall not have Execution against his Feoffees for that they may not have contribution against him Wimbish against Willoughby Assize directed Coronatoribus in Lincoin upon the surmise of the Plantiff that the Sheriff was his Cosen and shewed also Tr. 6. E. 6. Assice against L. Wall That one of the Coroners was servant to the Defendant and adjudged good 1. For the speedy expedition of the Assize and the mischlef of the Plaintiff if it should be abated by the exception of the Defendant and no mischief to him and here the venire facias is awarded the first day as in a precipe 2. Coroners in Lincoln shall be intended Coroners of Lincoln for that they are the words of the King In the Argument of this case see first where a Writ Original shall be directed to the Coroners where not Secondly and when other Judicial process Thirdly an exposition of the words in and de in Writs Grants or c. Fourthly what words are sufficlent to make a Grant of a Rent charge Fifthly some matters touching challenges and where they shall be Traversed c. Partridge against Strange and Croker IN Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. H. 6. 7 E. 6. In the Common Leath Of buying and selling of pretenced Titles and Rights and alleadge this to be done 28. April 32. H. 8. where in truth it was not done this day and that the Defendants have made a Lease for years of a house and nine acres of Land pertaining to it whereof they nor their ancestors nor any by which the claim were in possession Reversion or Remainder nor took the Profits for one intire year before c. and holden 1. That the Statute need not to be specially recited and pleaded because it is general but for that it is misrecited it is not good by the Court sol 84. and yet is surplusage and it shall prejudice the party in some cases sol 29. as debt by I. S. Parson of D. it is a good Traverse because he is not Parson or that there is not such a village called D. 2. When the Term shall not be certainly pleaded for that it is Conveyance of the Action and is not material here and he which pleads it is a stranger as an Indictment of the death of a certain man unknown or the stealing of the goods of a certain man unknown 3. That a Lease for years or a grant of parcell of the Right is within the Statute because the Statute speaketh of any right and is not intended only of an entire right and that the entire value of the Land shall be forfeit by such Lease per Curiam fol. 87. That this Lease made by one in possession is out of the Statute for that it is not averred to be a pretenced right by Hales and Montague fol. 87. against Cook For they mean that he which hath possession one day or however may make a Lease or Feoffment bona fide and shall be forth of the Statute although that he hath not possession or taketh the profits one whole year without averment that it is made for maintenance and the Statute shall be intended onely of those which makes Leases c. having but a right and not the possession as Montague held a promise by him which is out of possession to depart with the Land when he shall attain the possession is within the danger of the Statute fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father and maketh a Lease for years this is within the Statute for that he Leases his ancient right So by Morgun if the heir release to the Abator and afterwards claiming by discent maketh a Lease for years this may be averred a pretenced right and then is within the danger of the Statute fol. 86 and a right is within the Statute which comprehends all rights Pretenced right is where one hath the possession and another which is out of possession claims this or sues for it by Mont. f. 88. Morgan Serjeant for the Defendant He which voucheth a Record and vary in the year or Term haith failed of his Record So the Statute here no Act without the consent of the King when all assent it shall have relation to the first day of the Parliament and from that time is an Act of Parliament unless it be otherwise appointed when it shall first take effect An act made in the first or second Session relates not but to the first day of the same Session Misrecital shall prejudice the party in some cases as Debt by I. S Parson of D. where there is no such Village D. a good Traverse and abates the Writ yet the naming of him Parson surplusage So here because it recites a Statute certain made such a day where it was not although that the day is surplusage it hath made the matter vitious although it
thing shall be as this to which it is referred it As if a man make a Lease for so many yeers as I. S. hath in the mannor of D. there he shall have so many yeers as I. S. hath and shall take avermen that I. S. had so many issiut tale corodium quale I.S. nuper habuit So 11. H. 4. 20. H. 7. grant office taking such fee as I. S. which executed the same before had ought to be shewed what he had So 20. E. 3. the King granted to Litales liberties that the Town of N. had by shewing of the records or writings prove their liberties the grantee shall have the like Browning against Beeston LEase for yeers by Indenture by which the Lessee Covenants and grants to render and pay for that land 1 Mar in ba. Ray Trespass thirty seven pound yeerly at two feasts of the yeer naming them or within two moneths after at a certain place out of the Land and moreover Covenants grants if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor then the Lease shall be utterly void extinct and of no effect and that it shall be lawful for the lessor to re-enter and after the rent was not paid and before the entry the lessor maketh a new Lease and the first Lessee bringeth trespas against the second Lessee and he pleads the matter aforesaid and pleads the condition in this manner as in the Indenture is contained and saith not precisely that the Lessee had Covenanted as aforesaid And also said that the Rent was arear by the space of two moneths next after the said feast and adjudged for the plantiff for these two causes only 1. That the pleading of the Covenant which is contained in the Indenture that the first Lessee hath covenanted is not but a recitall and no express averment that he hath made such a Covenant in facio fol. 143. by Bromly 2. Because that the pleading of the Rent arear for two moneths varies from the Indenture which is after two moneths fol. 143. b. by all contrary to Catlin for he said that this is to be intended so if necessity Matters in Law are left at large but the better opinion was for the defendant If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly be a reservation of the Rent or not and by Ramsey fol. 132 it is not 1. For that it is not issuing out of the Land by the way of Charge for pro terra implies a cause of the grant and is not words to Charge the Land 2. It is not a Rent service for default of words of reservation of the lessor as reddendum reservandum tenendum c. for this commences by words of the Lessee and which amounts not to a sum in gross because it goeth not with the revertion as he which hath Land on the part of the mother maketh a Lease for yeers by Indenture the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent the Lessor dies without issue the heir on the part of the mother shall have the revertion and on the part of the father the Rent for that it is a some in gross and not a Rent incedent to the revertion 3. It is not farm because it is not a Rent because they are all one 4. It is a void condition if it be a condition because it refers to the farm and Rent where there is not any such as a condition that the Feoffee shall infeoffe a Corporation which is not or his wife is voide because the first is impossible and the other against Law but the state because it is Precedent in defeasans of which they are made shall stand good Stamford and Walsh Justices fol. 134. It is a Rent first this Covenant and grant is equivalent to reservation and is by Indenture in which the words are the words of both and taken for the words of him which most aptly speaks them as a Rent upon a Feoffment Litl 47. is a grant of the Feoffee and in Judgment of Law shall dispose words which have substance formality and words there shall be taken indifferently For all parties assent and are privy to the speaking of them But words of a deed poll taken more available to the grantee 20. H. 7.8 by Brian and the Law expounds one word in the sence of another as 10. E. 31. 14. H. 8.2 21. E. 3.49 Reverter for Remainder So it taketh a word spoken by one for the word spoken by another and namely by Indenture and although it were not a Rent but a sum in gross yet it extends to it and to issue out of the Land for the Law because it is spetially alleadged the ground of payment of a sum to be for the Land and yeerly to be paid and the one is executory for the other For before fol. 71. if Land recovered by an elder title shall not pay which hath not the thing which ought to pay as 15. E. 4.4 if he may not have the ancient Pale he is excused to make a new so 9. E 4 10. if he will not give counsell the other shall stay the Annuity and 39. Assise 23. Rent for equality of partition charge the Land parted not mentioned because the Rent was granted and executory for the land So 2. H. 7 5. it shall discend to the heirs of the grantee without naming because it cometh in respect of the Land which should discend to the heir and when the ground of the matter appeareth the Law supplies the fault of the words because the Law respects the ground of the matter and consideration Gawdy It is not a rent fol. 136. in 39. H. 6.33 all the words shall be taken the words of one party viz. The first in the Indenture wherefore they are not the words of both because it estops not the other party and an estopple discends upon the Heir of him which is Heir at the Common Law because he is Son by the half venter neither Sister or Brother by the entire bloud and although they agree to have the same yet how viz. as a rent or not is not parcel of their agreement So it shall not be construed a rent because words may have a reasonable construction otherwise in 22. E. 4. in the case of the Prior of Bingham the Covenant was of a rent which shall be intended rent service the Fine saith not predictum redditum but was of five acres and was for the land and the Grantor was Tenant so holden there to be an annuity so here Morgan it is a rent f. 137. b. for the assent of the parties is the chief matter to be considered and not who speaks for the Lessor shall not have debt for the rent reserved unless it be a Contract and it is not a Contract without the assent of all and the words comming out of the mouth of
one shall be the words of all in the operation of the Law Catline To the same purpose because words equivalent to a Reservation for the Law takes words of substance and not usual equivalent and words of substance is usuall and the Law regards the effect and substance more then form the words and substance will supply the form rather then the intent of the parties shall be void as Lessor and Lessee for life makes a Feoffment it shall be the Feoffment of the Lessee and confirmation of the Lessor yet no word of Confirmation before fol. 59. And so if a Tenant for years and the Lessor make a Feoffment in Fee this shall be taken the Livery and Feoffment of the Lessor and surrender of the Lessee and yet there is nor any word of surrender of the Lessee but shall be so taken by the judgemen of Law So a rent granted by Tenants in common is severall because estates several yet words joynt after fol. 161.171 and Perkins fol. 22. so renuntiavit communiam 9 H. 6.35 after fol. 162. it is a a Lease because where words are equivalent in substance the Law will appoint how they shall enure and in Contracts it is not materiall who speaks the words if the other agree for the Law respects it and the words which prove the assent and have substance sufficient And therefore 21. H. 6. if the words of the Obligee make a Condition viz. the Obligee vult concedit if the Obligor steterit arbitrio yet usually they are the words of the Obligor for Condition Brooks cond fol. 58. abridge this contrary So an annuity pro consilio or a rent for Composition of Tythes 9. E. 4.16 enure as words Conditionall and a Covenant that the Farmor shall not be impeached for waste amounts 21. H. 6.47 to hold without impeachment of wast 17. E. 3.9 award assigns land of greater value then the Dower to the Widow and the second Husband who granted a rent by the same Deed to him with distress for the overplus and the Deed recites this the Wife Lessee after the death of her husband because the Grant to pay the rent for the overplus of the land a good reservation for otherwise he shall not be bound contrary before of a Grant for reasonable Dower and no mention made that the land was more worth then the Dower because without consideration there and is a Collateral thing and so words shall enure upon Acts between the parties concerning the principal matter and Collateral matter differ also the summ is certainly recited and the rent shall be this summ for the sentence stands good without words rent or farm where those words shall be adjudged void rather then the certainty expressed to be void as 4. E. 4.29 I. is obligee to B. Solvendum to I. yet good and the Count shall be to be paid to B. for the intent of the parties makes this good So a Grant of Remainder by the name of Reversion of the land a good Grant notwithstanding the mis-terming of the thing because the certainty of the land appeareth but by a Grant of all Reversions a Remainder doth not pass because the grant is in generalty and so certainty by special Terms and by general differs So where he saith if all rents shall be arear and where the said rent of 37. l. 3. s. 4 d. in certain So words containing generalty and incertainty and specialty and incertainty differ to pay 10 s. at Michaelmas 1599 and at the same Feast of S. Michaelmas next ensuing other 10. s. there the summ is taken the like for that it cannot be the same if it come after so one word taken for another supplies the intent of the parties 2. That the Covenant and Grant for not payment that the Lease shall be void is not a Condition by Ramsey fol. 133. because it is not spoken by him which gives the estate as if two Joynt-Tenants make a Lease upon Condition and that then one Lessee enters he shall not enter but into one moytie for that he gave no more and the words of one because the Law saith he speaketh only for his moytie shall not make this Condition to another which speaks not And also the Condition is subsequent in time of the Statute which was executed before for the Demise and habendum maketh the Lease contrary by Stamford and Walsh fol. 135. for that the parties are so agreed by Indenture and the one party and the other assents and therefore all one as if he had reserved the Conditional payment which is called Rent and is a Condition annexed for to avoid the Estate Litl fol. 70. So here because the summ certainly named be it a Rent or summ in gross for it is not requisite that the Lessor should speak but if the words of the Indenture had intendment to avoid the estate it sufficeth and the words shall be taken agreement of every party and not spoken by one party more then another as provisoes are or si contingal and all the words of a Deed shall take effect at one instant because the delivery is at one instant and it hath not several times proved by 10. ass 15. where several Deeds delivered at one and the same time the one being a Lease for years the other a Charter upon Condition to have Fee if disturbed before fol. 34. So 9. H. 6.35 Lease without Impeachment of Waste provided That he makes not voluntary waste in houses is Conditional and waste lieth because all made by one Deed if by two Covenants yet it is not spoken by the Lessor more then the Lessee but shall be taken as an agreement of both the parties Gawdie Justice to the contrary fol. 137. Defeasance of a thing Executory as an Obligation Recognisance or Warranty 43. Ass fol. 44. good of a thing executed not As 43. E. 3. Defeasance of a release unless delivered at one instant nor of a Lease executed by Morgan it is Conditional fol. 138. For Covenant lyeth not here because that Covenant lyeth of a thing to come and to be done by the person of some one and not of a thing to be executed in it self and therefore if the words enure not to the effect to determine the first Lease here they shall be void because it may not enure to another effect It is not a Condition by Brooks because it is not restrictive and compulsarie as are Ita quod non if the Lessee doth such an Act or if it happens or proviso but a proviso alwaies maketh not a Condition as in Dockwraies case 27. H. 8.15 because voluntary for Leessee without words compulsary of the Lessor Covenants and Grants That he will remove c. by Catlyn fol. 142. is a condition because it implies the intent of the parties to be Conditional yet it hath not the usual words as a Feoffment to pay 20. s. or instruct his Son in such an Art For it is a Condition because the parties purport such
to some purpose and not to be void because it is made to some purpose as 21. H. 6.8 one may plead a Lease for years and a release as a Feoffment So 7 H. 6.7 and 22. H. 6.42 The Feoffment of a Joynt-Tenant as a confirmation So 9. H. 7.2 The King by Parliament confirms the estate of the Patentee dat conceditur he may use it as a Grant or confirmation So in 21. H. 7.23 Obligor may plead a Grant That it shall not be sued before M. in Bar or have a Covenant for it So here the party uses this as a Demise of the Land and not as a Grant of the Reversion for the Reyersion of the Land compriseth the Land as Litl fol. 106. after fol. 161. a release of all the land to him in Reversion is good So 5. H. 5.8 A Lease for years and after a grant of the rent this changes the reversion So Litl fol. 150. recovery of the land against Tenant for life will divest the reversion So 19. E 4.9 Writ of Covenant and the Concord is of the land to pass the reversion So Quid jur is clamat recites That the land was granted before the reversion was So before fol. 149. Formed on shall say de uno messuagio where the Reversion was granted in Tail So a Reversion in Fee Granted to a Termor he hath the intire Term presently in Possession for the reversion of the land comprises the land in substance one word will pass the thing by another word having the same sence yet varying in name because one same thing and intent of the party as 2. H. 6.4 before fol. 134. and afterwards f. 170. reverter for remainder So 3. H. 6.6 makes a Testament and commits Administration is an Executor So 20. H. 7.11 Retorn for revert by the Grant by Grant of the Church Advowson passes 14. E. 4.2 by Grant of the name of a Clerk a presentment passeth So before fol. 151. by Stagnum molendinum the Soil passes and the thing contained in the premises named in the Habendum by another name containing the same in substance is good So a Grant of the nomination of an advowson Habendum the advowson good So Manerium Habendum the services So mannor by Fine Habendum one acre of this in Fee he shall have the acre in Fee and the Mannor for life because it wanteth limitation of the estate in the residue of the Mannor So a Gift of a Mannor Habendum the reversion in Fee of one acre which is in Lease for life good Fee for the acre and for life in the Mannor because no estate is expressed in it So Litl fol. 120. confirms the estate of Lessee for life Habendum the land in Fee good because in the estate land was contained So a Joint-Tenant confirms to another Habendum the land to him and his Heirs the Fee will pass the Habendum may limit the estate to a stranger not named before in the premisses as 13. H. 7.17 a Devise to I. Habendum to him in Fee after the death of the Wife of the Devisor not named before hath an estate by implication of the intent of the party So 5. E. 3.17 a man gives land Habendum in Franck marriage with a Daughter So a Lease to A. Habendum to him for 20. years the remainder to B. in Fee good because the intent of the parties therefore a fortiori here the Habendum may explain the intent of the parties in the premisses Dieâ— Serjeant for the Plaintiff A reversion is Jus sine possessio revertendi nomen verbale quasi terra revertens after the particular estate ended proved by W. 2. of Advowsons of Churches and prayer to recite the reversion if he shall overlive the Tenant for life and bringeth wast good 14. E. 2. Fines saith remanera and not revertera where a reversion was granted before fol. 157. a reversion granted in Tail Formedon in remainder lyeth because the entire estate is not given Fitzh nat br 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass 33. H. 8. cap. ultima the not making of Leases in reversion is expounded That they shall not make Leases beginning after the first ends ad firmum dimiserunt imply that the parties intend that it shall enure as a Lease of the Demeasne for properly a man may not be Farmor of a reversion not have an Ejectione firma of a reversion No Attornment needs upon a Lease for years because it is a Contract interpretationem apportet esse benignam ut res valeat as 30. E. 2. Discendera pro Remanera 6. E. 2. recipe pro re-entry So a gift to one for life post ejus decessum to 1. in Fee good remainder for the manifest intent an Habendum giveth an estate which was not given before and to a stranger not named before and alters the estate given in the premisses as a Confirmation to Husband and Wife or to Tenant for life remainder in Fee to another good Litl 129. So Habendum by moity Litl 66. makes Tenants in common 8. E. 3.427 by the better oppinion a gift to two Habendum to one for life and after his decease to another in Fee the one shall have the entire for life onely notwithstanding the Joyncture in the premisses Otherwise fol. 153. if it be comprised within the Grant good in the Habendum as a Grant De dispositione Ecclesiae habendum advocationem grants de Soil the Wood habendum the Wood defundo domus habendum domum Manerium habendum the advowson appendant good but a Grant of Common out of the land habendum the land or herbage of a Park habendum the Park and such like are not good because not comprised in the premisses Stamford Justice rules of Exposition First deeds shall be taken most beneficially for the Grantee Secondly they shall not be void where the words may be applyed to any intent Thirdly words shall be applyed viz. expounded to the intent of the parties and not otherwise The intent directs gifts rather then the words as 41. E. 3.6 16. H. 7.10 by Fineux Grantee of annuity pro consilio hath divers faculties yet the Councel shall be given in such a faculty as was intended 9. E. 4.22 one bound to pay Recepta recipienda shall not pay what he received not but that which he hath received because the intent is taken more forcibly then the words 7. E. 3.7 Lessee of of a house which may for his profit make houses there within may not pull down or make waste for the intent was not so Sanders Justice to the same intent with the Plaintiff Exposition of Deeds shall be reasonable without wrong to the Grantor as a Grant of Corrody Estovers and Common for all Beasts he shall not have with Goats and with the largest advantage to the Grantee as a Disseisor releases all his right to the Termor he hath for his life
Return of summons of the Exchequer because it concerneth the King himself there So 2. R. 3.4 2. H. 7.7 The Kings Grantee of Amerciaments of his Tenants shall not have the amerciament of his Tenant which holdeth of him and another because it is before other Tenants as well as my Tenant Charters of the King taken according to common intent and other things which have not common intent shall not pass from the King by his Charters And therefore 3. E. 3 the King Grants to an Abbot That he and his Successors shall be quit of repairing of Bridges Cawseys and Walls it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village but it is good otherwise of a Town to which the King hath Granted Murage Pannage or Pontage So 9. H. 6.56 before fol. 243. The Grantee of the King with Warranty shall not have in value without precise words but he may rebutt So 2. H. 7.6 The Grantee of the King of all Fines and Amerciaments in such a County he shall not have Amerciaments if the Sheriff Coroner or other great Officer is Amerced because Royal and a Grant shall enure for common things in intendment So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall cum omnibus Wardis Maritagiis c. And one which held of the Dutchie by Knights Service and which held also of one which was in Ward because of Ward by Knights Service dieth his Heir within age the Prince shall not have the Wardship of him but the King because a thing pertaining to the Crown passeth not without special words So the King maketh a County Palatine and giveth to another and Jura Regalia and that Pleas within the County shall be determined there yet he himself shall sue at Westminster his actions arising within the County Palatine as 3. E. 2. For an advowson in the County Palatine of Durham the King brings his Quare impedit in the Common Pleas the Defendant pleaded to the Jurisdiction of the Court and was compelled to answer So an Abbot by the Kings Grant made to him for the amortizing of Land or Tenements may not purchase an Advowson holden of the King in Capite and this case by Wray differs from the case in 41. ass pl. 19. before fol. 332. for there the Charter names the house but names not what Lands by which it cannot be intended that the King was mistaken in the Tenure and therefore it is good there and not for the cause of Ex gratia speciali So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words Ex merâ—… motu c. will not pass other things then the nature of the words contain And therefore the King Grants to a man and his Heirs males excerta scientia c. passeth not inheritance 28. H. 8. A Felon may not wage battail against the King because dangerous for the King Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant 20. E. 3. So if one takes the Kings goods wrongfully the King may seiz his goods until restitution and 8. R 2. if any take Toll of those of the Town of Lynn they may by the Kings Grant take withernam of those another time within their Jurisdiction And so the King conveys not from the Prerogative of his person to the person of another a fortiori he may here where the thing is not but Revenue or profit These words ad humilem Petitionem Comitis deminisheth the force of the Pattent by Catline by Plowden if Gold or Silver will not defray charges the King shall not have it because no mettal without them but because the party shewed it not as our case is the Queen shall have Judgement And this point was not put to the Judges to adjudge because that the Defendant confessed that it contained gold which is intended to be of good value because the best for the King Bret against Rigden A Man seized of 10. acres Soccage Devises all his Lands by writing Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage and the Devisee dieth the Devisor saith to the Son of the Devisee That he shall be his Heir and have all the Land that his Father should have had if he had survived him and dies Adjudged that he shall not have the 12. acres 1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will Manwood for the Defendant said That it shall be presumed that every one knows the Law in acts indifferent and that the Will is of no effect until the death of the party for ignorance of Law excuses no man and the date and writing of the Will is not effectual but the words of the Will shall be construed as they were spoken at the time of his death And therefore if a man Deviseth a Mannor in Fee a Tenancie escheateth and after the Devisor dieth the Devisee shall have the Tenancy because parcel of the Manor at the death of the Devisor when the Will taketh effect yet when the will made not A woman Deviseth Land and after takes husband which dies the Woman dies the Devise is good because she is discovert when it took effect as she was when she made her will and marriage cannot countermand it which was not of effect in her life Also because it intends no exception for the generality of the words As if she had Devised all her plate and after bought plate and died the Devisee should have all his plate at the time of her death for the ampleness of his words declares his intent to be benificially taken for the Devisee Lovelas and all the Justices for the Plaintiff to the contrary That Land purchased after the making of the Will cannot pass by the words nor intent of the Testator because he had not the 12. acres at the time of the writing and publication of the Testament it is no presumption that afterwards he would have and is as if he had died when he writ and published the Will and therefore cannot have an intent to give it and the death which is the Confirmation of the Will follows the first Acts thereof viz. the writing and publication of it for every Act founded upon discretion consists of 3. parts The first Inception which is writing of the Testament here The Second Progression which is the publishing of the Testament begun The Third is Consummation which is the self same and continues one through all these parts or otherwise the Act is void of discretion And by Lovelas it is proved That the Commencement is to be considered in Wills because if a woman Covert Devise Land by her Will and publish it and her husband dies and after she dies
So the Husband maketh a Feoffment of the Land of his Wife upon the condition which is broken the Feoffee levies a Fine the Husband dies in the fourth year after Proclamations having Issue by the Wife after the Wife dies and five years passe the Heir is barred to enter as Heir to the Father for the Condition but shall have five years from the death of his Father as Heir to his Mother for her right for the cause aforesaid by Saunders Ireland and Scotland are severall Realms But Scotland was holden of the Crown of England and was within the Fee and â—igniory of the Crown of England and he which is in any of the two Realms shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots Lunaticks and they which have the lethargy shall be comprehended in the words of Non-sane-memory as well as Mad-men For Zouch Peace which is the end of all Law described and the necessity and benefit thereof and those Laws which carrie most peace are the most estimable And the Statute which Ousts Nonclaim was to the universall trouble of all the Realm for the avoyding whereof and to make Fines to have their antient force the Act of 4. H. 7. was made and the Preamble of it is to be considered because it is a Key to open the minds of the Makers of the Act and the mischiefs that they intended to remedy and the preamble shews that the Makers of the Act were of Opinion that Fines ought to be of greater force for to avoid contention then they were before the Statute of Non-claim and now is used to the contrary viz. to the universall trouble of the Kings Subjects and therefore they were Enemies to former rights because that stirred up many Suits and made the Purview strongly against it Et lex si prospiciat majori parti retilis est All Infants are bound by the generall Purview which containeth them in the Exceptions As an Infant levies a Fine Proclamations pass he shall not have error yet within age for no Infant is excepted But he that is not Party to the Fine by Southcot and Walsh he is excepted out of the generall Purview in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute for that he had not right at the time of the Fine levied but then the right rested in his Ancestor which was disseised for the Exception is always an exemption of that which is contained before in the generall words otherwise could not be excepted As a Feoffment of a Mannor except such an Acre which is not parcell of it or a Lease of all Lands of the part of the Father except Lands of the part of the Mother is a void exception because this exception was not in the Feoffment nor Demise or right or not right is not the matter but claim or Nonclaim within five years is the matter where a Fine is pleaded to conclude any And this Tried by issue by the one or the other maketh an end of the matter Catline a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant shall make void the Fine and the Tenant shall be restored to the land because he claims signiory and services out of the Land and no right to the Land when the Fine was levyed and therefore is out of the purview which extends not from whom he claims or had right in possession Reversion or Remainder to the thing comprised within the Fine when the Fine was Levyed upon matter rising before The first saving giveth five years after proclamation to those which have right and their Heirs with a Condition annexed to it viz. so that they pursue their Title Claim c. within five years after Proclamations and as the saving is general to all Heirs notwithstanding they have their imperfections of Nonage Insanity c. So is the Condition general and extends to all Heirs whatsoever they are and this was the cause of the Judgement for otherwise the saving shall be for all heirs and the So shall be of all Heirs within age and then the So is not so large as the saving And so the Heir within age is bound to the Condition of the first saving as well as he is saved in the same because general tranquillity is more favored then an Infant and no time shall be gained by exposition or equity beyond the words of the act where the Act as here to strains all men to a time certain for the common tranquillity of the people and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there And therefore if one of the Terms limited by 4. H. 7. be adjourned because the Statute saith then next ensuing all the Proclamations before are void until the Statute of 1. Mar. cap. 7. Rastall Fines 12. because time limited by the act ought to be pursued and once attached in part ought to be continued So the 5. County upon Exigent ought to be the next to the fourth or it is discontinuance and Allocatur Comitatus shall not aid but is error And therefore an Infant at the Common law shall be bound to year and day otherwise f. 365. where by the Statute of 4. H. 7. The five years Commence in the father being of full age Non-claim within the time limited by the Common Law shall lose right and infancy there shall not aid the party as 7. H. 6.32 Nonclaim by the Lord of his villain by a year and day which hath fled into ancient Demeasne So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire So wood of another within a Forrest of the Kings seised into the Kings hand shall be forfeited by Nonclaim within the year and day before fol. 57. So if a Bastard die seised and Mulier claims not So 2. H. 7.10 one shall lose his appeal of Murther if he bringeth it not within the year and day So by the custom of some Mannor one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori time shall be peremptory where it is limited by the Statute for the common repose of the Realm which shall be more favored then the private profit of any single person be he Infant of non sane memory c. by Carus and Dier the right of a Mulier within age is bound by discent of the bastard because the Law in this case is a binding Law by Southcot and Sanders contrary because infancy shall excuse Laches of entry 31. ass 18. 22.36 ass 2. 33. E. 3. The second saving giveth new 5. years to other persons and hore Stowel is the same person which had five years with his ancestor by the first saving because the saving and the so is in the Copulative and the word
Marriage that she shall not refuse 9. H. 6.9 Recitall of an Indenture of defeasans concludes the party to deny the Deed. By the Counsell of the Plaintiffe the Act of Parliament cannot enure as a Confirmation of an Attainder and as a new Attainder also for then a man shall be twice convict of one Crime which shall be superfluous yet 1. H. 5.5 One attainted of Fellony may be arraigned of Treason because it is a higher offence and shall forfeit Lands of whomsoever holden if the Treason is committed before the Fellony but where offences are equall he shall not be twice attainted for one Deed shall not be a Confirmation and Grant of one same thing As the King recites by his Letters Patents that he hath made J. a Denison or hath manumissed him being his villain and confirm it and besides grants that he shall be a Denison or Free all this is but a confirmation because the Kings Patents shall not enure to two intents and therefore cannot plead the second Patent for his Legitimation or Manumission But the first Patent so 9. H. 7.2 before fol. 156. and 7. H. 7.14 The King grants Land by his Letters Patents and reciting them confirmes the Estate of the Patentee by the second Letters Patents by authority of Parliament and saith further that he gives and grants the same Land to the Patentee he shall plead the second by way of Confirmation because the Land pass by the first Patent not by the second if he doth not shew that the Land came again to the Kings hands after the first Patent But if the King grants Pasture for two Oxen in his Land and by the second Patent reciting his first Grant confirmes it and moreover giveth and granteth Pasture for two Oxen to the first Grantee there it shall enure as a Grant and confirmation also And the Grantee shall have Pasture for foure Oxen because they are severall things which are mentioned in the Confirmation and in the Grant And in the other Cases before it is one same thing mentioned in both and not severall Also the Statute recites none but persons therere cited to be attainted but the Plaintiffe was not attainted before for the reasons aforesaid therefore he is not attainted by the Statute as the King recites by name that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll c. that will take the benefit of it they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also and the Defendant will plead this so then his plea shall be double because he hath pleaded an attainder by the Common Law and also by the Statute But here it is not double because it is not a new attainder but a Confirmation And because he cannot plead the Confirmation without the thing that was Confirmed Also the Recitall and Confirmation by the Statute is not taken but pro ut And also the recitall being false shall be intended to be upon Information And therefore an averment lies against this recitall So a License to alien Lands holden of the King ut dicitur there he which hath the Lisence is not Estopped to say that it is holden of another then the King because the Tenure in Capite is not precisely affirmed but ut dicitur which taketh away all absolute affirmance 29. Ass 38. Also the Statute refers to an Attainder had before And so to a thing which is not inreâ— veritate for the cause aforesaid and therefore shall be void but if the things was before and wanteth force and effect then this shall be made good by the Statute and there the Act is good and hath power as to the thing 29. E. 3. 24. Grants Fitzh 100. The King reciting an Attainder by Parliament of one Mattravers by his Charter of Pardon reverseth the same and restores him and after this all is recited in another Parliament and Confirmed by the same Parliament and good for the Cause aforesaid So 38. H. 6.33 Parliament confirmes the first Letters Patents this enures according to the Effect and Purport of the first grant and shall not take away the Condition if any such be the King gives Land to J. S. the Parliament Confirmes it s a good grant And so when the Parliament Confirmes a thing which is defective it shall give power to it if it be Confirmed as here the Act shall be void to all purposes as 5. E. 4.40 and 41. If one Village hath Customes which is against the Law and Reason and no others and the Parliament Confirmes their Customes it is void because they had not Customes for things used meerly against the Law and Reason are not Customes notwithstanding such usage And if the branch of one Act recites another Act be it in the Commencement or Continuance it is void as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it this Statute excepts imbâ—sselling of goods by servants made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February and continuing untill the 24. of Aprill whereas it finished the fourteenth of Aprill and so Statutes which misrecite things and are referred to them should be void and conclude no man And so here the Statute which recites that the Plaintiffe was attainted and confirmes it whereas indeed he was not attainted shall be void Coles Case IF one gives to another a mortall wound 13. Eli. whereof he languish the 12. of February and the Queen by a generall Pardon by Parliament Pardon all misdemeanors c. the 20. day of February and after the party dies Now this murther is Pardoned Adjudged for that the wound was a Misdemeanor and the cause of death and then by consequence all that which ensueth the Cause is also pardoned The end of the first Book Newis and his Wife against Larke and others A Man devise his Lands to his eldest Son in tayle M. 13. 14. El. in the Common Pleas. Remainder to his youngest Son in tayle the Remainder to the heires of his body the Remainder over in Fee and moreover his Will was that if any of his entaylees do wrong vex or molest any other of them for the sayd Lands or should Mortgage bargaine and sell c. the sayd Lands or otherwise incumber it other then to Lease it to them that from thenceforth every such person and his heires that shal so doe shall be excluded and dismissed touching the said intaile and that the conveyance of the intaile of the said Lands against him or them shall be of no force But that it shall descend and come to the party next in tayl to him as if such disorderous person had never bin mentioned in the sayd Testament And after the eldest Son levies a Fine and after he and the youngest Brother suffer a common Recovery and their Sister enter and by
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
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
in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
it ought to touch this blood alwayes But then Heires of the Wife of the Father purchasor shall have it if others fail because Wives by the marriage after the purchase are of Aliance to the blood and not of the blood of the Purchasor otherwise it is of marriage which precedes the Purchase And so no marriage is to be regarded but that of the Father and Mother of the Purchasor and no marriage after shall make a man inheritable to this Land By the Court Wast assigned in digging of Gravell suffering Houses to bee uncovered whereby the Timber rotted and permitting a wall of stone to fall to ruine and a Meadow to lie continually overflowne and covered with water Sir Thomas Wrothes Case KIng Henry the eight granted and Annuitie of 20 l. to Sir Thomas Wroth for his life Tr. 15. El. in the Excheq Petition to be Usher of the Privy Chamber to the Prince Edward his Sonne without the words Pro nobis heredibus successoribus nostris And dies and after E. 6. dies The question was if the Annuity should be determined by it or if notwithstanding it the Annuity shall have his continuance And it was adjudged that the Annuity continues during his owne life and he shall have the arrerages 1. If the King reciting a thing executed which is not materiall as for the good service which he hath done grants an Annuity c. there the party in pleading shall not take averment of it by 21. E. 4.48 and 26. H. 8.1 But otherwise it is if the thing be materiall and executory as that he hath released there he ought to averre that he hath released it which is in benefit of the King 2. The not doing of the service here to the Prince shall cesse the Annuity as well as if the service had bin appointed to the grantor himself as an Annuity granted by the King to a Physician or Schoolmaster for to give Physick or teach a Stranger shall determine by not doing of it which is the cause of the grant and executory as the Annuitie it self is 3. The discent of the Crowne and State Royall to the Prince makes him King and alters the degree of his Person because another Majestie there and requires Officers of greater Honour to doe service to his politicke body And therefore by this Act of God the Law discharges Sir Thomas Wroth from his service and therefore without averment that he had served King Edward all his life time is not to purpose otherwise if the service be feaseable to his naturall body onely as Physick Surgery Musick Grammer c. for the naturall body alters not by assumption of the Royall estate from its infirmities 4. That the death of the King E. the 6. hath not determined the Annuity although that the service be discharged by the death of the Person to whom it is to be done For this discharge cometh by the Act of God otherwise it were if by the Act of the Party as if he had withdrawn himself from the Princes service when he was Prince So of an Annuity granted for life pro consilio impendendo to the Grantee which dyeth yet the Annuity remains but shall cesse by refusall of the Grantee for to give when he is required because his default and the Grantor hath not means by Law to compell him to give counsell 5. The Grantee of the Annuity is good although that it wanteth these words his Heirs and Successours for that it is granted in the body Politick and charges this body which never dies but alwayes hath continuance as a Grant of an Annuitie or Obligation made by the Abbot and Covent is good without successor because the Corporation charged which alwayes continues otherwise it is of a naturall body for there the Heire shall not be charged if he is not named and hath asserts as by Obligatton of his Father grant of Annuity or warranty because as the body naturall which grants is taken away by death so shall his charge be if the King without words heires and successors grant to one licence to Alien and die the Grantee cannot Alien in the time of another King 2. E. 3. and 3. E. 3.29 For that it is a licence onely otherwise of a licence which implies an interest as to an Abbot of a Purchasor in Mortmaine for there the King gives his Signiory upon the matter as it seemeth 2. H. 7.6 Inheritance of the King or a thing in which he is intituled of Common right as Lands Conusans of Pleas out of the Kings Courts or account by a Sheriffe shall not passe against the Heires and Successors of the King without speciall words Heires and Successors as the grant of a County Absque compoto nobis reddendo yet he shall account to the Successor because it is Executory of Common right to the Crowne otherwise of a thing newly created or a grant which is executed presently in the party yet the perception is Executory as a grant of a Faire Market Warren c. without words Heires and successors good Pension or Annuity granted by the King untill he be promoted by us are spoken in the politick body by which the Heire may promote and then the Pension is extinct by Sanders cheif Baron who said as Plowden reported was resolved by the Sages of the Law 1. Mar. that Patents without words pro nobis hered successoribus nostris granted for the corporall exercise of an Office or service are ordered to be good Eiston against Studd A Woman Tenant in fee P. 16. El. in the Common Pleas Eiect firme taketh Husband and the Husband and Wife levies a Fine Sur Conusans de droit come ceo the Conusee grants and renders the Land to the Husband and Wife and the heires of their bodies the remainder in fee to the right heires of the Wife the Husband hath issue by the Wife and dyes the Wife taketh a second Husband and they leavy a Fine to their owne uses for the terme of their lives without impeachment of wast the remainder to the Husband and his heires for sixty yeares Remainder in tayle to their issue the remainder in fee to the right heires of the Wife and the issue of the first Husband enters for the forfeiture made by this second Fine by the Statute of 11. H. 7. Cap. 20. And adjudged no forfeiture and yet is directly within the words but not within the intent for that the Joincture and advancement came not originally from the Husband or any of his Ancestors to the Wife but on the contrary from the Wife to the Husband yet the Land shall be chargable to Statutes and Recognisances which the Conusee had acknowledged before and to the dower of the Wife of the Conusee which grants and renders it But yet is not within the intent of the Statute because the advancement cometh not from the Husband nor his Ancestors and therefore to restraine Women to dispose of their inheritance after the death of