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
copulative for to make words to stand with reason and with the intent of the parties as the Obligee shall pay 10. l. if he infeoff not him or his Heirs when he cometh to I. intends yet words disjunctive in sense That he shall infeoff him if he be living and if dead then his Heirs because he cannot have an Heir during his life so here a Covenant to make a Lease at a time to come to him and his Assignes Copulatively shall be taken disjunctively viz. to him if he be alive and to his Assignes if he be dead So 4. Mar. before 171. A. and B. Grants a Rent Charge of 20. s. out of all lands which they both have the Grantee shall have several 20. s. out of both their lands and yet the Grant was out of the lands which were to A. and B. 19. H 6.3 I release all actions which I have against A. and B. if he hath any actions against either of them they are gone So Arbitrators 2. R. 3.18 may make Arbitrement of actions joynt and several where one and two others submit themselves to their arbitrement because it literally couples them yet in sense goes to them severally And so in the Common case in Indenture of bargain and sale which Covenants to make a sure estate or deliver evidences to the Bargainee and his heirs within two moneths and he dies before he ought to make the estate to his Heirs because impossible to be performed literally viz. joyntly for in his life he cannot have Heirs that thing which another doth by my authority is my act As if I demise That I. S. shall sell my land or authorize my Steward to demise it or my Baily to sell my sheep which doth it so it is my alienation demise and sale by him So the second Executor shall be immediate Executor and in such degree to the first Testator as the first executor was as chosen by the first executor by force of the Authority given to him by the first Testator which intends the same or otherwise all contracts would be destroyed by the Common Law in a short time viz. after the death of the first executor because administrators could not have actions given to the intestate untill 31. E. 3. cap. 11. proved by 10. E. 3.2 the executor of an executor because executors have not those actions by the Common Law but by Statute and because by equity they were not to be extended to an executor of an executor but the action of Debt was put in the Act in 25. E. 3. cap. 5. not of necessity because the Law gave it to an executor of an executor before but for to take away the doubt that some had of it and so an executor of an executor may have all actions that the Common Law gives to the first executor and so may have actions of Covenant and if not they should have it by equity of the Statute of 25. E. 3. cap. 5. Admitting that the word Assignee was void or omitted out of the Covenant yet this Lease here shall be made to the executor for that the intent which is the chief thing to be considered in every agreement was such which shall be performed so near as may be or the words shall not be effectual and the chief effect of the agreement was the estate which should be made not the person to whom but if the Tenant bind himself and Covenant to do corporall service to the Lord he cannot to the Heir or executor because it must be done to the body of the Lord and if I perish the thing also perisheth The intent performed and not the words good as in the cases of Litl fol. 82. That the Feoffee shall re-infeoff the Feoffor and his Wife and the Heirs of their two bodies before fol. 6. And it is not requisite alwaies that in agreements every thing ought to be performed according to the words for if the Mortgagee accept of another thing in another place good Litl f. 79. So if the Obligee cometh not to the place at the day appointed to receive his summ he hath not lost it 7. E. 4.4 but 19. H. 8 12 if the Obligee sue for the penalty the Obligor ought to shew that he was ready at the day and place and say that he is yet ready So payment of a lesser summ at another place Perk. fol. 145. or before the day 10 H. 7.14 good So Litl fo 77. upon a Mortgage the Heir or Executor of the Feoffer shall pay at a day certain and Litl fol. 76. the Feoffee of the Feoffee pays at the day good because he hath interest in the Land So 17. E. 3. ass pl. 2. the Disseisor Grants by Indenture That if the Disseisee paies unto him 10. l. such a day that one release which the Disseisee hath made to him shall be void and before the day the Disseisor makes a Feoffment and at the day 10. l. was paid to the Feoffee Words performed and not the intent as it may be in some cases yet the agreement is not performed as 21. H 6.10 before fol. 23. one binds himself that his Feoffees of the mannor of D. shall Grant out of it 40. s. annual Rent to the Plaintiff he hath 3. Feoffees and two Grants it is nought because he intended that all should do it for there but two parts of the Mannor are charged So 3. H. 7.4 one bindes himself to infeoff me of the Mannor of Dale he infeoffs an other of parcel and afterwards me of the Mannor he hath performed the words but not the intent which was That I shall have all the Mannor as then it was So before fol. 21. and 23. si vellet inhabitare residens c. during the Term intends all the Term. So 10. E. 4.16 the words of a verdict true yet the verdict false because he brought Annuity as Abbot and prescribe so without naming of him parson where he had the annuity in right of his Parsonage as Parson Impersonee the new Lease here shall be in the Executor of the Executor to the use of the first Testator because the Title of Covenant cometh to him derived from the first Testator and that which is done in perfermance of the Covenant ought to be in him in such degree as the Covenant was in him So 11. H. 6.11 An Executor assignes Auditors to one which was an Accomptant to the Testator and he is found in arrearages the Executor shall have Debt in the Detinet onely because the Debt shall be in him as Executor and hath a respect to the foundation So 32 H. 8. and Doctor and Student 92. One hath a Villain for years as an executor the Villain purchaseth hands the executor enters it shall be to the use of the Testator and assets in his hands because the Villain which was the cause of it was to such use So here the Covenant which was the cause of the Lease cometh to the executors in right of 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
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
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
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
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
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 Statute And when the Statute appoints place order and form of suits and before what person it shall not be altered As by W. 2. cap 11. an Accomptant found in Arrearages shall be imprisoned in the next Goal although it be in another County 27. H. 8. before fol. 17. So by Westminster 2. cap. 3. Second deliverance shall be sued out of the same Court where the first Replevin was granted and not elsewhere So 31. E. 3. c. 12. Error in the Exchequer shall be corrected before the Chancellor and Treasurer and therefore not before others So an Affirmative because general implies a Negative exclusively so all Actions shall be sâ—ed in Wales and not elsewhere is implied here as by W. 2. cap. 4. he shall vouch in Quo die deforceat as if he were Tenant and included and not otherwise and therefore shall not vouch in scire facias where it is the first Writ because he cannot vouch there before fo 113 So the issue in Tail shall not be remitted because he hath the use as a purchaser by 27. H. 8. for the Statute of 27. executes the possession in the same manner as he had the use which implies and not in any other Mannors before fol. 114. So by 31. H. 8. Leases made by Abbots after this Stat. adjudged void when Abbies came after to the King by dissolution because the Statute saith That the King shall have it as it was then which implies a Negative and therefore the King shall not have them now in Reversion by making of such Leases or before he hath them in possession On the part of the Plaintiff it was argued to the contrary And they agreed to the cases of voucher in a Quod ei deforceat of the Execution of the use and of the committing of an accomptant to the next Gaol for where an Act maketh a new thing Affirmative and gives to them Authority to do that which they could not before there they shall be in the order limited by the Statute and not otherwise and at the Common Law there was not any voucher by the demandant nor any coming to the land by the use nor any power given to Auditors to commit an Accomptant to prison and therefore there that which is limited by such Stat. ought to be pursued accordingly but where the Action which was before at the Common Law is given by any Statute in any case where it did not lie before there this Action is suable in all Courts therefore used by the Common Law before if there are not express words to restrain it for where one Act affirms a former before there the last Affirmative destroies not the first nor takes any thing from the Jurisdiction of the first but declares That they have power So 34. and 35. H. 8. hereby the Affirmative takes not away the Jurisdiction of other Courts given to them by 27. H. 8. for uniting Wales and England Sanders against Freeman THe Conusee of a Fine brings a Quidjuris clamat against Husband and Wife M. 3. and 4. Eliz. in the C. P. Quid juris clamat Tenants for life in the right of the Wife and pleads that they were seized in Tail in the right of the Wife and shew how and thereupon are at issue the Jury finds a private Verdict for the Defendant and after in open Court contradicts it and found for the Plaintiff for they were charged openly in Court and ought to give their Verdict there openly and the other was but matter of courtesie to ease the Jurors and not of necessity for the Plaintiff could not have been nonsuited upon it otherwise upon a verdict given in Court and by this Plea the estate for life was at the will of the Plaintiff A Verdict secretly given to the Justice out of Court is not a Verdict because taken of courtesie when Jurors agree for their ease until aptly pronounced in Court for at every verdict the Plaintiff is demandable and then may be nonsuited but there he is not and therefore the last open Verdict shall stand Also the Inquest may change their Verdict given in Court if mistaken or not plain in Law or for other reasonable cause immediatly perceived as to find not guilty and immediatly guilty because they may be mistaken this was received in the Kings Bench. So 4 H. 4.2 In Conspiracie acquit one and found another guilty because it was contrary in it self they may find both guilty and good Dutchie of Lancaster HENRY 8. 4. Eliz at Serj. Innâ— makes a Lease for one and twentie years under the great Seal of the Dutchie and dyeth after E. 6. being within age maketh a new Lease to a stranger under the same Seal for 21. years after the Determination Surrender c. of the first Lease and dies and by all the Justices Queen Elizabeth could not avoid this second Lease for the nonage of the King E 6. howbeit he was seized of the Dutchie in his natural body because he hath the imbecillity of infancie yet this is invested and adorned with the dignity of the body politique of the King which is utterly void of such imperfections A Lease by the King within age of Dutchie land is good although he was seized of the Dutchie in his natural body which hath the imbecillity of infancy because he hath the natural body invested and adorned with the estate and dignity Royal by conjunction of the body politique to it which is utterly void of such imperfections and so when both bodies remain in one person all the bodies shall have the properties qualities and degrees of the body politique which is the most worthy and no Act of the King made as King shall be defeasable by any disability in his body natural and therefore the letters pattents of the King within age good So a gift of the King by Thorp 36. ass pl. 54. So 6. E. 3.291 the King shall have right of seisen of his ancestor within age So the King hath by purchase or discent in capacity of his natural body when he is King or before that he was King and being given this within age good and shall pass by the Letters Pattents onely and without Livery because he may not make Livery in his natural body disjoined from the politike body which are in one and the same body and indivisible and it is contrary to the dignity Royal for a King to make livery in proper person and Livery is matter in fact and the King must have his Acts recorded So the King need not demand rent reserved upon his land by a common ancestor but shall not enter if the Condition be broken until it be found by Office if he purchases and sels before he is King and within age if King also then otherwise it is yet after he is King he shall avoid it by his nonage before but shall not enter without Office because his person which had right of entry before hath now the estate Royall united which
probat And by him the Ordinary ought not to suffer the Executor to refuse after he hath once medled with the Goods of the Testator for if before the probat he had released a Debt and after he proves the Will this hath made the release good Walsh probat maketh the Release of the Executor made before good because it is a consummation of the Will and refers to the death Dier Chief Justice If the Ordinary commit and after the Metropolitan commit to another because the intestate hath Goods of the value of 10 l. in diverse Dioces 10. H 7.18 this disproves the authority of the first Administrator and avoids his mean Acts and by Keeble the second Administrator shall have Trespass against the first for taking of the first Goods So 7. E. 4.12 Executor pleads that he hath proved the Testament the action of the Administrator depending against him a good Bar because the power of the Administrator disproved and mean acts avoided by Probat of the Testament and the Executor which is made not knowing of it if he agree after good seems to be 3. H. 7.14 The Ordinary ought to award Proces against the Executor to come in for to prove the Testament before he commits the Administration The Probat here disproves the Administration for ever and proves the Executor to be full Executor from the death of the Testator and is not like to the cases before fol. 239. because the mean time in which no Executor and this time the Ordinary hath authority The Seal of the Ordinary put to the administration is but matter in fact and no estopple and the executor shall not be inforced to sue in the spiritual Court to recall this but shall avoid it by Plea or by matter in fact as 44. E. 3.16 A. bringeth Debt against B. as administrator and sheweth certainly how his Deed was as he ought B. saith he and another are executors Judgement of the Writ and shew forth the Testament to prove it A. offers to aver that he died intestate B. saith to it he shall not be received contrary to the Testament proved and under Seal to take the Plaintiff from his averment but that he shall have it and try it by the Country also the taking of Letters of Administration discharges not a Suit against those which were executors of their own wrong before 21. H. 6.8 2. R. 3.20 So 34. H. 6.14 in debt by the Administrator the Defendant received to avoid Letters of Administration by saying the dead made an executor and taking issue upon it Chapman against Dalton A Man makes a Lease for 21. years by Indenture and Covenants with his Lessee Tr. 7. El. in the K. B. Covenant and his Executors to make a new Lease for 21. years after the expiration of the first to the Lessee and his Assignes the Lessee dies and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor and adjudged good 1. That the executor is an Assignee in Law to whom the Lease ought to be made and so the executor of an executor by the Common Law 2. That the Lease ought to be made to the Lessee if he were alive or to his Assignes in Deed and if he die Assignee in Deed then to his executor and although that the Covenant be in the Copulative in the Letter yet it shall be expounded disjunctive in sense for to avoid absurdity or impossibility 3. Admitting that the word Assignee were void or omitted out of the deed yet this shall be made to the executor for that the intent was such which shall be performed where the words could not Baber and Wray argued for the Defendant as it is abridged by Ash fol. 50. Fleetwood and another apprentice for the Plaintiff Every Covenant and Grant shall be taken most strong against the Maker and most available to the other And if the words thereof have a double sense that which is for the benefit of the Grantee shall be taken then the word Assigned here shall be drawn to so effectuall sense for the avail of the Grantee And if the word Assignee as the Councel on the part of the Defendant would have it applied to a limitation viz. in the sense of an Habendum to him and his Assignes for 21. years it is void and conveys no benefit to the Grantee because if I Lease to A. for 21. years and his Assignes shall have this as largely as I do vest this Lease in him and his Assignes because the Law gives power to him to assign it to another Assignee hath two senses in the one it signifies the person to whom the thing granted or given shall be afterwards conveyed by him which hath the thing as the Lessor Grants to the Lessee for years That he or his Assignes shall have twenty Carts of Wood annually in such a Wood Assignee there hath the sense of the person to whom he shall Assign the Lease So one warrants Land to the Feoffee his Heirs and assignes there the second Feoffee shal vouch So I sell a Horse upon Condition That if I pay 40 s. to him or his Assignees that I shall have the horse again Assignee there is he to whom he grants the horse but such Assignee is not in our case because he hath not any estate first made and such a one is Assignee after the thing granted in the second it contains the person to whom the thing which is to be made and is not made shall be made as I am bound to make a Feoffment or give a horse to you or your Assignee there the Assignee is such a person which you shall name to me to receive and the Assignee in this sense is before the things done or granted and Assignes in this sense is in the first also But with this in the first sense we have not to do here there are Assignes in Deed and Law in Deed where you name such a one to whom I shall make the Feoffment or give the horse in Law where you name no man to receive then the Executor shall have it because the Law saith That they are your Assignes to such purpose and present your person as to receive any Chattels real or personal So 27. H. 8 2. Executor is an Assignee in Law to take a Rental where the Lessee bound himself to deliver it to the Lessor or his Assignes at the end of the Term a true rental and the Lessor made no Assignee he is an ill expounder which confounds the Text. And therefore here and the Copulative shall be taken for or the Disjunctive for otherwise the sense will be absurd that the Lessee if he had been alive at the end of the first Lease should not take a new Lease until he names his Asasignee or impossible as joyning his assignee in law with him because he cannot have an Executor in his life So in our Law a copulative is taken as a disjunctive and a disjunctive as a
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
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
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
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