although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
of Kindred But as for the other they do not transfer it upon the Children of the Patrons but upon the Executors rather a Lit. l. 1. c. 5 for they reckon the custody of Wards among Chattells reall b N. Ter. ver Chattels Flet. l. 1. c. 11. and therefore if the Patron or Lord of the Fee do not demise them by his last will they are transmitted by the Common Law to the Executors of his last Will. Of the Attilian Tutorship which is appointed by the Lex Julia Titia TIT. XX. WEE have sometimes Tutores Dativi or deputed Guardians amongst us For in case the Mother being dead the Father dy intestate and leaves Children under age who have no Fee to succeed unto it often happens that the Ecclesiasticall Judge commit the Guard of them to such as shall have a care of their Persons and Patrimony untill they come to fourteen years of age And this is often attested and confirmed by an Instrument authentickly sealed But our Law doth not compell any one to such an Office nay rather the Judges stir up and make choise of those whom affinity and consanguinity oblige to this work of love and Charity a Swinb part 3. Sect. 9. 1. And probably that Guardian may not improperly be stiled Dativus Tutor which Bracton mentioneth b l. 2. c. 11. n. 1 Brit. c. 34 40 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian 2. The supream power may by Letters Patents constitute to an Infant an universall Guardian to answer appear for him in all Actions begun and to be begun and that before any Judg or Judges whatsoever Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe and the same letters at the instance of the Infant may give power to the same Guardians joyntly and severally to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him c F. B. fol. 27. b. 3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants d Kitch in preceden pa. 347. Of the Authority of Tutors and Guardians TIT. XXI AN Infant under the age of twenty one years cannot make any contract in his own name except for those things which apâ—eâ—tain to his necessary Food Rayment and Education a Brook tit Inf. 51. without the Authority and consent of him under whose power and custody he is b New book of Entrys tit .. Bro. non fuit comâ—os mentis Bract. l. 5. trac 2. c. 11. n. 1. nor can he commence his Suit against his Guardian c Bract. l. 5. tract 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his condition but he cannot preiudice himself d Bract. l. 2. c. 5. n. 8. 1. There is something more particular in those who hold by Knights Service For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also and so that they have the full disposing of Advowsons in case of Vacancies and in granting giving or selling their Wards And in case of female Heires of marrying them or selling their Marriages and generally of disposing all things whatsoever for the profit of the Heir e Of late for their owne proper profit Brook Gard. 2. Fitz. Accompt 36. as if they were to dispose of their own and better if possible They may sell their custody of the Lands and the marriages of the Heires if unmarried but they cannot alien any thing of the Inheritance or sell the Remainder Notwithstanding as for the heiâ— which are in custody they are to treat then honorably and to discharge the dutyes belonging to the Inheritance according to the quantity of the Inheritance and for the raâ—â— according to the time of the Wardship They may manage the affraies of their Heires recover their right in those things wherein the Heir as an Infant may plead or move or prosecute a Suit in their behalf namely of the rights of possession of proper Seisin or of the Seisin of an Ancestor But in aâ— Action of right in case of property they can neither act nor answer for them except of that of which the Infant was infeoffed during his Minority f Bract. l. 2. c. 37 n. 3. Brit. c. 34. fol. 90. 2. Guardians ought to sustain and keep in repaire the Houses of their Wards as also their Parks Warrens Fishings Mills and other Appurtenances least by neglect they be impaired or ruined by which wast may be found They are also bound to redeliver the Lands in due time free at least as they received them and that Gratis quitted both of releife and Fine in case they be accorded and agreed concerning Marriage g Flet. l. 1. c. 12. Mag. Cha. c. 4. West 1. c. 47. 6 Ed. 1. c. 5. West 2. c. 35. 3. The same Authority also have Guardians in Socage to contract to manage Suits in Law and to do all other things which are behoovefull either for the conservation or augmentation of the Estate of their Pupill But these are liable to render an account when their Wards shall come to age h F. B. fol. 118. b. 4 A Guardian may make Oath for his Word i Flet. l. 6. c. 10. 5. In some Cases our Law doth so highly â—avour Infants that it will not suffer them to â—un the hazard of Judgement although with â—he consent of their Guardians but stay proâ—eeding untill they come of age For in case of right or property of their possessions they can neither sue nor be sued except for such which themselves have gaind k Glan l. 7. c. 9. Bract. l. 5. tract 5. c. 21. n. 2. yet formerly there were bound in case of a Fine acknowledged in Court in case of a proper inâ—ury or Dower or in Case of what themselves had recovered l Dyer fol. 104. f. 137 but at this day they are not bound in case of Fine m Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21. By what means Wardships expire TIT. XXII ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age a Lit. l. 2. c. 4 but those Tenants if male not till one and twenty if female not till fourteen b Id. ibid. or in some cases not till sixteen years of age c V. sup tit 15. Sect. 4. and although a Woman being full
cannot give a reasonable answer to any ordinary and easie question e Swin patt 2. Sect. 4. also a Servant for the same reason by which he is forbid to give whilst living f Sup. title Donation S. 5. can dispose of nothing by his last will whose possession is seised on by his Lord g Perk. 29. Dr. and Stu. l. 2. c. 43. or claimed by word only h Bre. Villein 50 unless in case that he be Executor to another in which case he may constitute another his Eextutor even against the will of his Lord for that the goods which are contingent to this Office are not his to his own use but to anothers i Id. ib. 68. 73. so also a Captive because himself possesseth nothing but is in the possession of another k Brac. l. 2. c. 16. n. 5. which is true likewise in those whom we called Out-lawed l Id. l. 3. tr c. 13. Dr. and Stu. l. 1. c. 6. and l 2. c. 9. 3. Moreover he that is guilty of Treason hath not a power to make a will Because if he be afterwards convict of that Crime he forfeits what ever he possessed at the time of the Treason committed to the King and the Exchequer m 5. E. 6. c 11. Swn par 2. Sect. 12. 1. R. 3. c. 3. nor he that is guilty of Felony but here we must distinguish for if such a one dye before conviction he may by his Will bequeath both his Lands and Chattells or if he be obstinate before the Tribunall and refuse to put himself upon the Triall of God and his Country according to the Custome of the Common-wealth or shall stand mute for in this case if he dy intestate he reservs his Lands intire to his next Heir or if testate he may dispose of them to whom he please and forfeits his Chattells only Moreover if he be Convict he looseth his Lands from the time of the fact committed but his Chattells only from the time of his Conviction so that before Conviction he may give them or alienate them at pleasure n Swin par 2. S. 17. Bro. Forfeitures 5. 28. 65. 89. 103. 113. 117. 4 He that murders himself is by us tearmed Felo de se and hath no other Successor as to his Chattells but the Exchequer o Bract. l. 3. tr 2. c. 31. yet it is much doubted at this day whether he forfeits his Lands or not p Stan. pl. cor l. 1. c. 3. but that his Chattells come into the Exchequer is out of question q See tit Mur. 5. An Heretick by our ancient Law could not make a will r 2. H. 5. c. 7. but that Law is now abrogated s 1. E. 6. c. 12. so that here we have nothing certain but what we receive from the Canon Law 6 A notorious Usurer if he exact above ten pound Per cent per an is liable to all the punishments which the Canon Law inflicts t 13. Eliz. c. 8. and therfore seems incapable of making a Will u Swin par 2. S. 16. 7 Feme Covert is absolutely prohibited to dispose of Lands of Inheritance by her last will w 34. H. 8. c. 5. or of Goods or Chattells without the license of her Husband x Swin par 2. S. 9. Bract. l. 2. c. 26. n 1. Cov. Ognels case 51 unlesse she were an Executrix of a former Husband or of any other person before she entermarried with this Husband or hath any title to any summ of Money as yet unpaid for in these cases she may dispose of the Goods by will which he hath by reason of that Office or by right of Action and constitute either her Husband or any one else her Executor y Bro. Testa 9. 11. 13. and. Execut. 132. 175. 178. Glan l. 7. c. 5. Perk. 502. but if we beleeve Bracton it was an opinion that a VVife might make a will and dispose of her reasonable part which she should have had if she had survived her Husband and especially of such things as were permitted or given her for Ornament which they called her own as Robes and Jewells z l. 2. c. 26. n. 1. F. N. B. fo 122. Flet. l. 2 c. 57. but this Law was either customary in some particuler place or else it is long since vanished 8 Lastly they which enter into Religion cannot make a will for to those Goods which they dispose not of before entrance their next of Kin succeeds as if they had died intestate a Bro. Testam 9. but it is otherwise of Ecclesiastick Seculers whose Goods are by the custâ—â—e of England reputed lay whether they be acquired from the Church or otherwise b Dr. and. Stu. l. 1. c. 39. so also is Corn growing upon glebe Land and not yet gathered c 28. H. 8. c. 11. 9. The King however in a capacity to make a will cannot by his Testament dispose of his Kingdome or the Goods of his Kingdome viz. his Crown or Regalia to another d Fitz. Abridg devise 5. and Execut. 108. Swin p. 2. Sect. 28. 10. A Bishop or Abbot in regard their Baronies were of the Almes and Charity of the King and his Predecessors cannot alienate any part of their Demesnes as to the Remainder without the Assent and confirmation of the King e Glan l. 7. c. 1. 11. So also a Bishop Dean or Master of any Society is prohibited to make a will of any of those Goods which they held in common with the Chapter and Society f Dr. and Stu. l. 2. c. 39. Bract. l. 2. c. 14. Perk. 469. 497. 499. Of the Dis-inheriting of Children TIT. XIII OUr Law remits that positive dis-inheriting of Children to which the Roman Laws obliged their Citizens to the affection of Parents which it presumes nature to have engraven so firmely in the minds of all that it is not possible to be rooted out but by the extream debeauchery of Children VVherefore every one hath a free power of disposing of his goods whether moveables or immoveables And those whether purchased or descending from Ancestors certaine unlesse it be of Fee-Taile for that cannot be disposed of but where the Entaile is cut off by fine and recovery a 4. H. 7. c. 24. 32. H. 8. c. â— Plow 356 c. Coo. l 3. case of Fines 1. Yet the ancient VVriters of our Law doe scarce hold it lawfull for a man to bequeath by his VVill an Inheritance received from his Ancestors to any one but the next Heir under which notion they will lay the burthen of the Fathers debts upon the Heir b Glan l. 6. c. 17. 18. l. 7. c. 1. Brac. l. 2. c. 36. n. 1. â—rit c. 34. But our later times have provided a sufficient remedy for this c 3â— H. â— c. 1. And therefore the Heir is not at this day lyable to the debts of his
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
w Lit. ib. 19. All persons may regularly take formes except spirituall who are prohibited unlesse it be for the maintenance of their Families x 21. H. 8. c. 13. 20. Lessee is obliged to pay his Rent to the Lessor which if he shall faile to do the Lessor during the Terme may distrain and this seems true whether it be agreed so or not For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent y Dr. Stu. l. 2. c 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot z Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction for the Lessee is not freed by paying before the day a Coo. Bevills case fo 10. a If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years by reason whereof there can be no distresse the Lessor upon his Action may recover it into his own hands b 6 E. 1. c. 4. Westm 2. c. 21. F N B fo 209 G 22. But in most Leases whether for years 〈◊〉 life it is covenanted that in case the â—ent be behinde at a certain day yearly 〈◊〉 half yearly unpaid that the Lessor may â—â—ter reastume the possession to himself or â—â—at the Lease shall forthwith become void â—â—d expire In the first case if the Rent at â—â—e day assigned be not paied being lawfulâ—â— demanded upon the ground by the Lesâ—â—r not only he in his life time but after his â—eath unlesse he distrained in his life time 〈◊〉 the Rent or received it upon tender c Coo. l. 3. Pennants case 〈◊〉 Heir may enter otherwise not d Dr. Stu l. 1. c. 20. Dier fo 51. n. 17. for â—ent ought to be demanded e Perk. 836. nor in this â—â—se doth the day demand for the man but 〈◊〉 the condition be that the Rent shall be â—â—id in any extrinsecall place there needs 〈◊〉 demand according to the opinion of â—â—me f Dier l. 8. n. 23. 24. though others more modern affirm â—â—e contrary g Coo. l. 4. Burroughes case fo 73 23. If Husband and Wife hire land at too â—â—ere a Rent the Husband dying before the â—earm the Wife may leave it and if the Husâ—and survive the wife and dye his Execuâ—â—rs have the same liberty If the Testotors Goods are not sufficient to satisfy the other Creditors the Rent being computed for 〈◊〉 tearm of years h Dr. Stu. l. 2. c. 33. Dier fo 146. n. 70. 24. If a man make a Lease for a year upon Condition that the Rent shall be paid at Michaellmas and in the mean time give a generall release to the Lessee of all Actions â—nd Demands this doth not remit the rent i Lit. l 3. c 8. although it seems something strange 25. A Lessee is not only bound to the payment of Rent k Dier fo 4 n 1. but also to use well the thing leased l Id. fo 324. n 34 so that if either he or a third person commits Waste he is liable unto the Lessor according to the penalty of the Statute m 6 E 1 c 5 Dier fo 90 n 9 and 10 and fo 108 n 31 and fo 198 n 43. and is left to take his remedy against the third person n Dr. Stu l 7 c 31 and l 2 c 4 unlesse he be aâ— Infant o Id l 1 c 17 but it is not waste to fell timber for necessary reapaâ—tions p Id ib 26. In selâ—ing and hiring the Law is the same as to the mutual obligation of persons as in Covenants And therefore if the Lessee undertakes for himself to do or not do anything his Executors or Assignes not being named himself is only bound and they free from any manner of Obligation q Dier fo 65 n 8 but this is sometimes disputable A Lessee covenants with his Lessor that if either he his Executors or Assignes alienate the Lands leased to another that then it shall be lawfull for the Lessor or his Heires to re-enter and to eject the Lessee his Executors or Assigns and not long after the Lessee falls sick and by his last will constitutes his wife his Executrix and dies the wife marryes a second husband who alienates her right and tearm in the said Lands and it was much questioned whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first But in the end it was determined for the Lessor because the second Husband was in this case adjudged Assignee in Law though not in fact r Dier fo 6 n 5 27. If a Lessee oblige himself to leave houses in repaire at the end of his tearm the Lessor cannot bring his action of Covenant untill the Term be ended although the Lessee should pull the houses down yet he may bring an Action of waste s F. n. b. fo 145. K. 28. Lessee is not obliged against a greater force or against tempests or Incursions of enemies unlesse he do expresly oblige himself to it t Dr. Stâ—â— l. 2. c. 4. Dier fo 33. n. 10 11. fo 36. n 35. fo 56. n. 14. 12 H. 8. fo 1. b. v. Lit. l. 1. c. 8. 29. Tenant at will is not bound to repararations as Tenant for years u but if he commits waste he is liable to an Action of Trespasse w id ib. Dier fo 90 n. 9 10. Of Partners or Fellowship TIT. XXVI OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows who hold Lands or other things pro indiviso and these they call either Partners Joint-tenants or Tenants in Common a Little l. 3. c. 2 3 4. 1. Partners are either by the Law or by Custom by law b Termes v. Parceners Little ib. two or more women of the same degree who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors or else the sons of two women to whom Lands not formerly divided by their mothers descend c Little l. 3. c. 1. and 2. by Custome are those who from the Custome of divers Provinces which we call Gavell kind do equally succeed their Ancestors whether they be brothers or for default of them sisters Nâ—ices or Aunts 2. Joint-tenant are either called so properly or improperly e Instit Jur. Com. c. 15. Dier fo 67. n. 18. fo 160. n. 43. properly are those who hold a Fee or Freehold or any reall Chartell by force of the same Title pro indiviso improperly are those which possesse any personall Chattell so and those are thus ioyned either by their own will solely as purchasing the Premises with their own mâ—nies and so possessing them pro indiviso or else by the will and bounty of others as where one gives any thing to two or more iointly f
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
by consent of their Guardâ—ans shall marry within the age of twelve b Lit. l. 2. c. 4. and here both Sexes have the same Laâ— that after marriage so had under age by designation of the Guardian They are no morâ— obliged to his arbitrement the bond of Matrâ—mony being dissolved by death c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And thâ—â— by an inequality of marrying them thâ— Guardian shall loose his ward and shall liable to satisfie the freinds of the ward so disparaged for so great a damage d Brit. c. 67. Lit. l. 2. c. 4. Instit Jur. com 24. 9. Heretofore when an Heir female was at â—ge and held of divers Lords in Fee it was sufficient for her in marrying to require the â—ssent of the next capitall Lord to whom her Ancestors had done legiance e Eract d. l. 2. c. 37. n. 6. but at this day she that is of age is not obliged to ask the conâ—ent of her Lord to marry f Brook tit Guard 7. 10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry shall marry in his Fathers life time his Father being dead the Lord of the Fee shall have a Writ of Ravishment because it is in the power of the Heir to repudiate his wife when he shall come to that full age g F. B. 143. m. and a woman who holdeth of the King in this manner being thus married is at her own election when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender h 17 E. 2. Stat 1. c. 5. 11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings consent And if they do otherwise the King may by distress seise himself of those lands and renements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose i Slan Pâ—er c. 4. Glan l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 174. 17 E. 2. 1. Magna charta also doth affirm that common persons may exercise the same power over their Widdows k c. 7. And there is this reason given least the Kings Tenants should enter marriage with his capitall enemies l Fl. l. 1. c. 13 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the marriage shall for such trespass suffer imprisonment for two years And if he doth not restore the said ward but marries him or her and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life m Flet. l. 1. c. 13. 13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents or at least those who had the Gard of her he shall suffer two years imprisonment without Bail or at least be fined for his said offence according to discretion of the Star chamber n This power is now in the Chancery But if he shall defile her being so stolne away or any way contract marriage with her against the consent of her Parents or Guardians he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands Tenements and Hereditaments which at the time of such consent given she had either in possession Reversion or Remainder o 4 5 Phi. Mar. c. 8. Cook l. 3. Nut. Case f. 39. 14. Villaines are not to marry without consent of their Patrons p Lit. l. 2. c. 11. Also if a freeman shall take away ones native in marriage without the consent of her Lord although the Lord cannot take her from him yet he may have his action for the Ravishment of her q Idem ibid. 15. Women that marry noble men shall have the appellation and priviledges of noble persons for that dignity they derive from their husbands untill they shall again marry with common persons q Idem ibid. for by marrying they make themselves the same flesh with their Husbands r 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency according to the Statute in that case provided we 21 H. 8. c. 13. cannot answer without distinguishing For second marriages will not prejudice those which shee had during widdowhood But she cannot impart the same priviledge to them which she shall have after the second marrying because her nobility is extinct t Cook l. 4. Actons Case f. 117. Notwithstanding that it seems to be otherwise with those which are born noble and derive not their nobility from marriage u Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and honored with us then they which take it onely from their Husbands 16. If any come together against the leviticall Law we neither understand them man and Wife nor do we allow of their contracts marriage or Dower Their Issue gaining no other esteem then to be termed naturall w 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers whose Marriages are nul'd for that there may be a seperation a mensa thoro and yet the Matrimonial bond remain unbroken x Term. Jur. verl Divorce 17. Those which are unlawfully begotten cannot possibly be made ligitimate But they are often made capable of Preisthood or exercising sacred functions by dispensation y Bract. l. A spurious Issue may by silence and patience be rendred legitimate as in case a Wife shall conceive by another man besides her Husband notwithstanding that it be apparent yet if the husband entertain such Issue in his Family and bring it up and call it as his Child he makes it his owne lawful Son and Heir which is equally true if he do not so call it expresly if he do not remove it and renounce it nor is it materiall whether the Husband be ignorant or knowing of it or whether he doubt for it shall be reputed his lawfull Heir because born of his Wife so long as it may be presumed that her Husband begot it And this may be said also of a supposed Issue for that often a common opinion passeth for a truth z Bract. d. l. 2. c. 27. n. 4 5. 18. There are with us two consequences and effects of Marriage The first that all moveable Goods which by us are tearmed personall Chattells which the Wife brings with her do presently passe into the husbands Patrimony without any distinction being thereby
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
twelve years old may contract Matrimony as well by our Law as by the Civill d Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband yet she doth not so soon come to maturity of Judgment but it is sooner notwithstanding out of custody then a man because when she marrieth she doth but alter her condition entring under a new power of a Husband instead of the custody of her Guardian e Glan l. 11. c. 7. Bract. l. 1. c. 6. n. 2. 1. So a Wardship may expire by the naturall or Civill death f V. sus tit 16. of the Guardian which is that which we tearmed the Maxima or Media capitis diminutio or in case the Guardian shall give Lands c. to his Ward or infeoff him For no man can be both a Guardian and Feoffor at one and the same time g Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service that they may either assigne the custody of their Wards to another or bequeath them amongst their other Chattells by common custome to their Executors 2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony So that if it shall happen the Ward being under age to become single the second time he can by no means recover him into his custody h Lit. l. 2. c. 4 Of Tutors or Over-seers TIT. XXIII MEN though full growne and women though marriageable were amongst the Romans to receive Tutors untill they arrived at twenty five years of age Notwithstanding that they are not so with us beyond the age of one and twenty and that in case where they had not any before either in regard of their Tenure or necessity of the Law However we include Tutors and Over-seers under the name of Guardians although it is apparent those to be more proper in relation to the person these to the Estate a V. tit 14. Sect. 4. in Inst A de ritâ— nuptiarum l. sciendum 20. 1. To some also the Law appoint Tutors and Overseers for by the Statute the King hath the custody of the Lands of naturall Ideots receiving the profis without waste and destruction and finding them necessaries without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires so that they cannot by any means be aliened by the Ideots or the Heires disinherited b 17 Ed. 2. Brit. 167. Stan. Prerog c. 9. Bract. l. 5. trac 5 c. 20. n. 1. Dyer 102. Coâ— l. 4. 126. Fleta affirms c l. 1. c. 11. that anciently Ideots were under the custody of their own Lords But that for the many Exheredations that hapned Their Guardianshipp was conferred by Parliament upon the King yet with this Proviso that the Lords of the Fee and those whom it concerned should loose nothing which was their due Either for Services Rents Releifs of their right of Guardianship till they come to full age according to the condition of their Fee 2. So also where it happens that any one who formerly had both memory and understanding becomes Non compos mentis as some are who have Lucida intervalla The King shall take care that the Lands and Tenements of such shall be kept without waste or destruction And that he and his Family shall live competently and be maintained out of the profits of the same And that the Remainder of their profits shall be reserved for their use So that the said Lands and Tenements shall not be by any means alienated within the said time nor the Revenues appropriated to the Kings use and that if he shall happen to dy in such a condition that then that said remainder of the said profits to be disposed of by the Ordinary for the good of his Soule d 17 E. 2. c. 10. Bract. l. 5. tr 5. c. 9. n. 7. Dyer fol. 25. n. 164. Cook l. 4. 127. 3. Those who are naturally deaf and dumb or labour under any perpetuall disease according to the opinion of some are necessarily to have Guardians e Bract. l. 5. tr 3. c. 6 n. 6. tr 5. c. 18. n. 1. c. 10. n. 1. 4. Infants are not forced to receive Guardians against their will except by reason of their Fee or any of the causes before mentioned or in case of Suits in Law And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence f West 1. c. 47. West 2. c. 15. F. B. f. 27. 5. Notwithstanding which no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant but another may as his Kinsman commence an action for him without express warrant g Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn h Id. ibid. 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn but is required â—lwaies to be present in his proper person i F. N. B. fol. 27. g. Of the Security which is to be given by Guardians TIT. XXIV HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary â—s bound by our Law to put in security But â—efore he is admitted to his Office he makes â—ath to administer all the affayres of his â—ard to his profit and benefit to give a true â—nd faithfull Inventory of all his Goods â—nd to exhibite it by a certain time accorâ—ing as the Judge shall appoint as also to â—ender an exact and true account of his Office when it shall be required from him â—esides all which he is to finde fit and able â—â—reties joyntly with himself and severally â—y themselves to become bound for his true â—nd faithful administration of his Guardianâ—hip Of the excuses of Guardians T IT XXV OUR Lawes speak nothing of the excuses of Guardians because no one is puâ—… upon this Office against his Will Of Guardians which may fall under Suspition TIT. XXVI OUR Lawes are very carefull in pâ—… of trusting Guardians For he that give Estates to divers whereof some are of agâ— and some Infants may lawfully appoâ—… those which are of age to be Guardians oâ— the Infants but this will not stand in câ—… there be any cause of suspition that they wâ—… contrive the death of the Infants but suspâ—…tion is not admitted if the gift be made tâ—… Father or Mother or their lawfull Issue bâ—… it is otherwise where it is to Brother or Uncle or Nephew because of the right discending a Bract. l. 2. c. 11. 1. They who are Guardians by right oâ—… their Fee so long as they have the custodâ—… of the Land are bound to maintain and reâ—aire all
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
because that had this Condition annexed viz. I ordain A. mine Heir and if he will not be Heir then my will is that B. shall be my Heir e Inflit. eod now this of ours iâ— not bound but is rather tacitely imposed contrary to the Legator as namely thus I give and bequeath such a Fee to A. and if he accept it then I will that such or such shall be his Heir or Successor f Westminst 2 c. 1. Dr. Stu. l. 7. c. 24. 2. In like manner if we bequeath any thing conditionally to any one we make Substitution to another in Case the condition be not performed for Example I give a hundred pounds to A. when he shall marry a Wife or if he shall not get a son of my Daughter lawfully then I give the said hundred pounds to B. Of Pupillary Substitution TIT. XVI IN this Substitution we do not so much regard the power of our Countrey as the liberty of tâ—e Testator so that a Legat oâ— may make a Substitution Pupillary either to his own chidren or to strangers Legatees who are under age As I give to A. my own child or anothers a hundred pounds when he shall come to age and if he shall die before then I bequeath the same one hundred pounds to B. But in regard that Cases of Wills are for the most part tried in the Ecclesiasticall Courts and by the Rules of the Civill and Pontificiall Law a Bra. l. 2. c. 26 n 2. therefore our Law hath as it were past by for the most part this and other things of the same nature and leaveth them to be determined by the Civill and Pontificiall Law How Wills are invalidated TIT. XVII WIl ls cannot be justly made ab initio by those who are not permitted to make Wills those who are we have mentioned before they may also be nulled by a later Will a Perk. 476. 479. 480. Fulb. paral Devises fo 47. or invalidated by Treason c. as where one is condemned for Treason or Felony after his Will made b Stan. pl. corp l. 3 c. 20. and c. 32. or if the Testator revoke his Will or be deprived of the Executor whom he named c Bro. Exec. throughout 1. Suppose A. make two Wills one in the sixth the other in the eighth year of Eliz. at length he is sick and speechlesse B. his familiar friend comes unto him giveth him into his hands both the Wills and desires him to return that which he would have stand for his Will A. returns that which was made the sixth yeare in this Case that will which he returned shall be esteemed the later d Perk. 479 2. And it happens sometimes that a mans will which according to the Civill Law is ambulatory or alterable untill Death cannot be altered in regard of prejudicing another Contract upon which account the will was made for Example A. is seised of Lands in Fee which he alienates to B. upon condition that they shall be his for life to the use of the said A. the Remainder e in ip Co. I am arcisc l. omnium 19 C. de Testa f Dier fo 49. n. 12. to C. and his Heires for ever and upon this A. makes his last will after having given the possession to B. This will quatenus to the alienation cannot be nulled by a later and the Reason is because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred so that he may immediately sell them if he please g Id fo 325. n. 73. Perr 480. Of those Wills which were called by the Civilians Testamenta inofficiosa TIT. XVIII THe Plaint or Action in the Case of Testamentum inofficiosum is not in use with us for as concerning Lands holden by Knights Service in case the Father do not leave his lawfull Heir either while he lives or at his death a third part according to the Statute the will is void as to that part a 32 H. 8. c. 1 so that the Heir may notwithstanding take possession thereof or else if he have gotten it he may immediately himself refuse b Brac. l. 2. c 30 n 2 the parcell bequeathed or quit it or remove it by Law c Id ib 1. For the disposing of Chattells there are severall Customes in severall places of which there remain very clear signes in the ancient writers of our Law d Glan l 7 c 5 and 7 Brac l 2 c 26 n 2 but by the Common Law the Testator had alwayes a Free will of disposing e Id ib wherefore that writ which is called Breve derationabili partebonorum which liâ—s for the wife or children against the Executors for the recovery of part of the Goods f Regist fo 142 b F n 122 â— is not generall but peculiar to certain Countreys where the Custome is that Debts being paid the Remainder should be divided into parts viz. one part to the wife the other to the Children and the third to be left at the will of the Testator Of the Quality and difference of Heirs TIT. XIX HEirs as they are taken with us were necessary in time past as to the driving an Inheritance from our ancient Predecessors to the next Ancestor a Glan l 7 c 1 as they are now with us as to part b 32 H 8 c 1 and that not onely as to a Succession in the Estate but also as to the drawing upon themselves the Debt of their Ancestor c Brac l 2 c 16 n 7 and they were also for ever bound and obliged to warranties that is to the assurances which either they or their ancestors ingaged and promised to those to whom they sold any Land 1. But for that it is evident that children naturall and legitimate are preferred before others to Succession it were not amisse to see the Estate and difference of Children which really is very much for of Children some are naturall and legitimate and of this sort some are Sons and Heirs some Sons but not Heirs some also are Heirs of the Father some of the Mother some both of Father and Mother some also are not Heirs although legitimate and naturall some by accident begin to be Heires and some cease to be so so also of naturall and legitimate Issue some are near some more near some are removed some more removed d Brac. l. 2. c. 29 30. Brit. c. 118. Coo. l. 3. Ratc. Case fo 40 41 42. Plow 28. Flet. l. 6. c. 1. but of this elsewhere Of Devises TIT. XX. THat kind of Donation which is in Case of Death is where the Testator had rather that himself should injoy the thing bequeathed then that the party to whom it is bequeathed should have it and yet that he had rather that the party to whom it is bequeathed shall have it then his owne Heire a Brac. l. 2. c. 21. n. 1. 1. Our Common Law
be of a thing uncertain but if it be agreed between the parties that there shall be so much paid for the thing bought as such a one shall value it at unlesse that party will sell the price Or in case he refuse or be not able there shall be no Bargain and Sale as not having agreed upon any price e Brac. ib. n. 1. Flet. l. 2. c. 58. Dyer fol. 91. n. 11. 2. And to the making up of a Bargain and Sale it seems consistent with our Law that the price for the thing bought be in money numbred otherwise it is but a Contract in the nature of an Exchange f Fulb. par c. Exch. 32. Perk. 244. Although if such things be exchanged as cannot conveniently be transferred without writing The word Exchange ought necessarily to be inserted to make an Exchange g Fulb. ib. h Bro Exch. 2. 12. And it may be the reason is because the word Exchange implies a warranty h 3. In a Bargain and Sale before and after Delivery he who hath the thing runs the hazard of it unlesse it be otherwise agreed from the beginning because indeed he who hath not as yet delivered the thing to the Buyer is still reputed Master of it For by Liveries Uses the Owner-ship is transferred For Example If an Oxe dye before it be delivered or a House be consumed with Fire or Land in part or whole be drowned and lost it seems that all the hazard shall be upon the Vendor On the contrary if after Sale and before Delivery any thing happen to be added to a Feâ— the profit shall redound to the Vendor For the Commodities ought to goe the same way with the Discommodities and the profits ought to be his who runnes the hazard and danger i Brac. Glan ib. But there needs no Livery where Lands are sold by Deed inrolled k N. Terms Bargain Dr. Stu. l. 1. c. 7. Lit. l. 1. c. 8. or alienated by Exchange 4. Bargain and Sale may also be contracted among some either Pure or Conditionally As if the Buyer like a thing in a certaine time it shall be his for so much money otherwise that it should be restored l Brac. l. 2. c. 27. n. 2. Flet. l. 2. c. 58. 5. But if one buy a thing sacred of a Vendor in regard the Contract cannot stand the Buyer shall recover as to his Interest against the Vendor that he be not deceived although the Buyer be obliged to know what and whose the thing is which hee buyeth whether sacred or not and whether bound or not m Iidem ib. 6. But if a Vendor sell any thing for sound and without maime which afterwards proves maimed and unsound and that it can be proved by the Buyer to have been so at the time of the Contract made the Vendor is obliged to take it again But if it were sound and without maim at the sale the Vendor is not responsible for what shall happen afterwards n Glan l. 10. c. 14. Brac. l. 2. c. 27. n. 2. F. N. B. 94. Dr. Stu. l. 2. c. 42. Flet. l. 1. c. 58. Dyer fol. 75. n. 23. 7. When any one sells a thing immoveable as Land and in the Sale promiseth it to be free when as it is servile or disingaged and not bound whereas it is bound and ingaged The Contract is not broken by this but the Buyer may have his Action against the Vendor for non-performance of promise which is alike good if hee assume to make good either for the quantity or quality and afterwards the contrary be found o Fulb. par Barg 15. 8. The Vendor and his Heirs are bound to warrant to the Buyer and his Heirs the thing sold whether it be moveable or immoveable p Glan ib. c. 15. Brac. ib. l. 5. tr 4. Dyer 75. n. 23. Flet. l. 7. c. 38. l. 6. c. 23. Though some are of opinon that they are not obliged to warranty by the Law but in cases expressed by the Law q Fulb. ib. Coo. l. 3. Fermors caâ—e 78. l. 4. Nokes case 80. 9. Things incorporeall cannot with us be sold or bought without writing r Dr. Stu. l. 1. c. 8. 10. Meats which stink and are putrified and Commodities which are fallacious are prohibited to be exposed to sale s 13. H. 4. c. 1. 11. E. 4. c. 7. 1. R. 9. c. 1. with others but these things belong to the publique Law 11. The property of things alienated in Fairs or publique Markets are altered unlesse they be the Kings or that the Contracts be by Covin and Collusion so that in this case the Buyer is free from all feare of Eviction t Dr. Stu. l. 1. c. 25. l. 2. c. 47. 49. provided there be such things observed in the buying of Horses as the Law requires u Brac. l. 2. c. 28. Cromp. Juriâ—d 221. Dyer fol. 99. n. 66. 12. And lastly as Actions cannot be given so neither can they be sold except it be to the King or by the King w Plow 79. Bro. chosein Action 4. Of Letting and Hiring TIT. XXV LEtting and Hiring is next to Bargaine and Sale because as Bargain and Sale is contracted after the price is agreed upon so Letting and Hiring is for a set Hire or Rent a Glan l. 10. c. 19 Brac. l. 2. c. 28. For when a man lets his Estate to another for a certain Term and Rent the Lessor is bound to give the thing leased for use and the Lessee to pay his Rent b Brac. ib. Flet. l. 2. c. 59. 1. Rent doth chiefly consist in moneyes numbred yet it may also be in Corne and the like c 34. Eliz. c. 11. And sometimes the sole Reward or Hire is in Fealty d Lit. l. 1. c. 7. But when Land is leased for Land this is an Exchange e Id. ib. 2. Emphytensis which the Romans tooke for either Bargain and Sale or Letting and Hiring promiscuously wee call Fee-farme of which we have spoken enough before 3. We also do let and hire Moveables as Horses Oxen Sheep f F. N. B. 86 D. Bro. Leases 23. and Immoveables as Land g F. N. B. 146. K. Lit. l. 1. c. 8. So also things incorporeall as right of Pasture h F. N. B. fo 86. B. Entries Agistment Tiths i Terms v. lease but those not without writing k Bro. lease 1. 5. 12. 17. 21. 23. H. 6. c. 10. unlesse any corporeall thing as a Church Churh-yard Glebe Parsonage houses c. be cheifly and particularly let for so under the name of the appurtinences Tithes and Oblations passe likewise l Bro. lease 15. 20. So also Services and Labours m Entries Servant Dr. Stu. l. 2. c. 38. but not safely as to the quantity for that Errors are easily this way contracted 4. He who hires Cloaths Gold or Silver or
after the Fact is where any one wittingly or ignorantly q Dier fo 355 n. 36. receives cherisheth assisteth and comforteth a Felon r Stanf. l. 1. c. 46. or who receives stoln goods to keep them or to dispose of them together with the Theife s Fulb. par Theft fo 202. Lamb. fo 295. But a Wife who in this case conceales the secret of her Hushand is exculable through the necessity of her Duty t Stanf. l. 1. c. 46. which is also true in case shee commit the Fact upon his command u Id. ib. c. 19. And there are also Accessories of Accessories as where any one doth wittingly receive the Accessory of an Accessory w Id. ib. 33. The punishment due to Felons both principalls as Accessories is to hang by the neck untill they dye and to forfeit their Goods and Lands if they have any x 24 H. 8. c. 45 Coo. l. 4. Beverleys case 124. Only here is the difference That the Accessory cannot be punished before the Principall be convict and Attaint y Stanf. l. 1. c. 43. Plow 97. Dyeâ— fol. 120. n. 10. Now the Lands escheat to the Lord of the Mannor who notwithstanding was formerly compelled to expect untill the King had received his yeare and his day and waste unlesse the King himselfe â—ere Lord. z Stanf. l. 3. c. 3. Flet. l. 1. c. 28. Moreover the Issue of Felons is so infected that they are excluded from all hope or possibility of succeeding in the Inheritances of their Ancestors which otherwise should have descended to them unlesse there be any thing more favourably enacted in case of any particular crime contrary to the common and ordinary forme a 1 Mar. c. 14 1 Jam. c. 11 12. 34. But these things which wee have spoken concerning the punishments of Treasons and Felonies must have their distinctions therefore it were requisite to explain them Now the way of impeaching any of these crimes is double one by Appeal b Stanf. l. 2. c. 52 53 54 55 56 57 58 59. the other by Indictment at the suite of the Supream Power c Id. c. 59. If they proceed by way of Appeale and that it be an Accuser who takes upon him the proofe of the crime it is at the election of the Defendant unlesse hee will confesse the fact to wage his Battaile with the Appellor or to be tryed by his Country Or in case he were a Peer of the Realm to be tryed by a Verdict of his Peers or Pares d Id. l. 3. c. 1. Flet. 1. c. 21. 31 32. But if he be indicted he is left solely to the tryall of his Country or Peers And if in either case he be convict he is punished with Death 35. But it sometimes happens that the party accused through contumacy refuseth to be tryed either way but either stands mute or pleads not so As by his answer Issue may be joyned to come to Tryall In which cases if it be by Appeale he is immediately adjudged to dye e Dyer 441. n. 49. If by Indictment then is it taken Pro Confesso in case of Treason And in cases of Felony he shall be impressed viz he shall be committed to the Prison from whence hee was brought where he shall be carryed into some low dark place and being stripped naked he shall be laid upon the bare ground his Pudâ—ndâ—e only covered and his Arms and Legs pulled out by four ropes fastned to the four corners of the room hee shall be stretched out upon his back Then being bound in this manner hee shall have so great a weight of Iron or Stone laid upon his Breast as hee is able to beare without confusion The day following he shall have 3. crusts of barly bread without drink next day to that he shall have three draughts of the water next to the Prison povided it be not running water but without Bread And so by turns he shall be fed with bread or water every day untill hee dye through the extremities of weight hunger and cold f Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer 241. n. 49. 36. Now a Woman who is condemned for any the aforesaid Crimes if she be with Child hath the Execution of Judgment deferr'd untill shee be delivered of her Infant g Flet. l. 1. c. 38. 37. There is also a misprision of Felony As in case any one knowes another to have committed Felony and doth not discover it unto the Supream Power or to a Magistrate h Termes of the Law v. misprision Cromp. fol. 39. Now the punishment for this crime is That the party shall be committed to prison untill hee have put in Security for the payment of such a Fine as the Judges shall impose upon him before whom he is convened i Id. ib. And it is to be observed That in all Treasons and Felonies there is a misprision of Treason or Felony comprehended And therefore it is in the power of the Supreame Power if in its clemency it thinks good so to doe to suppose him guilty of misprision only who really is guilty of a greater crime k Id. ib. 38. Next to these which are capitall are those crimes which used to be punished with perpetuall Exile and Banishment As those persons who having committed Treason or Felony and taken Sanctuary were accustomed having confest their crime before the Coroner to abjure the Realm and thereby avoid a greater punishment l Stanf. l. 2. c. 38 39. Terms of the Law v. Abiuration but this is long since altered m 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12. And indeed there are few Facts at this day subject to this and many even of those are not so high as he who kills Deere and cannot finde security to put in for the payment of the Fine imposed is compelled to abjure the Common-wealth n Charta de Forest c. 10. Dier fol. 238. n. 34. which also hee is bound to doe who marries a Woman-Heir having stollen her out of the custody of her Guardian and is not able to satisfie for the value of her Marriage o 13 E. 1 c. 45. So also hee who accepts of a Benefice being elected by the Pope p 13. R. 2. Stat. 2. c. 2. And lastly a Papist who refuseth to come to Church according to Act of Parliament q 35 Eliz. c. 1. 39. Our Statutes also inflict a great penalty upon those who sue or implead any one in a Forreign Realm when the Action belongs properly to the Cognisance of our Courts or where Judgement hath in the same case been given by the Justices here As likewise upon those who by prosecuting a Plaint in another Court endeavour to retard or impeach Judgment given in the Supream Courts of our Supream Power For such Offenders being summoned by distresse either upon the Lands in question or upon any other of