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
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
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
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
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
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muâ—â— prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortâ—â— time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ— molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ— any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ— l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â— Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
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
Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
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
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or fee-Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
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
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