a Recovery as a Fine is without Attornment for the habere facias seisinam recites cum A recuperavit seisinam suam c. because the Husband raised the use First it is his purchase and so within the words of the Statute and if not yet it shall be within the equity and nevertheless it is penal Sanders for the Defendant The Statute here is penal because it goeth in avoidance of Estates and abridges power and therefore not equitable And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty because he vouches an Infant and yet it is adjudged 18. E. 4.16 If he maketh a Feoffment over this Feoffee shall vouch because penall against one shall not extend to another So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before for five years shall not take away the Entry of the disseisee yet if one Abator die seised within five years this discent shall take away the Entry And so if Tenant for life be disseised and the disseisor die within five years and the Tenant for Life dieth he in Reversion or Remainder may not Enter because he was no Disseisor to them and to the discent they had no Title to Enter but the Tenant for Life and taken strictly because it abridgeth the Liberty given by the Common-Law By inheritance is understood Land by dicent as it is proved by a case in 7. H. 4.5 and a cui in vita abated because it was quam clamat esse jus Hereditatem suam whereas it was his own purchase And by 4. H. 5. cap. 3. which speaketh of Lands by purchase or by discent and the disjunctive prove the difference between the words Purchase intends Land by gift or purchase which is by Title Disseisen is not purchase because without Title Now because the Plaintiff hath in the Replication said That the Grandfather of the Defendant was seised in Fee for to prove the Defendant to be within the first Branch the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession for the manner of coming to the Land is Issuable because it may be by Discent Purchase or Disseisen And a Joincture made by a Disseisor to his wife is out of the Statute Recovery without Execution is not a discontinuance Harris Serjeant argues to the same intent And he taketh also that Covin cannot be where the Title is good except that wrong be done by him which hath the Title and this ought to be shewed for here in respect that the Title is confessed to be good in this That it is not traversed nor confessed and avoided this Recovery may not be averred to be by Covin for this avernment is repugnant in it self and it cannot stand together to say that she did right by Covin And as to the Statute he taketh the case here to be out of the words of the Statute And note thou that he argued to all the other points moved to the same purpose that they were arguod before Molineux Justice It is a vain thing to aver this specially which is apparant as the Covin and therefore when the Tenant infeoffes his Son within age by Collusion the Lord shall seise him for a Ward without shewing this Collusion specially So if the Husband will confess an Action the Wife shall have Dower by the Common Law proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant but it was doubted if the Recovery had been by Default but here the Action had been tryed by the Verdict of 12. men the cause of the Covin ought to have been shewed because the Law giveth credence to it As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted because the Law presumes the Verdict to be true untill the Reversal be tryed upon Error in Deed or Record so that the Law hath an indifferent judgement of it viz. to be true or false And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict Also Covin upon a good Title is prohibited because the Statute of 11. H. 7. is generall And so Covin generally averred here without falsifying of the Title is good as 4. H. 7. cap. 20. saith That if a Recovery be pleaded in Bar of a popular Action the Plaintiff may aver it was by Covin generally by the Warrant of the Statute As to the second exception the Stat. expounds it self to be intended of a Recovery without execution Every Fee-simple is an inheritance and then she had an use in the inheritance of her Husband and held that the Wife held the inheritance of her Husband that is to say his Land in use joyntly with her Husband and so within the words of the Statute and if not it shall be within the equity and intent of the Statute and he took without question that the Heir in Tail might enter presently and our the Wife which is Defendant and so held the Plaintiff should recover Hales Justice to the same intent And first to the Covin the Replication is good without shewing cause of it And the Statute is for frail inconstant women and will not make them Judges if the Title of Action be good or not 18. R. 2. cap. 17. gives receipt to him in Reversion where the Tenant for Life is impleaded by Covin of the demandants that the Tenements shall be recoverred and he in Reversion because it speaks generally of Covin 2. H. 6.14 and 11. H. 4.3 For this cause there it sufficeth to say That Tenant for Life pleaded faintly and pray to be received without shewing cause otherwise it is of Covin at the Common Law and 11. H. 7. would have limited the pain to fained recoveries expresly if it had intended so much And the Statute prohibits the Covin onely be the Title good or faint for faint Recoverie by Covin the issue in Tail may falsifie before Warranty made 20. years after the Disseisen yet it commenceth by Disseisen by the intent As if the Father Disseiseth the Son to the intent to make a Feoffment with Warranty to Bar his Wife Recovers against one which outs the Tenant by Covin yet she had not good Title of Dower is a Disseiseress and Covin is apparent here because he never took view voucher essoin or other delays which he might The Statute saith That the Recovery shall be void whereby it is not intended that it shall be executed and shall not be intended to be by Disseisen without shewing The words of 11. H. 7. explain the intent That such Wives who have Lands in use or use in Lands are within the Statute Recovery against Tenant in Tail was good onely for his life before this Stat. and therefore comprises use here because the Stat. shall not be made in vain for Tail in use may do as great prejudice as Tail in possession and so the
shall not have it from him because once attached in him as the Kings Villain and his wife are Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
Land to him for fifty foure yeares rendring Rent hath issue and dyes before any Proclamation made and after the Proclamations passe and after the Husband and Wife dyes Adjudged that the Lease is good against the issue of N. in tayle by reason of the Rent otherwise it were if the Rent had not been reserved First The Lease had not been voyd against N. T. the Father himselfe if he had survived the Husband and Wife if it were by words notwithstanding it be a present contract because it depends upon an estate for life which is uncertaine when it shall determine otherwise it is if the first had been a Lease for yeares which containe certainty there the second Lease shall be voyd for the first terme except that it be by Deed poll with Attournment in which case it shall enure by way of a grant of the Reversion if the party will use it so or by Indenture or Fine which are matters of Estoppell Secondly The Lease is but voidable against the issue because of the Rent which is a recompence otherwise it is of a charge for it shall be voyd by the Remitter and inasmuch as this contingent Lease is not avoided but continues during the Proclamations the Statute of 32. H. 8. maketh this a barr against the issue during the terme Thirdly A Lease by word made by the Husband and Wife is the Lease of the Husband onely and not of the Wife possession without title is sufficient to make an Advowry for dammage feasant protection pleaded for part and Inter alia good by the Rule of the Court A Fine pleaded by way De finalie Concordia facta fuil and not that he levied a Fine and also pleaded that it was acknowledged in the Kings Court without saying in the Common pleas is good and 22. H. 6.13 A Fine is a Record although it be not ingrossed and shall be executed Fourthly How and in what degree this Lease passe at the beginning by the Fine The estate of N. not altered by the Fine of a stranger which had not any right or Estate in the Land but is Estopped for his life to say otherwise but that he receives fee simple by the Fine Leases by word by Deed Poll by Indenture are to be considered how they shall enure As if a Lease be made by words without Deed of Lands by one that hath see simple for one and twenty years to commence presently rendring a rent and after the same day maketh a new Lease by Paroll to another for the same terme or for a lessor terme the second Lease is void although that the first Lessee surrenders or forfeits because at the time of the first Lease he hath not but a Reversion and no interest in him to contract for the possession And he that will by contract make another possessor of the thing ought to be proprietor of the same himself As if one sells a Horse upon condition that the Vendee shall pay him forty shillings at Easter and after he sells the Horse to a stranger and after the first Vendee payes not the forty shillings at Easter and the Vendor reseiseth the Horse the second Vendee shall not have the Horse because the Vendor had him not at the time of the sale the Condition only inables him not to contract for the property and possession which he then had not but if the Lessee for one and twenty years be and the Lessor the same day grant the Reversion by Deed for twenty one years to commence presently it is good with Attournment and he shall have the Reversion during the first Lease and the Rent as incident thereunto because it is another thing then the possession So a Lease by word for years to commence after the first year is good because it is of another thing then the first Lessee had because the second Lessee is to have the possession after the first possession and interest expired A man leases for one and twenty years in possession and presently maks a Lease of it for one and thirty years by word this is good for the last ten years and Executory for it for a Lease for years is Executory and severall for every yeare and day and is as to execution as severall contracts And therefore such contract may be good in part and void in part So if he Leases for 21. years to commence 10. years after and he maketh a Lease for 31. years to commence presently it is good for the first 10. years and void for the last 21. years for that he had contracted before and was certain although that the first Lease were forfeited or surrendred otherwise it is if the first Lease had bin incertain as a Lease for life there the second Lease had bin good after the Tenants life not during his life although he surrendred or forfeited unlesse it had bin by Fine or Indenture because Estoppels if the second Lease for the same years be by Deed Poll there the reversion with the rent pass by Attornment by the demise of the land by the name of Land if the possession cannot as a Reversion upon an Estate for life passeth by bargaine and sale of the land by Deed inrolled and the Grantee may use his Deed as he pleaseth and therefore may use it as a Grant of a Reversion with attornment otherwise it is if it be by word because the Reversion for years cannot be granted by word But if Lessee for years will use a Leas Poll as a present Leas where he hath not attornment the Leas is void although the first surrendred or forfeited as it is if it were by word because a contract by Deed Poll passeth not that which another then injoyes But if the second Lease were by Fine or Indenture and the first surrendred or forfeited it is good for if one leases land to me which he hath not at the time by Fine or Indenture and after purchase it or it desends to him I may enter and occupy by Estoppell and I shall be compelled by Estoppell to pay the Rent because every one is concluded to say but that the land passeth in possession for fourty five yeares by Estoppell and shall be good in estate to have the other yeares because they are not incurred in the life time of the Tenants for life for if the Lease for fourtie five yeares had been by word and the particular Tenant for life had died the Lessee should have it against the Lessor If the estate given by the Fine is defeated the Fine shall be void although the Proclamations passe after for the Fine is the Principall and the Proclamations but accessary to the Fine as Tenants in taile disseised levies a Fine to the disseisor Sur conusans de droit or sur release and dies there the issue if he enters before all the Proclamations are passed is remitted and is not harred for that 32. H. 8. which saith that Fines after Proclamations bars tayle intends of Fines remaining
D. bringeth an Action of Debt against him and the Abbot his Sovereign the Writ shall abate because he is named Prior whereas he is but one of the Monks where he may not be Debitor But it had been good if the Prior had been omitted and Debt is maintainable without contract between them or privity in possibility upon the escape As 1. H. 7. 8. against the Clark of Hamper upon a Liberate delivered to him when the Comisor hath assets Admitting that it lies not by the Common Law yet it lies by equity of the Statute of Westminster the 2. ch 11. which giveth in Action against the Gaoler which suffers an Accomptant to escape and by the equity of the Statute of 1. R. 12. which gives an Action against the Warden of the Fleet upon an escape for it shall extend to all other Gaolers by equity for although it be penal against the Warden yet it is benificial to many others As 13. E. 1. circumspecte agatis extends to all other Bishops as well as Norwich So the Statute of 9. E. 3. 5. That the Executor which first cometh by distress shall answer 3. H. 6. 14. extends to an Administrator and 9. H. 6. 19. Debt upon an escape of one in Execution was maintainable against the Major of the Staple who in excuse of himself saith That he was imprisoned by force of a plaint and not in Execution the words of R. 2. prohibites the Warden of the Fleet onely to suffer any in Execution to go out of Prison by Baston Mainprise or Bail and by equity all other Gaolers yet these in London use it and it is not an escape in them because they may prescribe against the equity and words of Statutes which is contrary to their Customs and Prescriptions for that their Customs as Prescriptions are confirmed by Statute and contrary to the Statute of Silva cedua and keeping gof Leets at other times then the Statute appoints and so let them in execution to go by Baston within their liberty But others shall be bound by equity of the said Statute and because this Statute extends to others by equity in this point of escape it shall extend also to an Action to charge other Officers as to matters of escape A prisoner marry the Warden of the Fleet this is an escape and he is at liberty for he cannot be under his Wifes Custody So if the Office discends to an Heir which is a prisoner there he shall be adjudged at Liberty although he lieth in fetters because he cannot be his own keeper in prison Baitons case 44. and Ridgwaies case 3. 52. by which it appeareth that the cause here is to be understood of voluntary escapes in the Gaoler for if the prisoner escape to his own wrong the Plaintiff shall have a new Capias ad satisfaciendnm if the Writ of Capias upon which he is not imprisoned be not returned or shall be in Execution to the Plaintiff again if he be re-taken by the Sheriff before an Action brought against him upon the escape Wimbish against Talbois THe Husband makes a Feoffment in Fee to the use of himself 4. E. 6. In the Common Pleas. and his Wife in special Tail the Remainder to the Husband in general Tail the Remainder to him in Fee 27. H. 8. of Uses was made the Husband and Wife entred the Husband dies the Wife suffers a recovery by Confession the first day which is not executed and the Issue in Tail enters for the forfeiture by the Statute of 11. H. 7. c. 10. and the opinion of the Court. 1. That the entry is lawfull and this forfeiture is within the words of the Statute although that the wife had not any estate in the Land in use yet shee had the use in the Land which is all one and this is an Hereditament which will make Possessio fratris by 5. E. 4. and was appointed by the Act of the Husband and was an inheritance and purchase in him and so within the words of the first branch of the Stat. of 11. H. 7. 2. Admitting that it should be out of the words of the first branch because it speaks of gifts to the Husband and wife by any seised to his use and Feoffees are Donees by the Stat. of 27. H. 8. of Uses by 6. E. 6. Formedon 40. 3. Admitting that it be forth of the words of the first branch yet it is within the equity because it is a benificial law and in advancement of justice and suppression of fraud 4. That a remedy by Covin upon a false or true cause is within the Statute although no execution be sued for the Covin is a Condition in Law annexed to an estate which Condition is broken although that Execution is not sued the Statute is general of Recoveries by Covin and includes all recoveries this Condition annexed to the use shall transfer to the possession by the Stat. of 27. H. 8. 5. That he which entred by such forfeiture shall be seised in Tail or Fee as shee should be if the Wife were dead and this in course of discent and not purchase paramount contrary to Hales and that a Son born may enter upon the Daughter which hath entred for such forfeiture contrary of a purchase and that the entry for the forfeiture is maintainable presently in the life of the Wife which maketh it and he which enters may aver generally in pleading That he is that person which ought to take benefit of the forfeiture by all the Justices contrary to Montague Cook Sergeant to the Defendant which saith That the Replication is not good because it shews not how he is Heir in special but hath averred That he is the same person to which c. general abatement for it is issuable and when such Statutes gives entry generally to one yet if he will take advantage of it he shall shew how he is the same person and shall not say generally that he is the same person as upon 6. R. 2. cap. 6. which will enter by assent to the Ravisher 5. E. 4. 6. ought to shew how he is next Heir yet the Stat. is general so for prayee to be received upon default of Tenant for life by W. 2. cap. 3. ought to shew how he came to the Reversion So he which will Intitle himself upon 7. E. 1. for entry upon Mortmain how he is Lord. As to the Obligation That because the Defendant in Bar in saying whose heir he is hath affirmed the Plaintiff to be heir and therefore in the Replication hath conveyed himself to his entry as Heir special and so the Replication ill for default of certainty Secondly for that the Plaintiff hath not shewed that execution was had of the said recovery against the Defendant Thirdly Exception because he hath not evered the Covin specially for otherwise it is not intendable in Recoveries because they are alwaies intended true and upon good cause and therefore the Wife at the Common Law
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of fee-Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
be a general because the not referring to the science of the Judges as he doth if he saith generally contra formam Stat. c. a Statute hath no words in vain Whiddon for the Plaintiff A general Statute shall not be recited as 27. H. 8. of Conveyance of the possession to the Use So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line So an Executor of an Executor shall have account without recital of the Statute of 25 E. 3. cap. 5. So 5. H. 7.17 Information for Liveries good without reciting of the Statute Misrecital of the surplusage shall not make the mattor bad as 21. H. 6.1 by Newton one as an Executor shall not bring an action of Debt upon a Contract made with himself he shall not shew the Testament for that the naming of him Executor is surplusage So 33. H. 6.19 by Danby in Detinue against two as Executors They shall not plead that another is Executor with them because they are not charged as Executors But Detinue is cause of Action and the naming of them Executors is surplusage A man shall not aver that which by the Statute is made apparent as the Lord shew that he entred into the Land within the year because his Tenant aliened to the Dean and Chapter he shall not aver that it is Mortmain because it appeareth now nor here that it is a pretenced right because he counts that the Defendant nor his Ancestors c. were not in possession the space of a year before the Lease and then is pretenced Conveyance to the Action as the Lease is here shall not be pleaded So certainty is the substance it self as appeareth 34. H. 6.4 by Prisot in decies lantum If the Plaintiff sheweth such part of the Record as conveys him to his Action it is sufficient without shewing all But a Writ judicial ought to recite the Record certainly out of which it issueth because the Record is the substance and effect there and not only the Conveyance a stranger to the Deed or thing as the Plaintiff here is to the Lease that he pleads shall not shew the certainty of it as 35. H. 6.8 after fol. 148.13 H. 7.19 By Fineux au ancient Major in Trespass justifie the taking of goods because the Plantiff was out-lawed without shewing Pattent because he is now as a stranger to them for it belongeth to the successor and not to him So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1 by Strange Lessee in Debt against him for Rent reserved may say That the Estate of his Lessor was upon Condition for which broken such a one had entred before the Rent arear Judgement if Action without shewing what condition Sanders to the same intent The Statute here although penall yet because it is beneficial for the Common Wealth viz. for to avoid maintenance subordination of witnesses c. Things taken out of the Works thereof taken by equity and the words obscurely expounded most strong for the Common wealth and words are but the image of the Statute and the life thereof in the minds of the makers and Expositors of it and which approach nearest to their minds are the true Expositors and words should be inclinable to the mind So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus viz. as to right to be bound but as to the possession is a discontinuance before fol. 57. and after fol. 137. So the heir may demand the heritage of his Mother aliened by his Father if he onely Levied the Fine Yet Gloucester cap. 3. saith Whereof no Fine is Levied intends lawfull Fines by the Father and Mother before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee Yet 21. E. 3.21 shall be delivered to the extendors because prised too high it shall he delivered to the praisors for the price after f. 172. So if the Plaintiff be nonsuit in a second deliverance the Defendant shall recover Dammages by the equity of 7. H. 8.4 Return irreplevisable shall be awarded and so by this means the Plaintiff is barred and so the intent of the makers directs the words and equity of Statutes Lessee for years hath a right Estate and Title to Enter right because by Bracton he hath jus utendi fruendi in alieno libero Tenemento an Estate because a Remainder in Fee is good upon a Lease for years and a Remainder is not good without an estate precedent Title because 7. H. 7.11 a Termor may falsifie a faint Recovery against his Lessor by the Common Law So 9. H. 6.64 by Strange I grant to B. That if my Tenant for life dies living my self that he shall have for 10. years B. may maintain because he hath colour yet he hath nothing and is in doubt if he shall have it for 10. years or not Then if the Leffee for years hath such interest that by the Common Law he may maintain there is no need of a remedy for all other the Statutes before avoid maintenance the suit depending for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after Account shall not abate for default of form if it hath substance 36. E. 3. cap. ultimo After fol. 190. If one be found guilty of an offence which is pardoned by Parliament Judges ought not to proceed to judgement yet it is not pleaded because they are bound to take notice of it for it appeareth to them by judicial knowledge 26. H. 8 7. by Fitz. H. But if A. kill B. in the presence of the Justices and C. is found guilty of it 7. H. 4.41 by Tirwit and Gascoin the Justice ought to respite judgement because he knoweth the contrary but not to acquit C. because he cannot judge of his own knowledge 22. E. 4.47 where it was granted by Parliament That A. should have a Writ with Proclamation out of the Chancery against one G. to answer divers trespasses which were contained in the Act of Patliament and the Writ was abated by award because it did not mention those Trespasses in certainty because a private Act and there not recitall or misrecital shall hurt And as to the cerainty of the Term he shall not shew it because he is a stranger to it As the Defendant shall plead Joyntenancie of the Plaintiff without shewing of whose gift All the Court say That Declarations ought to have certainty So that the Defendant may know to what thing he ought to answer after fol. 193. and 3. H. 7.12 So 3. E. 4.21 In Debt for a sallary against a Successor declares That he was retained with his Predecessor and shews not who retained him because a stranger may retain him the County shall abate by the better opinion for the incertainty good by Brook Laborers 39. and the truth is That
cannot do any thing without Record And so Acts that the King doth touching things which he hath in his body naturall require the same circumstances and order as things which he hath in his politique body by the union thereof for the thing possessed changeth not from the person of the King but the person nor doth the possession change the cause of a thing possessed Henry the 4. which was Duke of Lancaster held his Dutchie annexed to the Crown as parcel of it by the assumption of the Crown and because his Title to the Crown was defeasable and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land and of the Government of it viz. for the manner of Conveyance as it was before in the hands of the Duke as by Livery and Attornment but not severed from the Crown for the prerogatives of his person as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue and a procedendo with a Clause of not going to judgement Rege inconsulto So the person of the King for Dutchie land taken to be higher then a Duke because he shall not have aid untill after issue of the Duke for that he is a Common person and shall make a Lease by the name of KING because it drowns the name of DUKE in his Realm therefore Officers finding that he held of the King as of the Dutchie and not as of the Duke of and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal or should be void to the end that all possessions of it should be distinct used and known from the possessions of the Crown for the policie aforesaid because he was the Lineal heir to the Dutchie and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown annexed the Dutchie of Lancaster and made it to be forfeit to the Crown and so he altered the course of inheritance of it out of the natural body into the politick body of the King and his Successors but not in the manner of Government name c. but separates it from other possessions of the Crown in conveyance of it by another Seal and other means viz. by Livery and Attornment which are used for the possessions thereof as 21. E. 4.60 Land of the Dutchie in the County Palatine passe by Pattent out of it by Livery because there he hath it as Duke and by the Statute of 1. H. 7. the Dutchie was severed from the Crown and made inheritable to the natural capacity of the King as it was in H. 5. because H. 7. discended of the House of Lancaster so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine to be holden in Capite the Feoffee shall hold in Capite of the Crown and not as of the Dutchie for that the King is not Duke within his Realm but may be when he is out of the Realm Willion against the Lord Berkly A Fine was levied to two and to the Heirs of one 4. Eliz. in C.P. in an Ej. firme with Grant and Render to the Conusor in Tail the Remainder to King Henry the seventh and to the Heirs Males of his body ingendred remainder to the right Heirs of the Conusor the Conusor dies without issue and after H. 7. entred and died seised and H. 8. gave the land to the Queen his Wife for her life and died E. 6. Granted the reversion to one and his Heirs and dyed without issue the right Heir of the Conusor entred and his entry adjudged lawfull So the King shall be in a worse condition then a common person for a common person may bind the inheritance by a common Recovery suffered by him otherwise of the King by W. 2. cap. 1. after fol. 244. a. 1. That the Writ of Ejectione firme that wanteth words bona Cattalla ibidem inventa cepit asportavit is good if the truth of the matter be so and proces of utlarie lieth in this writ by the Common Law fol. 228. 2. The Entry of King Henry the seventh is lawfull without office for that the Law casts the Freehold upon him otherwise it is where he taketh an estate by Office as Ward Perquisites of villains c. and the right Heir may enter without Office or Ouster le main by the same reason fol. 229. a. 3. Where the parties agree upon the matter in deed and conclude upon the matter in Law thereupon Nilrefert but the Court shall adjudge according to the Law fol. 230. 4 Recitall of one part of a generall Statute is good enough otherwise it is of a particular Seatute fol. 232. a. 5. Omission of the date or place of Letters Patents is not materiall in pleading not Averment fol. 231. 6. A feoffment pleaded without entry of the Feoffee is good because it is included in the liverry fol. 232. b 7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue fol. 233 a. 8. The pleading that H. 7. had issue and died without issue is repugnant of his own shewing otherwise it is where it cometh on the part of the defendant fol. 233. 9. The pleading that one enter untill that the Lessor entred upon him and made the Lease is not good there without saying that he custed him and made the Lease The King shall be bound by the Statute of W. 2. of gifts conditional for that it is in preservation of an inheritance in benefit of the publike good and restitution of the intent of the donor and the exposition that the donee might alien after issue before the Statute of Gifts conditional hath been a common error As to the matter in Law it was said by the Sergeants of Counsel with the defendant that the capacity that the King hath in his naturall body after that he is King Remains and the State Royall confounds not this capacity as 45. ass pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle who exchanged it by a deed for another Mannor and died without issue and warranty and assets discended upon Edward the first his heir he is barred and therefore the assignee of the party to the exchange had restitution out of the hands E. 3. who had seised it and so by this warranty and assets which discended upon the naturall body of the King was a Bar to the reversion that he demanded in his body politike And as a King may take as heir by discent in his
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS
woad that he may do his pleasure then the King shall have an action upon the agreement and if he doth not weigh it is the folly of the Collector Griffith the Kings Sollicitor Agreement or concord executed with satisfaction in deed or with accord or means for recovery of recompence is a good bar in Trespass Executory is not howbeit it is the mutual assent of the parties because it giveth neither recompence action nor remedy whereby to obtain recompence and therefore it is not but a void communication and nudum pactum as in 20. H. 6. In Trespass the Defendant pleads concord between them That he shall pay 20. s. to the Plantiff at a day to come it is not a bar because it is not satisfaction nor recompence for it because he shall not have debt after the day so 9. E. 4.19 in Trepsass upon 5. R. 2. Defendant pleads accord That the Plantiff should re-re-enter and have the land and that the Defendant deliver to the Plantiff all the Evidences concerning the land and said that the Plantiff had entred and that he had delivered all the evidences unto him It is no bar for it intends the proper evidences of the Plantiff and so no satisfaction of the wrong but if it conveys to him Title to the evidence then it is a good bar so in 15. H. 6. in Trespass against him by the Plantiff he pleads That they agree that if the Defendant doth his endeavor for to agree them for a Trespass by the Plantiff to S. That then c. and saith That he did his endeavor so that they are accorded it is no plea because no satisfaction but if he saith That he hath accorded them at his own costs it is a good bar Gawdy the elder for the Defendant Arbitrement which is Executory 9. E. 4.51 Fitz. H. 4. Br. 3. accord is a good bar in Trespass because he may have debt at the day appointed for the payment of the summ agreed to be paid in recompence and so the Trespass is converted into another thing viz. Debt by the Arbitrators which are judges of it and so accord countervails satisfaction in facto otherwise it is of a concord executory 6. H. 7.11 because the pleading of the concord confesseth a wrong and it is not reason that the Plantiff in an action thereupon should be barred without satisfaction And so shall the King be satisfied here Also in concord the wrong to be recompenced precede the agreement but here the agreement precedes the wrong supposed and cometh not after the wrong as in concord and therefore this case may not be resembled to the case before of accord Incertaintie at the beginning which may be reduced to certaintie by matter ex post facto countervaileth certaintie ab initio as a man leaseth all his Acres in D. paying for every one 12. d. it is a good reservation because when the Acres are measured the Rent shall be certain so a gift of two Acres of the one for Life and of the other in Fee by the Feoffment of the one he shall have Fee in this ab initio so Lessee of white-acre and Black-acre for life the remainder of the one in Fee to a stranger and the Lessor licences him for to cut Trees in White-acre now he shall be adjudged to have the remainder of this Acre ab initio so the thing which at the commencement was incertain is made certain So in Wheelers case 14. H. 8.17 So a Lease for so many years as I. S. shall name is good when he shall name the years So 17. E. 4.1 A. bargains that B. shall have his wheat when he hath viewed it if he please paying 4. s. the Acre good contract if he paies when he carrieth it away yet the quantity and summ incertain at the first so here when the Collector hath weighed the woad And therefore this conditional agreement doth countervail an agreement certain at the beginning And where acts ought to be performed strictly yet in divers cases the performance of the intent and not the words good for it countervaileth the performance of the words So here But performance of the words and not of the intent is not good as Lit. fol. 182. of conditions upon a Feoffment for to give again to I. S. and his wife in special Tail and they die and the Feoffees make an estate to their issue and the heirs of his father and mother good because the intent of the condition is performed So 17. E. 4.3 Obligation upon condition to infeoff I. S. and he Lease for years and Release in Fee it is a good performance and a good Feoffment and yet the words of a condition shall be performed as strictly as a Statute Bradshaw the Kings Attorney The mutual assent of the parties upon a thing incertain is in Law but a vain communication before the certainty known as in 37. H. 6.8 A man promises in marriage with his daughter so much as I. S. shall arbitrate The party which shall marry his daughter shall not have it if he marry her until I. S. hath made his award and appointed it for before that it is reduced into certainty it is but a vain communication So in 20. H. 6. A man Leases to A. for so many years as B. shall name he cannot enter into the land before that B. hath named the number of years And the witness of the Defendant which saith That he found suerties and hath not shewed who or what as he ought is wanting both in the name and ability of the sureties which the Court ought to adjudge of as in 22. E. 4.40 A man that was bound to shew a sufficient discharge of an annuity pleaded that he had offered to shew it to him and he refused to see it and held no good plea. Agreement according to the Statute in issue shall be intended general viz. certain and special viz. incertain in evidence proves not the issue neither is it pursuant to the issue as in 31. H. 6. Upon non est factum pleaded in debt witnesses say That it was delivered at another place then it did bear date whereupon the Defendant demurred and the Plantiff was barred because this proved not it to be his Deed for the delivery shall be intended where it was dated and the witnesses prove the contrary and so the evidence warrants not the issue so in 18. H. 6.16 One deed of Lease for life without Livery given in evidence shall not maintain upon Free-hold pleaded the issue so in 14. E. 3. Upon traverse of a gift in Tail the witnesses prove that another made the gift and awarded that the Plaintiff should be barred so if he had pleaded the general agreement in bar and special in the rejoinder it is a departure as in 6. H. 7.8 In Trespass the Defendant pleaded a descent to him and the Plaintiff said That after the Defendant infeoffed him and the Denfendant said That it was upon condition and for breach
thereof he entred this is a departure from the Bar for it is a new matter For the same reason a special agreement in evidence shall not maintain the general issue one witness is not enough nor one Juror for to try an issue if more were warned by the Sheriff 8. E. 3.50 So here the Defendant had but one witness which proves for him which is not sufficient and so judgement shall be given for the King Atkins for the Defendant A witness produced to prove a thing if he saith That he knoweth nothing of the matter his deposition is void so if he depose negatively as to say no more was not entred then so much and if no witness the knowing of the Jurors aid not the tryal of the matter and a Verdict given contrary to the testimony of witnesses good It is not needfull to aver that which of necessity must be intended as that the King hath a Beam there special agreement is an agreement as a Feoffment upon condition is a Feoffment and so this word Agreement includes every agreement by which the evidence well maintains the issue The Statute speaks not of surety and peradventure intends it not and therefore in vain to speak of it and therefore it may be he hath not answered to this exception Agreement in our Law is threefold viz. Executed at the beginning of it with payment intended by the Statute of 25. E. 3. cap. 3. which saith That goods bought by fore-stallers are forfeited to the King if the buyer had made agreement with the seller such agreement is not meant in our case because then the Statute should not be intended in the disjunctive for then the first and the second clause should be all one but the word Or disjoyns the clauses Agreement to an act made by another as in 20. E. 4.9 To a disseisin to his use maketh him a disseisor from the beginning so the party ravished to agree to the ravisher is an agreement executed here because nothing is to be done afterwards and agreement here may not be an executory agreement because the performance shall be afterwards yet both parties accord at one time before 26. H. 8. cap. 3. intends such because it speaks of payment or agreement for first fruits c. and common usage to pay after upon obligation made before proves this which intends agreement executory and here agreement is intended executory because it is not the first nor the second and an agreement executory is Duplex the one certain at the beginning as this of first fruits the other by matter ex post facto upon certainty to be known as here and such agreement executory the Statute will warrant for no Law will punish him in whom there is no default and where he cannot prevent the mischance by no possibility for the necessity of the matter and for that inevitable chance shall not prejudice any 20. H. 7.11 Fineus A man by the Common Law may kill another in his own defence or as a champion for the necessary safeguard of his life and the Tryal of right so notwithstanding the custom of the Realm new Natura brevium 94. b. If enemies of the King steal of Guests the Hoastler is discharged because he cannot resist So if the ship were on fire the casting of the goods on the land without payment or agreement for the Subsidie shall excuse the Defendant so here the extremity of the Tempest doth excuse the vigor of the Statute Sanders the Kings Serjeant Notwitstanding that an agreement conditional is included in the words of the Statute viz. The Collector not agreed with yet every Statute although it be penal shall be taken as the makers intended for the Statute of Waste is If any make waste in Lands which he holdeth by Demise c. yet if his Estate be Ex ligatione it shall be punishable in waste and yet the Statute gives Ex demissione onely suo de assignat and so it is holden 10. H. 6.3 But Gloucester cap. 5. W. cap. 14. nor Martebridge cap. 13. speaks nothing de demissione So quia emptores terrarum viz. W. 3. speaks secundum quantitatem terrae intend valore So 4. E. 4.12 An information for shipping Wooll without sureties of the carrying of Bullion according to the 14. E. 3. the last chapter holden good because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll other then Custom and Subsidie granted to the King and without assent of Parliament and the two last Staâ—intend not for to discharge Bullion but great Subsidies upon Wooll after 3. years so that the mind intent of the makers shall expound the general and doubtfull words of Star and abridge the generalty of them so here it shall be intended an agreement certain Also because the Commons pray the King That he will be pleased to accept of their Grant for that the words of the Statute which is their Grant shall be taken more beneficial for the King and most strong against the Grantors according to the Principle of the Common Law in case of a common person So the Statute of Prerogativa Regis 17. Ed. 2. Rastal wards 13. is the Grant of the Commons to the King which saith The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite whereof the Tenants were seized in their Demeasne as of Fee at the day of their death of whomsoever they hold also by like Knights Service and notwithstanding that Fee is commonly taken to be Fee-Simple yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments Agreements upon which the Common Law giveth no remedy are void and not good as in 19. H. 6.36 Upon an information for the forging of false Deeds the Defendant pleads Arbitrement made viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant and saith also That the Defendant shall be non-suited in the Assize This is no Plea because non-suited founds not in satisfaction and cannot compell him to be non-suited for the award is not good if it be not executed wholly or the thing awarded may be recovered by action and therefore in 6. H. 7.10 In Trespass to say That he hath paid money but he hath not made his windows which the Heir may compel him to do for the concord is intire but wants execution in all and indeed before action brought is not good then it is performed yet not immediately and therefore it was held no Plea So in 27. ass pl. 5. A Baily known pledge the Ox of his Master for Wheat and if he pays not c. he shall keep the Ox alwaies This shall bind the Master because the wheat cometh to his use otherwise
Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
18. E. 3. 15. a gift to one and his first begotten Son and he hath no Son then but afterwards he hath is a good Remainder to his Son So 39. Assise Pla. 20. a gift to Husband and Wife and to one Heir of his body is a good Remainder yet no Heir to the gift if he be in being when the Possession in Law is cast upon him but a Remainder limited upon contrariety is not good fol. 24. according but the other cause that Litl assigns for that it vests not at the time of the Livery is no cause as is proved by the cases aforesaid because after the Alienation and gift it may not remain to another And the other cause that Litl alleadgeth is because it vests not at the time of Livery which is no cause So a gift to A. and his Heirs so long as B. shall have heirs of his body Remainder to C. in Fee is void for the contrariety because a Remainder cannot depend upon a Fee determinable So a Lease for life to A. upon Condition That if B. pay 20. l. to the Lessor that then immediately it shall remain to B. is void for the contrariety because A. ought to have it during his life But if it were to remain after the death of A. to B. then it were good because no contrariety there and here if W. dies living the Husband and Wife that then it shall remain to to the Defendant is not intendable immediately in their lives but that it should remain as it ought to remain viz. after their deaths and so there is no contrariety and therefore good As to the Condition which is subsequent if he would dwell there c. because it hath two intendments the one that he should inhabite there all the Term and the other to some time during his life shall be taken strictly and the more strongly against the Lessor viz. That he inhabites there at some times during his life which sufficeth as the Feoffee upon Condition for to pay 10. l. to the Feoffor and no time is limited he hath during his life So to serve him in such an Office and saith not how long he hath during his life Harris Serjeant to the same purpose And as to the Exceptions he said That a Condition subsequent and which goeth in the Defeasance of the Estate as here he that claims the Estate shall not shew it but the other which will defeat the Estate But where the Condition precedes the state he shall shew who shall have it because enabled thereunto as if I grant a Rent Charge upon Condition That he shall do such an Act there the Grantee shall avow for the rent without shewing the thing done because it is a condition subsequent and defeats his Estate But if I grant That if he doth such a thing that then he shall have the rent he shall not avow without performance shewed because he is enabled by this to the rent 14. H. 8. Wheeler Grants his Term to one upon Condition That he shall obtain the good will of the Lessor and then shall have it he shall not have it until he hath shewed the performance of the Condition and he affirms the remainder upon Condition to be good Hales Justice If he would c. is a Condition and that the Plea is insufficient because the Defendant hath not averred his continual residence after the Remainder happened for during the Term shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term 27. H. 8. 19. by Audley so the Feoffees shall be intended all the Feoffees and if he hath a reasonable excuse he ought to shew it fo 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife and entred so soon as he had notice which he shall shew in certain that the Justice may trie it as 22. E. 4. 27. Tenant for Life Leases for years and dies The Lessor bringeth Trespass against the Lessee who saith That in as short time as he could after that he had notice of the death of the Tenant for Life he chased his beasts forth of the land and said also that the Trespass was between the death of the Tenant for Life and the chasing out of the beasts and held no plea for by the death of Tenant for Life the Lease for years was determined and no man bound to give him notice and there it is holden that he ought to say That such a day he chased out the beasts and might shew that the Lessor died in another County and so he could not have so soon notice and this shall be tried by the Justice if the avoidance was in reasonable time So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth common intent is that which hath more vehement presumption and intendment then any other intent hath as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death good yet might have goods were not the Testators which are assets after the Debts paid but the most common intendment is That he had no other goods except those which were the Testators but intendment indifferent the more strong intendment the one way or the other and therefore ought to be pleaded in Bar as 13. H. 8. 15. by Willoughby the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not So if he pleads a release made after the Obligation it is not good if he shews it not by express words that it was delivered after it shall be intended that it was delivered when it bears Date But on the other part it shall be intended also That the other would not bring an Action if it were delivered after and therefore shall be shewed which intendment stands indifferent so here A Demurrer all times after the Remainder happens or not is incertain and therefore because he hath not shewed this the Plea is nought As to the matter in Law it seemeth to him that the remainder is good for a man may pass the thing in question when where and how he will if it be not against Law nor repugnant as here the limitation if the remainder is not against Law for the remainder need not pass forth of the Lessor so 29. for upon the Agreement first had by Act made afterwards Franck-Tenement or remainder may be transferred and devested from one vested in another as a Lease for life remainder for life upon condition That it shall be void if he doth not such an act the remainder before the Condition broken is in him when broken it commeth to the Lessor So a rent or Reversion passeth by Attornment not by the Grant presently So 1 H. 7.31 by Brian a remainder to the K. when the Deed is inrolled then it shall pass and relate
to the Livery So in the case of Plessington 6. R. 2. where the Condition was That if the Lessor die within the Term the Lessee shall have for life and there holden that his estate shall be enlarged if the Lessor die So Disseisen to the use of I. passeth not a Free hold of I. to I. without his agreement so here A remainder passeth when W. died not before by force of the words annexed to the Livery So by Litl a confirmation to the Husband and Wife Tenants for life passes the remainder to the Husband yet it passeth not at the time of the first Estate and the diversity where Fee upon Condition is appointed to privy and whereto a stranger is but a conceit which is worth nothing 29. according 24. to the contrary and is privity because it reserveth out of both so it shall bind him in remainder and also he in remainder shall have waste and so is privy to the particular Estate and the Lessor also and the words then which shall remain shall not be intended presently to destroy the particular Estate but shall remain as a remainder ought to divest then and is to be executed after their deaths as if Donee in Tail doth such an Act then to remain to his right heirs which vests when the Act is done and after the Tail ended shall be executed and not presently upon the Act done to avoid the Tail so here There is not any repugnancie or prejudice to any but a thing when it is done made in prejudice of another shall be void as a remainder that he shall have the land in the life of the particular Tenant So 21. E. 4.44 The King discharges an Abbot That he shall not be a Collector when any Titles should be granted by the Clergy of England and Canterbury Grants Tythes provided that the Collector returned by the Bishop shall not be discharged by the King and the Bishop returns the Abbot Collector there holden that the Grant by the Clergie in this point viz. to charge persons exempt is void because it is in prejudice of others And so the remainder here shall be void rather then a shranger shall have prejudice by it but for defaults in the pleading the Plaintiff ought to recover Hinde Justice to the 3. exception the death of the particular Tenant shall not be shewed which is onely conveyance of the execution of the remainder and is not Traversable nor Issuable To the first and Second exceptions he needs not shew his continual residence after the Remainder is fallen nor the day of his entry because it is a Condition subsequent and goes in defease of his Estate and he which hath benefit by it ought to shew it as 29. H. 6.22 the Grantee of an annuity pro concilio impendendo shall have the Annuity without shewing that he hath given Councel for that the shewing of it is not beneficial to him and the denial of Councel defeats the Annuity so he agrees to the diversity in case of Annuity 15. H. 7.1 bont fol. 25 by Pollard when one shall be promoted and therefore the shewing hereof that which is surplusage and the imperfectness of it shall not make the Bar vitious and the Remainder here by him commenceth not upon Condition but it is a limitation and explanation from the time that it first begun for nothing or words makes a Condition but such which restrains the thing given as If I. Lease for life upon Condition That if the Lessee die or maketh waste and I. recover the place wasted or any parcel of it That I. shall enter into all for it is a Condition for that part in which no waste is done because it restrains and defeats that part And if it be a Condition here yet the Remainder thereupon is good if it commenced and vested at any time during the particular Estates 24 29. 32 34. for when he hath Fee-Simple he may Condition with it as he pleaseth if it be not against Law as if I. Lease for life upon Condition That I. S. paies to me 20. l. that I. shall enter then the Remainder is void because the entry avoids the first estate and then no particular estate continues upon which a Remainder may depend Brown Justice to the same purpose The entry of the Defendant shall be intended immediately for this is the most common intent and a Bar good to a common intent shall be intended that he entred presently after his Title accrued and to the matter in Law hold that the remainder shall be good upon Condition Montague Chief Justice to the same intent The entry of the Defendant shall be intended presently for this is the most common intent and a Bar good to a common intent is good as 21. E. 4.83 in Assize the Tenant pleads a discent to him as Son and Heir and he entred and it was held good yet the Father of the Plaintiff might have abated and died seised and then the Plaintiff is in as Son and Heir in which case the Tenant might not enter But this is not intendable but the most common intent is That the Tenant entred immediatly after the death of of his Father So 9. E. 4.12 in Debt against five Executors at the Distress 3. makes Default 2. appears and pleads Recovery against them two of 300. and that more they had not in their hands Exception taken That because by intent there should be five Executors two might have abated the first suit and so the Recovery not duly had but holden good because it may be that then they two onely administred and then they did lie against them two onely and the most common intent is that it might be so rather than at first to lose advantage to have abated the Writ and therefore the Plea in Bar was held good and Execution duly had and if it were otherwise the Plaintiff ought to have shewed it So 21. E. 4.8.1 In formidon in discender The Tenant pleads the release of the Demandant without Warranty in Bar yet might be made by him in the life time of the father and then it is no Bar but it shall be intended to be made after the death of the Father if the Demandant replies not to the contrary but if he which pleads in Bar is bound at a time certain he ought to shew the day of his Act certainly 24 26 27. as the day of entry for Mortmain so that it may appear to be within the year So if one justifies for Common between Lammas and Candlemas So if one justifies by Warrant by Licence by Authority he alwaies ought to shew the time certain of his justification so that pleading in abatement of the Writ or a plea after the last continuance ought to plead certainly and these are observed as principles in our Law but he which pleads in the Negative ought not to plead certainly If he would dwell c. It is like that it is not a Condition here because it is not
imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.
H. 8. c. 34. to enter for a Condition broken 2. The tender of the Rent on the Feast day is not requisite nor until the last instant of the 40. day 3. Notwithstanding that the Rent be apppointed to be paid out of the Land at the Feast day and not the 40. day by express words yet it shall be so intended by relation to the place last named 4. No demand here is requisite because that the Land which is Debtor is absent the contrary is upon a general reservation and if a Rent seck payable in a forreign County be demanded and denled there it is not a disseisen by Plowden contrary upon the Land The place which was once charged with the payment in the hands of the Lessor remains chargeable in the hands of any other because he hath this as a Liberty and Authority imposed upon it by the Lessor and such Liberty is saved by the Statute of suppression of Monasteries and therefore the Lessor nor the Lessee are not Trespassers by their coming there to tender and receive the Rent Rosse against Pope ROss acknowledged a reconusance to Pope after Levies a Fine to him of patcel of his Land 5. E. 6. In Chancery upon an Audita quetela and afterwards Pope sues Execution and takes the body of the said Rosse and he brings an audita querala in the Chancery and adjudged that it lieth not 1. For that the Land is not debter but the person and the Land is onely charged in respect of the person and not otherwise until Execution sued 2. For that the purchase was before Execution sued otherwise it had been if sued afterwards for then the Land was charged in facto and not chargeable And if any part be discharged by act in Law as discent or act of the party as Surrender Feoffment c. also it shall be discharged because the duty is personall and entire 3. Because that the Conusor shall not have contribution against the Feoffees but they shall have against him and here the Conusee shall not have Execution against his Feoffees for that they may not have contribution against him Wimbish against Willoughby Assize directed Coronatoribus in Lincoin upon the surmise of the Plantiff that the Sheriff was his Cosen and shewed also Tr. 6. E. 6. Assice against L. Wall That one of the Coroners was servant to the Defendant and adjudged good 1. For the speedy expedition of the Assize and the mischlef of the Plaintiff if it should be abated by the exception of the Defendant and no mischief to him and here the venire facias is awarded the first day as in a precipe 2. Coroners in Lincoln shall be intended Coroners of Lincoln for that they are the words of the King In the Argument of this case see first where a Writ Original shall be directed to the Coroners where not Secondly and when other Judicial process Thirdly an exposition of the words in and de in Writs Grants or c. Fourthly what words are sufficlent to make a Grant of a Rent charge Fifthly some matters touching challenges and where they shall be Traversed c. Partridge against Strange and Croker IN Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. H. 6. 7 E. 6. In the Common Leath Of buying and selling of pretenced Titles and Rights and alleadge this to be done 28. April 32. H. 8. where in truth it was not done this day and that the Defendants have made a Lease for years of a house and nine acres of Land pertaining to it whereof they nor their ancestors nor any by which the claim were in possession Reversion or Remainder nor took the Profits for one intire year before c. and holden 1. That the Statute need not to be specially recited and pleaded because it is general but for that it is misrecited it is not good by the Court sol 84. and yet is surplusage and it shall prejudice the party in some cases sol 29. as debt by I. S. Parson of D. it is a good Traverse because he is not Parson or that there is not such a village called D. 2. When the Term shall not be certainly pleaded for that it is Conveyance of the Action and is not material here and he which pleads it is a stranger as an Indictment of the death of a certain man unknown or the stealing of the goods of a certain man unknown 3. That a Lease for years or a grant of parcell of the Right is within the Statute because the Statute speaketh of any right and is not intended only of an entire right and that the entire value of the Land shall be forfeit by such Lease per Curiam fol. 87. That this Lease made by one in possession is out of the Statute for that it is not averred to be a pretenced right by Hales and Montague fol. 87. against Cook For they mean that he which hath possession one day or however may make a Lease or Feoffment bona fide and shall be forth of the Statute although that he hath not possession or taketh the profits one whole year without averment that it is made for maintenance and the Statute shall be intended onely of those which makes Leases c. having but a right and not the possession as Montague held a promise by him which is out of possession to depart with the Land when he shall attain the possession is within the danger of the Statute fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father and maketh a Lease for years this is within the Statute for that he Leases his ancient right So by Morgun if the heir release to the Abator and afterwards claiming by discent maketh a Lease for years this may be averred a pretenced right and then is within the danger of the Statute fol. 86 and a right is within the Statute which comprehends all rights Pretenced right is where one hath the possession and another which is out of possession claims this or sues for it by Mont. f. 88. Morgan Serjeant for the Defendant He which voucheth a Record and vary in the year or Term haith failed of his Record So the Statute here no Act without the consent of the King when all assent it shall have relation to the first day of the Parliament and from that time is an Act of Parliament unless it be otherwise appointed when it shall first take effect An act made in the first or second Session relates not but to the first day of the same Session Misrecital shall prejudice the party in some cases as Debt by I. S Parson of D. where there is no such Village D. a good Traverse and abates the Writ yet the naming of him Parson surplusage So here because it recites a Statute certain made such a day where it was not although that the day is surplusage it hath made the matter vitious although it
to the first nor cannot pass by the second Lease for that is severed for the time by 38. H. 6. fol. 38. That a thing in possession may not be parcel or appendant to a thing in Reversion as a Lease for life of a Mannor except the services of I. S. it is not parcel of the Mannor But is a signiory in gross and the Land shall be demanded at the common Law and not in the Court of the Lord by Bromely But here quere if the acceptance of the second Lease be a surrender of the first and the severance by the second Lease and then the severance by the exception is determined and so the Mannor passes entire as it was at the commencement 3. If the recitall of one part of the Statute which maketh for him which recites it be sufficent 4. If the pleading of a surrender or grant to the King by deed inrolled generally without shewing of the enrollment specially be good 5. The King is seised Jure Coronae of Lands coming to him by the dissolution of Monasteries the Tenant pleads a Lease for fifty yeers in Bar and after by his rejoynder pleads that the said Lease is made good for twenty one yeers by the Statute of 31. H. 8. this is a departure for that the state cometh after the Lease otherwise it is of a thing pleaded in affirmance of the Bar which precedes it 6. That the second Lease made by an Abbot within the yeer of the making of the Statute of 31. H. 8. to one which hath a Lease for yeers of it before without the reservation of the Ancient Rent then it shall be good for twenty one yeers only from the making of the second Lease per curiam Bromley The Lessee for yeers accepts of a new Lease within one yeer after the making of the Statute of 31. H. 8. cap. 13. Admitting this second Lease to be good by the same Statute yet it is a good surrender of the first Lease for that the second Lease was once good and shall be expounded to be viod by the Statute as to the King and after the Land comes to the Kings hands and not ab initio and so he shall not avoid the operation of the Common Law in the Surrender And by the Common Law the taking of a second Lease is a surrender of the first for both Estates may not be in one and the same person at one and the same time For if the Lessee for fourty yeers taketh a new Lease for twenty yeers upon condition that it shall be void if he doth not such an Act the condition broken avoids the second Lease But not with such relation that it shall take away the Surrender of fourty yeers because it was once executed absolutely So if a recovery is had of Land the which is afterwards reversed by error which avoids the recovery yet it doth not so avoid it that the Recoveror shall be punished by Trespas for the issues taken in the mean time two points upon the Statute here first the second Lease is not so void by the first branch of the Statute so that at the time of the second Lease made the first Lease hath his continuance but was determined and the Statute is in the copulative and then it is not determined by the making of the second Lease which then had his continuance then was not determined finished or expired according to the words of the Statute Secondly the second Lease for fifty yeers is abridged to one and twenty yeers by the second branch for contrary to equity it will destroy the former Lease and the second also And so that the same Lease exceeds not twenty one yeers express in the Statute extends to the terme abridged and not to the intire new term to make the clause conditional but to make the State abridged good for one and twenty yeers and shall be as a double repetition of the first clause only and be also a declaration of the State and expounded in the future tense that it shall not exceed twenty one yeers which is all one with the words for twenty one yeers as in a writ to the Shereist to seiz goods for the King Ita quod nullus adea manum apponat And in the Statute of Gifts conditionall Ita quod non habeat potestatem alienandi The word So is not conditional but maketh a plain declaration of the thing before by the words of the Statute sometimes expounded contrary to the text to make this agree with reason as by 25. E. 3. cap. 16. after fo 205. by the exception of non-tenure of parcel no Writ shall abate but for the quantity of non-tenure which is alledged expounded by 5. H. 7.7 where the thing demanded is severall as Acrâ—s for in a precipe of a Mannor if the Tenant pleads non-Tenure of parcel all the writ shall abate because an intire thing and there the demandant ought to have an exception in the writ because it is contrary to reason that a man shall demand the intire mannor against one which is not Tenant but of parcel of that which he endevors to recover So Praerogativa Regis is for the Tenure of him in Capite where the King shall have Primer seisen of all his other Lands yet 30. H. 8. and after fol. 204. for Soccage in Capite he shall not have because it is contrary to reason that such a small Tenure should be so greatly charged So W. 2. cap. 21. gives entry to the Heir yet he shal not have the arrerages in the life of his father old natura brevium 138. and this exposition is contrary to the text because the text is contrary to reason to give an action to the Heir for a thing in consideration of another thing not due to him So Glouc. cap. 3. for warranty with assets 21. H. 7.10 11. H. 4.21 the things taken by equity is expounded contrary to the principall Perveyance Instans est unum indivisibile in tempore quod non est tempus nec pars temporis ad quod tamen partes temporis copulantur Townsends Case A Woman Tenant in tayle taketh husband who maketh a Feoffment in 20. H. 8. to the use of himself and his wife for their lives the remainder over the wife is not temitted Adjudged 1. For that she cannot avoid the discontinuance by entry as she might after 32. H. 8. cap. 28. but hath an action viz. cui in vita given to her to recontinue the possession which she useth not but cometh to the possession by another mean she ought to take it in such order and with such appendances as the Law limits to such mean the mean which she useth here is 27. H. 8. and as the Statute appoints the possession to her she shall be adjudged in and not otherwise although she be a Fem Covert For Coverture or Infancy is not materiall here for it is not excepted in the Statute And the Statute of 27. H. 8. of
thing shall be as this to which it is referred it As if a man make a Lease for so many yeers as I. S. hath in the mannor of D. there he shall have so many yeers as I. S. hath and shall take avermen that I. S. had so many issiut tale corodium quale I.S. nuper habuit So 11. H. 4. 20. H. 7. grant office taking such fee as I. S. which executed the same before had ought to be shewed what he had So 20. E. 3. the King granted to Litales liberties that the Town of N. had by shewing of the records or writings prove their liberties the grantee shall have the like Browning against Beeston LEase for yeers by Indenture by which the Lessee Covenants and grants to render and pay for that land 1 Mar in ba. Ray Trespass thirty seven pound yeerly at two feasts of the yeer naming them or within two moneths after at a certain place out of the Land and moreover Covenants grants if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor then the Lease shall be utterly void extinct and of no effect and that it shall be lawful for the lessor to re-enter and after the rent was not paid and before the entry the lessor maketh a new Lease and the first Lessee bringeth trespas against the second Lessee and he pleads the matter aforesaid and pleads the condition in this manner as in the Indenture is contained and saith not precisely that the Lessee had Covenanted as aforesaid And also said that the Rent was arear by the space of two moneths next after the said feast and adjudged for the plantiff for these two causes only 1. That the pleading of the Covenant which is contained in the Indenture that the first Lessee hath covenanted is not but a recitall and no express averment that he hath made such a Covenant in facio fol. 143. by Bromly 2. Because that the pleading of the Rent arear for two moneths varies from the Indenture which is after two moneths fol. 143. b. by all contrary to Catlin for he said that this is to be intended so if necessity Matters in Law are left at large but the better opinion was for the defendant If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly be a reservation of the Rent or not and by Ramsey fol. 132 it is not 1. For that it is not issuing out of the Land by the way of Charge for pro terra implies a cause of the grant and is not words to Charge the Land 2. It is not a Rent service for default of words of reservation of the lessor as reddendum reservandum tenendum c. for this commences by words of the Lessee and which amounts not to a sum in gross because it goeth not with the revertion as he which hath Land on the part of the mother maketh a Lease for yeers by Indenture the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent the Lessor dies without issue the heir on the part of the mother shall have the revertion and on the part of the father the Rent for that it is a some in gross and not a Rent incedent to the revertion 3. It is not farm because it is not a Rent because they are all one 4. It is a void condition if it be a condition because it refers to the farm and Rent where there is not any such as a condition that the Feoffee shall infeoffe a Corporation which is not or his wife is voide because the first is impossible and the other against Law but the state because it is Precedent in defeasans of which they are made shall stand good Stamford and Walsh Justices fol. 134. It is a Rent first this Covenant and grant is equivalent to reservation and is by Indenture in which the words are the words of both and taken for the words of him which most aptly speaks them as a Rent upon a Feoffment Litl 47. is a grant of the Feoffee and in Judgment of Law shall dispose words which have substance formality and words there shall be taken indifferently For all parties assent and are privy to the speaking of them But words of a deed poll taken more available to the grantee 20. H. 7.8 by Brian and the Law expounds one word in the sence of another as 10. E. 31. 14. H. 8.2 21. E. 3.49 Reverter for Remainder So it taketh a word spoken by one for the word spoken by another and namely by Indenture and although it were not a Rent but a sum in gross yet it extends to it and to issue out of the Land for the Law because it is spetially alleadged the ground of payment of a sum to be for the Land and yeerly to be paid and the one is executory for the other For before fol. 71. if Land recovered by an elder title shall not pay which hath not the thing which ought to pay as 15. E. 4.4 if he may not have the ancient Pale he is excused to make a new so 9. E 4 10. if he will not give counsell the other shall stay the Annuity and 39. Assise 23. Rent for equality of partition charge the Land parted not mentioned because the Rent was granted and executory for the land So 2. H. 7 5. it shall discend to the heirs of the grantee without naming because it cometh in respect of the Land which should discend to the heir and when the ground of the matter appeareth the Law supplies the fault of the words because the Law respects the ground of the matter and consideration Gawdy It is not a rent fol. 136. in 39. H. 6.33 all the words shall be taken the words of one party viz. The first in the Indenture wherefore they are not the words of both because it estops not the other party and an estopple discends upon the Heir of him which is Heir at the Common Law because he is Son by the half venter neither Sister or Brother by the entire bloud and although they agree to have the same yet how viz. as a rent or not is not parcel of their agreement So it shall not be construed a rent because words may have a reasonable construction otherwise in 22. E. 4. in the case of the Prior of Bingham the Covenant was of a rent which shall be intended rent service the Fine saith not predictum redditum but was of five acres and was for the land and the Grantor was Tenant so holden there to be an annuity so here Morgan it is a rent f. 137. b. for the assent of the parties is the chief matter to be considered and not who speaks for the Lessor shall not have debt for the rent reserved unless it be a Contract and it is not a Contract without the assent of all and the words comming out of the mouth of
to some purpose and not to be void because it is made to some purpose as 21. H. 6.8 one may plead a Lease for years and a release as a Feoffment So 7 H. 6.7 and 22. H. 6.42 The Feoffment of a Joynt-Tenant as a confirmation So 9. H. 7.2 The King by Parliament confirms the estate of the Patentee dat conceditur he may use it as a Grant or confirmation So in 21. H. 7.23 Obligor may plead a Grant That it shall not be sued before M. in Bar or have a Covenant for it So here the party uses this as a Demise of the Land and not as a Grant of the Reversion for the Reyersion of the Land compriseth the Land as Litl fol. 106. after fol. 161. a release of all the land to him in Reversion is good So 5. H. 5.8 A Lease for years and after a grant of the rent this changes the reversion So Litl fol. 150. recovery of the land against Tenant for life will divest the reversion So 19. E 4.9 Writ of Covenant and the Concord is of the land to pass the reversion So Quid jur is clamat recites That the land was granted before the reversion was So before fol. 149. Formed on shall say de uno messuagio where the Reversion was granted in Tail So a Reversion in Fee Granted to a Termor he hath the intire Term presently in Possession for the reversion of the land comprises the land in substance one word will pass the thing by another word having the same sence yet varying in name because one same thing and intent of the party as 2. H. 6.4 before fol. 134. and afterwards f. 170. reverter for remainder So 3. H. 6.6 makes a Testament and commits Administration is an Executor So 20. H. 7.11 Retorn for revert by the Grant by Grant of the Church Advowson passes 14. E. 4.2 by Grant of the name of a Clerk a presentment passeth So before fol. 151. by Stagnum molendinum the Soil passes and the thing contained in the premises named in the Habendum by another name containing the same in substance is good So a Grant of the nomination of an advowson Habendum the advowson good So Manerium Habendum the services So mannor by Fine Habendum one acre of this in Fee he shall have the acre in Fee and the Mannor for life because it wanteth limitation of the estate in the residue of the Mannor So a Gift of a Mannor Habendum the reversion in Fee of one acre which is in Lease for life good Fee for the acre and for life in the Mannor because no estate is expressed in it So Litl fol. 120. confirms the estate of Lessee for life Habendum the land in Fee good because in the estate land was contained So a joint-Joint-Tenant confirms to another Habendum the land to him and his Heirs the Fee will pass the Habendum may limit the estate to a stranger not named before in the premisses as 13. H. 7.17 a Devise to I. Habendum to him in Fee after the death of the Wife of the Devisor not named before hath an estate by implication of the intent of the party So 5. E. 3.17 a man gives land Habendum in Franck marriage with a Daughter So a Lease to A. Habendum to him for 20. years the remainder to B. in Fee good because the intent of the parties therefore a fortiori here the Habendum may explain the intent of the parties in the premisses Dieâ— Serjeant for the Plaintiff A reversion is Jus sine possessio revertendi nomen verbale quasi terra revertens after the particular estate ended proved by W. 2. of Advowsons of Churches and prayer to recite the reversion if he shall overlive the Tenant for life and bringeth wast good 14. E. 2. Fines saith remanera and not revertera where a reversion was granted before fol. 157. a reversion granted in Tail Formedon in remainder lyeth because the entire estate is not given Fitzh nat br 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass 33. H. 8. cap. ultima the not making of Leases in reversion is expounded That they shall not make Leases beginning after the first ends ad firmum dimiserunt imply that the parties intend that it shall enure as a Lease of the Demeasne for properly a man may not be Farmor of a reversion not have an Ejectione firma of a reversion No Attornment needs upon a Lease for years because it is a Contract interpretationem apportet esse benignam ut res valeat as 30. E. 2. Discendera pro Remanera 6. E. 2. recipe pro re-entry So a gift to one for life post ejus decessum to 1. in Fee good remainder for the manifest intent an Habendum giveth an estate which was not given before and to a stranger not named before and alters the estate given in the premisses as a Confirmation to Husband and Wife or to Tenant for life remainder in Fee to another good Litl 129. So Habendum by moity Litl 66. makes Tenants in common 8. E. 3.427 by the better oppinion a gift to two Habendum to one for life and after his decease to another in Fee the one shall have the entire for life onely notwithstanding the Joyncture in the premisses Otherwise fol. 153. if it be comprised within the Grant good in the Habendum as a Grant De dispositione Ecclesiae habendum advocationem grants de Soil the Wood habendum the Wood defundo domus habendum domum Manerium habendum the advowson appendant good but a Grant of Common out of the land habendum the land or herbage of a Park habendum the Park and such like are not good because not comprised in the premisses Stamford Justice rules of Exposition First deeds shall be taken most beneficially for the Grantee Secondly they shall not be void where the words may be applyed to any intent Thirdly words shall be applyed viz. expounded to the intent of the parties and not otherwise The intent directs gifts rather then the words as 41. E. 3.6 16. H. 7.10 by Fineux Grantee of annuity pro consilio hath divers faculties yet the Councel shall be given in such a faculty as was intended 9. E. 4.22 one bound to pay Recepta recipienda shall not pay what he received not but that which he hath received because the intent is taken more forcibly then the words 7. E. 3.7 Lessee of of a house which may for his profit make houses there within may not pull down or make waste for the intent was not so Sanders Justice to the same intent with the Plaintiff Exposition of Deeds shall be reasonable without wrong to the Grantor as a Grant of Corrody Estovers and Common for all Beasts he shall not have with Goats and with the largest advantage to the Grantee as a Disseisor releases all his right to the Termor he hath for his life
Litl fol. 108. before fol. 140. two Tenants in Common grant 20. s. it shall enure as several Grants 34. ass fol. 11. Grants totum piscariam salvo stagno molendini sui yet the piscarie passes not for the stagno shall be excepted and not the piscarie because he hath a Reversion in the Propriety of the land and possession of the Ter-Tenancy The nature of an habendum is to give in large or qualifie Malitiosa juris interpretatio herere in verbis c. the words are but witnesses to the contract reversion includes land by all Brown Justice To the same intent of the Abbot and Covent and of Smith and his wife was to have the land pass as a Lease after the paticular estate ended and not otherwise and from that hour that their intent was to have the word reversion enure that way it seemed to him That the Law would warrant it for the land is included in the reversion for if it was not a man by Granting of a reversion could not have the Land in possession after the particular estate ended And a Feoffment of a Carue habendum the Mannor of D. is good if the Carue maketh the Mannor And if land is parcel of an Office it shall pass by the Grant of the office Much more he said tending to the effect to make the Lease good and so the Plaintiff shall recover Brook Chief Justice to the contrary Estate in lands includes land it self land is a generall word and contains Grantor and reversion particular words containing a Decree where one estate onely intent shall be inclined and ruled by the Law and not otherwise and intent nevertheless in certainty of words as 9. H. 6.35 Renuntiavit communium and not to whom void before fol. 122. 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage Fealty and Castle gard the Lord grants all Services Castle gard passeth not because he granted not the Castle But in Testaments the intent shall be onely observed and rule the Law because the Teastator had not time by presumption to ordain all things according to the Law In conclusion he agreed that Judgement should be given for the Plaintiff Hill against Grange A Man maketh a Lease for years of a Messuage and an hundred acres of land appertaining to it 3. Mar in Common Pleas in Trespass c. by Deed indented the 6. of August rendring rent yearly payable at our Lady day and Michaelmas or 10 days after with clause of re-entry and after Grants the reversion and the Grantee the last instant of the 10. day after Michaelmas demands the rent and enters for not payment and it was adjudged that the entry was good for these reasons 1. Land may not appertain to a Messuage because both are things corporate simply otherwise of Advowsons waies c. which are things incorporate but things Corporate or Incorporate may pertain or be parcel of a thing compounded as a Mannor Castle Knights Fees Honors Forrests Monasterie Rectorie fol. 170. a. But here the land passes as appurtenant but by the intent and phrase of the parties as they have said usually occupied or let c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual notwithstanding the other feast be first named 10. E. 3. the Abbot of Osneys case 3. The demand of the rent the last instant is good 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition or Covenant fol. 173. a. and shall not be intended of the Pattentee of the King 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words Things of distinct and several natures the one is not parcel of or appendant to the other as 8. H. 7.1 by Keeble a Warren cannot be pertaining to a Leet nor a Leet to a Hundred nor one Office to another nor land to other land to a thing Compounded they may as a Mannor Knights Fee Honor Monastery Castle and a Village or to words general as are Oxgang a yard land a hide of land which contains land meadow pasture wood c. Messuage is a single word consisting of a thing special and not Compound nor a general word for that 27. H. 6.2 Land not parcel or appendant to a house and by demand of a Messuage in precipe land shall not be recovered and therefore pass not by the Grant of a House by the Serjeants on the part of the Plaintiff 23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances Land passes not a Mannor and things made appertaining to it are made by usage and continuance So 2. H. 7.28 land belonging to a Forrest and Warden of the Fleet and the house of the Master of the Rolls and divers farms to the Guardians of the Castle of Colchester and one Office to another as the custos brevium giveth one of the Offices of prothonatories and use and continuance is cause of it A man Leases a Messuage and land rendring rent be ought to demand the rent at the Messuage because most worthy Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant Norwood against Read Action upon the case upon assumpsit made by the Testator 5. Mar â—…n K. Bench. lieth against the Executors adjudged For that the Testator could not gage his Law otherwise it is where he might gage his Law for the ignorance that the Law imputes of it to Executors and therefore there they ought to Demur but if they plead in Bar which is found against them they have lost the benefit of the Law and take Conusance of it whereof otherwise their ignorance shall excuse them 39. H. 6.19 12. H. 8.11 27. H. 8.23 Woodward against the Lord Darcie IF the Debtor make the Debtee his Executor and leaves him assets to satisfie the debt 5. Mar. Reso by the Judges of both Courts and dies the Debtee may pay himself by way of retainer by the Court 12. H. 4 21. according And in such case the Action is not utterly exstinct by the Administration for that the Law intends that he is satisfied by retainer before and so a thing in Action altered to a thing in possession by Act in Law for satisfaction of the party which hath no other remedy but if he hath not sufficient assets for to satisfie the debt the administration there extinguishes not the Action because that he cannot retain for parcel and have his Action against the Heir for the residue but ought to do the one for the other at his peril Wrotesly against Adams A Lease for 80. years of a Farm Tr i El. in Com. Pleas. Ej. firme the Lessor granted the Reversion of the Farm to a stranger to have and to hold the Farm for 60. years after the
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of
naturall body so may he purchase As 34. H. 6.34 and by pleading there H. 6. seized in fee of an Advowson in gross conveyed it from H. 5. to him who granted it to the plantiff good without shewing in jure Coronae or how and there if the King hath Land parcel of the Crown and parcell by purchase and dies having a son and daughter by one venter and a son by another who enters and dies without issue the daughter shall have the Land purchased and the son the other So purchased Lands by the King shall go to the naturall body So 35. H. 6.28 by Moyle after fol. 247. Land in Gavel-kind given to the King and his heirs the eldest son being King shall not have all because it vests in his naturall body but perquisites of a villaine the King hath jure Coronae as 41. E. 3.21 if a Bishop who hath a villain in the right of his Church enter he shall hold it in his body politick and shall be in the right of his Church because the signiory was for a thing in respect or by reason of another shal be in the same degree and right as the principal was at the Common Law That an estate of inheritance viz. Fee-simple was by the Common Law before the Statute First absolute when a gift was made to a man and his Heirs Secondly conditional when to him and the Heirs of his body for that formedon in Reverter at the Common Law if the Donee dies without issue in Remainder not for a remainder cannot depend upon a Fee Conditional until this Statute and before this Statute the Donee might alien after issue had so bar the issue because they construed the having of issue to be a performance of the Condition which was implied in the words and in the intent of the Donee and after issue to be as an absolute Fee because he had such heirs which were limited But if before the Statute the Donee had issue he might alien and good then here 4 E. 3. and 30. E. 1. which was contrary to the will of the Donor for which the Statute was made and then Fines were of great regard yet by this Statute ipso jure sit nullus viz. as to the right issue or Donors the Kings prerogatives are great yet the Common Law so admeasures them that they take not away any of the inheritances of the subject and therefore the King shall pay Toll though not for things bought yet Toll Traverse he shall because it is for going over another Soil because it toucheth the inheritance to permit a way over his Soil without paying any thing 46. E. 3. 23. H. 3. 35. H. 6. 26 28 29. So for to wave a Demurrer or issue yet may not change one issue into another Term because then it would be infinite which should be to the disinheritance of another 13. E. 4.8 Statutes general made in preservation of inheritances or for the publick good binds the King without naming as W. 2. c. 5. of usurpations but by 35. H. 6. good is not so clear if an infant upon whom the King usurps hath by purchase as well as discent So Merton cap. 5. That ordains that the Kings Ward shall not pay usury viz. That the Rent shall not be doubled during the Nonage of the Heir and therefore in 35. H. 6.60 by Needham if the King gives land rendring Rent yearly at Easter and if he fail to pay at the day That he shall double the Rent the Grantee dies his Heir within age he shall not double the Rent against the King So Merton cap. 6. That a man shall make his Attorney for to follow his suit to the King if it be his Lord or at the Court of another he shall do it So the Statute of 5. H. 5. of additions L. 5. E. 4.32 of one Law which belongeth to a common person the King may not defend the Common right but that every one shall have advantage but every general Statute shall not bind the King without naming of him As Magna Charta cap. 12. Communia placita c. nor such which have an intent onely between subjects and to repress disorder between them those here which concerneth salvation of inheritance or publick utility of the Realm So the Statute of gifts Conditional binds the King because by Justice and Act of Parliament the King hath submitted his will to the Donor The King as Walsh saith hath in him First power to do Secondly Justice to enforce him to do it this is as to others Thirdly Mercie to stay him from doing this is of things touching himself And because after this Statute the King may not say that the estate is Fee-simple Conditional as it was before the Act the case of the Tenant in Tail attainted of Treason was alleadged in proof of it 37. H. 8.7 7. H. 4.32 which proves that the King shall be bound by the said Statute So by 26. H. 8. cap. 13. because it is some estate of inheritance also the Tenant of the King in Capite gives in Tail Tenendum de capitali domino the King shall not have Wardship of the issue in Tail 4. H. 6.19 because it is not now Fee Conditional as before the Statute and therefore he is not immediate Tenant to the King 4. H. 7.16 The King may receive the Services of the Donor by his hands 27. H. 8.26 after fol 249. the King may take the Donor or the Tenant in Tail for his Tenant before Licence or after but once chosen shall not resort Also 8. H. 4.9 Tenant in Tail of a Signioty aliens it in Mortmain for default the Signiory revolts to the King the King seises the Land after escheat the issue in Tail hath the land by petition against the King and therefore is not Fee-Conditionall as to the King but binds the King although in these cases the King claims in the right of the Crown yet here it is very remote from the prerogative because here it remains vested in the natural body of H. 7. For the Plaintiff it was said That the Prerogative of the natural body of the King because of the union of the politick as the attainder of H. 7. discharge ipso facto as soon as he came to the Crown 1. H. 7.4 So R. 3. being Feoffee to uses when he was King the use was gone because the King in his body politique may not be seised to an use of another 5. E. 4.7 and therefore it was enacted 1. R. 3. cap. 5. Rastal Uses 3. That the Land should be in Fee to him to whom the Use was 43 E. 3.22 Franchises extinct by purchase of the King yet to him and his Heirs of a Mannor to which they were appendant So the King in his natural body and another purchase or if the purchase is before that he is King they are not Joint-Tenants but Tenants in common Fitz-nabr f. 32. G. because no body politick may hold in Joincture So 44. E.
Sturgeons because they are the most excellent fishes that the sea or water renders So that the Treatise of Praerogativa Regis ca. 11. which saith Rex habebit Balneas Sturgiones is but a Declaration of the Common Law before Secondly for the necessity of defending his people and preserving the Common-wealth against forreign hostility Thirdly for the commodity of his Subjects That they by the Coin made thereof which the King onely may make may have between them mutual Commerce and Traffick because if the subject shall have gold or silver found in his own land he might convert it into Coyn for falsifying or counterfeiting money was Treason at the Common Law and for that cause a woman was burnt 23. ass pl. 2. Also it would be inconvenient That a subject which is proprietor in the land should have it for that he thereby would exceed the King in Treasure which would be perilous to his estate The second proofe was by presidents of three sortes First Commissions Grants and Demises by which the King hath Granted such Mines in others Lands viz. in Annis 32. E. 3.8 R. 2.5 H. 6. 15. E. 4. and primo H. 7. and in some of them the King gave licence to digg in another land without licence of the owner and where some of them saith habita licentia fodiendi which is intended land subject where they give amends for the digging or Assign part to the Lord of the Soil this is of courtesie and clemencie of the Prince and not of necessity Secondly Accounts of the Grantees of such Mines Thirdly Informations and Impleading of them which have disturbed the Grantees or Imported their Oar also the King may punish him which taketh Oar in another mans Soil And so Charters Accounts and Pleas against the takers of Gold and Silver in the Soil of another proves strongly those Mines to belong to the King by his Prerogative for the Records of every Court are the most effectual proofs of Law in matters Treated of in this Court and account lies not against an Executor by any except for the King Litl f. 28. The King may seise the Land of his Debtor which he hath by what means or whosoevers hands it cometh after the cause of the Debt Sir William Candish case in the Exchequer The 3. proofe is upon authorities of Law viz. The book called Exposition of Terms of the Law and the reading of Hescot of Charta Forestae and the Laws of St. Edward the Confessor and William the Conqueror and so those Authorities and the said presidents and the reasons aforesaid for the excellency of the Metal and for the necessity of it and the publique good agreeing in one That the King shall have all Mines and Oars of Gold and Silver in Land is Treasure found Thesauri de terra taken for Gold and Silver in Land is Trea. sure Trove the use and continuance Ratifies this Prerogative by prescription although that it need not be contained in the Treatise of Praerogativa regis for the King the Common Law hath many which are not there recited as Tenant of the King aliens without Licence it was a forfeiture before the Statute of 1. E. 3. cap. 12. 9 E. 3.26 although it be to the preiudice of another Free-holder yet because the Law gives those Mines to the King it giveth to him all necessary means to have it by digging with all incidents thereunto for every Prerogative contains in it self prescription for it is in usage and as prescription and usage will give Title or interest to the King in the Free-hold of another as by Prerogative the King might enter into the woods of another and take Trees for to repair his Castles before the Statute of Magna Charta cap. 22. so he might Afforest another mans woods before the Statute of Forresta cap. 2. So 7. H. 3. he might break a Pond and take the fish for his provision So 27. ass pl. 49. The Lord might not take his Villain yet is his freehold and inheritance in the presence of the King for it is a Protection to him for the time So 13. E. 4.6 The King may distrain for his Rent Charge in all the other Lands of him which ought to pay it So the Prerogative of the King chargeth his other Freehold to the Kings distress The King shal have by his Prerogative Mines of Copper containing Gold or Silver in the Lands of another because they are as a thing entire by the Commixture magis dignum trabit ad se minus dignum as 41. E. 3.32 36. H. 6.26 and 3. H. 7.14 The Heir shall have the Charters with the Box if it be sealed so Carts to which Horses are tyed if it fall upon a man the King shall have all Stamford fol. 20. before 243. because as one thing they altogether occasion his death So the King shall have all the Obligations and Horses where one of the Joynt-Tenants is attainted because a thing entire proves that the King shall have all where Gold or Silver mixt with base mettal by Commissions 7. E. 3. and 17. R. 2. 7. H. 4. 17. H. 6.30 and 31. of H. 6. proved also by accounts for Silver and base Mettal no Mine of Copper void of Gold or Silver no Mine of Tin void of Silver and therefore those of Devon and Cornwal for digging in their Land and in other Land for Tin and to have this to their use derive their power from the Kings of this Realm made unto them and giving them such liberties as by Charter 33 E. 1 confirmed by R. 2. but the power given to them for to digg in anothers Land and to pull down houses of another was restrained by the Statute of 50. E. 3. Darby shire and other places prescribes to take lead of Mines steril which is without Gold or Silver without paying any thing On the part of the Earl against the Queen The thing of the most in value is worthiest where the Quantity of Copper exceeds the Quantity of Gold yet the lesse is the most precious Quantity for Quantity the Gold or Silver ought to be of more value then the charges of separating of it from the base Mettal cometh to otherwise this aliquid nihil est if he hath lost by it Wast of 2. d. is dispunishable because de minimis non curat Lex 9. H. 6.36 38. E. 3.7 by this reservation upon the said Demises it is intended a good quantity of Gold or Silver Also because the information sheweth not what value of Gold or Silver is to defray the charge which is incertain and bad because this is the Declaration of the King Also Commissions are not of great estimation but shew the obedience of Subjects and are made at their requests for whom they are granted and many of the said Commissions and Leases were limited That the Grantee should make to the owners of Lands in Cornwal used for the digging of Tin before the said Charter proves by the words themselves
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
away from another by wrong Title is where a man hath cause to have the thing which another hath and hath not Action Condition is a possibilitie to have Title Action is a suite given by the Law Interest is part of the Estate of the Land as a Lease for yeares or execution by Statute fol. 484. 6. The answer to the third Objection The Lessee ought not to shew in pleading that he is not excepted in the Statute for that he gains not any new thing but will retain the old and also because the Statute is to his disadvantage but that he shall take benefit of a Statute shewing it 7. For answer to the fourth Objection it was said that admitting that the Fee here shall be forfeited to the King without Office yet the Condition shall draw it out of him without Petition or Monstrans de droit by some but Quere thereof for otherwise it shall not vest at the time of the death of the Lord Lovell it shall not vest at all for it is appointed to him as if the Lessee here had entered into Religion and the Lessor without being attainted had died without issue after the Lessee is deraigned he shall not have the Fee because it may not vest in him at the time of the Condition performed So if he was disseised at that time And so here for to avoid the inconveniency by the operation of the Law or former agreement a thing shall be devested out of tho King at the instant of the Condition performed without any such circumstance As Tenant in Taile discontinues the Discontinuee infeoffs the King by Deed inrolled the King Leases to the Tenant in Taile for life with the Remainder to his Issue for life the Lessee dies the Issue is remitted by the remainder falling to him and the Fee devests out of the King without any circumstance And so a Remitter shall defeat the Estate of the King and an Office of the King shall defeat the Remitter fol. 488. as 3. E. 4.25 in the Earle of Northumberlands Case by relation or if the Disseisee enters after the Attainder of his Disseisor Possession of the King by Office shall not be removed without Petition but if he enter before his Disseisor be attainted he shall be removed without Petition because the Title of the King there is more antient and the Office shall have relation to the Attainder onely for the profits although it relate to the time of the Treason for to avoid mean Acts and Incumbrances So Tenant in Capite maketh a Lease for life rendring Rent with clause of Re-entry for not payment and dies his Heire within age enters for the Rent arere An Office is found the entry of the Heire for the Condition broken is avoyded by Lovelace for the possession of the Heire by force of which he entered is utterly defeated by Relation which intitles the King to the Grant And so the entry of the Heire for a thing not due to him shall be adjudged Tortius by relation So if Trespasse 19. E. 4.2 where for things coming of the Land as Grasse c. Office avoids the punishment against those which doe the wrongs and takes it away by relation of the Office which Intitles the King because of the Escheat before the Trespasse an Action once good But for the entry into the Land or breaking his Fences which ariseth not from the Revenue of the Land the Action is not gone by the Office If an Office virtute Commissionis be pleaded he ought to shew the authority given by it and the execution thereof accordingly because persons appointed by Commission have not any other then what is appointed to them by the Commission otherwise it is of an Inquisition taken virtute Officii before the Escheator Sheriffe Steward of a Leete c. for that their authority appeareth to the Court judicially because it is known by the Law for that they are Officers of the Common Law A Remainder ought to vest when it is appointed otherwise it shall never vest The Kings Pardon shall not excuse any man for the repairing of a Bridge which ought to do it because it shall not take away the Interest that the Subjects take therein So a man pledgeth a Jewell for ten pound and after is attainted the King shall have it without paying of the ten pound So 13. R. 2. the Earle of Kent had return of certain Cattell in Replegiari and the Proprietor of them is attainted the Earle shall keep them against the King untill he be satisfied of the thing because the Prerogative will not give any prejudice to another Ludford against Gretton A Warrant to make Letters Patents M. 18. 19. El. in the Kings Bench Trespas was directed by H. 8. to the Chancellor which entered not the day of the Receit of the Watrant in the Record according to the Purview of the Statute of 18. H. 6. cap. 1. And yet the Letters Patents made thereupon were adjudged good For that the Purviewe of the Statute maketh Letters Patents void onely for the variance between the date of the Patent and the day of the entery of the Warrant And the Court held three manner of Patents good upon the Statute 1. If no Warrant be made at all it is good by the Common Law and not void by the Statute because there is not any variance 2. If there be a Warrant and the day of the delivery of the Warrant be not entered as in the Principall Case 3. If the day of the delivery of the Warrant be entered and the Patent dated after the day of the delivery for this variance is out of the mischief of the Purview which was in antedating of Patents before the delivery of the Warrant and not after dating and yet is within the words but out of the intent of the Act. Records shall have Relation to their date and cannot be averred contrary to the date not to vary from it because it tends to the discredit of an Officer of Record Deeds relates to the Livery and date in Deeds concludes not any to aver the contrary Grendon against the Bishop of Lincolne HENRY the eighth being seised of an Advowson in the right of his Crown P. 19. El. in the Common Pleas. Quare Impedit presents J. S. and dies E. 6. by his Letters Patents grants the advowson to the Dean and Chapter of L. and their Successors in Fee and also grants to them License and Liberty virtute authoritatis sue Regiae supremae Ecclesiae qua fungimur that they shall retain the said Advowson and all the Profits thereof for ever to their proper uses whensoever the said Church shall become void And after the death of the said Incombent the said King E. 6. present his Clerk to the said Church which was Admitted Instituted and Inducted and adjudged no usurpation which shall put the Dean and Chapter out of possession If the Plaintiffe alledge matter effectuall as discent c.
first and after of the Land in sense and so by exposition the words shall be altered and so marshaled that the intent may take effect So a termor deviseth all his terme to his Son neverthelesse his Will is that his Wife shall have it for her life holden a good devise to both by conversion of the words So a Remainder to the Church of Saint Andrew in Holborne good by devise 21. R. 2. although the Devisee is not capable because the Testator intended that the Parson shall have it Cestuy que use at this day devise that his Feoffees shall be seised to the use of one A. in fee this is a good devise of the Land Adjudged in the Case of Lingen yet after 27. H. 8. he cannot have Feoffees to his use because the intent was that he should have the Land So the Executor shall not sell the Land according to the devise but take the profits for two years to his owne use the heire may enter because the intent of the Testator maketh this a Condition 38. Ass 31. Incertainty in Contracts reduceable to certainty by contingent standeth good As if I lease to one habendum from the death of J. untill such a Feast which shall be in the year 1620. good if J. dye before that otherwise it is void Two properties of a terme as where Lessee for yeares which grants over his terme enters for not payment of Rent and retaineth untill he be paid his Arrerages thereof So of a Conusee of a Statute which hath the Land extended so upon a Lease for yeares of a Mill except the Profits to the Lessor for his life and adjudged a good Exception And if the Lessor enters he hath a property incertain and the Lessee another 39. H. 6.37.8 So it is of Sheepe letten for to compester or a Chain of Gold pledged 5. H. 71. they have one Property and the owner another Cestuy que use devise the Profits and Issues of his Lands fol. 509. b Cestui que use before the Statute of 27. H. 8. Devise his Land and after the Statute publishes his Testament of new the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute Cestuy que use devises that his Feoffees shall stand seized to the use of himselfe for life with remainder over this is a good Declaration of the use during his life yet the Will cannot take effect untill his death Quere of this Case fol. 508. b. Bransbie against Grantham AN Executor having a Terme P. 20. El. in the Kings Bench E. firme as Executor devises the Terme to a stranger and maketh his Sonne Executor and dies the stranger enters into the Land by the Assent and Consent of the Executor And after the Executor enters And adjudged that his Entry was lawfull and the devise voide And by consequence the assent given to a voide thing shall be also void and shall not enure as a new grant but onely and assent to the thing devised 1. Because that the Executor cannot devise any thing which he hath as Executor 2. For that the Executor hath the Terme here to the use of the Testator and no man can make a devise of any thing except that he hath it to his owne use And therefore the Husband cannot devise the Terme of his Wife And then when the Executor dies his Executor hath it by Title before the devise as Executor of the first Testator and the property that the Devisor had as Executor is determined hy the determination of his Office of Executorship which is ended by his death and the last Executor hath it by Relation as immediate Executor of the first Testator So an Executor cannot devise the goods of his Testator and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator because the last Executor hath them as immediate Executor to the first Testator and to his use as if they never had been in the last Testator by Relation Hare against Bickley A Prebendary after Admission and Institution and before Induction and Installation grants an Annuity for him and his Successors The Bishop confirmes it and after the Prebendary is Installed and on the same day of the Installation the Dean and Chapter conconfirmes also and after the Prebendary dieth and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend and Adjudged that it lyeth not because the Grant before Induction was voide Induction giveth to the Probendary the possession Temporall and Freehold and the Confirmation is nothing without the Possession And therefore without Induction a man shall not have a Writ of Right nor Spoliation Trespasse nor Assise otherwise it is of a Quare Impedit For in the first he alledges Esplees but not in the last 26. H. 8.3 But by the Admission and Institution he hath care of Soules and is inabled to administer the Sacraments c. And the Arch-Deacon shall make Induction to the Parson and Vicar but shall not make Installation to a Prebendary but the Deane and Chapter shall doe it No Plenarty against the King before Induction for that it is corporall seisen and possession 38. E. 3.10 So the King confirmes to the Collatee of a Bishop before he is inducted the Confirmation is voide 11. H. 4.7.1 H. 5.1 He which hath the Nomination is Patron and he that presents is his servant Induction is triable by the Countrey So if Parson or not and it shall be tried where the Church is 21. E. 4.7 and 33. A woman recovers in Dower she cannot enter but ought to have seisen delivered to her by the Sheriffe as a Copyholder ought to be admitted by the Lord of the Mannor if it discends to him before he shall have seisen in judgement of Law So a Prebendary Parson or Vicar before he is Inducted or Installed hath not seisen nor is full Incumbent for to charge the Possessions of the Prebond Parsonage or Vicaridge Crosse against Howell THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London and in the 21. H. 8. they bargain and sell certain Land by the name of A B C and D. Master and Wardens of the Craft or Mystery of the Cookes of London to R. D. for money without naming his Heires and the Barganee enters and levies a Fine with Proclamations and five yeares passe And adjudged that the Corporation shall be bound by the Fine and Nonclaime and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed by him which had their Letter of Attorney so to doe is meerly void 1. The bargain and sale was made for the variance of the Indenture from their name of Corporation for they were