Ancestor unlesse he be specially mentioned in the Instrument of Contract and have an Estate sufficient discending 2. Bracton d L. 2. c. 26. n. 1. Glan l. 7. c. 8. Plow fol. 418. makes this distribution of Chattells Viz. That Debts being paid the overplus should be divided into three parts whereof one to be left to the Children the other to to the Wife and the third at the will and pleasure of the Testator And if there be no Children then one halfe to the liberty of the Testator and the other to the Wife And if there be no Wife then one moity to the Children and the other as the Testator shall please But this rather seems to be Counsell then Law for a little after in the same place hee saith That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased then what is particularly bâ—quâ—athed unto them except it be upon some speciall grace as having merited extraordinarily of him in his life time And he gives this reason namely because there would scarce be found any one who would endeavour to lay up much if hee should be compelled at his death to leave it to illiterate or debauched children or to an ill wife And therefore it is very necessary that in this they should have a free power for by this they prevent vice and encourage vertue and give occasion both to VVife and Children of well doing which could not be if they knew undoubtedly that they should have a certain portion whether the Testator will or not Of the instituting of Heires TIT. XIV THe Civillians and wee have a different acceptation of the word Heire for they call him an Heir whom the Testator nominates in his VVill a Inst de Testam ordinand And we him who is next of Kin to the party deceased to whom a Fee doth of right belong after the death of the Ancestor b Glan l. 7 c. 1. Brac. l. 2. c. 33. â— 3. Brit. c. 118 119. So that we affirm it is not man but God who makes Heirs c Glan Brit. ib. And that Here 's comes from Hereditate where succession is by right of Blood d Brit. ib. Nor do we call all the Estate of the party deceased his Inheritance but only his Fee or at lest those Lands tenements with all things corporal and incorporall which the Party deceased held by a perpetuall Right e Iidem ib. VVherefore it was necessity which in some sort constituted an Heir who as he was wont to succeed his Ancestor in the premises even against his will so was he obliged to pay his Debts if he had Assets sufficient and the Chattels did not suffice f Glan l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before 1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased but to the Fee assigned only for as to the disposing of Chattels men nominate their Executors according to their pleasure g Glan l. 7. â— 6 Brac. ib. Dr. Stu l 2 c 10 who as to that part of the Patrimony supply the place of an Heire and represent the person of the Testator if at least they accept the Office h Bro Executors 5 21 22 57 77 84 122 so that they may convert all those goods which are not bequeathed to their own use i Plow 943 and take even the cloathes of the widow if they are more rich and sumptuous then the condition of the Husband would bear k Bro. ib 19 An Executor may also be ordained either absosolutely or upon Condition l Id. ib 9 administrat 1 45 and either from a certain time or after a certain time m Bro Exec 155 and either universally or particularly n Id ib 2 and 155 L Dier fo 3 4 n 7 8 and in the first degree or by Substitution o Id ibid and either one or more p Id ibid 13 24 38 117 3. And those may be Executors whom the Testator shall constitute whether they be strangers or Parents of Kinne or not of Kinne q Brac l 2 c 26 n 2 and not onely those who are free but Servants also and those whether our own or of others r Lit l 2 c 11 Bro villains 68 nor only Lay-men but even of the Clergy also and Religious s Bro ib 68 77 if they have the permission of their Superiors t Fitz. abrid Execut 47 so also may women u Bro. Execut throughout and Infants w Id ib 15 and in fine all who are not expressely forbidden by the Law x Glan l 7 c 6 4 4. Not that any one is against his will forced upon this office but that he that will may refuse and he who hath once refused may notwithstanding afterwards undertake it z Bro ib 38. 117 Perk 4 85. though according to the opinion of some he cannot during the life of his Co-Executor a Dier fo 160 n 42. but being once undertaken it cannot be laid down again and the undertaking of it seems to be when he doth under that name intermeddle with any of the Goods of the Testator b Id. f. 166. n. 10. 11. If an Executor die before the Will proved then Administration of the Goods shall be granted by the ordinary to the widow or next Kinsman of the Testator who shall be obliged to dispose of the goods of the Testator according to the Will unlesse the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him for in this Case the Executors of that Executor may justly challenge Administration which the Will annexed c Id. fo 172 n. 8. Of the ordinary Substitution TIT. XV. Substitution is of no small use with us though we do for the most part in this follow the Precepts and Rules of the Civil Law yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments but that we are obliged to leave a third part to the heir a 32. H. 8. c. 1. Glan l. 7. c. 7 but for those which we hold in Soccage not intailed b Brac. l. 2 c. 30. or tied by any particular Custome c Glan ib. we may bequeath them to whom we will whether to a Kinsman or stranger d 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Service and in each of these Cases we may make Substitution either vulgariter as they term it or Pupillariter Now this Substitution is nothing else then the adding of a Condition which we commonly call Tail namely a limitation of Heires to whom we intend to have the Lands discend from the Testator or remain or otherwise revert to us and our Heirs 1. Yet is not this Substitution the same with that of the Romanes
of Kindred But as for the other they do not transfer it upon the Children of the Patrons but upon the Executors rather a Lit. l. 1. c. 5 for they reckon the custody of Wards among Chattells reall b N. Ter. ver Chattels Flet. l. 1. c. 11. and therefore if the Patron or Lord of the Fee do not demise them by his last will they are transmitted by the Common Law to the Executors of his last Will. Of the Attilian Tutorship which is appointed by the Lex Julia Titia TIT. XX. WEE have sometimes Tutores Dativi or deputed Guardians amongst us For in case the Mother being dead the Father dy intestate and leaves Children under age who have no Fee to succeed unto it often happens that the Ecclesiasticall Judge commit the Guard of them to such as shall have a care of their Persons and Patrimony untill they come to fourteen years of age And this is often attested and confirmed by an Instrument authentickly sealed But our Law doth not compell any one to such an Office nay rather the Judges stir up and make choise of those whom affinity and consanguinity oblige to this work of love and Charity a Swinb part 3. Sect. 9. 1. And probably that Guardian may not improperly be stiled Dativus Tutor which Bracton mentioneth b l. 2. c. 11. n. 1 Brit. c. 34 40 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian 2. The supream power may by Letters Patents constitute to an Infant an universall Guardian to answer appear for him in all Actions begun and to be begun and that before any Judg or Judges whatsoever Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe and the same letters at the instance of the Infant may give power to the same Guardians joyntly and severally to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him c F. B. fol. 27. b. 3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants d Kitch in preceden pa. 347. Of the Authority of Tutors and Guardians TIT. XXI AN Infant under the age of twenty one years cannot make any contract in his own name except for those things which apâ—eâ—tain to his necessary Food Rayment and Education a Brook tit Inf. 51. without the Authority and consent of him under whose power and custody he is b New book of Entrys tit .. Bro. non fuit comâ—os mentis Bract. l. 5. trac 2. c. 11. n. 1. nor can he commence his Suit against his Guardian c Bract. l. 5. tract 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his condition but he cannot preiudice himself d Bract. l. 2. c. 5. n. 8. 1. There is something more particular in those who hold by Knights Service For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also and so that they have the full disposing of Advowsons in case of Vacancies and in granting giving or selling their Wards And in case of female Heires of marrying them or selling their Marriages and generally of disposing all things whatsoever for the profit of the Heir e Of late for their owne proper profit Brook Gard. 2. Fitz. Accompt 36. as if they were to dispose of their own and better if possible They may sell their custody of the Lands and the marriages of the Heires if unmarried but they cannot alien any thing of the Inheritance or sell the Remainder Notwithstanding as for the heiâ— which are in custody they are to treat then honorably and to discharge the dutyes belonging to the Inheritance according to the quantity of the Inheritance and for the raâ—â— according to the time of the Wardship They may manage the affraies of their Heires recover their right in those things wherein the Heir as an Infant may plead or move or prosecute a Suit in their behalf namely of the rights of possession of proper Seisin or of the Seisin of an Ancestor But in aâ— Action of right in case of property they can neither act nor answer for them except of that of which the Infant was infeoffed during his Minority f Bract. l. 2. c. 37 n. 3. Brit. c. 34. fol. 90. 2. Guardians ought to sustain and keep in repaire the Houses of their Wards as also their Parks Warrens Fishings Mills and other Appurtenances least by neglect they be impaired or ruined by which wast may be found They are also bound to redeliver the Lands in due time free at least as they received them and that Gratis quitted both of releife and Fine in case they be accorded and agreed concerning Marriage g Flet. l. 1. c. 12. Mag. Cha. c. 4. West 1. c. 47. 6 Ed. 1. c. 5. West 2. c. 35. 3. The same Authority also have Guardians in Socage to contract to manage Suits in Law and to do all other things which are behoovefull either for the conservation or augmentation of the Estate of their Pupill But these are liable to render an account when their Wards shall come to age h F. B. fol. 118. b. 4 A Guardian may make Oath for his Word i Flet. l. 6. c. 10. 5. In some Cases our Law doth so highly â—avour Infants that it will not suffer them to â—un the hazard of Judgement although with â—he consent of their Guardians but stay proâ—eeding untill they come of age For in case of right or property of their possessions they can neither sue nor be sued except for such which themselves have gaind k Glan l. 7. c. 9. Bract. l. 5. tract 5. c. 21. n. 2. yet formerly there were bound in case of a Fine acknowledged in Court in case of a proper inâ—ury or Dower or in Case of what themselves had recovered l Dyer fol. 104. f. 137 but at this day they are not bound in case of Fine m Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21. By what means Wardships expire TIT. XXII ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age a Lit. l. 2. c. 4 but those Tenants if male not till one and twenty if female not till fourteen b Id. ibid. or in some cases not till sixteen years of age c V. sup tit 15. Sect. 4. and although a Woman being full
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
with the Husband t F. B. f. 78. G And if a Free-man marry a Villaine shee shall be free u Id. eod 8. But it is reported to be an ancient custome in Cornwall that if a Freeman took a Villain to wife to a free-hold and free-bed if they have Issue two Daughters the one shall be free and the othe villain w Brac. l. 4. tract 3. c. 13. n. 2. 9. There is a condition of servitude which is tearmed Substantialis For whosoever is a Servant is so a Servant as that he is nothing else x Brac. l. 1. d c. 6. n. 3. Brit. c. 31. Flet. l. 1. c. 3. d. 10. And there is lastly a certain condition like to Servants which are yet ingenious and freeborn To wit those whom we call Apprentices who are bound by their Parents or Governours to their Masters to learn Merchandising or other mechanik trades by Covenants y An. 5. Eliz c. 4. fol. 25. And these are in the power of their Masters during the time covenanted and make gaines not for themselves or Parents but for their Masters unless it be otherwise covenanted for a Covenant prevailes above Law z Brac. l. 2. c. 15. l. 5. tr 2. c. 3. n. 7. l 5 tr 3. c. 9. n. 12. These oblige themselves in many things and cheifly in these namely That for the time covenanted they will truly and faithfully serve their Masters conceale their secrets willingly obey al their lawful and honest commands That they will not commit Fornication within their Masters House or without that they will not goe away within their time nor be absent day or night that they will no ways damnifie him nor suffer him to be damnified in what they may help but that they will with all their might indeavour to hinder his losse or else fore warn him with all possible dilligence that they wil not inordinately imbezell their Masters Goods nor lend them to others without his command or special licence that they will not frequent Taverns unlesse to make bargaines and therin to serve their Masters That they will not to the preiudice of their Masters play at cards or dice that they will not intermarry or contract Matrimony with any woman during the said Term that they will not trade with their own or anothers Money without leave or license of their said Masters but that they will well and truly behave themselves in word and deed as a good and faithfull Apprentice ought to doe a Ne. b. Entr. Ver. coven in Apprent Of Free-born TIT. IV. A Free-man is naturall and free-born he is said to be free born who is free so soon as born whether born of two free-born or of a man free-born and a woman made free or of a single woman and a Freeman a Fortes c. 42 Flet. l. 2. c. 4. provided it be not within a villinage but in a free bed notwithstanding it be out of the state of Matrimony b Vid. sup tit prox par 4. in fine 1. So if of a Freewoman and a Villain out of Matrimony and it is sufficient that the Mother be frce at any time namely either 〈◊〉 the time of conception parturition or in the intervall notwithstanding that she become Villain afterwards because the mis-fortune of the Mother shall not prejudice the Infant in the Wombe c Brac. l. 1. c. 6. n. 5. Flet. l. 1. c. 4. Lit. l. 2. c. 11 2. So if a Free-man having Children doe in Court acknowledg himself a Villain Those Children which he shall have after such acknowledgment shall be villaines but those which he had before shall be free d Brac. ibi supra Of such as are made free TIT. V. THose are said to be made free who are manumissed from a just Servitude And they are called free men as being set free from servitude a Brac. l. 1. c. 6. n 6 Flet. l. 1. 4. Manumission is a giving of liberty that is a manifesting or declaring according to soule because liberty which is by the Law of nature cannot be wholly taken away by the Law of nations albeit it may be under a cloud b Brac. l. c. 5. n. 8. Flet. sup 1. Manumission is two-fold namely Expressed or tacite and implyed c Dyer fo 60 n. 23. and sa 266 267. â— 11. Manumission expressed is also double One which is by writing as when the Lord gives a Charter or instrument of Manumission to his Villain And another which is by fact and which was more used of old As when the Lord in the presence of his Neighbours laying his hand upon the head of his Villain shall say I will that this man be free and having said this letting him go out of his hands shall put him from him d Brac. l. 1. c. 5. l. 8. Jemn Ju. ver manum Erit c. 31. â—â— 2. Lambert in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 e fo 226. e Flet. l. 3. c 13. and l. 4. c. 11. describeth the ancient formes of Manumission thus If any one will make his villain free let him with his right hand deliver him to the Sheriff in a full County and he ought to quit claime unto him the Bond of servitude by manumission and shew him free Gates and wayes and deliver him free Armes viz. lance and sword and then he is free 3. Manumission implyed is when a Lord shall binde himself by obligation to pay a certain fum at a certain day to his Villaine or shall bring his action against him for any thing which he may challenge as his own or shall grant him a yearly Rent or make a Feoffment unto him of Land or by Deed grant him an Estate in Land for life or years or finally do any such action which we are not used to do but to freemen f Brac. l. 4. tr 1 c. 21. n. 3. f. 192. b. and c. 22 Brook Tit. villena spec Just n l. 2. des Weiss If a Villain becomes a secular Preist yet the Lord may claim him as his Servant and seise his goods g Spec. Just cod But if he shall enter into Religion it is otherwise because there he is dead in the eye of the Law h Lit. c. 2. c. 11. In what causes Manumission cannot be TIT. VI. THere are so few marks left at this day of servitude or of Villaines that it were to little purpose to prescribe a form of Manumission and therefore our Authors are silent in it But that I may add one word for conclusion in this place Manumission ought to be bounden within the same limits in which other lawfull Acts are So that neither an Infant nor one that is not Compos mentis nor one that hath no right may work any thing by it All other things unless any thing be done to defraud Creditors are left at pleasure Of the taking away the Law which was called Lex Fusia Caninia TIT.
VII NEither is there amongst us any the least use of this Law which for so many ages together was by the Romans abrogated as envious and cruell Of those which are in their owne and those which are under the power of others TIT. VIII WEE have discoursed before of the state of Persons now we are to make another division And this is that every one is either in their owne power or in the power of others a Brac. l. 1. c. 9. Fet. l. 1. c. 5. 1. In their owne power are all who are not subiect to others But wee shall by consequence know those which are in their owne power when we shall declare who are under subiection to others b Brac. ib. â— 2. 2. In the power of others are Servants which power of Lords over their Vassalls is by the Law of nature and this was sometimes a power of life and death But now it is more restrained by our civill Law so that now power over life and lims is onely annexed to the Supremacy so that he who shall kill his Servant shall be no lesse punished then for killing a stranger for it is very necessary for the Common wealth that no one doe abuse their owne and in this they have Law against their Lords that they may have Justice against them for life and limme in case of any cruelty or intollerable iniury exercised by their Lords c mahemium Lit. l. 2. c. 11. As if you destroy them that they cannot enjoy their Wainage free and safe But this is true onely in those Villaines which hold in Ancient Demesne of the Crowne for it is otherwise of others Because when ever the Lord shall please he may take from his Villaine his Wainage together with all his other Goods whatsoever d Brac. l. 1. c. 9. n. 3. Flet. l. 1. c. 5. 3. And as to free-borne People also some are in the power of others as Wards under the protection of their Guardians or Freinds or under the tuition of their Lords e Flet. l. 1. c. 9 Of Paternall Jurisdiction TIT. IX UNder the power of Parents are Children borne in lawfull Matrimony so are Nephews and their Children as to Grandfathers and Great Grandfathers on the Fathers side a Brac. l. 1. c. 9. n. 4. and l. 2. c. 24. n. 4. and Stat. Mer. an 20. H. 3. c. 9. Jerm Jur. Ver. Bastardy Flet. l. 6. c 1. But this is true as to Nephews and their Children onely where their Fathers dye and they cannot by any meanes goe out of their protection b Brac. l. 1. c. 10. Brit. c. 119. fol. 270. Flet. l 1. c. 6. 1. Those which are not ligitimate are not reputed Children as in case of Adultery and otherwise nor those who are brought forth contrary to the form of man kinde As Brac. l. 1. c. 6. n. 7. and l. 4. tr 3 c. 13. n. 2. Flet. l. 1. c. 5. and l. 4. c. 17. and l. 6. c. 56. Monsters and Prodigies in nature but those which are irregular only in members as having six fingers or four or only one shall not for that be esteemed illegitimate 2. But we are to observe that that ancient Jurisdiction which the Romans exercised over their Children f Institut Imperiales cod tit is much more qualified with us For the English only take the profits of the Labours of those Children which are under the age of twenty one years And that in such manner that if they live at home with them they may do their own notwithstanding that they are retained in their parents business and that they finde them dyet and cloathing But if they be put forth to learn any other Arts their Masters have the sole benefit of their work unless any condition forbid for that a condition may prevail even against Law g Bract. l. 2. c. 5. 3. Whatsoever Estate whâ—ther adventitious or bequeathed especially Land shall fall unto Children the Father shall not so much as have the profits of it but shall be liable to give an account to his Childe so soon as it shall come of age But that I may explainit this Parentall power relisheth more of that love and respect which Children bare to Parents as a principle infused and instilled by the Law of Religion and nature rather then of any compulsion of force by which the Law obligeth h Cook l. 3. Casu Radclif fol. 37 38. for our Decalogue which the Romans wanted inculcates this respect with promise of divine Benediction And the only curb with which Parents restrain those that become refractory is the power of disinheriting which is not often times threatned in vain 4. Now the Guardianship of wards is double one by vertue of the common the oother of the Statute Law i Cook ubi sup And it is true The Common Law gives an action of treâ—â—pass to the Father against him that shall take away his Son and Heire which Action 〈◊〉 good in reason because the Marriage of the Son belongs to him k Bract. tit Tresp n. 92. 5. Matrimony is a conjunction of mâ—â— and woman comprehending society of the life individuall l Bract. l. 1. tr 5. c. 25. n. 1. c. 3. n. 8. l. 2. c. 14. Brit. c. 107. Flet. l. 5. c. 25. And so strict is this coâ—iunction in our Law that man and wife are reputed but one person m Brook Tit. villena 39. Bar. Feme Doct. Stu. c. 1. c. 24. Perk. 217 As but one flesh it the divine n Gen. 2. 24. Fl. l. 9. c. 19. 6. The Bishop hath determined by the Câ—â—non and Statute Law concerning Legitimâ—cy and Illegitimacy and make cerrificaâ—â— thereof either to the supream power or the Justices as often as is required o Lib. Intr. tit Bast f. 104. Brook eod tit Bract. l. 5. tr 5. c. 6. n. 3. c. 19. n. 2. a. 25. cod 3. sta 2. ca. uni 7. According to the Law and custome 〈◊〉 England that Issue which is born before marriage is a Bastard But he which marries 〈◊〉 single woman who is with Child by himself oâ— any other makes her Issue ligitimate although it be born immediately after marriage for in this case marriage is a testimony where the Child is q Fle. l. 1. c. 5. c. 14 15. But it is to be distinguished in the case of him that marries a Widdow with Child viz. Whither she be apparently p Glan l. 7. c. 15. 1 Brac. l. 5. tr c. 19. n. 2. an 20 H. 3. with Child at the time of Marriage or whether it be doubtfull For in the first case it shall be â—eputed the Issue of the former husband in the other of the latter r Term. Jur. tit Bastardy Of Marriages TIT. X. A Wife by the Law of England is under the power and Jurisdiction of her husband a Dyer f. 79. n. 51. Plow f. 307.
twelve years old may contract Matrimony as well by our Law as by the Civill d Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband yet she doth not so soon come to maturity of Judgment but it is sooner notwithstanding out of custody then a man because when she marrieth she doth but alter her condition entring under a new power of a Husband instead of the custody of her Guardian e Glan l. 11. c. 7. Bract. l. 1. c. 6. n. 2. 1. So a Wardship may expire by the naturall or Civill death f V. sus tit 16. of the Guardian which is that which we tearmed the Maxima or Media capitis diminutio or in case the Guardian shall give Lands c. to his Ward or infeoff him For no man can be both a Guardian and Feoffor at one and the same time g Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service that they may either assigne the custody of their Wards to another or bequeath them amongst their other Chattells by common custome to their Executors 2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony So that if it shall happen the Ward being under age to become single the second time he can by no means recover him into his custody h Lit. l. 2. c. 4 Of Tutors or Over-seers TIT. XXIII MEN though full growne and women though marriageable were amongst the Romans to receive Tutors untill they arrived at twenty five years of age Notwithstanding that they are not so with us beyond the age of one and twenty and that in case where they had not any before either in regard of their Tenure or necessity of the Law However we include Tutors and Over-seers under the name of Guardians although it is apparent those to be more proper in relation to the person these to the Estate a V. tit 14. Sect. 4. in Inst A de ritâ— nuptiarum l. sciendum 20. 1. To some also the Law appoint Tutors and Overseers for by the Statute the King hath the custody of the Lands of naturall Ideots receiving the profis without waste and destruction and finding them necessaries without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires so that they cannot by any means be aliened by the Ideots or the Heires disinherited b 17 Ed. 2. Brit. 167. Stan. Prerog c. 9. Bract. l. 5. trac 5 c. 20. n. 1. Dyer 102. Coâ— l. 4. 126. Fleta affirms c l. 1. c. 11. that anciently Ideots were under the custody of their own Lords But that for the many Exheredations that hapned Their Guardianshipp was conferred by Parliament upon the King yet with this Proviso that the Lords of the Fee and those whom it concerned should loose nothing which was their due Either for Services Rents Releifs of their right of Guardianship till they come to full age according to the condition of their Fee 2. So also where it happens that any one who formerly had both memory and understanding becomes Non compos mentis as some are who have Lucida intervalla The King shall take care that the Lands and Tenements of such shall be kept without waste or destruction And that he and his Family shall live competently and be maintained out of the profits of the same And that the Remainder of their profits shall be reserved for their use So that the said Lands and Tenements shall not be by any means alienated within the said time nor the Revenues appropriated to the Kings use and that if he shall happen to dy in such a condition that then that said remainder of the said profits to be disposed of by the Ordinary for the good of his Soule d 17 E. 2. c. 10. Bract. l. 5. tr 5. c. 9. n. 7. Dyer fol. 25. n. 164. Cook l. 4. 127. 3. Those who are naturally deaf and dumb or labour under any perpetuall disease according to the opinion of some are necessarily to have Guardians e Bract. l. 5. tr 3. c. 6 n. 6. tr 5. c. 18. n. 1. c. 10. n. 1. 4. Infants are not forced to receive Guardians against their will except by reason of their Fee or any of the causes before mentioned or in case of Suits in Law And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence f West 1. c. 47. West 2. c. 15. F. B. f. 27. 5. Notwithstanding which no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant but another may as his Kinsman commence an action for him without express warrant g Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn h Id. ibid. 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn but is required â—lwaies to be present in his proper person i F. N. B. fol. 27. g. Of the Security which is to be given by Guardians TIT. XXIV HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary â—s bound by our Law to put in security But â—efore he is admitted to his Office he makes â—ath to administer all the affayres of his â—ard to his profit and benefit to give a true â—nd faithfull Inventory of all his Goods â—nd to exhibite it by a certain time accorâ—ing as the Judge shall appoint as also to â—ender an exact and true account of his Office when it shall be required from him â—esides all which he is to finde fit and able â—â—reties joyntly with himself and severally â—y themselves to become bound for his true â—nd faithful administration of his Guardianâ—hip Of the excuses of Guardians T IT XXV OUR Lawes speak nothing of the excuses of Guardians because no one is puâ—… upon this Office against his Will Of Guardians which may fall under Suspition TIT. XXVI OUR Lawes are very carefull in pâ—… of trusting Guardians For he that give Estates to divers whereof some are of agâ— and some Infants may lawfully appoâ—… those which are of age to be Guardians oâ— the Infants but this will not stand in câ—… there be any cause of suspition that they wâ—… contrive the death of the Infants but suspâ—…tion is not admitted if the gift be made tâ—… Father or Mother or their lawfull Issue bâ—… it is otherwise where it is to Brother or Uncle or Nephew because of the right discending a Bract. l. 2. c. 11. 1. They who are Guardians by right oâ—… their Fee so long as they have the custodâ—… of the Land are bound to maintain and reâ—aire all
the Son a Knight or to marry the Daughter Quit-Rents and others which for that they depend upon divers Customes of severall places and upon the severall will of Lords is impossible punctually to reckon p Bro. Tit. Tenures n. 50. 53. 58. 29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord q F. N. B. fol. 158. But they are not Feodaries alone who are obliged to this For wee have mention made of a four-fold suit of Court One by Covenant and Oligation Viz. when another who is not the Lord of my Fee Covenants with me or my Ancestors though not his Feodaries to performe this suite of Court Another by Custome where any one and his Ancestors time out of mind were wont to come to the Court of another and his Ancestors though not Lord of their Fee The third we may call a Servile suit which the Feodary performs to the Lord under the notion of service The fourth is Royall by which are found to goe twice a year to the Sheriffs Courts or Leet Courts that they may not be ignorant of what is done there for the peace of the Common-wealth Now our Authors call it Royall though by corruption some rearm it reall because the maine reason of it is to perform Legiance to the King for there all above 12. yeares old r Termes of the Law Tit. sug take the Oath before mentioned 30. Secta ad molendinum is a service by which the Feodaries as bound by Custome to carry their Corn to be ground at the Mill of their Lord. Å¿ F. N. B. sol 122. 31. Heriot otherwise Hariat is compounded of the Saxon words Here Geat Here signifying an Army and Geat a Journey and it was a Tribute payedunto the Lord when hee went to Warre t Lamb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vero. Heriot Bracton sayes that Heriot is alone with Releife u L. 2. c. 36. And Britton w C. 69. Flet. l. 1. c. 18. That it is the Gift of the Feodary at his Death given to his Lord by which he leaves unto him the best Beast he hath or some other thing according to Assignment And he saith that this doth not touch the Lord nor the Heir or Inheritance not that it is to be likened to Releif But that it rather springs from the love and courtesie of the Tenant coming either from a Right or necessity of Duty and that both from villains and Free-Tenants Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast or for defect of that some other moveable which hee hath at the time of his Death And this is two-sold namely servile which Tenant in Fee simple payeth or constumary which is â—yed by Tenant for life according to the â—ustome x Bro. Tit. Heriot n. 5. Of Uses and Profits TIT. IV. IT appears from what hath been said that Services are either reall or personall a Brac. l. 4. tr 1. c. 39. 〈◊〉 reall we have already spoken personall â—re such as are due unto the person b Id. ibid. and â—is kind is twofold one due from the perâ—on of one to the person of another of which â—lso we have made mention before the other which is due from an estate to a person of which sort are profits uses Habitation whereâ—â—re uses and profits in respect of the perâ—on to whom they are due is a Right in reâ—pect of the thing which is due a Serâ—ice c Id. l. 4. tr 1. c. 37. n. 1. 1. Since there are none in England besides the Soveraigne power who hath a plenary and absolute dominion over immoveables it is not hard to discern who they are that are Possessors of estates as to the profits the estates being not wholly theirs which we shall tearm usufructuarii and who nor namely whether all Subjects by what Title soever they hold or onely some who hold by this or that Title for those which have a Fee have onely a power profitable d Wesenbec dâ— feod c. 1. n. 4. which according to the Feodists ceaseth they violate the faith due to their Lord 〈◊〉 not by our Law save in Case of Felony e Stanf. plac Coron l. 3. c. 30 now he which hath any use or profits loâ—â— hath some way or other a power also f Bra. l. 4 tr 1. c. 36. n. 2. Moreover he which hath a Fee-farm whoâ— the Civill Law of the Romanes called Eâ—phytenticus g vectigal ager which is one that hath anâ— state to improve although he have a perpâ—tuity yet he payes a yearly Rent by 〈◊〉 of an acknowledgement of the Seignâ—rie h Brit. c. 66. Lastly he that hath a Freehold and abuseth it is liable to an Action 〈◊〉 Waste i F. n. b. fo 55 Dr. Stu. l. 1. c 23 flet l 1. c. 12 which should not be were 〈◊〉 sole Lord and had absolute power in 〈◊〉 disposing of it but Bracton is very clear 〈◊〉 declaring what Titles our Lawyers incâ—â—â— under the notion of uses and profits for 〈◊〉 stinguishing between a Free-hold and aâ—â— state in profits he is much more diligentâ— distinguishing between Fee k l 4 tr 1 c. 36 Plow fo 83 and Fâ—â— Farm or farming of the profits for thâ— in those the possessor hath a perpetuity in theâ—â— only an estate for life whence it follows thâ— he onely is an usufructuary in an Estate 〈◊〉 us who hath Lands or Tenements for Teâ— of years or at the will of another or 〈◊〉 who hath Lands by way of pledge or security which we call Mortgage or by way of Eâ—â—cution whom we call according to the â—â—versity of the cause Tenant by Elegit Tenant by Statute Staple or Statute Merchant or lastly he who hath the Lands of an 〈◊〉 in Right of Guardianship untill he come to full age Now an estate of profits may be created with us either by gift and bequest or by conditional agreement l Inst com c. 5 Flet l. 1. c. 12. and it appears that our ancestors did sever the profits of a Fee from the propriety untill it was changed by Act of Parliament m 27. H. 8. c. 10. Coâ— l. 1. Chudleys Case but those estates which are held by Copy of Court Roll or by the Verge at the will of the Lord cannot be Leased out without the consent of the Lord above a year n Instit com nor can they be bequeathed or aliened by any agreement without being first surrendred into the hands of the Lord and from thence received by him to whom the former Tenant desires to alienate them o Id c. 15. 3. It is held also amongst us that uses and profits may be of those things which are extinguished by use and daily change so that without all doubt one may bequeath or by agreement create an use of Servants Money Oxen Cowes
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muâ—â— prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortâ—â— time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ— molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ— any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ— l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â— Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or fee-Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hypâ—thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.
Felons that their Bodyes are hanged up on high in some publick Roade neer the place where the fact was committed as an obiect to those which passe by and are not to be removed until they be consumed Now there are others who shew more at large how and by what wayes murder may be committed q Stan. Pleas Crow l. 1. c. 10. Lamb. l. 2. c. 7. fo 230. 16. And it is murder also where any one kills himselfe For such a person is called Felo de se In which case Christian Buriall is forbidden and all the parties Go ds and Chattells are forfeited to the supream power to be disposed of to pious uses r Brac. l. 3. tr 1 c. 31. Pâ—ow fo 253. yet some there are who distinguish whether the party laid violent hands upon himself through fear of Judgment or being weary of his life or through the violence of some disease For in the first case as other Felons he looseth both his Land and Chattels in the second his Chattells only and in the third he forfeiteth nothing s Flet. l. 1. c. 36 17. That which is committed through sudden passion Anger is called simple t Glan l. 14. c. 3. Homicide or man-slaughter and it is punishable with death also yet such is the commiseration of humane weaknesse with us or the pious instigation to learning that he who is convict of this Crime the first time if he can read perfectly and distinctly as a Clarke ought to do is freed from death and his lands and goods being forfeited is only burnt in the hand by which means he may be known if he commit the like crime again and committing it the second time he is to dy without mercy u 18. Eliz â— 7 but so great hath been the bloody wickednesse of these times that this Law hath been somewhat more exasperated For now by an Act of Parliament in K. James his time it is decreed that he who stabs another who hath never a Weapon drawn or who doth not provoke him by stricking first shall loose the benefit of Clergy although there do no precedent malice appear if the party dy within six Months unlesse it be done in his own defence or for the necessary conservation of the publick place w 1. Ja. c. 8. now this favour of Clergy is not only granted to these but even to all other Felons unlesse where it is denied by some particuler Act of Parliament x 23. H. 8. c. 1. 25. H. 8. c 3 26 H. 8. c. 12. the other kindes of Homicide are not accounted Felony y Lamb. l. 2. c. 7. fo 248. 18. For every Homicide which is without malice is either necessary or casuall z West Simbol part 2. fo 48 49 that which is necessary is likewise double one which cannot be declined without prejudice to publick Justice the other which cannot be avoyded without the death of the innocent an example of the first sort may be given in the case of killing a Robber or Theife who cannot otherwise be apprehended and of the later in case where one kills another in his own defence the former is free from all manner of punishment a Stanf l 1 c 5 the later not simply for it is materiall that the party who is slain set upon the party that kills him in his own House or neer the Ordinary high-way with a malicious intention to kill or rob him or in case that he be moved with sudden passion and pursues the party defending himself with an intention to fight with him so far untill he can fly no further for in the one case he kills him without incurring any punishment at all b 11 E 1 1 Mar c 12 Stan l 1 c 6 7 but in the other case he loseth his Goods c 6 E 1 c 9 nor is he received and taken into grace without the expresse pleasure and Indulgency of the supream power which notwithstanding is granted and obtained of course 19. Casuall Homicide is double likewise one which is meerly through mis-fortune the other which is mixed also with some fault in the party who kills the other That often happens in the Lawfull prosecution of a lawfull Act and often from a bruit or an inanimate thing Of the first kinde is where any one is killed with the fall of an Arme or Lopp of a Tree or a Tile from a House after warning given by the parties who are either lopping or tiling d West Simbol part 2 Sec 50 tit Indictments to which also may be added that which may happen in Justs and Tournements in regard the parties who are there in Action are supposed to be making trialls of their strength in the way of freindship And therefore K. Henry the second ordained that those should be pardoned thereby giving them to understand how much they were obliged to perform for the Kings sake when required e Spec Justic l 1 c Del Office del Coroner Of the second fort is where any are suddenly drowned in falling from a Ship Boat or Bridge or slain with a Cart Mill or the like In whch Cases we have before related what our Law determines f Fleta l. 1. c. 25. 20. Homicide which is mixt with some fault of the party who kills the other and yet is casuall or accidentall is where one that is lopping of a Tree or tiling of an house happens to kill another with a Lop or Tile not having given any warning g Stanf. Pleas Crown l. 1. c. 8. of which kind others draw many examples h Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17. 21. Felonies which are committed upon the Body and yet deprive it not of life is where any one out of malice cuts out the tongue either of a man or beast or puls out the eyes of any Subject i 25 H. 8. c. 6. 5 Eliz. c. 17. or commits the horrible and abominable sin of Sodomy with a man k Fleta l. 1. c. 37. but those who commited any kind of Sodomy were used to be buried alive in the Earth l 3 H. 7. c. 2. Lamb. l. 2. c. 7. or having stoln away a Widow Wife or Virgin who hath an Estate in Lands or Tenements or who hath goods or Chattells or who is Heir apparent to her Ancestor and marries her being so stollen away against her will or commits a Rape upon her or he who assists m Lamb. ib. 18 Eliz. c. 7. any one in the committing of such crime He also where any one hath the caâ—nall knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without n 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan l. 14 c. 6. or lastly where any one commits a Rape upon any woman whatsoever to these we may also adde him who marries a second Wife in the life time
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple