the patol Demur in cui in vita per nonage of the second vouchee because he was not heir to the husband and so because penal here in savor of him it is restrained to the heir of the husband onely So by W. 2. cap. 11. an accomptant found in arrearages shall be imprisoned by Auditors and saith not when in 27. H. 6 8. In debt for arrearages of accompt it is adjudged That if the Auditors do not commit the accomptant to prison presently after the accompt and therefore the generality of time is restrained to a particularity by the rule of the Common Law in construction of Statutes and also by the intent of the makers for if the scope and end of the matter is satisfied all the matter and intent of the matter is accomplished and the scope of the Statute here was That the King shall have the Subsidie and the agreement here sufficeth for that because it authorizeth the King to weigh Woad by the Collector when he pleaseth and then the King hath Title of Action and so the surety of the King thereby is referred to will Also such agreement hath been allowed upon the same words of former Statutes for Subsidies Also if the Statute had expressed the agreement in certain yet agreement uncertain should have been good here and out of the penalty because the infringing of the words of the Law without the infringing of the intent of the Law for upon some accidents the law priviledges some things done against the words of the Law of the nature of the Law of this Realm and of other Realms and the Law of God viz. First for to avoid greater inconveniencies Secondly for necessity Thirdly by compulsion Fourthly by involuntary ignorance First for the avoiding of greater inconveniencies as 22. ass pl. 6. where a man of non sane memory and in his rage did great hurt and another man and his parents took him bound him and beat him with rods and here it is holden that they might justifie this in avoidance of greater damage being of non sane memory and yet the Law of nature and of the Realm prohibites battery but this particular case for the avoiding of greater mischief hath one exception and special priviledge So 1. H. 6.9 The Lord contrary to the Statute of Marlebridge may lead the Distress from the Land into another County where the Mannor is for it should be prejudicial to the Lord if he should not carry the distress to his Manor Amongst the Romans they had a Law That every one which should scale the walls in the night should be condemned to death and one in the night did scale the walls in the time of War to discry enemies to the Romans and he by the judgement of the Senate was not onely discharged but had a reward therefore so such interpreting of Laws is a tempering of the rigor of the Law Secondly necessitas non habet legem and therefore it is a good excuse in every Law as 38. H. 6.11 Increasing of water excuseth a default in a precipe quod reddat because he could not appear without danger of death yet the Law abhors every default because it is in contempt of the Court So David did eat bread for necessity although prohibited by the Law of God Thirdly compulsion excuses in Law as the avoiding of an obligation made by dares So if the arm of any man is drawn by compulsion and a weapon in his hand kill another this shall not be Felony nor he damnified because he did it by compulsion Fourthly involuntary ignorance doth excuse as 3. H. 7.1 Kell fol. 268. An infant killeth another it is not Felony because he hath not discretion and it shall be imputed to his ignorance which is involuntary by compulsion of nature so no default in him So Fitz. Nat. br 202. b. if one of non sane memory kill another because his ignorance by compulsion viz. the hand of God and such other things done by ignorance because not to be resisted and this involuntary ignorance is cause of the Act and therefore he which kills another by involuntary ignorance As by thâ— fall of a hatchet out of his hand shall have Sanctuary Deut. 19. But ignorance voluntary is not priviledged as if a man killeth another because this ignorance cometh by his own act and folly which he might have resisted and therefore shall not be priviledged because he himself was the cause of such ignorance if any were à fortiori in all the cases together before mentioned shall excuse for the Law is not offended for the said four causes the incertainty of the agreement here and therefore in as much as the Statute saith The Collectors not agreed with and so gives him authority to agree with the Collector and the Defendant hath made a special agreement with him which is an agreement and so within the words of the Statute if seemeth that by the rules of the Common Law used in construction of Statutes is by the intent of the makers and by all reason and equity shall be adjudged a sufficient agreement and warranted by the Statute and therefore demanded judgement against the King and so it was adjudged But all the Judges were of opinion against the King onely Hales and Montague and afterwards the King sent his Privy-Seal Colthirst against Bejushin 23. Trâ—… E. 6 in the Common Pleas. En Trespass the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret residens esset in and upon the aforesaid Grange and Farm and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life if he also would inhabite there during the Term aforesaid and saith That W. did dye in the life of H. and E. and after H. and E. dyed also and the said B. now Defendant entred without shewing in certain when and took averment that he had inhabited there alwaies after his entry and upon this Plea the Plaintiff Demurs and it was adjudged against him for the Defendant 1. For that the averment of his continual residence is surplusage and therefore the incertainty thereof nil refert by Harris Hinde and Montague 2. It is not a condition compulsary but a thing elegible at the discretion of the Defendant by Montague and then his entry is not material but at his pleasure 3. Admitting that it be a condition yet it is subsequent and in defeasance of his Estate and therefore ought not to be shewed by him which shall have benefit thereby the contrary is of a condition precedent 4. For that it is pleaded by way of Bar and being certain to a common intent it sufficeth and it shall be intended that he entred immediately after the Remainder happened but by Hales Justice this common intent ought to be of a vehement presumption and not indifferent 5. That this word if W. dye then
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of
to the first nor cannot pass by the second Lease for that is severed for the time by 38. H. 6. fol. 38. That a thing in possession may not be parcel or appendant to a thing in Reversion as a Lease for life of a Mannor except the services of I. S. it is not parcel of the Mannor But is a signiory in gross and the Land shall be demanded at the common Law and not in the Court of the Lord by Bromely But here quere if the acceptance of the second Lease be a surrender of the first and the severance by the second Lease and then the severance by the exception is determined and so the Mannor passes entire as it was at the commencement 3. If the recitall of one part of the Statute which maketh for him which recites it be sufficent 4. If the pleading of a surrender or grant to the King by deed inrolled generally without shewing of the enrollment specially be good 5. The King is seised Jure Coronae of Lands coming to him by the dissolution of Monasteries the Tenant pleads a Lease for fifty yeers in Bar and after by his rejoynder pleads that the said Lease is made good for twenty one yeers by the Statute of 31. H. 8. this is a departure for that the state cometh after the Lease otherwise it is of a thing pleaded in affirmance of the Bar which precedes it 6. That the second Lease made by an Abbot within the yeer of the making of the Statute of 31. H. 8. to one which hath a Lease for yeers of it before without the reservation of the Ancient Rent then it shall be good for twenty one yeers only from the making of the second Lease per curiam Bromley The Lessee for yeers accepts of a new Lease within one yeer after the making of the Statute of 31. H. 8. cap. 13. Admitting this second Lease to be good by the same Statute yet it is a good surrender of the first Lease for that the second Lease was once good and shall be expounded to be viod by the Statute as to the King and after the Land comes to the Kings hands and not ab initio and so he shall not avoid the operation of the Common Law in the Surrender And by the Common Law the taking of a second Lease is a surrender of the first for both Estates may not be in one and the same person at one and the same time For if the Lessee for fourty yeers taketh a new Lease for twenty yeers upon condition that it shall be void if he doth not such an Act the condition broken avoids the second Lease But not with such relation that it shall take away the Surrender of fourty yeers because it was once executed absolutely So if a recovery is had of Land the which is afterwards reversed by error which avoids the recovery yet it doth not so avoid it that the Recoveror shall be punished by Trespas for the issues taken in the mean time two points upon the Statute here first the second Lease is not so void by the first branch of the Statute so that at the time of the second Lease made the first Lease hath his continuance but was determined and the Statute is in the copulative and then it is not determined by the making of the second Lease which then had his continuance then was not determined finished or expired according to the words of the Statute Secondly the second Lease for fifty yeers is abridged to one and twenty yeers by the second branch for contrary to equity it will destroy the former Lease and the second also And so that the same Lease exceeds not twenty one yeers express in the Statute extends to the terme abridged and not to the intire new term to make the clause conditional but to make the State abridged good for one and twenty yeers and shall be as a double repetition of the first clause only and be also a declaration of the State and expounded in the future tense that it shall not exceed twenty one yeers which is all one with the words for twenty one yeers as in a writ to the Shereist to seiz goods for the King Ita quod nullus adea manum apponat And in the Statute of Gifts conditionall Ita quod non habeat potestatem alienandi The word So is not conditional but maketh a plain declaration of the thing before by the words of the Statute sometimes expounded contrary to the text to make this agree with reason as by 25. E. 3. cap. 16. after fo 205. by the exception of non-tenure of parcel no Writ shall abate but for the quantity of non-tenure which is alledged expounded by 5. H. 7.7 where the thing demanded is severall as Acrâ—s for in a precipe of a Mannor if the Tenant pleads non-Tenure of parcel all the writ shall abate because an intire thing and there the demandant ought to have an exception in the writ because it is contrary to reason that a man shall demand the intire mannor against one which is not Tenant but of parcel of that which he endevors to recover So Praerogativa Regis is for the Tenure of him in Capite where the King shall have Primer seisen of all his other Lands yet 30. H. 8. and after fol. 204. for Soccage in Capite he shall not have because it is contrary to reason that such a small Tenure should be so greatly charged So W. 2. cap. 21. gives entry to the Heir yet he shal not have the arrerages in the life of his father old natura brevium 138. and this exposition is contrary to the text because the text is contrary to reason to give an action to the Heir for a thing in consideration of another thing not due to him So Glouc. cap. 3. for warranty with assets 21. H. 7.10 11. H. 4.21 the things taken by equity is expounded contrary to the principall Perveyance Instans est unum indivisibile in tempore quod non est tempus nec pars temporis ad quod tamen partes temporis copulantur Townsends Case A Woman Tenant in tayle taketh husband who maketh a Feoffment in 20. H. 8. to the use of himself and his wife for their lives the remainder over the wife is not temitted Adjudged 1. For that she cannot avoid the discontinuance by entry as she might after 32. H. 8. cap. 28. but hath an action viz. cui in vita given to her to recontinue the possession which she useth not but cometh to the possession by another mean she ought to take it in such order and with such appendances as the Law limits to such mean the mean which she useth here is 27. H. 8. and as the Statute appoints the possession to her she shall be adjudged in and not otherwise although she be a Fem Covert For Coverture or Infancy is not materiall here for it is not excepted in the Statute And the Statute of 27. H. 8. of
naturall body so may he purchase As 34. H. 6.34 and by pleading there H. 6. seized in fee of an Advowson in gross conveyed it from H. 5. to him who granted it to the plantiff good without shewing in jure Coronae or how and there if the King hath Land parcel of the Crown and parcell by purchase and dies having a son and daughter by one venter and a son by another who enters and dies without issue the daughter shall have the Land purchased and the son the other So purchased Lands by the King shall go to the naturall body So 35. H. 6.28 by Moyle after fol. 247. Land in Gavel-kind given to the King and his heirs the eldest son being King shall not have all because it vests in his naturall body but perquisites of a villaine the King hath jure Coronae as 41. E. 3.21 if a Bishop who hath a villain in the right of his Church enter he shall hold it in his body politick and shall be in the right of his Church because the signiory was for a thing in respect or by reason of another shal be in the same degree and right as the principal was at the Common Law That an estate of inheritance viz. Fee-simple was by the Common Law before the Statute First absolute when a gift was made to a man and his Heirs Secondly conditional when to him and the Heirs of his body for that formedon in Reverter at the Common Law if the Donee dies without issue in Remainder not for a remainder cannot depend upon a Fee Conditional until this Statute and before this Statute the Donee might alien after issue had so bar the issue because they construed the having of issue to be a performance of the Condition which was implied in the words and in the intent of the Donee and after issue to be as an absolute Fee because he had such heirs which were limited But if before the Statute the Donee had issue he might alien and good then here 4 E. 3. and 30. E. 1. which was contrary to the will of the Donor for which the Statute was made and then Fines were of great regard yet by this Statute ipso jure sit nullus viz. as to the right issue or Donors the Kings prerogatives are great yet the Common Law so admeasures them that they take not away any of the inheritances of the subject and therefore the King shall pay Toll though not for things bought yet Toll Traverse he shall because it is for going over another Soil because it toucheth the inheritance to permit a way over his Soil without paying any thing 46. E. 3. 23. H. 3. 35. H. 6. 26 28 29. So for to wave a Demurrer or issue yet may not change one issue into another Term because then it would be infinite which should be to the disinheritance of another 13. E. 4.8 Statutes general made in preservation of inheritances or for the publick good binds the King without naming as W. 2. c. 5. of usurpations but by 35. H. 6. good is not so clear if an infant upon whom the King usurps hath by purchase as well as discent So Merton cap. 5. That ordains that the Kings Ward shall not pay usury viz. That the Rent shall not be doubled during the Nonage of the Heir and therefore in 35. H. 6.60 by Needham if the King gives land rendring Rent yearly at Easter and if he fail to pay at the day That he shall double the Rent the Grantee dies his Heir within age he shall not double the Rent against the King So Merton cap. 6. That a man shall make his Attorney for to follow his suit to the King if it be his Lord or at the Court of another he shall do it So the Statute of 5. H. 5. of additions L. 5. E. 4.32 of one Law which belongeth to a common person the King may not defend the Common right but that every one shall have advantage but every general Statute shall not bind the King without naming of him As Magna Charta cap. 12. Communia placita c. nor such which have an intent onely between subjects and to repress disorder between them those here which concerneth salvation of inheritance or publick utility of the Realm So the Statute of gifts Conditional binds the King because by Justice and Act of Parliament the King hath submitted his will to the Donor The King as Walsh saith hath in him First power to do Secondly Justice to enforce him to do it this is as to others Thirdly Mercie to stay him from doing this is of things touching himself And because after this Statute the King may not say that the estate is Fee-simple Conditional as it was before the Act the case of the Tenant in Tail attainted of Treason was alleadged in proof of it 37. H. 8.7 7. H. 4.32 which proves that the King shall be bound by the said Statute So by 26. H. 8. cap. 13. because it is some estate of inheritance also the Tenant of the King in Capite gives in Tail Tenendum de capitali domino the King shall not have Wardship of the issue in Tail 4. H. 6.19 because it is not now Fee Conditional as before the Statute and therefore he is not immediate Tenant to the King 4. H. 7.16 The King may receive the Services of the Donor by his hands 27. H. 8.26 after fol 249. the King may take the Donor or the Tenant in Tail for his Tenant before Licence or after but once chosen shall not resort Also 8. H. 4.9 Tenant in Tail of a Signioty aliens it in Mortmain for default the Signiory revolts to the King the King seises the Land after escheat the issue in Tail hath the land by petition against the King and therefore is not Fee-Conditionall as to the King but binds the King although in these cases the King claims in the right of the Crown yet here it is very remote from the prerogative because here it remains vested in the natural body of H. 7. For the Plaintiff it was said That the Prerogative of the natural body of the King because of the union of the politick as the attainder of H. 7. discharge ipso facto as soon as he came to the Crown 1. H. 7.4 So R. 3. being Feoffee to uses when he was King the use was gone because the King in his body politique may not be seised to an use of another 5. E. 4.7 and therefore it was enacted 1. R. 3. cap. 5. Rastal Uses 3. That the Land should be in Fee to him to whom the Use was 43 E. 3.22 Franchises extinct by purchase of the King yet to him and his Heirs of a Mannor to which they were appendant So the King in his natural body and another purchase or if the purchase is before that he is King they are not Joint-Tenants but Tenants in common Fitz-nabr f. 32. G. because no body politick may hold in Joincture So 44. E.
Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
a Recovery as a Fine is without Attornment for the habere facias seisinam recites cum A recuperavit seisinam suam c. because the Husband raised the use First it is his purchase and so within the words of the Statute and if not yet it shall be within the equity and nevertheless it is penal Sanders for the Defendant The Statute here is penal because it goeth in avoidance of Estates and abridges power and therefore not equitable And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty because he vouches an Infant and yet it is adjudged 18. E. 4.16 If he maketh a Feoffment over this Feoffee shall vouch because penall against one shall not extend to another So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before for five years shall not take away the Entry of the disseisee yet if one Abator die seised within five years this discent shall take away the Entry And so if Tenant for life be disseised and the disseisor die within five years and the Tenant for Life dieth he in Reversion or Remainder may not Enter because he was no Disseisor to them and to the discent they had no Title to Enter but the Tenant for Life and taken strictly because it abridgeth the Liberty given by the Common-Law By inheritance is understood Land by dicent as it is proved by a case in 7. H. 4.5 and a cui in vita abated because it was quam clamat esse jus Hereditatem suam whereas it was his own purchase And by 4. H. 5. cap. 3. which speaketh of Lands by purchase or by discent and the disjunctive prove the difference between the words Purchase intends Land by gift or purchase which is by Title Disseisen is not purchase because without Title Now because the Plaintiff hath in the Replication said That the Grandfather of the Defendant was seised in Fee for to prove the Defendant to be within the first Branch the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession for the manner of coming to the Land is Issuable because it may be by Discent Purchase or Disseisen And a Joincture made by a Disseisor to his wife is out of the Statute Recovery without Execution is not a discontinuance Harris Serjeant argues to the same intent And he taketh also that Covin cannot be where the Title is good except that wrong be done by him which hath the Title and this ought to be shewed for here in respect that the Title is confessed to be good in this That it is not traversed nor confessed and avoided this Recovery may not be averred to be by Covin for this avernment is repugnant in it self and it cannot stand together to say that she did right by Covin And as to the Statute he taketh the case here to be out of the words of the Statute And note thou that he argued to all the other points moved to the same purpose that they were arguod before Molineux Justice It is a vain thing to aver this specially which is apparant as the Covin and therefore when the Tenant infeoffes his Son within age by Collusion the Lord shall seise him for a Ward without shewing this Collusion specially So if the Husband will confess an Action the Wife shall have Dower by the Common Law proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant but it was doubted if the Recovery had been by Default but here the Action had been tryed by the Verdict of 12. men the cause of the Covin ought to have been shewed because the Law giveth credence to it As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted because the Law presumes the Verdict to be true untill the Reversal be tryed upon Error in Deed or Record so that the Law hath an indifferent judgement of it viz. to be true or false And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict Also Covin upon a good Title is prohibited because the Statute of 11. H. 7. is generall And so Covin generally averred here without falsifying of the Title is good as 4. H. 7. cap. 20. saith That if a Recovery be pleaded in Bar of a popular Action the Plaintiff may aver it was by Covin generally by the Warrant of the Statute As to the second exception the Stat. expounds it self to be intended of a Recovery without execution Every Fee-simple is an inheritance and then she had an use in the inheritance of her Husband and held that the Wife held the inheritance of her Husband that is to say his Land in use joyntly with her Husband and so within the words of the Statute and if not it shall be within the equity and intent of the Statute and he took without question that the Heir in Tail might enter presently and our the Wife which is Defendant and so held the Plaintiff should recover Hales Justice to the same intent And first to the Covin the Replication is good without shewing cause of it And the Statute is for frail inconstant women and will not make them Judges if the Title of Action be good or not 18. R. 2. cap. 17. gives receipt to him in Reversion where the Tenant for Life is impleaded by Covin of the demandants that the Tenements shall be recoverred and he in Reversion because it speaks generally of Covin 2. H. 6.14 and 11. H. 4.3 For this cause there it sufficeth to say That Tenant for Life pleaded faintly and pray to be received without shewing cause otherwise it is of Covin at the Common Law and 11. H. 7. would have limited the pain to fained recoveries expresly if it had intended so much And the Statute prohibits the Covin onely be the Title good or faint for faint Recoverie by Covin the issue in Tail may falsifie before Warranty made 20. years after the Disseisen yet it commenceth by Disseisen by the intent As if the Father Disseiseth the Son to the intent to make a Feoffment with Warranty to Bar his Wife Recovers against one which outs the Tenant by Covin yet she had not good Title of Dower is a Disseiseress and Covin is apparent here because he never took view voucher essoin or other delays which he might The Statute saith That the Recovery shall be void whereby it is not intended that it shall be executed and shall not be intended to be by Disseisen without shewing The words of 11. H. 7. explain the intent That such Wives who have Lands in use or use in Lands are within the Statute Recovery against Tenant in Tail was good onely for his life before this Stat. and therefore comprises use here because the Stat. shall not be made in vain for Tail in use may do as great prejudice as Tail in possession and so the
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.
H. 8. c. 34. to enter for a Condition broken 2. The tender of the Rent on the Feast day is not requisite nor until the last instant of the 40. day 3. Notwithstanding that the Rent be apppointed to be paid out of the Land at the Feast day and not the 40. day by express words yet it shall be so intended by relation to the place last named 4. No demand here is requisite because that the Land which is Debtor is absent the contrary is upon a general reservation and if a Rent seck payable in a forreign County be demanded and denled there it is not a disseisen by Plowden contrary upon the Land The place which was once charged with the payment in the hands of the Lessor remains chargeable in the hands of any other because he hath this as a Liberty and Authority imposed upon it by the Lessor and such Liberty is saved by the Statute of suppression of Monasteries and therefore the Lessor nor the Lessee are not Trespassers by their coming there to tender and receive the Rent Rosse against Pope ROss acknowledged a reconusance to Pope after Levies a Fine to him of patcel of his Land 5. E. 6. In Chancery upon an Audita quetela and afterwards Pope sues Execution and takes the body of the said Rosse and he brings an audita querala in the Chancery and adjudged that it lieth not 1. For that the Land is not debter but the person and the Land is onely charged in respect of the person and not otherwise until Execution sued 2. For that the purchase was before Execution sued otherwise it had been if sued afterwards for then the Land was charged in facto and not chargeable And if any part be discharged by act in Law as discent or act of the party as Surrender Feoffment c. also it shall be discharged because the duty is personall and entire 3. Because that the Conusor shall not have contribution against the Feoffees but they shall have against him and here the Conusee shall not have Execution against his Feoffees for that they may not have contribution against him Wimbish against Willoughby Assize directed Coronatoribus in Lincoin upon the surmise of the Plantiff that the Sheriff was his Cosen and shewed also Tr. 6. E. 6. Assice against L. Wall That one of the Coroners was servant to the Defendant and adjudged good 1. For the speedy expedition of the Assize and the mischlef of the Plaintiff if it should be abated by the exception of the Defendant and no mischief to him and here the venire facias is awarded the first day as in a precipe 2. Coroners in Lincoln shall be intended Coroners of Lincoln for that they are the words of the King In the Argument of this case see first where a Writ Original shall be directed to the Coroners where not Secondly and when other Judicial process Thirdly an exposition of the words in and de in Writs Grants or c. Fourthly what words are sufficlent to make a Grant of a Rent charge Fifthly some matters touching challenges and where they shall be Traversed c. Partridge against Strange and Croker IN Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. H. 6. 7 E. 6. In the Common Leath Of buying and selling of pretenced Titles and Rights and alleadge this to be done 28. April 32. H. 8. where in truth it was not done this day and that the Defendants have made a Lease for years of a house and nine acres of Land pertaining to it whereof they nor their ancestors nor any by which the claim were in possession Reversion or Remainder nor took the Profits for one intire year before c. and holden 1. That the Statute need not to be specially recited and pleaded because it is general but for that it is misrecited it is not good by the Court sol 84. and yet is surplusage and it shall prejudice the party in some cases sol 29. as debt by I. S. Parson of D. it is a good Traverse because he is not Parson or that there is not such a village called D. 2. When the Term shall not be certainly pleaded for that it is Conveyance of the Action and is not material here and he which pleads it is a stranger as an Indictment of the death of a certain man unknown or the stealing of the goods of a certain man unknown 3. That a Lease for years or a grant of parcell of the Right is within the Statute because the Statute speaketh of any right and is not intended only of an entire right and that the entire value of the Land shall be forfeit by such Lease per Curiam fol. 87. That this Lease made by one in possession is out of the Statute for that it is not averred to be a pretenced right by Hales and Montague fol. 87. against Cook For they mean that he which hath possession one day or however may make a Lease or Feoffment bona fide and shall be forth of the Statute although that he hath not possession or taketh the profits one whole year without averment that it is made for maintenance and the Statute shall be intended onely of those which makes Leases c. having but a right and not the possession as Montague held a promise by him which is out of possession to depart with the Land when he shall attain the possession is within the danger of the Statute fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father and maketh a Lease for years this is within the Statute for that he Leases his ancient right So by Morgun if the heir release to the Abator and afterwards claiming by discent maketh a Lease for years this may be averred a pretenced right and then is within the danger of the Statute fol. 86 and a right is within the Statute which comprehends all rights Pretenced right is where one hath the possession and another which is out of possession claims this or sues for it by Mont. f. 88. Morgan Serjeant for the Defendant He which voucheth a Record and vary in the year or Term haith failed of his Record So the Statute here no Act without the consent of the King when all assent it shall have relation to the first day of the Parliament and from that time is an Act of Parliament unless it be otherwise appointed when it shall first take effect An act made in the first or second Session relates not but to the first day of the same Session Misrecital shall prejudice the party in some cases as Debt by I. S Parson of D. where there is no such Village D. a good Traverse and abates the Writ yet the naming of him Parson surplusage So here because it recites a Statute certain made such a day where it was not although that the day is surplusage it hath made the matter vitious although it
H. 6.25 Of vigor of an appeal pleaded against an excomunication the usuall form shall be observed and good as in debt when the defendant acknowledgeth himself to be bound c. So in forgery against one only quod falsa conspiratione habita good 11. H. 6.2 because the usuall form where a man may not have by common intendment precise notice of the certainty of a thing it sufficeth to alleadge this generally as 21. H. 6.9 9. H. 7.15 that executors have administred to B. without shewing what things good because he may not know that another hath administred and that he is not privy So 5. E. 4.8 Obleige to discharge the Sheriff of all things touching his office he said that he had discharged him generally good because for the infiniteness of it Talbot and Corbets case tempore H. 7. upon the same Statute 23. H. 6. where the issue was joyned that Corbet was chosen Knight for the Parliament and he was admitted to prove it c. So 2. E 4. 19. imprison to make an obligation to the defendant to others unknown without naming them good contrary in false imprisonment So 10. E. 4. 19. bound for to serve in all lawfull commands he said that he had served him lawfully untill such a day without shewing in what good So in 12. H 7.14 he had found him meat drink and apparel untill one and twentd yeers without shewing what good So monstraverunt homines without shewing the number because a great number for the Law compels not to shew the certainty of the thing which is not to be known or remembred Brook Chief Justice so 128. and in Parliament the most voices in the upper house shall be numbred by the Clerk of the house for every one there shall be severally demanded otherwise it is in the house of Commons for there the assent is tryed by voices sounding all at one time So in election of Coroners Sanders so 126. the County of Chester was alwayes parcel of the Realm of England yet Knights and Burgesses came not from thence untill the Statute of 34. 35. H. 8. ca. 13. Statute penall extends not further then the words and namely for to punish others as 21. H. 7.21 of malefactors in Parks extends not to Forrests So 13. H. 6. cap. 10. that Sheriffs shall not let their Counties extends not to him which Leases parcel of it 21. H. 7.36 the contrary was held 20. H. 7.12 and before fol. 87. So treble dammages for a forcible entry in an Assise or trespas extends not to entry in the nature of an Assise 7. H. 4. which limit order for the election of Knights extended not to the false return of the Sheriff untill 11. H. 4. was made if London inlarge the Ancient custome viz that a villen shall not be drawn out which hath remained there a yeer and a day because Ancient demeansne 7 H. 6.32 extends not to enlargment So England altered not the subjecton of Wales Rape is made fellony by W. 2. ca. 34. Abetters inquirable cap. 12. and at one time good 2. E. 2.22 E. 3. yet Chapter the 12. seeme to be intended of fellons before made and not by the same Statute Sanders justice the allegation alledged under the viz. is a plain precise and effectuall affirmation in deed proved by Rules in grammer the authority of Latine Authors by the Register 66.160 natura brevium 63.134 h. 135. b. and the opinion of the Doctors of the Civill Law 21. E. 4.49 and after so 143. by Catlin an Abbot in discharge to be collector saith inter Record of such a term continetum that R. 2. had granted to his predecessors that he nor his successors shall be collectors and naught for it may be contained amongst the Records and yet no Record escuage was first invented to suppress the Welch and Scots rebels against whom war was made by the King of England as against Rebels and not as against enemies for that they were subject to England H. 3. made E. 1. his eldest son Prince of Wales and so it hath continued to this time which Act of H. 3. was the first alteration of Wales King E. 1. made the Statute of Snowdon The third was the Statute of 27. H. 8. the welch may sue by quod ei deforceat in the nature of what action they will Statutes sometimes explaines the Common Law Merton cap. 2. quod vidua legare possunt bluda c. and late Statutes aided by equity Statutes made before so lineal warranty Bars not the issue in taile without assets by the equity of Glocester made long before after fol. 78. so Land delivered in execution by the Statute of Marchants 1â— E. 1. yet it shall be delivered also to so high extendors although 13. E. 1. speaketh not of it by equity of Acton Burnel 11. E. 1. cap. 2. which giveth goods prised at two high prises in dammage and that the Connusee shall have them for the price because it intended to aide things in like degree although not in esse then Brown Justice to the same purpose and said that in things touching Grammer their predecessors have consulted with Grammarians and pursued their Rules as it appeareth in our books that the the Judges have said proximo antecedenti fiet Relatio the which sentence they might take out of Grammar and he argued that licet was a plain affirmative and that the matter contained under the licet is an affirmation with greater vehemency then it should be without the licet and that the licet augments the affirmation And he argued further that the generall words of the Statute of 27. enabled the plantiffe to take benefit of the penalty and in what he said agreed with Sanders in effect Brook chief Justice Gavel kind commenced by the Brittans by partition of England Scotland and Wales between the three sons of Brute continued by Bellinus Brennus Ferrex and Porrex and was altered in England by the conquest of the Saxons and the eldest son by their Law was inheritable But Gavel kind continued in Wales until 27. H. 8. for it was not conquered Priviledges within certain precincts or Dominions followed not the enlargement of the place So 38. H. 6.10 Liberties granted to the Bishop of Durham in feedis suis extends not to the purchase after So 21. H. 6. Warren is granted to B. in all his Lands in Dale and he purchaseth other Land in Dale he shall not have warren there So a grant of Conusans of Pleas of a thing parcel of the mannor of Dale tenancy Escheats afterwards he shall not have of it For the grant taketh execution of his precinct and circuit at the time of the making of it and the services shall be then parcel of the mannor and not the demeans which now escheat So grant wreck to B. in all his Lands it shall not extend to the Land of which he was then disseised because not his but the disseisors pro tempore Reference to another
one shall be the words of all in the operation of the Law Catline To the same purpose because words equivalent to a Reservation for the Law takes words of substance and not usual equivalent and words of substance is usuall and the Law regards the effect and substance more then form the words and substance will supply the form rather then the intent of the parties shall be void as Lessor and Lessee for life makes a Feoffment it shall be the Feoffment of the Lessee and confirmation of the Lessor yet no word of Confirmation before fol. 59. And so if a Tenant for years and the Lessor make a Feoffment in Fee this shall be taken the Livery and Feoffment of the Lessor and surrender of the Lessee and yet there is nor any word of surrender of the Lessee but shall be so taken by the judgemen of Law So a rent granted by Tenants in common is severall because estates several yet words joynt after fol. 161.171 and Perkins fol. 22. so renuntiavit communiam 9 H. 6.35 after fol. 162. it is a a Lease because where words are equivalent in substance the Law will appoint how they shall enure and in Contracts it is not materiall who speaks the words if the other agree for the Law respects it and the words which prove the assent and have substance sufficient And therefore 21. H. 6. if the words of the Obligee make a Condition viz. the Obligee vult concedit if the Obligor steterit arbitrio yet usually they are the words of the Obligor for Condition Brooks cond fol. 58. abridge this contrary So an annuity pro consilio or a rent for Composition of Tythes 9. E. 4.16 enure as words Conditionall and a Covenant that the Farmor shall not be impeached for waste amounts 21. H. 6.47 to hold without impeachment of wast 17. E. 3.9 award assigns land of greater value then the Dower to the Widow and the second Husband who granted a rent by the same Deed to him with distress for the overplus and the Deed recites this the Wife Lessee after the death of her husband because the Grant to pay the rent for the overplus of the land a good reservation for otherwise he shall not be bound contrary before of a Grant for reasonable Dower and no mention made that the land was more worth then the Dower because without consideration there and is a Collateral thing and so words shall enure upon Acts between the parties concerning the principal matter and Collateral matter differ also the summ is certainly recited and the rent shall be this summ for the sentence stands good without words rent or farm where those words shall be adjudged void rather then the certainty expressed to be void as 4. E. 4.29 I. is obligee to B. Solvendum to I. yet good and the Count shall be to be paid to B. for the intent of the parties makes this good So a Grant of Remainder by the name of Reversion of the land a good Grant notwithstanding the mis-terming of the thing because the certainty of the land appeareth but by a Grant of all Reversions a Remainder doth not pass because the grant is in generalty and so certainty by special Terms and by general differs So where he saith if all rents shall be arear and where the said rent of 37. l. 3. s. 4 d. in certain So words containing generalty and incertainty and specialty and incertainty differ to pay 10 s. at Michaelmas 1599 and at the same Feast of S. Michaelmas next ensuing other 10. s. there the summ is taken the like for that it cannot be the same if it come after so one word taken for another supplies the intent of the parties 2. That the Covenant and Grant for not payment that the Lease shall be void is not a Condition by Ramsey fol. 133. because it is not spoken by him which gives the estate as if two Joynt-Tenants make a Lease upon Condition and that then one Lessee enters he shall not enter but into one moytie for that he gave no more and the words of one because the Law saith he speaketh only for his moytie shall not make this Condition to another which speaks not And also the Condition is subsequent in time of the Statute which was executed before for the Demise and habendum maketh the Lease contrary by Stamford and Walsh fol. 135. for that the parties are so agreed by Indenture and the one party and the other assents and therefore all one as if he had reserved the Conditional payment which is called Rent and is a Condition annexed for to avoid the Estate Litl fol. 70. So here because the summ certainly named be it a Rent or summ in gross for it is not requisite that the Lessor should speak but if the words of the Indenture had intendment to avoid the estate it sufficeth and the words shall be taken agreement of every party and not spoken by one party more then another as provisoes are or si contingal and all the words of a Deed shall take effect at one instant because the delivery is at one instant and it hath not several times proved by 10. ass 15. where several Deeds delivered at one and the same time the one being a Lease for years the other a Charter upon Condition to have Fee if disturbed before fol. 34. So 9. H. 6.35 Lease without Impeachment of Waste provided That he makes not voluntary waste in houses is Conditional and waste lieth because all made by one Deed if by two Covenants yet it is not spoken by the Lessor more then the Lessee but shall be taken as an agreement of both the parties Gawdie Justice to the contrary fol. 137. Defeasance of a thing Executory as an Obligation Recognisance or Warranty 43. Ass fol. 44. good of a thing executed not As 43. E. 3. Defeasance of a release unless delivered at one instant nor of a Lease executed by Morgan it is Conditional fol. 138. For Covenant lyeth not here because that Covenant lyeth of a thing to come and to be done by the person of some one and not of a thing to be executed in it self and therefore if the words enure not to the effect to determine the first Lease here they shall be void because it may not enure to another effect It is not a Condition by Brooks because it is not restrictive and compulsarie as are Ita quod non if the Lessee doth such an Act or if it happens or proviso but a proviso alwaies maketh not a Condition as in Dockwraies case 27. H. 8.15 because voluntary for Leessee without words compulsary of the Lessor Covenants and Grants That he will remove c. by Catlyn fol. 142. is a condition because it implies the intent of the parties to be Conditional yet it hath not the usual words as a Feoffment to pay 20. s. or instruct his Son in such an Art For it is a Condition because the parties purport such
intent So proviso That the Lessee make such a thing So here it shall enure as a Condition in whatsoever manner it be called it shall enure as a Determination of the Leasee because it was made at the time when the Lease began If the second Lease admit it be a Condition shall be good before re-entry or not Ramsey fol. 133. It is not good because after the Condition broken untill he enters he hath but a Title because he may not grant and the Lease continues and the possession also And therefore 22. E. 4.37 Lesser shall not have Trespass untill entry 14.3 Ass 11. Distress estop his entry because it affirms the continuance of his Term. Where a man may enter he ought to enter or not have the thing and where he cannot enter he ought to make claim before he shall have it As a Reversion granted upon Condition which is broken the Rent is extinct without Claim for that he may not have it by Claim by Stamford and Walsh it is good fol. 136. for that the first Lease for years commenced by words without entry it may be determined by words without entry Lease for life not 2. Mar. fol. 142. because Livery and Seisen which gave the State and Entry which ought to be avoided by entry upon Condition broken it is expressed here how the Lease shall be avoided viz. by entry and there if he enters not or doth an Act which excludes him to Enter as the making of an acquittance or distraining there the Lease is good But the words here are utterly extinct dissolving the Lease without Entry and no Act after shall make it good and the words of the entry here are surplusage and take away the effect of the first words As to 22. E. 4. The Lessor cannot punish him because the entry was first with his assent and when the Lease ended he was Tenant at sufferance but he may make a Lease to another and it determines his will by Gawdy it is not good Void here shall be expounded void by Entry as W. 2. cap. 1. before fol. 82. Finis ipsojure sit nullus viz. to the right yet it is a discontinuance So by 8. H. 6. cap. 10 Outlary shall be void in Indictment or Appeal if no Capias in the County where he dwelleth Common Law 19. H. 6.2 expounds it shall be void by Writ of Error he that hath a possession in Law may Lease before entry after fol. 142. after a stranger hath abated not because another hath possession in Deed. So a Lease by the Husband for years shall not be void of the Wives land after his death before entry of the Wife for possession ought to be defeated by possession and possession ought to be gained by entry Catline fol. 142. b. By the not payment the first Lease is determined without entry because it may be made by word without other circumstance otherwise of Free-hold and therefore may make a Lease but cannot have Trespass without entry as Heir before fol. 137. he may make a Lease before entry but cannot have Trespess before entry 11. H. 7.22 So a Lessee may grant his Term before it commence 22. E. 4.37 yet he shall not have Trespass before entry 37. H. 6.18 To shew two matters where both are effectual and answerable makes a double plea as 3. H. 6.32 Feoffment up-Condition to infeoff the Heir and averment of the Collusion in Wardship of the body So 20. H. 6.7 Seisen in his Ancestor and himself by avowing So 22. H. 6.37 Two continuall claims viz. by the predecessor and the Plaintiff for to avoid a discent So 19. E. 4.4 by Vavisor and Brian Two discents in Fee bars not two discents is not double in Tail because one answer viz. he gave not makes an end of all for if he cannot shew one thing without the other it is not double nor if the one is pursuant to the other as fully administred and so nothing in his hands for the last is but a conclusion of the former But the other Justices held the aforesaid two exceptions effectual for the causes aforesaid and that the Rejoynder was vicious wherefore they said That it was in vain to argue them and therefore in consideration of them onely without respect to the other matters rising upon the Rejoynder and before debate they awarded for the plaintiff Throgmorton against Tracie M. Mar in the Common Plaes second deliverance A Man makes a Lease for life and after Grants the Reversion of the Land habendum the land at Michaelmas after the determination of the first Lease for life for one and twenty years and adjudged a good Lease for years of the Reversion and of the Land Reverting and that the Habendum stood well with the premises because that the land is the degree and state of the Grantor was included in the premises by the word Reversion and the degree and estate excluded by the Habendum and the other part onely granted viz. The land Reverting and so was the intent of both the parties Reversion is compounded of the remnant of the estate which is left in the Lessor and of the land Reverting and carties with him the land to be afterwards happening in possession and the land is the substance of both and by the grant of this both pass So the Mannor which is compounded of Demeasnes and Services and of stegno aqua priscarie 4. E. 3. or gurgite which consists of water and land The Habendum which is not pursuant to the premises is void as a grant of a Mannor Habendum a Rent parcell of the Mannor because in the grant it was Rent service and in the Habendum it is Rent Seck So a Grant of Services Homage Fealty and rent Habendum the rent to the Grantee in Fee this habendum is void because in the grant the rent was contained as a rent Service but here it is rent Seck Grant of it after the death of I. S. void for the nature of a Grant is that the thing Granted ought to pass presently after fol. 155. for it is a thing in possession and is granted as a Reversion where no Reversion was of it If one maketh a Lease of land for years and after maketh a feoffment of the same without livery it passeth not the Reversion by Attornment Quere because the Grant of a thing which includes all interests in it shall make the Reversion to pass but the Reversion granted shall not make the possession to pass 38. H. 6.34 and after fol. 399. The King Grants a Mannor to which an Advowson is appendant for life the Advowson passeth not nor if he grant the Reversion Habondum cum advocatione it passeth not because in gross because it was not mentioned in the first Grant but the Reversion of an Advowson may be parcel or appendant of or to a Mannor in possession not possession of or to the Reversion of a Mannor the Habendum passes not a thing not parcel nor appendant
or appurtenant unless it be comprised in the premises The Office of the Habendum is for to limit the estate as a grant a Rent and stay there is for life Habendum for a year is for one year 7. E. 3.10 by Trew 7. Ass 1. Perkins fol. 22. The Habendum repugnant to the premises void and the estate before the Habendum shall stand 14. H. 8.13 by Pollard Perkins fol. 34. Contrary 13. H. 7.23 by Fineux a Grant to one and his Heirs Habendum for Life So to two Habendum to the one of them two for life the Remainder to the other for life because it severs the joyncture in the estate So a grant of two acres to two Habendum the one acre to one and the other to the other because it includes the interest of every one in one acre A Lease of land reserving the profits or two acres except one void because parcel of the thing granted Doctor and Student fol. 98. Reversion is a Tenement and ought to vest presently as a Reversion and not at a day to come otherwise it is of land Reverting without estate and agreed of land by the Serjeants for the Defendant Every Deed shall be construed most strongly against the Grantor and if it may be taken to any effect by any reasonable intendment it shall be and the intent of the parties shall be observed as here of using this word Reversion not in its proper signification for then it first ought to vest as in Reversion presently by Attornment and not at a day to come but as a demonstration certain of the land viz. all the land that they have in Reversion and that they will not have the land to pass in the degree of a Reversion but in degree of Demeasne And the Law will That when the intent appeareth incline the words not apt of their proper and common signification to the intent and one word shall have the sense of another as Litl fol. 121. Dedi concessi by the Disseisee shall enure as a confirmation So 17. E. 3.8 Mannor pass by the name of Fee de Chivalry So 10. E. 44. 5. H. 7.1 plead Demise by words of licence to occupie where one word includes in it one thing as here Reversion includes the land the thing included shall pass by the word as 11. R. 2. Piscary pass per a quam and 40. E. 3.45 Soil by Piscary and by Turbary 7. E. 3.342 So Soil and Wear by Gorss for 14. E. 3. Formedon lyeth de gurgite So 6 E. 3.183 By the name of one acre cornubiensi for Cornish acres contain so many A man Grants his Remainder of one acre to have and to hold the same Reversion of that acre good because the Law respects the intent of the matter and applies the words to it So a Gift in Tail reserving the first three daies a Rose and after 10. s. good because one rent in substance A man seised of two acres Leases one for years and after maketh a Feoffment of both Livery in this wherein he hath possession by Attornment the Reversion of the other passeth 7. E. 4.21 So 30. E. 1. Totum Molendinum suum the Reversion of the third of the Mill which was in Dower pass but Tenant for life ought to Attorn upon the Grant Brook grants f. 30. the Habendum explains and corrects the words of the premisses as here the words Reversion of the land to the land it self being the same substance So 7. E. 3.308 A Rent Granted out of a Man nor to take off one acre of the same Mannor nothing shall be charged but this acre in performance of the intent of the parties by the Serjeants for the Plaintiff Anthony Brown Serjeant for the Plaintiff Tenement compriseth a Reversion as 33. E. 3. the King licences to purchase Tenements in Mortmain he purchases a Reversion good Fitzh grants 402. and Cook Alienation fol. 55. is Advowson yet the word Tenement here agrees not with the premisses First because that in the mean time after the first Lease finished at Michaelmas the land is in possession and then it is not a Reversion because no particular estate and therefore may not yest as a reversion as 21. H. 7.11 before fol. 25. Remainder may not vest but during the particular estate and not at the ending of the first estate up on Condition broken So 10. E. 3. dower of a rent reserved upon an estate Tail good so long as the estate continues otherwise it is if the Tail be altered in Tail after possibility or Tenancy by the Courtesie for that the inheritance is determined and the rent is now in another degree 12. E. 3. and 10. H. 7.13 by Keeble if a rent be granted with a cessing during the nonage of the Heir the Wife shall have Dower and Execution shall be staid otherwise the Wife of the Son dying within age for that during the Cesser she had not possession Secondly because the Reversion cannot be granted at a day to come for then he shall have the particular estate in the mean time and shall be Lessor to himself and 38. H 6.38 a man cannot reserve the lesser estate giving the greater without alteration of the Lesser as in 8. H. 7.3 by Vavisor before fol. 152. A. hath rent in Fee and grants this to B. after the death of I.S. void because the Fee passeth presenly if ever and then he should have Franck-tenement of his own grant until I.S. dies And the Estate shall not be so devided without alteration of the whole Estate for a thing in esse cannot be granted to be in esse one time and to be insuspended or differ from the other but a new rent may be granted to commence at a day to come for there he shall not have the particular estate in the mean time because not in esse before after fol. 197. Time material shall void the thing in all viz. both the premisses and Habendum not e converso if it may not pass according to the limitation thereof because time parcel of the parties intent and if it may not pass as to the intent all is void As a man hath a Rent or Term and Grant it if he stay there good if he saies besides Habendum after the death of I. S all is void after fol. 250. So the Remainder void if the Termor enter without Livery Litl 12. But if the Term was to Commence at a day to come the Remainder over there it is void notwithstanding Livery because there is no estate present to which the Livery may be annexed so that the time of Commencement is materiall and Livery before its Commencement is void and Livery shall not destroy the time but the time the Livery and grant every act shall be taken strongest against the makers and most beneficial to him to whom it is made and he hath liberty in another sence to his advantage then the words purport prima facie for every Deed shall be construed
Litl fol. 108. before fol. 140. two Tenants in Common grant 20. s. it shall enure as several Grants 34. ass fol. 11. Grants totum piscariam salvo stagno molendini sui yet the piscarie passes not for the stagno shall be excepted and not the piscarie because he hath a Reversion in the Propriety of the land and possession of the Ter-Tenancy The nature of an habendum is to give in large or qualifie Malitiosa juris interpretatio herere in verbis c. the words are but witnesses to the contract reversion includes land by all Brown Justice To the same intent of the Abbot and Covent and of Smith and his wife was to have the land pass as a Lease after the paticular estate ended and not otherwise and from that hour that their intent was to have the word reversion enure that way it seemed to him That the Law would warrant it for the land is included in the reversion for if it was not a man by Granting of a reversion could not have the Land in possession after the particular estate ended And a Feoffment of a Carue habendum the Mannor of D. is good if the Carue maketh the Mannor And if land is parcel of an Office it shall pass by the Grant of the office Much more he said tending to the effect to make the Lease good and so the Plaintiff shall recover Brook Chief Justice to the contrary Estate in lands includes land it self land is a generall word and contains Grantor and reversion particular words containing a Decree where one estate onely intent shall be inclined and ruled by the Law and not otherwise and intent nevertheless in certainty of words as 9. H. 6.35 Renuntiavit communium and not to whom void before fol. 122. 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage Fealty and Castle gard the Lord grants all Services Castle gard passeth not because he granted not the Castle But in Testaments the intent shall be onely observed and rule the Law because the Teastator had not time by presumption to ordain all things according to the Law In conclusion he agreed that Judgement should be given for the Plaintiff Hill against Grange A Man maketh a Lease for years of a Messuage and an hundred acres of land appertaining to it 3. Mar in Common Pleas in Trespass c. by Deed indented the 6. of August rendring rent yearly payable at our Lady day and Michaelmas or 10 days after with clause of re-entry and after Grants the reversion and the Grantee the last instant of the 10. day after Michaelmas demands the rent and enters for not payment and it was adjudged that the entry was good for these reasons 1. Land may not appertain to a Messuage because both are things corporate simply otherwise of Advowsons waies c. which are things incorporate but things Corporate or Incorporate may pertain or be parcel of a thing compounded as a Mannor Castle Knights Fees Honors Forrests Monasterie Rectorie fol. 170. a. But here the land passes as appurtenant but by the intent and phrase of the parties as they have said usually occupied or let c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual notwithstanding the other feast be first named 10. E. 3. the Abbot of Osneys case 3. The demand of the rent the last instant is good 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition or Covenant fol. 173. a. and shall not be intended of the Pattentee of the King 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words Things of distinct and several natures the one is not parcel of or appendant to the other as 8. H. 7.1 by Keeble a Warren cannot be pertaining to a Leet nor a Leet to a Hundred nor one Office to another nor land to other land to a thing Compounded they may as a Mannor Knights Fee Honor Monastery Castle and a Village or to words general as are Oxgang a yard land a hide of land which contains land meadow pasture wood c. Messuage is a single word consisting of a thing special and not Compound nor a general word for that 27. H. 6.2 Land not parcel or appendant to a house and by demand of a Messuage in precipe land shall not be recovered and therefore pass not by the Grant of a House by the Serjeants on the part of the Plaintiff 23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances Land passes not a Mannor and things made appertaining to it are made by usage and continuance So 2. H. 7.28 land belonging to a Forrest and Warden of the Fleet and the house of the Master of the Rolls and divers farms to the Guardians of the Castle of Colchester and one Office to another as the custos brevium giveth one of the Offices of prothonatories and use and continuance is cause of it A man Leases a Messuage and land rendring rent be ought to demand the rent at the Messuage because most worthy Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant Norwood against Read Action upon the case upon assumpsit made by the Testator 5. Mar â—…n K. Bench. lieth against the Executors adjudged For that the Testator could not gage his Law otherwise it is where he might gage his Law for the ignorance that the Law imputes of it to Executors and therefore there they ought to Demur but if they plead in Bar which is found against them they have lost the benefit of the Law and take Conusance of it whereof otherwise their ignorance shall excuse them 39. H. 6.19 12. H. 8.11 27. H. 8.23 Woodward against the Lord Darcie IF the Debtor make the Debtee his Executor and leaves him assets to satisfie the debt 5. Mar. Reso by the Judges of both Courts and dies the Debtee may pay himself by way of retainer by the Court 12. H. 4 21. according And in such case the Action is not utterly exstinct by the Administration for that the Law intends that he is satisfied by retainer before and so a thing in Action altered to a thing in possession by Act in Law for satisfaction of the party which hath no other remedy but if he hath not sufficient assets for to satisfie the debt the administration there extinguishes not the Action because that he cannot retain for parcel and have his Action against the Heir for the residue but ought to do the one for the other at his peril Wrotesly against Adams A Lease for 80. years of a Farm Tr i El. in Com. Pleas. Ej. firme the Lessor granted the Reversion of the Farm to a stranger to have and to hold the Farm for 60. years after the
cannot do any thing without Record And so Acts that the King doth touching things which he hath in his body naturall require the same circumstances and order as things which he hath in his politique body by the union thereof for the thing possessed changeth not from the person of the King but the person nor doth the possession change the cause of a thing possessed Henry the 4. which was Duke of Lancaster held his Dutchie annexed to the Crown as parcel of it by the assumption of the Crown and because his Title to the Crown was defeasable and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land and of the Government of it viz. for the manner of Conveyance as it was before in the hands of the Duke as by Livery and Attornment but not severed from the Crown for the prerogatives of his person as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue and a procedendo with a Clause of not going to judgement Rege inconsulto So the person of the King for Dutchie land taken to be higher then a Duke because he shall not have aid untill after issue of the Duke for that he is a Common person and shall make a Lease by the name of KING because it drowns the name of DUKE in his Realm therefore Officers finding that he held of the King as of the Dutchie and not as of the Duke of and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal or should be void to the end that all possessions of it should be distinct used and known from the possessions of the Crown for the policie aforesaid because he was the Lineal heir to the Dutchie and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown annexed the Dutchie of Lancaster and made it to be forfeit to the Crown and so he altered the course of inheritance of it out of the natural body into the politick body of the King and his Successors but not in the manner of Government name c. but separates it from other possessions of the Crown in conveyance of it by another Seal and other means viz. by Livery and Attornment which are used for the possessions thereof as 21. E. 4.60 Land of the Dutchie in the County Palatine passe by Pattent out of it by Livery because there he hath it as Duke and by the Statute of 1. H. 7. the Dutchie was severed from the Crown and made inheritable to the natural capacity of the King as it was in H. 5. because H. 7. discended of the House of Lancaster so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine to be holden in Capite the Feoffee shall hold in Capite of the Crown and not as of the Dutchie for that the King is not Duke within his Realm but may be when he is out of the Realm Willion against the Lord Berkly A Fine was levied to two and to the Heirs of one 4. Eliz. in C.P. in an Ej. firme with Grant and Render to the Conusor in Tail the Remainder to King Henry the seventh and to the Heirs Males of his body ingendred remainder to the right Heirs of the Conusor the Conusor dies without issue and after H. 7. entred and died seised and H. 8. gave the land to the Queen his Wife for her life and died E. 6. Granted the reversion to one and his Heirs and dyed without issue the right Heir of the Conusor entred and his entry adjudged lawfull So the King shall be in a worse condition then a common person for a common person may bind the inheritance by a common Recovery suffered by him otherwise of the King by W. 2. cap. 1. after fol. 244. a. 1. That the Writ of Ejectione firme that wanteth words bona Cattalla ibidem inventa cepit asportavit is good if the truth of the matter be so and proces of utlarie lieth in this writ by the Common Law fol. 228. 2. The Entry of King Henry the seventh is lawfull without office for that the Law casts the Freehold upon him otherwise it is where he taketh an estate by Office as Ward Perquisites of villains c. and the right Heir may enter without Office or Ouster le main by the same reason fol. 229. a. 3. Where the parties agree upon the matter in deed and conclude upon the matter in Law thereupon Nilrefert but the Court shall adjudge according to the Law fol. 230. 4 Recitall of one part of a generall Statute is good enough otherwise it is of a particular Seatute fol. 232. a. 5. Omission of the date or place of Letters Patents is not materiall in pleading not Averment fol. 231. 6. A feoffment pleaded without entry of the Feoffee is good because it is included in the liverry fol. 232. b 7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue fol. 233 a. 8. The pleading that H. 7. had issue and died without issue is repugnant of his own shewing otherwise it is where it cometh on the part of the defendant fol. 233. 9. The pleading that one enter untill that the Lessor entred upon him and made the Lease is not good there without saying that he custed him and made the Lease The King shall be bound by the Statute of W. 2. of gifts conditional for that it is in preservation of an inheritance in benefit of the publike good and restitution of the intent of the donor and the exposition that the donee might alien after issue before the Statute of Gifts conditional hath been a common error As to the matter in Law it was said by the Sergeants of Counsel with the defendant that the capacity that the King hath in his naturall body after that he is King Remains and the State Royall confounds not this capacity as 45. ass pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle who exchanged it by a deed for another Mannor and died without issue and warranty and assets discended upon Edward the first his heir he is barred and therefore the assignee of the party to the exchange had restitution out of the hands E. 3. who had seised it and so by this warranty and assets which discended upon the naturall body of the King was a Bar to the reversion that he demanded in his body politike And as a King may take as heir by discent in his
Title to his body accrued in respect of his signiory which is more ancient then the Apprentice 49. E. 3.3 the Kings Tenant in London Devises to his wife for life and dies without Heirs the devise is good as it seems by the Book and yet taketh not effect until after the death of the Kings Tenant and preferred before an Escheat to the King yet both their Titles comes at one instant but the Title of the Wife adjudged the elder because some part of it Commences in the life of the Devisor albeit it taketh effect after his death an Obligee is a Felo de se the Survivor shall have the Obligation by the better opinion 8. E. 4.4 Walsh Chomley Benlos and Carus for the Defendant A Dead man cannot have property for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his otherwise the Forfeiture shall be to the prejudice of others which after his death ought to have the goods and the law hath respect to the Commencement of the Act as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound he forfeits nothing and it is not Felony if then he kils another yet is of Sane memory when he died of the wound So 33. Ass 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant adjudged Treason Felonies done by others may be punished in their life time in person Goods Chattels and Lands A Felon of himself hath prevented the death by Execution and forfeiture of his Land which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance and the only means to make him forfeit that which he may forteit viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life because he took away the means of the Judgement which should have been given against him in his life as he should have if he had killed another and when Judgement by the Law cannot be given the Law supplies it otherwise as 3. E. 3. a Felon flies out of the Sanctuary and will not render himself but is killed he forfeits his Goods and the King hath the year day and waste and so an Inquest there shall be equivalent to the Judgement because he himself is the cause that it cannot be given against him by carus my horse strikes A. I sell him to another A. dies he shall be forfeit So the King shall have the Goods of a Villain which gives himself a mortal wound yet the Lord hath seised them after the wound and before the death of the Villain So the Attainder of the Husband in his life shall be a Forfeiture of the Term of his wife So this Act here and if once Title be given to the King Nullum tempus occurit Regi as in 50. E. 3. the Husband Joynt-Lessor for years with the wife receives money of one Attainted which by the Attainder belongeth to the King the Husband dies the wife her self holdeth it this found after the King hath the Term in Execution for his money as he should have had in the life of her Husband if it had been found then and now found by office shall relate to the life of the Husband Curia this is Murther here and not Homicide because upon malice prepenced and is an offence against nature the Law of God and King to kill a Subject and deprive him of one of his Mystical Members as Brooks terms it whereof he is the head and by the breaking of his peace and for the ill example given to others and therefore Felo de se Forfeits to the King all his Goods Debts and Chattels 8. E. 2.3 E. 3.301 362.22 E. 3. before f. 259. Stamford fol. 188. I. and Stamford Prerogative fol. 46. 8. H. 4.2 by Tillesâ—…y and ex consequenti cannot make Executors nor have Administors neither shall the Bishop have them because out of the Church is no cause of Forfeiture 19. H. 6.63 by Paston 8. E. 4.4 by Needham and Litl and 27. H. 8.9 by Montague and if he repents he is reconciled and hath the rights of the Church before his death yet he shall Forfeit those to the King for this offence But a Felo de se Forfeits not Lands his wives Dower nor Corrupts his bloud 3. E. 3. 22. E. 3. before fol. 259. because those cannot be without attainder in Deed. Appellee in Battail is killed he forfeits his land by Benlos and Brown because this killing is equivalent to Judgement and Execution but Weston held the contrary without express attainder by Judgement for to favor the inheritance and by Dier because the three Writs of Escheat for attainder are Register the 16. pro quo suspensus est utlagatus or abjuravit if the Appellor vanquish the Appellee in battail there his land shall Escheat because there Judgement shall be given after that he shall be hanged 8. E. 3. the husband adheres to the enemies of the King in Scotland and dies there 8. E. 3. fol. 388. or is killed in levying War against the King here he forfeits his Lands the Dower of his Wife and his bloud is corrupted for this is an attainder in Law 7. H. 4.46 by Markham and Stamford fol. 198. a. this which causeth the death ought to be said Feloniously done He that refuseth the trial of the Law forfeits Goods and Chattels as 3. E. 3. 13. H. 4.13 4. H. 7.18 Stamford fol. 183. C. he which flies for Felony Stamford Prerogativae fol. 46. A. he that challengeth without cause above 35.40 E. 3.42 20. E. 4.5 Stamford fol. 185. he that taketh Clergie if he be found guilty of Felonies which refuse the Judgement of Law 14. E. 4.17 he that stands mute of malice for those are the Acts of refusal of the Law And from the time of those which appear of Record the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger not for to be Felony because in the mean between the wound and death he suffers himself voluntarily to escape for if the escape should be Felony then that escape had been Felony at the time of the escape by Brown A. and B. Joynte-Tenants for years A. Grants to C. That if he paies 10. l. before Michaelmas then he shall have his Term yet he shall not have the Term because the condition precedes the Grant as 14. H. 8.22 by Brudnel until the 10. l. paid the Joyncture continues and it is not but a Communication but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor for there the Title is granted in deed in the estate in his life So here this Act in his life gives Title to the King and the office by relation executes the Title then and the Survivor
shall not have it from him because once attached in him as the Kings Villain and his wife are Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
Testator and to the same use shall the Lease The Court increases the costs here Osburn against Carden and Jay A Woman guardian in Soccage taketh husband they make a Lease for years of the Land to Commence at Michaelmas M. 7. 8. El. in K. Bench Tr. and before Michaelmas the Lessee maketh a Lease for a lesser Term of years the Husband dies the Wife enters and being outed bringeth Trespass and adjudged lawful For that the Lease is voidable by the Wife because she hath the Wardship to another use and by reason of Natural affection presumed by the Law to be the nearest friend for the proximity of bloud for that the Custody of him cometh not to the executor Litl fol. 27. The Custody cannot be given by the Husband or forfeited by Utlary or Attainder longer then during the life of the Guardian because no such Natural affection there 33. H. 6.55 But the husband hath interest in the Custody in the right of his Wife for to participate with his Wife in all matters of interest and Prerogatives because they are one person in Law but looseth his interest when his Wife dies because Cessante causa cessat effectus And although Doctor and Student saith fol. 13. That the Wife cannot avoid the Act of the Husband as to give Demise or sell Chattels real or personal which she hath to her own use yet here she may because she hath it in anothers right and the Wardship of the body which is the principal remains which shall be maintained with the profits of the Land and this is in effect the suit of the Ward by the woman Caril against Cuddington A Woman seised of 2. acres in Fee the one holden of the Queen by Knights Service onely M. 7. 8. El. in the Court of Ward the other in Soccage taketh husband she and her husband levies a Fine sur Conusans come ceo of both the Conusee Grants and Renders to the husband and Wife and the Heirs of their bodies Remainder in Fee to the right Heirs of the wife the Husband and wife die their issue within the age of 14. years the Grand-mother on the part of the Mother enters and the Grand-father on the part of the Father of the infant sues as next friend in the Court of Wards because that the Queen hath the Wardship of the acre holden by Knights Service and of the body and adjudged that the Grandfather on the part of the father shall have the wardship of the acre holden in Soccage as Guardian in Soccage and not the Grand-mother for that the Grand-mother by possibility may have the Land by discent after the estate Tail determined and the Grand-father cannot but they are in equal degrees as to the estate Tail the wife here is a purchaser by the Fine of the Fee-simple and the Law is all one of land only as if it were of the land and body also Sherington c. against Stratton ANdrew Bainton by Indenture Covenants and Grants with his brother Edward M. 7. 8. El. in K. B. Tr. for the affection that he hath That the Lands shall discend and come to the Heirs males of their own bodies and continue in the bloud and name of the Baintons and also for brotherly love and good will That he his Heirs and Assignes shall stand seized to the use of himself for his life and after to the use of Edward Bainton for his life and after to the Heirs Males of the body of Andrew and afterwards to the Heirs Males of the body of Edward and adjudged that every of the considerations by it self being grounded upon Nature is sufficient to raise the uses according to the Limitation although it were without Deed. And so Covenant and Grant That he will stand seized to another use by Indenture without any valuable or natural consideration is good enough for that the deed imports consideration in the Will of the Covenantor by Plowden Quere notwithstanding Fleetwood and Wray for the Plaintiff An use is a confidence annexed to the estate with which he departs An use may be created by the Common Law First by Transmutation of Possession as by Feoffment Fine or Recovery to the use intended Secondly without Transmutation of Possession by one Act done importing good consideration which shall make the land subject to the use as a bargain and sale or Covenant or Grant upon good consideration First by a new Act done of two parts 21. H. 7.18 and 6. E. 6. by bargain and sale viz. Land for mony or 36. H. 8. Covenant for marriage because advancement to the Daughter and comfort to her parents Secondly where of one part onely as Covenant for Natural affection from the Father to the Daughter or Brother to Brother and a desire to have the land continue in his name and posterty For a new thing to be done by both is not requisite by the Councel of the Defendant But long acquainiance ancient familiarity or that they have been Scholars in their youth no considerations to raise a use because they are not considerations of value or recompence as if I promise to pay to you 10. l. because you are my Brother or old acquaintance it is Nudum pactum and so note that a use was at the Common Law A new use cannot be Created without consideration but being created and in esse may be granted over without consideration as another Chattel and Doctor and Student fol. 99. may be devised 1. Bromley and another Aprrentice with the Defendant and they Grant that there are two waies by the Common Law to make a Use without Transmutation of possession viz. Bargain and Sale and Covenant upon Consideration proved by the words of 27. H. 8. cap. 10. and Consideration arising from the one part onely good and it is not requisite to have Consideration and a new thing done by both the parties First Consideration It is natural to engender and nourish after engendred or otherwise the first is without effect the Father shall have the Custody and Education of his Son for his natural affection to him Litl fol. 25.33 H. 6.55 and Trespass for taking away his Son Fitzh nat br fol. 143. and 3. E. 4.12 And the Son shall have an Appeal of the death of his Father before others for his earnest intent of revenge and his reciprocal love So a Feoffment to the Son a Suit depending is not Champerty 6. E 3. cap. 274. yet within the words of Articuli super Chartas cap. 2. because by all Laws the Son ought to aid his Father and so out of the intent of the Statute and there by Herle the Son may abet his Mother to bring an appeal of the death of her husband and shall not answer Damages And Litl 8. The Son and Heir apparent endowes his wife ex assensu patruâ—… good without Livery because the wife of his Son is as his own wife for the love that the Law presumes is between the Father
Return of summons of the Exchequer because it concerneth the King himself there So 2. R. 3.4 2. H. 7.7 The Kings Grantee of Amerciaments of his Tenants shall not have the amerciament of his Tenant which holdeth of him and another because it is before other Tenants as well as my Tenant Charters of the King taken according to common intent and other things which have not common intent shall not pass from the King by his Charters And therefore 3. E. 3 the King Grants to an Abbot That he and his Successors shall be quit of repairing of Bridges Cawseys and Walls it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village but it is good otherwise of a Town to which the King hath Granted Murage Pannage or Pontage So 9. H. 6.56 before fol. 243. The Grantee of the King with Warranty shall not have in value without precise words but he may rebutt So 2. H. 7.6 The Grantee of the King of all Fines and Amerciaments in such a County he shall not have Amerciaments if the Sheriff Coroner or other great Officer is Amerced because Royal and a Grant shall enure for common things in intendment So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall cum omnibus Wardis Maritagiis c. And one which held of the Dutchie by Knights Service and which held also of one which was in Ward because of Ward by Knights Service dieth his Heir within age the Prince shall not have the Wardship of him but the King because a thing pertaining to the Crown passeth not without special words So the King maketh a County Palatine and giveth to another and Jura Regalia and that Pleas within the County shall be determined there yet he himself shall sue at Westminster his actions arising within the County Palatine as 3. E. 2. For an advowson in the County Palatine of Durham the King brings his Quare impedit in the Common Pleas the Defendant pleaded to the Jurisdiction of the Court and was compelled to answer So an Abbot by the Kings Grant made to him for the amortizing of Land or Tenements may not purchase an Advowson holden of the King in Capite and this case by Wray differs from the case in 41. ass pl. 19. before fol. 332. for there the Charter names the house but names not what Lands by which it cannot be intended that the King was mistaken in the Tenure and therefore it is good there and not for the cause of Ex gratia speciali So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words Ex merâ—… motu c. will not pass other things then the nature of the words contain And therefore the King Grants to a man and his Heirs males excerta scientia c. passeth not inheritance 28. H. 8. A Felon may not wage battail against the King because dangerous for the King Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant 20. E. 3. So if one takes the Kings goods wrongfully the King may seiz his goods until restitution and 8. R 2. if any take Toll of those of the Town of Lynn they may by the Kings Grant take withernam of those another time within their Jurisdiction And so the King conveys not from the Prerogative of his person to the person of another a fortiori he may here where the thing is not but Revenue or profit These words ad humilem Petitionem Comitis deminisheth the force of the Pattent by Catline by Plowden if Gold or Silver will not defray charges the King shall not have it because no mettal without them but because the party shewed it not as our case is the Queen shall have Judgement And this point was not put to the Judges to adjudge because that the Defendant confessed that it contained gold which is intended to be of good value because the best for the King Bret against Rigden A Man seized of 10. acres Soccage Devises all his Lands by writing Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage and the Devisee dieth the Devisor saith to the Son of the Devisee That he shall be his Heir and have all the Land that his Father should have had if he had survived him and dies Adjudged that he shall not have the 12. acres 1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will Manwood for the Defendant said That it shall be presumed that every one knows the Law in acts indifferent and that the Will is of no effect until the death of the party for ignorance of Law excuses no man and the date and writing of the Will is not effectual but the words of the Will shall be construed as they were spoken at the time of his death And therefore if a man Deviseth a Mannor in Fee a Tenancie escheateth and after the Devisor dieth the Devisee shall have the Tenancy because parcel of the Manor at the death of the Devisor when the Will taketh effect yet when the will made not A woman Deviseth Land and after takes husband which dies the Woman dies the Devise is good because she is discovert when it took effect as she was when she made her will and marriage cannot countermand it which was not of effect in her life Also because it intends no exception for the generality of the words As if she had Devised all her plate and after bought plate and died the Devisee should have all his plate at the time of her death for the ampleness of his words declares his intent to be benificially taken for the Devisee Lovelas and all the Justices for the Plaintiff to the contrary That Land purchased after the making of the Will cannot pass by the words nor intent of the Testator because he had not the 12. acres at the time of the writing and publication of the Testament it is no presumption that afterwards he would have and is as if he had died when he writ and published the Will and therefore cannot have an intent to give it and the death which is the Confirmation of the Will follows the first Acts thereof viz. the writing and publication of it for every Act founded upon discretion consists of 3. parts The first Inception which is writing of the Testament here The Second Progression which is the publishing of the Testament begun The Third is Consummation which is the self same and continues one through all these parts or otherwise the Act is void of discretion And by Lovelas it is proved That the Commencement is to be considered in Wills because if a woman Covert Devise Land by her Will and publish it and her husband dies and after she dies
the Devise shall be void So of an infant which maketh his will publisheth it and dieth at ful age it is not of any effect because death without good Commencement giveth not effect And so the Commencement and the intent of it is to be considered in every act So the Disseisee of two acres in Dale releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed the Disseisor before the first of May disseises him of another acre and the release is delivered the 10. of May the right as to the 3. acre shall not pass because the first livery was void to this intent so the consummation of it which is the second livery So I have a Reversion of two acres that I. S. holdeth for life after I purchase the Reversion of another acre which I. S. holdeth for life after I. S. Attourns to B. for all three the third acre passeth not for Attornment passeth not more then was contained in the intent of the first Grant And so here That which is not in the intent at the begining Commencement of the grant shal not be in the intent at the consummation of the same but if he had published his will after he had purchased the new Land there it may be all might pass for by the new publication his intent shall be taken That all that which the words contain at the time of the publication will pass and by him if a man Devise a thing by a name certain as the Mannor of D. or white acre and after purchase the same it shall pass for it shall be taken that he intended to purchase it or otherwise the Will shall be void to all intents 39. H. 6 18. But here when he hath 10. acres and Devises all his Lands they are satisfied in passing of the 10. acres and there is no meaning by the words for the land purchased after the Will because the thing is not named certainly as the Mannor of Dale or White-acre Also he may not Devise the 12. acres because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will because it speaks of having Lands which he may Devise and here he hath not those at the time of the Devise Quaere of the case where he Devises by special name and after purchases it because of the word having Second point if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor Manwood for the Defendant Because it is more consonant to the will of the Devisor and reason That the effect shall take place and the form perish rather then both should perish together as Devisee for life the Remainder over dies in the life time of the Devisor it is a good Remainder and shall have the immediate possession which is the effect yet the form was for to have by Remainder So if a Dean die or a woman Covert taketh another husband before their Devisor dies yet they are especially named Land shall vest in the new Dean and his Successors and in the woman which is now the wise of another according to the intent because it cannot according to the words and if the intent of a man in Conditions shall be performed as 4. H. 7. by Joy he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori the intent in Wils shall be observed where the words cannot and the effect here is that the Heir shall have the Land and it is the form of the limitation that he shall have it by discent 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn good And Parson shall take because it was comprehended in the Devise although he was not named Lovelas and all the Justices besides Walsh to the contrary For by the death of the Devisee the Devise is countermanded for that the Devisee is not in rerum natura when the Devise took effect and in all gifts be they by Devise or otherwise there ought to be a Donee in esse capable when the thing ought to vest or otherwise the gift is void and the word Heirs limits the estate and not the persons which shall take and enables the Devisee as well to alien as to permit it of Discent for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee and a thing at his pleasure And things of sequel which ensue if the estate had been vested first as are Discent Dower Escheat are not good causes to make things vest in others then those to whom limited And therefore the heir shall not have the land here no more then the woman shall have dower or Lord Escheat if he had died without heir which should be so if it had vested in the Devisee And therefore if a man Devise a Lease or goods to I. S. which dies and afterwards the Devisor dies the Executor of I. S. shall not have them The speaking to the Son of the Devisee That he shall be his heir c. is void for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing and those are sufficient in themselves for to make the thing devised pass and not regard words without writing by all the Justices but if he had published the Testament of new the Devisee should have the 12. acres in this case for that it had been as it were a new Testament but not his heirs Delamer against Barnard A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail Remainder to the husband in general Tail 10 El in K B â—…r Remainder in Fee to the brother of the husband and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother being in Remainder in Fee 2. E. 6. The brother infeoffs the Defendant the Husband dies the heir of the first Feoffee enters to revive the use to the Wife and adjudged lawfull 1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use is drawn out of him and setled in the second Feoffee and by consequence all the uses which were created out of the first Fee-simple are discontinued and shall not be revived untill a re-entry of the Feoffee after the death of the husband and that he may enter then notwithstanding the Feoffment of the Brother 2. The Feoffment of the Brother in Remainder is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession nor in esse but only a right which he could not grant neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
thing shall be as this to which it is referred it As if a man make a Lease for so many yeers as I. S. hath in the mannor of D. there he shall have so many yeers as I. S. hath and shall take avermen that I. S. had so many issiut tale corodium quale I.S. nuper habuit So 11. H. 4. 20. H. 7. grant office taking such fee as I. S. which executed the same before had ought to be shewed what he had So 20. E. 3. the King granted to Litales liberties that the Town of N. had by shewing of the records or writings prove their liberties the grantee shall have the like Browning against Beeston LEase for yeers by Indenture by which the Lessee Covenants and grants to render and pay for that land 1 Mar in ba. Ray Trespass thirty seven pound yeerly at two feasts of the yeer naming them or within two moneths after at a certain place out of the Land and moreover Covenants grants if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor then the Lease shall be utterly void extinct and of no effect and that it shall be lawful for the lessor to re-enter and after the rent was not paid and before the entry the lessor maketh a new Lease and the first Lessee bringeth trespas against the second Lessee and he pleads the matter aforesaid and pleads the condition in this manner as in the Indenture is contained and saith not precisely that the Lessee had Covenanted as aforesaid And also said that the Rent was arear by the space of two moneths next after the said feast and adjudged for the plantiff for these two causes only 1. That the pleading of the Covenant which is contained in the Indenture that the first Lessee hath covenanted is not but a recitall and no express averment that he hath made such a Covenant in facio fol. 143. by Bromly 2. Because that the pleading of the Rent arear for two moneths varies from the Indenture which is after two moneths fol. 143. b. by all contrary to Catlin for he said that this is to be intended so if necessity Matters in Law are left at large but the better opinion was for the defendant If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly be a reservation of the Rent or not and by Ramsey fol. 132 it is not 1. For that it is not issuing out of the Land by the way of Charge for pro terra implies a cause of the grant and is not words to Charge the Land 2. It is not a Rent service for default of words of reservation of the lessor as reddendum reservandum tenendum c. for this commences by words of the Lessee and which amounts not to a sum in gross because it goeth not with the revertion as he which hath Land on the part of the mother maketh a Lease for yeers by Indenture the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent the Lessor dies without issue the heir on the part of the mother shall have the revertion and on the part of the father the Rent for that it is a some in gross and not a Rent incedent to the revertion 3. It is not farm because it is not a Rent because they are all one 4. It is a void condition if it be a condition because it refers to the farm and Rent where there is not any such as a condition that the Feoffee shall infeoffe a Corporation which is not or his wife is voide because the first is impossible and the other against Law but the state because it is Precedent in defeasans of which they are made shall stand good Stamford and Walsh Justices fol. 134. It is a Rent first this Covenant and grant is equivalent to reservation and is by Indenture in which the words are the words of both and taken for the words of him which most aptly speaks them as a Rent upon a Feoffment Litl 47. is a grant of the Feoffee and in Judgment of Law shall dispose words which have substance formality and words there shall be taken indifferently For all parties assent and are privy to the speaking of them But words of a deed poll taken more available to the grantee 20. H. 7.8 by Brian and the Law expounds one word in the sence of another as 10. E. 31. 14. H. 8.2 21. E. 3.49 Reverter for Remainder So it taketh a word spoken by one for the word spoken by another and namely by Indenture and although it were not a Rent but a sum in gross yet it extends to it and to issue out of the Land for the Law because it is spetially alleadged the ground of payment of a sum to be for the Land and yeerly to be paid and the one is executory for the other For before fol. 71. if Land recovered by an elder title shall not pay which hath not the thing which ought to pay as 15. E. 4.4 if he may not have the ancient Pale he is excused to make a new so 9. E 4 10. if he will not give counsell the other shall stay the Annuity and 39. Assise 23. Rent for equality of partition charge the Land parted not mentioned because the Rent was granted and executory for the land So 2. H. 7 5. it shall discend to the heirs of the grantee without naming because it cometh in respect of the Land which should discend to the heir and when the ground of the matter appeareth the Law supplies the fault of the words because the Law respects the ground of the matter and consideration Gawdy It is not a rent fol. 136. in 39. H. 6.33 all the words shall be taken the words of one party viz. The first in the Indenture wherefore they are not the words of both because it estops not the other party and an estopple discends upon the Heir of him which is Heir at the Common Law because he is Son by the half venter neither Sister or Brother by the entire bloud and although they agree to have the same yet how viz. as a rent or not is not parcel of their agreement So it shall not be construed a rent because words may have a reasonable construction otherwise in 22. E. 4. in the case of the Prior of Bingham the Covenant was of a rent which shall be intended rent service the Fine saith not predictum redditum but was of five acres and was for the land and the Grantor was Tenant so holden there to be an annuity so here Morgan it is a rent f. 137. b. for the assent of the parties is the chief matter to be considered and not who speaks for the Lessor shall not have debt for the rent reserved unless it be a Contract and it is not a Contract without the assent of all and the words comming out of the mouth of
3.45 The King may distrain in all others lands for his arrearages where he hath the signiory in his body politick and by Bentos no entry shall be upon the purchaser in his natural body before he was King or after for Condition broken by him So 10. H. 4.47 The King hath a non omittas in his scirefacias for Dutchie land and good before fol. 216. Exception in intendment of the Act here as good as if it had been in words and Use is of naming of the King when he shall be restrained The King is favored in all exposiitons because it is intended that he will not assent to prejudice himself the liberty and interest that he hath at the Common Law is not taken away by the Statute if he is not named 12. H. 7.21 proves it because at the Common Law every Lord may distrain for all Services in every part of the Tenacie 10. H. 7.10 and after quia emptores terrar W. 3. cap. 2. the Lord shall have pro particula but not more yet the King after this Statute if his Tenant aliens part shall have all Services by the hands of the Feoffee or Feoffor Fitzh nat br fol. 235. A. and Westminstere 2. cap. 17. which gives the Wardship to the first Feoffor binds not the King for he shall have it albeit he held of him by posteriority And so Prerogativa Regis cap. 2. affirms the Common Law in this point The Statute de Religiosis 7. E. 1. For Mortmain binds not the King nor Marlebridge cap. 9. which Grans That the elder percener onely shall do the suit yet Fitzh nat br fol. 159. all shall do it to the King So the King may sue for debt in the Kings Bench contrary to Magna Charta cap. 11. But 1. H. 5. cap. 5. of additions binds the King because he is included in the word Indictment expresse which is onely the suit by Carus the King gives in Tail without expressing any service he shal hold in Capite 29. H. 8. for the King shall seize for his Fine if he aliens without licence 22. E. 3.58 Ass fol. 1. and it is not in Capite if he holds of the King by reason of a Reversion or Mannor and not of his person W. 2. cap. 3. gives receipt generally to him in Reversion yet 25. E. 3.48 the King shall not be received upon the default of his Tenant because then the demandant should count anew against the King but he ought to sue to him by Petition 14. H. 8.3 by Fineux the King shall not abase himself to stand to the defence as Tenant in suit as a Common person shall Weston Justice A gift in Tail before W. 2. implies a Condition in Law viz That it should revert to the Donor if the Donee did die without issue if the words had been expressed in the gift it had been surplusage and therefore there it is a condition in Law and not in Deed for a Condition in Deed may be broken during the estate given but a Condition in Law as this is cannot Conditions in Law are two the one finishes the estate as a Lease quam diu one shall be Abbot or live sole when he is removed to be Abbot or taketh Husband there the estate finisheth the other finisheth not the estate untill suit or entry as where the Lessee maketh waste or aliens or Tenant in Fee Cess or Disclaims W. 2. restrains the alienation of the Donee now after issue had if the Gift had been to Husband and Wife and to the Heirs of their bodies ingendred and the Wife had survived that her second Husband if he had issue by her should be Tenant by the courtesie now this is restrained where the estate of the Donee before the Statute was Fee-simple now by the intent of the makers of the Act the estate is diminished and made Fee-Tail and the Fee-simple is in the donor and a reversion made of it and now the Fee-simple may be given over in Remainder and so the estate is divided The King hath two capacitles and cometh to some things meerly as King as Treasure Trove and Escheats by Treason after fol. 322. and to some not as King as if Lands discend to him from any of his bodies Politick are by Pattents of the King as Dean and Chapter Major c. cannot purchase in succession by the word Heirs but onely by the name of Successors the body politick at Common Law as the King here by the one or the other the King purchases in his naturall body yet shall not take by Livery before f. 213. for it passes not by Livery but by Record and his Grantee thereof shall hold of him by Knights Service in Capite and none may distrain for Signiory or Rents in it nor have execution of it And 7. E. 4.17 The King may not be seised to anothers use in respect of the Conjunction of the body Royall to the body natural Prerogatives of the King are by the Common Law by Custom and by Statute by the Common Law the Kings Grant is taken most favorably for him otherwise it is of the Grant of a Common person As an Advowson passes not by Grant of a Mannor without mentioning 2 R. 3.4 8. H. 7.1 41. E. 3.4 and Prerogativa Regis cap. 15. is not but Common Law in this point the King may Grant a thing in action 2. H. 7.8 and 32. H 8. an Obligee Utlawed the King shall have the entire duty 8. E. 4.24 and 19. H. 6.47 So the entire Ox after fol. 323. the King Grantee of the next avoidance or of all presentments which shall happen within 20. years and a stranger presents to them all yet the King shall have them and present when he pleaseth otherwise fol. 249. by Anthony Brown Discent taketh not away the right of entry of the King 37. H. 6.27 The King may enter after his villain and alien when he pleaseth Litl s 40. The King Counts of two presentments it is not double 43. E. 3.14 or 12. Matters of Bar the other ought to answer to them and the King shall take issue upon which he pleaseth 16. H. 7.12 by the Court the King may Traverse a Title or maintain his Office if he will 3. H. 7.3 13 14. 2. H. 7.13 The King may amend his Declaration the same Term 13. E. 4.8 The King may wave his Demurrer and Traverse the Plea of the other 28. H. 6.2 The King shall have a Non omitas in his Writs notwithstanding any Liberty That none shal serve his proces but his Ministers before fol. 239. the King shall not answer in value without express words notwithstanding his warranty after f. 334. the King shal not demand rent 2. H. 7.8 The King makes a Lease rendring rent to a stranger good the stranger may distrain or have Debt when it is ended 35. H. 6.36 The King may distrain for a rent charge granted to him or for Rent Service in all the Lands of him