Poor to be made a Minister and to be presented A. dies B. is Instituted and Inducted and after that is Inducted to another Benefice and recovers Glebe to the first of 20 l. value per Annum and after he is non solvent and renders himself a Prisoner to the Admiral for a trespass in Ireland the Parishioners detain their Tythes B. Is a Bankrupt within this Division and the Assignee of the Commissioners shall have debt for the Tythes and the Farm in Ireland 5. Tenant in tail is attainted of Treason and pardoned the King grants and restores to him the Land in tail the Donor Releases Tenant in tail suffers a recovery to the use of B. a Merchant and hath issue and dies the release is Inrolled B. is made Steward of the Tower of London the issue in tail enters B. is non solvent and keeps himself in the Tower B. Is a Bankrupt within this Division and the Commissioners shall sell the Land 1. If the gift is within the Statute of 34 H. 8. cap. 20. 2. If the reversion be good to the King without Inrollment 3. If the Inrollment shall Relate 4. If the Tower is comprehended within the Statute or the Equity re vera 6. A. Feme sole Tenant in tail makes a Lease for thirty years to B. a Merchant indebted to C. and D. she marries E. hath issue F. A. and E. levy a Fine to G. which is reversed for nonage of the Wife B. lies in Prison for six months in execution for the debt of C. and in that time becomes indebted to the Gaoler for Victuals the Wife dies E. enters claiming as Tenant by the Curtesie and surrenders to the issue D. assignes his debt to the King a Commission is awarded all this is found by writ of Prerogative and that B. had nothing B. Is a Bankrupt within the Statute but the King shall have the Term and neither C. nor D. shall be relieved 9. Tenant in tail makes a Lease for thirty years and enters into Religion the issue accepts the rent and dies having issue the Father is deraigned the Lessee being a Merchant at Constantinople becomes indebted to English Merchants there and turns Turk the Father dies the issue of the issue enters The Lessee is a Bankrupt within this Division and the Term shall be sold Cases upon the fourth Division What Lands Tenements or Hereditaments of a Bankrupt the Commissioners may sell THE King grants the Mannor of S. to A. and his Heirs to be holden by the service to be a Justice of the Peace within the Mannor A. Bargains and sells to B. and C. his Wife and to D. and after A. grants the services to I. S. a Tenant to B. B. and C. are divorced causa Praecontractus of C. with I. S. D. is a Bankrupt a Commission is awarded I. S. attorns D. enters and manumits a villain D. is imprisoned in his House and is felo de se his Heir within age enters I. S. dies without Heir B. and C. intermarry the Deed is inrolled office is found The Commissioners may sell all the Land and the Goods of the Bankrupt except the Villain 1. The King grants Land to be holden by the service to be a Justice of the Peace What Tenure this is 2. A Bargain and Sale to Baron and Feme and a Stranger and the Baron and Feme are divorced before Inrollment how they shall take 3. One sells a Mannor and before Inrollment the Bargainor grants the services of I. S. to one of the Vendees and he attorns If the Inrollment shall be good for the rest to others 4. Bargainee of Land holden in Capite enters and dies before Inrollment If his Heir within age shall be in Ward Vpon the Statute 1. A Bankrupt hath a Seigniory a Commission is awarded the Bankrupt dies a Tenancy Escheats If the Seigniory or the Tenancy shall be sold 2. Tenant in Capite is a Bankrupt and dies his Heir within age and in Ward If the Land can be sold 3. A Bankrupt hath a villain and manumits him If the Commissioners can after sell him 4. A Bankrupt is felo de se If the Goods shall be sold notwithstanding the interest of the Almoner The King grants a Mannor to A. to be holden by the service to be a Justice of Peace within the Manner the Question is what Tenure that is if grand serjeanty Petit serjeanty Tenure by Knights service in Capite or Tenure by Soccage in Capite Neither at the Common Law nor at any time before the Statute of Quia Emptores terarum there was no Officer in this Common-wealth called by the name of a Justice of Peace and therefore there can be no Authority of any ancient tenure of that nature But there were divers Officers who by virtue of their Offices and as incident to their Office were Conservators of the Peace as Sheriffs Coroners Constables and all the Justices of the Kings Bench. 17 ass 5. A Sheriff or Coroner may take an Appeal a fortiori in the Kings Bench for there Scot saith That they are the Soveraign Coroners of the Land But till 18 E. 3. cap. 2. the name of a Justice of Peace was not known But whether such a tenure may be created at this day is a Question and I think it may for the King is not bound by the Statute of Quia Emptor as it is plain by the Books of Com. 240. Bark Case He at this day may create new tenures and Marrow in his Book of a Justice of Peace saith That if the King grant a man Land to be holden by being a Conservator of the Peace he is a Conservator by tenure but he doth not determine what Tenure it is Mr. Lambert vouches a Record at Chester that one Urianus de Sancto Petro that held medietatem serjanciae pacis and this he calls it Tenure in Capite but rather as an Executioner than as a Judge It is thus material to the end of the Case what Tenure this is that if it be Knights service then here 's a Wardship and then it will be a question whether the Kings interest will prevent the authority of the Commissioners if in Soccage in capite then that point is cleared Some would have this to be grand Serjeanty because it is to be performed in person and that person is to represent the Kings person and if by Littleton it be grand Serjeanty to be a Chamberlain of the Exchequer who is but a Keeper as it were of the Kings money it is grand Serjanty much more to be a Keeper of the Kings Peace Others would have it Soccage in Capite for it is a Tenure must go with the Land and so to a person uncapable of the Office as in this case to an Infant or to a Woman who cannot be a Justice of Peace And this is an Office which cannot be transferred no more than as it is in Kelloway in his cases incerti temporis fol. 151. If the Office of a Sheriff
opinion that after the death of her Husband she shall be in bondage again quod Burton negavit but if she marry the Lord then by all she is infranchised for ever Britton fol. 78. She is infranchised for ever Natura brevi B. 78. G. I will conclude with the first authority by Fitzherbert Brittons opinion seems reasonable if she divorce not her self or acknowledge not her self in Court of Record in favour of Liberty and because she and her Husband are but one person in Law and of the same condition with him There be divers things favoured in Law as Womens dowers the King Lords Holy Church ancient Records Devises Infants Purchasors and possessions But next life Liberty of all things is most favoured 18 E. 4.6 No amercement lies against the Sheriffs return yet in a writ of Libertate probanda if the Sheriff returns that he hath no wrît of nativo habendo depending before him one may offer the contrary in favorem libertatis Quia propensiores esse debemus ad liberandum quam ad obligandum It hath been made a Question upon the Statute 39 Eliz. that appoints the Lands Tenements and Hereditaments of Accomptants to be sold which they had at the time when they fell into Arearages whether if the Accomptant shall manumit a villain he shall be nevertheless sold and the best opinion of him that read upon the Statute in this place was that his liberty could not be revoked for here were neither Lands Tenements nor Hereditaments and so here 27 Assizar Enfranchisement for a time by act in Law but if the Lord will manumit his villain for a day by his voluntary grant he is at liberty for ever The Tenant dies without heir the Question is this A Lord is a Bankrupt and dies a Tenancy escheats if the Seigniory or the Tenancy shall be sold I take it as I have concluded the Tenancy that is the Land shall be sold first see the words of the statute Primo Jacobi The Commissioners may proceed in the execution of the Commission in such sort as they might have done if the party Offender were alive this makes an end of the question for if he were alive and the Tenancy escheated the Land should be sold And therefore I shall not need to put you Cases at Common Law where the Tenancy escheating shall be bound to that where the Land was tyed 6 H. 4.1 Tenant in tail discontinues and dies and leaves a Seigniory to descend to the issue in tail a Tenancy escheats in a Formedon by the issue the Tenancy shall he Assets 14 H. 8 4. Fitzherbert cestui que use of a Seigniory a Tenancy escheats the Feoffee shall hold the Land to the use of the Feoffer 46 E. 3.4 Tenant in tail of a Seigniorty a Tenancy escheats Tenant in tail discontinues and dies without issue the Donor shall have a Formedon of the Land 3. A Commission is awarded D. is felo de se the Question a Commission is awarded and the Bankrupt becomes felo de se Office is found if the Almoner shall have his goods or the Commissioners may sell them for the Lord Almoner hath all the goods and chattels of Felons of themselves and all Deodands as appears by our Books and his Charter which I have seen 6 E. 6. Dier fol. 77. The King leases Richmond fee with all Deodands and after grants to the Almoner the term expires the grant to the Almoner void because the other lease was not recited 2. Mar. Dier fol. 107. The King grants to the Archbishop of Canter Deodands in D. and to the Almoner all in general Hales is felo de se Plow Dame Hales the Bishop is attainted the King shall have the Lease It is true as it appears in Dame Hales case That when two titles come together that is the Kings and a subjects the Kings shall be preferrd As if a villain be a fool natural the King not the Lord shall have him If a villain be felo de se the King not the Lord shall have his goods Then a Bankrupt is felo de se shall the King or the Creditors have his goods I think the Creditors For if the Bankrupt in life had no authority to dispose them as it is in Tibnabams Ca. much less shall he dispose of them by his death And admit the Almoners Patent were before the Statute of primo of the King yet both the King and the Almoner by Act of Parliament have given away their title to the Creditors 4. I have already argued that the heir of the Bankrupt is in by descent now the Case is he is within age and an office is found and that the Land is held of the King in capite the Question and the hardest question in my Case is whether after an office of all this matter found the Commissioners may sell And I think they may For this office finding the whole matter notwithstanding a tenure in capite a dying seised of the Tenant and the minority of an heir is found yet nothing vests in the King For when an Act of Parliament shall appoint the Land to go another way and the course taken according to the Statute is found in the Office the King his Officers in the Law shall consider of all the whole matter in Concreto and not in abstracto and shall challenge nothing for the King which belongs not to him as is seen by a Devise made by Tenant in capite according to the Statute of 32 H. 8. of Wills 5. The Commissioners imprison the Bankrupt in his own House Two questions first whether the Commissioners may imprison him by the Statute of 13. which gives them authority to dispose of his body as they shall see good in their discretions when as the Statute of primo appoints an imprisonment upon a special cause of refusal as if there were no Law general to imprison him in divers cases expressa nocent Vide my Moote Book I think they may It is true that Leges posteriores priores contrarias abrogant but this is not a contrary Law but a strengthning and a confirmation of the former Law in a particular nor doth it revoke the former no otherwise than that where by the Statute of 27 H. 8. Leases shall be under the Dutchy Seal This doth not take away the Authority of the Great Seal but that Grants may pass under the Great Seal since the Statute And for sureness now a days they put many times both Seals to them 2. Question is whether this Imprisonment in his own House be such a Dealing in the Commission by the Commissioners as is intended by the Statute of primo That his dying afterwards shall not alter the Case For if it be a lawful Imprisonment then here is a Dealing if not contrary for Ea possimus quae jure possimus for as it is said by Herle for a Maxime that all Leets Hundreds and in 2 E. 3. all Ports and Cities are the Kings and the Lords
have but the use and profits of them under the King so it is said all Gaoles are the Kings Prisons and none others of the Land for life and member belongs to him only and the Lords have only the regard and that is the reason that in all Corporations in their Charters they always have a Grant and liberty to have a Prison Auditors by the Statute of W. 2. cap. 11. may send the Baily found in Arrearages to Prison by the Book it must be to the next Gaol though it be in another County otherwise an Action of false Imprisonment lies So our Commissioners must be careful to pursue their Commission but because the Statute saith they may dispose of his body at their discretions therefore to stay him in his own House or in one of theirs till he be further examined I think it not amiss although I have heard that some Commissioners have been blamed for not sending him to the Gaol 1. A. makes a Feoffment in Fee to B. by livery within the view B. Covenants with C. to stand seised to the use of D. his Son A. enters and makes a Feoffment to B. D. enters and makes a Lease for years to E. a Merchant upon condition to have in Fee E. is a Bankrupt C. disagrees to the Contract E. becomes a Recusant Convict and hath not Lands sufficient to pay 20 l. a Month the Commissioners sell the Land the King seizes the Term the condition is performed The Vendee shall have the fee-simple Points 1. IF livery within the view may be countermanded by livery in fact 2. If the Feoffee to whom livery is made within view before entry Covenants to stand seized to another use and after enters if the Covenant good that is if by his entry he by relation is in from the time of the Livery 3. If a covenants with B. to stand seised to the use of C. and C. enters and B. disagrees to the Covenant if the Land shall revert to A. 4. If a Bankrupt hath a Lease for years upon condition to have fee if the Commissioners may sell the Land with the possibility 5. A Bankrupt hath a Term and is a Recusant convict if the King or the Creditors shall have the Term 2. The King Lord Mesn and Tenant of Borough English Land the Tenant by License of the King to create Tenures devises the Land to A. in fee to hold of his Heirs by Knights service A. is attainted of Felony and devises the Land to his eldest Son a Merchant Bankrupt the Mesn enters the younger Son reverses the Attainder the eldest waives the Devise The Commissioners may sell all the Land Points 1. IF the King may grant to the Tenant of another to create new Tenures in prejudice of the Mesn as to Escheats 2. If Tenure in Borough English which is always Soccage may be altered into Tenure in Knights service 3. If it may be altered as to the Custom to descend to the youngest 4. If it may be altered as to the Tenure but not as to the Custom if the youngest Son shall be in Ward 5. Upon the Statute of Wills 32 H. 8. Lord and Tenant the Tenant is attainted and Devises his Land and dies the Heir reverses the Attainder before entry of the Lord if the Devise is good 6. One Devises Land to a Merchant and he becomes a Bankrupt and waives the Devise if the Commissioners may sell the Land 3. A Merchant makes a Lease for Life to an Infant the remainder to the King for Life of A. B. enters and dies seised the Deed is Inrolled A. dies the Infant enters the Lessor in consideration of marriage covenants to stand seised to the use of himself and his Wife and their Heirs the Infant at full age makes a Feoffment the Heir of the Disseisor enters the Lessor is a Bankrupt the Commissioners sell Lessor dies the Feme waives This is a good Sale of all the Land in Possession and Reversion Points 1. WHether the Inrollment doth not relate to avoid the descent 2. Whether the Entry of the Infant reduce the reversion 3. Whether the Sale not being good against the Wife is made good by her waiver Vide ante the Principal Case 5. One grants a Rent Charge to a Physician and his Heirs pro Consilio impenso impendendo the Physician is his own Apothecary and becomes non solvent for Drugs and Simples which he used in his Art a Commission is awarded the Physician keeps his House for fear of Arrests the Physician brings a Writ of Annuity and recovers by erroneous Judgement the Commissioners sell the Rent the Recoveree reverseth the Judgment the Physician dies This Sale of the Commissioners was good for this Rent but not to take effect during the Life of the Physician Points 1. IF an Annuity in Fee be granted pro Consilio may be sold 2. Whether he have any Election after he is Bankrupt 3. Whether the bringing of this Annuity which is reversed be an Election 6. One makes a Gift in Tail rendring Rent and dies the Rent is arrear a Disseisor enters and levies a Fine five years past the Heir of the Donor is a Bankrupt The Commissioners shall sell the Rent and the Arrearages Three Points upon the Statute 1. UPon the Statute of Fines the Second and Third upon the Statutes of Limitations and Bankrupts 1. Upon the Statute of Fines that is if Fines of the Land shall be a Bar for the Rent 2. And 3. Upon the Statute of Limitations If Commissioners may sell when the Party was concluded by the Statute of Limitations 6 Jacobi Banco Regis Executors notwithstanding no Seisin in their Testator by fifty years shall destrain by the the Statute of 32 H. 8. 7. A. and B. Tenants in Common of the Mannor of D. and Jointenants of the Mannor of S. They by Deed Poll bargain and sell Common of Pasture within the Mannors for a Cow to C. and his Wife and to the Heirs of their two bodies begotten C. the Husband grants the Common to E. in Fee the Wife dies without issue E. is a Bankrupt E. had Common for a Cow but it is neither Land Tenement nor Hereditament which may be sold by the Commissioners 8. The King grants to I. S. that he only for his life shall have the Importation of Steel he assigns his Patent to I. N. a Merchant I. N. becomes non solvent and after acknowledges himself to be a Villain regardent to the Honour of Hampton-Court a Commission is awarded I. N. Is a Bankrupt and the Commissioners may sell all his Lands and Goods but not the Monopoly 9. A. and B. Jointenants Covenant for natural affection to stand seised to the use of C. for life C. enters and B. dies C. dies the Heir of B. makes a Gift in Mortmain the Lord before entry bargains and sells the Seigniory to I. S. who enters and makes a Gift in Tail the remainder to I. N. a Merchant Tenant in Tail is
is good but for a fourth part 1. A. Shall have a Moiety as Heir of the Husband and the Moiety of the other Moiety as Heir of the Feme and B. the residue 2. If Tenant by Copy by Recovery may bar the Remainder 3. If when the Lord is in Remainder it be not so annexed to the Fee that it cannot be pulled out by a Recovery 5. The Mannor of D. is holden of the Mannor of S. by Copy and I. S. holds a House and Land Common for ten Cows of the Mannor of D. by Copy in Fee The Lord of D. surrenders his Mannor to the use of I. S. for life who is admitted accordingly I. S. grants the Common by Copy to A. a Merchant A. is admitted and is a Bankrupt I. S. dies the Lord of D. enters the Commissioners sell the Common the Vendee compounds with the Executors of I. S. The Common cannot be sold and if it might the Composition shall be with the Lord of D. 6. Tenant by Copy is disseised and the Disseisor is admitted Tenant by the Lord the Lord bargains and sells the Mannor to I. S. in Fee by Deed inroll'd the Disseisee becomes a Bankrupt the Commissioners sell the Copyhold the Vendee compounds with the Bargainer This is a good Sale and a good Composition 1. If Tenant by Copy may be disseised or ousted and this shall be no disseisin to the Lord 2. If the Lord by the admittance of the Disseisor hath dispensed with the disseisin in part and so he may apportion his own wrong 7. A. disseises B. of the Mannor of S. and dies seized C. the Son of A. enters a Copyhold escheats D. enters and disseises C. and Leases the Mannor for years to E. who grants the Copy to F. in Fee F. dies his Heir is sworn of the Homage and becomes a Bankrupt D. dies B. enters the Commissioners sell the Copyhold the Vendee compounds with B. and is admitted the Heir of D. recovers in a Mortdauncester C. recovers in Entry sur disseisin and B. recovers against him in a Writ of Right The Sale is good and the Composition good 8. A. and B. joynt-Tenants in Fee of a Mannor they grant white Acre to I. S. for life by Copy A. enters into Religion at Roan B. makes a Lease for years of the Acre to C. to whom I. S. surrenders B. dies A. is deraigned C. surrenders to A. I. S. becomes a Bankrupt the Commissioners sell the Copyhold the Vendee compounds with A. the Heir of B. enters This is a good Sale and a good Composition for a Moiety 9. Six Copyholds escheat the Lord grants them to A. a Merchant indebted and after the Lord makes a Feoffment of the Freehold of the Copy-hold to B. C. and D. the Merchant gives over Trading B. disseises C. and D. the Merchant continues his debt by Interest seven years pass C. and D. recover against B. and have judgment to hold in severalty C. and D. make partition the Merchant renues his Bonds with the Creditors and keeps his House the Commissioners sell the Copy-holds the Vendee compounds with B. C. and D. severally admitted The Sale is not good because the Merchant is no Bankrupt but if it were good the Composition was good and B. C. and D. have three Customary Mannors The Sixth Division What Fees Annuities Officers Goods Chattels Wares Merchandizes and Debts of a Bankrupt may be sold by the Commissioners 1. BEfore Quia Emptores one makes a Feoffment in Fee rendring Rent to be holden by Foreign service and a Tenant dies and his Heir dies before entry and a Stranger abates the Lord becomes a Bankrupt the Heir recovers in Mortdauncester the Commissioners sell all the Debts of the Lord. The Vendee shall have two actions of Debt for two several Reliefs 1. If the Heir shall pay Relief when his Ancestor had but a Possession in Law he shall Kelloway 173 6 H. 8. 2. If Debt lies against the Heir for relief due after the death of his Grandfather 13 E. 3. Relief 6. A distress lies 3. If Fee-farm made before Quia Emptores shall pay Relief 45 E. 3. fol. 15. now it shall not 4. If Tenant in Knights Service shall pay Relief Kelloway 5. If the Heir shall pay relief for Land which he had by recovery 6. Debt lies for relief by the Lord himself 23 H. 8. Brook It lies for his Executors 7. If relief is such a debt or duty which the Commissioners may sell 2. A. Tenant of two Acres herriotable covenants to stand seized to the use of himself for life the remainder to his Son in Fee with clause of revocation and for money paid he bargains one Acre to B. B. dies the Lord seizes a Herriot the Heir of B. re-enfeoffs A. A. revokes the first Deed the Lord is a Bankrupt A. dies the Commissioners sell all the Lords Goods to C. C. takes relief of the Heir of A. C. Shall have detinue for two Herriots against the Executors of A. 1. If two Herriots or but one are due notwithstanding the repurchase 34 E. 3. Herriot 1.2 They are due 2. If the power of revocation be not gone notwithstanding the repurchase 3. If acceptance of relief of the heir may be pleaded by the Executors in an action against them for the Herriot 26 E. 1. H. 6. Quaere 4. If detinue lies for a Herriot-Custom 6 E. 3.29 R. 2. Herriot 4. and 5. the Lord may seize it in all the goods 5. If the property of the Herriot is so vested in the Lord before seizure that the Commissioners may sell it 3. The King grants the Office of Aulnage of London to a Merchant stranger for years with a Fee of 20. l. per annum who assigns it to a Merchant Denizen indebted who discontinues his Trade of Merchandize and lives by his Office and enters into Recognizances for his debts and makes I. S. dis deputy and is made Steward of the Tower of London the Recognizances are forfeited and he keeps himself in the Tower Office is found The Commissioners shall neither sell the Office nor the Fee 1. If the Lease be good because no Office of trust or confidence 2. If discontinuance of Merchandize is an exemption from the Statute when the Creditors have taken new assurances 3. If the Steward of the Tower is not sole Judge there by Prescription 4. A Feme sole Alien grants to A. a Scottish Merchant the Office to be the master of her horse with a Fee of 20. l. per annum for his life she takes a Husband who is made King of England who by his Letters Patents grants the Mastership of the Queens Horse to I. S. with a Pension out of the Exchequer the Scot becomes a Bankrupt The Commissioners shall not sell his Office but they may sell his Fee and the Vendee shall have an Annuity for it against the Queen 5. A Resiant is injoyned in the Leet to reform a publique nusans by him made before such
I consent to it I am a Disseisor Tenant for Years enfeoffes two and the Lessor releases to one of them if he shall hold his Companion out 27 E. 3. cap. 9. gives an Ass of novel dissm to Tenant by Statute Staple against him that outs him as against a Disseisor yet he hath no Free-hold for 1 E. 3. a quid juris clamat lies against him although he be but Disseisor fictitius yet at the election of the Disseisee he is a Disseisor in Law as 7 E. 4. the Vouchee is but tenens fictitius yet a release is good to him If Tenant for Years infeoff two and the Lessor brings assise against one he shall not plead that his Companion is also Tenant not named for by the Statute of 3 E. 1. de Conjunctim feofatis he must slew of whose Feoffment which if he do he overthrows his own Estate and must plead himself was a Disseisor which the Law will never allow for 1 E. 4. fol. 7. no man shall be suffered to say that he himself was a Disseisor Coke Beverlies Case 4. Rep. To stultifie himself Herl 5 E. 3. non sanae memoriae inblenisht himself 35. Ass 10. It is true that in respect of themselves they are in by Feoffment and Title in respect of the Lessor they are Disseisors then the question is who shall be in election and who shall interpret how this release shall work the Lessor or the Lessee or the third Person It is probable to say the Lessor for cujus est dare c. and H. 7. If one Man be to pay two Sums at one time and place and pay but one it is in election and interpretation of the Payer and not the Receiver which sum was meant to be payed It may be said the release c. for the Party to whom a Deed is made if it inure to two intents shall c. as 7 H. 6. a Feoffment may be used as a confirmation 15 Eliz. D. release and grant of a Rent But I conclude the third Person shall take benefit c. First for the reason that in t se c. But they are Disseisors not at Common Law but by Statute for the Benefit of the Lessor of which Statute he may take benefit if he please or waive it 3 E. 4. 21 H. 7.32 19 Eliz. D. Alien and Denizen challenge medietatem linguae so here he hath his election to make him a Disseisor by bringing his Ass or a Tenant in by Title by the release Baron and Feme Disseisors and a release to a Baron whether shall this inure to the Feme for they are seised not by parts but by intireties it shall go all to the Husband for flagitiosae rei nulla est societas it is feodum princip commiatem latronum The question hath been if a Feme sole be a Disseisor and marry whether the Husband be a Disseisor or not 6 E. 3.42 he is not for in a Writ of Entry sur disseisin against him and his Wife he had the view but in our case I take it that if no other thing had happened between the Disseisin and the Release the Husband should have had all The Husband is made King the question is Baron and Feme are Disseisors the Baron is made King the Disseisee releases to the King what is wrought First when Baron and Feme are Joyntenants by Disseisin by Title or by Disseisin all is one and the Husband made King whether do they remain Joyn tenants or else they are Tenants in Common Or else hath the King all Or the Queen all I hold them to be Tenants in Common although this case can be matched or compared with no case of the Law wherein the alteration of the Persons only shall change the Estate of the Parties without making of any new conveyance of the Land 32 H. 8. Brook Deraign 22 H. 6.2 A Feoffment to an Abbot and I. S. they are Tenants in Common but a Feoffment to A. and B. and A. is made an Abbot all shall survive to B. So if a Feoffment to A. and B. and A. acknowledgeth himself Villain to I. S. this alters nothing till I. S. enter but whatsoever the King hath before he is King or whatsoever descends to him or he purchases after he is King he holdeth all in jure coronae suae Angliae Caluins Case ex parte matris Barkley's Case Gavelkind Lancaster Partition in t sorores Queen Eliz. Queen Mary Queen Katharine Ferdinando's Daughters So as the King's possession alters the very nature of the Land and so makes him and his Wife Tenants in Common And that it makes her as it were a Feme sole I need vouch no authorities who all know it in Experience 18 E. 3. fol. The Queen alone brought a Quare impedit 49 E. 3.4 Cavendish the King may give Lands or Goods to the Queen 9 H. 6.13 Margery Parkers Case 14 H. 4.67 Sci. Fac. by the Duke of Suffolk against the Queen to repeal the Patent whereby the King had granted to the Queen the Land of the Duke's Father Tirwhite In all times a Precipe hath been brought against the Queen for she hath always been a Person exempt notwithstanding the Coverture so both their Persons being changed c. it is as if the King were Dead Then have I driven it to this pass that the release can work but to a Moiety the question being whether it work for all or for a Moiety or none that it should work for none If a Feoffment be made to the Wife and before agreement or disagreement the Baron is made King I say he comes too late now to agree or disagree no otherwise then if he had died Then the question is this One makes a Disseisin to the use of I. S. and he is made King can he now agree to the Disseisin The rule is The King cannot be a Disseisor it is true that in times past he might 20 H. 3. Ass 431. Non habet ingressum nisi per Disseisinam quam Dominus Rex facit quaerenti dum fuit infra aetatene in Custodia Comitis de S. and the Tenant saith Non habet ingressum per Disseisinam quam Rex fecit sed habet ingressum per judicium curiae c. But at this day the Law is altered 22 E. 3.37 23 E. 3. Entry 11. If the King Disseise one and makes a Feoffment the Disseisee shall have a Writ of Entry neither in the per nor in the post quam Dominus Rex fecit See the Book 1. H. 4. cap 8. It was doubted what remedy one should have but the Statute is That if the King enter and grant the Land of another if the Grantee enter the Tenant shall have an Assise and trebble Damages against the Grantee And by the same reason he may not agree to a Disseisin done before for till agreement the Disseisor was Tenant and nothing in the King as 2 H. 7.16 15 E. 4.15 If you will say nothing
Commissioners and Sale the Vendee shall avoid a Lease which Tenant in tail a Bankrupt might have avoided 1. If one may release to the use of another or if an use can be raised upon a release and it may for three reasons A Release may be upon condition for there the case was put in Libro and consequently to an use But by 43 Ass 12. the condition and the release ought to be both in one Deed. 17 Ass 2. 31 Ass 32. 2. Secondly it is a good proof that a release to a Disseisor may be to an use when a Disselsm may be to an use as 34 Ass 12. 37 Ass 8. 1 H. 5.4 15 E. 4.15 All is in the Disseisor until agreement And 2 H. 7.16 If one disseise another to the use of a third the first is Tenant until agreement but after all is in him to whose use although not to be punished for the force 3. My third Argument is taken out of the Book of 17 E. 3.5 where it is said That if the Disseisee take homage of the Disseisor he shall never have an Assise for now they be Lord and Tenant when at first the Disseisor was in the post and destroyed the Disseisees Estate and held of the Lord Paramount So I hold that if before the Statute of Quia Emptores Terrarum the Disseisee had released to the Disseisor the Disseisor must have held of him although it is true that since that Statute a release of all his right in the Land releases his Seigniory as 34 Ass But Temp. E. 1. Ass 423. In a Writ of Entry in the Post of Disseisin made by A. to the Demandants Grandfather which A. infeoffed the Grandfather of the Tenant the Tenant answered after A. infeoffed my Grandfather your Grandfather confirmed and released to my Grandfather reserving homage and my Grandfather did homage to yours and my Father to your Father c. But he relied upon the Deed a Tenure was reserved upon the confirmation in which Case a release makes a degree See my Moot Book fol. 121. Then if an use may be raised out of the possession of a Disseisor if a condition out of a release and a tenure out of a confirmation by the same reasons an use may be raised or declared by release 2. Two Disseisors and they intermarry it may seem they are mutually and respectively in by title for if the Husband make a Feoffment of his moiety yet he hath title to be Tenant by the Courtesie of her part and she hath title of Dower to his part after the Feoffment which is in severance of the Joynture Kelloway's Case Incerti Temp. fol. 129. This Case is well debated which was A. Feme sole and A. Joynt-Tenants she marries B. A. releases to B. whether this shall inure to the Husband only or to the Wife Keble saith That it shall inure to the Baron sole for before marriage he might have infeoffed the Baron and it is no reason that he should be hindred to convey the Land to none but the Feme by release and by the release he shall be Tenant in Common with himself in right of his Wife But by others the Law is contrary for he might have infeoffed others as well as have released to the Baron also a release to one shall be in many cases to the benefit of another as a Release to Tenant for Life c. 9 Eliz. Dyer 263. This Case seems to make against me Baron and Feme and I. S. were Joynt-Purchasers I. S. released to the Baron nothing went to the Wife but I say that cannot be for the Baron and Feme being seised by intireties the release could not make them hold the Land by several moieties 16 H. 9. Fitz. Herb. Release 45. Nor do I agree that Case for there the Case was that a Woman was Tenant for life and she takes Husband the Lessor releaseth to the Husband and his heirs by Paston he had the reversion for the Free-hold of the Husband was in right of his Wife and the release to him conjoyns that right but I agree well that the Fee-simple shall be in the Husband c. 19 H. 6.35 One makes a Feoffment upon condition that he shall make a Feoffment over if he doth it not the Feoffer may enter but if one makes a Feoffment in Fee upon condition that the Feoffee shall make a gift in tail and he doth it the Feoffee and not the Feoffor shall have the reversion So here 3. If marriage of a poor Maid be a good consideration to raise an use it is good to carry the Fee-simple to the Husband and the intail to the Wife Before the Statute of Quia Emptores Terrarum one might have created a Tenure in performance of a charitable use as to make or repair a Bridge or to keep a Castle 34 H. 8. Brook p. 51. 6 E. 3.13 One holds by three pence to aid the Sheriff and good and another by four pence of the Wapentake Fine and good because for to discharge the publick contribution 12 H. 7.18 Keeping of a Beacon whereby the Country may be warned when the Enemies come 11 H. 7.12 The same for finding a Chaplain chanting in such a place And by the same reason that a Tenure may be created an use may and the same consideration For before Qui Emptores Terrarum If one had made a Feoffment in Fee without declaring an use it was to the use of the Feoffee for the Law created a Tenure which was a sufficient consideration but after no use to the Feoffee but to the Feoffor if neither Tenure created nor use declared and for that a lease for life or for years or in tail is to the use of the Lessee or Donee for the Law will create a Tenure of him in reversion So here is a good consideration to raise the use of the Fee to the Husband and the Estate tail to the Wife is good without other consideration than that Tenant in tail must hold of him in reversion 24 H. 8. Brook 4. Lands are given to a Feme and her Heirs Females and she hath Issue a Son and a Daughter and dies if the Husband shall be a Tenant by the Courtesie He shall Cook lib. 8. Pains Case is reported as if before that Case the Law had been doubtful whether the Husband should be Tenant by the Courtesie when the Wife Tenant in tail had Issue which dyed and so she dyed without Issue For the Estate was determined and this was the reason that Leases for life or years are not good against the Lessor for Cessante Statu primitivo c. yet one may be Tenant in Dower without Issue and therefore the Estate tail will continue to some purposes 21 Edw. 3. Dower after a Dying seised without Issue 21 H. 3. Dower 198. Tenant by the Courtesie may be although the Issue dye before the Wife 16 E. 3. Aid 129. One may be Tenant by the Courtesie of the moiety of
to Prison within the Statute The Admirals Jurisdiction is limitted by the Statute of 13 R. 2. cap. 5. that they shall not meddle with things done within the Realm scil this Realm 15 R. 2. cap. 3. de South les points 2 H. 4. cap. 11. gives an aection and double damages There was a Case in the Common Pleas. I take it the Admiral hath no Jurisdiction to hold Plea of a thing done upon the Land in Ireland for he is Admiral both of England and Ireland so the King hath his Justices there for to give justice for trespasses and offences there done first for that these Statutes are in force in Ireland as all other are which were made before 1 H. 7. And a Prohibition will lie here in the Kings Bench if they hold Plea of a thing whereof they have no jurisdiction although they cannot hold Plea thereof themselves as we see in the Orphans Case in Coke li. 5. and these Courts ought to respect them of Ireland as subordinate to them for 34 Assises Errors here upon a Judgment there 31 H. 8. Bro. Prohibition 17. A Prohibition lies against the Admiral when he supposeth a thing to be done upon the Sea which was done upon the Land 8. The Parishioners detain their Tythes The Question is A man is presented by Simony the Statute is the Presentation the Institution and Induction are all void But it is to give title to the King to present But to the Parishioner he is dominus pro tempore as if he had been meer laicus yet Sacraments ministred by him are of force The Church and the Minister are compared to the Husband and Wife A woman is married to one Husband and in facie Ecclesice she is afterwards married to another as the Priest is actually in facie of the Country inducted 17 Ass 32 H. 6. The Feme with her second Husband levy a Fine none can avoid this Fine but the right Husband no more can any displace the Simonist but the King And a Prohibition hath been awarded against a Parson supposing he was a Simonist and upon advice and consultation the Parson Closes B. ver Simony in the Exchequer another presented by the King and yet all one for the mean profits 9. The Grantee presents to the first Benefice question whether I grant one Primam advocationem proximam he presents and his Clerk is instituted and dies before induction whether his turn be served It is 38 E. 3.36.6 vide lib. 10. That Commissioners here may sell a Bankrupts Goods in Ireland and Irishmen may sue the Commission 11. The first is within the express words of the Law scil being also a Subject born The second is proved by the Case of the Merchants of Waterford 2 R. 3.11 An Act of Parliament in England shall not bind men of Ireland for their Lands but for things transitory it shall as the Case was there for shipping of Wools from Waterford to carry to other places than Callis Also a man attainted here of Felony or Treason shall lose his Lands in Ireland My Lord of Essex and Ororkes Case 12. An action of debt upon the Statute by the Statute of primo Jac. which gives not only all things in Action but also gives an Action to the Assignee in his own name but he must declare specially 1. A. makes a Lease of a Rectory to the King for another mans life and grants the reversion to B. a Merchant to the use of B. and C. the King grants his Estate to D. E. enters and marries with the Merchant C. dies D. releases to B. who being non solvent keeps his House the Tythes are sequestred for not repairing of the Quire the Creditors grant a Letter of License to B. for six months E. dies D. enters he for whose life dies B. renders himself to Prison for a Fine assessed before the High Commissioners six months past B. Is a Bankrupt within this division and the Moiety of the Rectory shall be sold and all the goods sequestred 1. The King tenant pur auter vie the lessor grants the reversion if good without Atturnment It is good 2. A grants to B. to the use of him and C. if they are Jointenants or Tenants in Common they are Tenants in Common 3. Tenant for life is disseised by a Feme sole she marries him in the reversion the disseisee releases to the Husband it is good to extinguish his right 4. What is wrought by the occupancy nothing 1. If a Bankrupt procures a Letter of License for six months and within the time is a Bankrupt again if he shall be a Bankrupt ab initio He shall be 2. If Imprisonment by the High Commissioners is within the Statute It is 3. If the Goods of a Bankrupt sequestred shall be sold They shall 2. A. Devises 20 l. to B. and C. and 200 Acres of Land to D. and E. his Executors D. proves the Will E. wastes the assets and dies D. a Merchant makes a Feoffment of 99 Acres to F. D. is non solvent and outlawed in Ireland B. and C. joyn with the Creditors in suing a Commission D. Is a Bankrupt within this Division and 101. Acres shall be sold and B. and C. shall be relieved 3. Tenant of the King makes a gift in tail and dies having issue two Daughters within age the Donee makes a Feoffment to Coparceners office is found and the Land being seised for the King he grants it to H. a Merchant as long as it shall be in our hands H. marries the younger and is non solvent and suffers himself to be arrested at the sute of a Son born the other Daughter dies H. confesseth the action and is imprisoned in execution for the damages the Commissioners sell the Interest of H. All this is found by another office H. Is a Bankrupt within this Division and the Vendee shall have an Ouster le main 1. Discontinuee makes a Feoffment to issues in tail within age if they are remitted for they are not Tenants in Common but Jointenants 2. Tenant of the King makes a gift in tail and dies his Heir within age the Discontinuee infeoffs the Infant if he shall be in Ward because a Purchasor notwithstanding the Remitter 3. Tenant in tail discontinues hath issue a Daughter within age and his Wife with Child with a Son and dies the Discontinuee infeoffs the Daughter the Son is born if he shall have the benefit of Remitter 4. If the Interest of the King by an office shall be devested by another office without Petition or monstrance de droit 5. If a Merchant being a Discontinuee confess an action of trespass at the sute of the issue in tail and is taken in execution if it make him a Bankrupt 4. Grantee of a next avoidance presents A. by parol to a Benefice of 5 l. value per Annum he is Instituted B. a Merchant and Farmer in Ireland and Indebted there by agreement with the Grantor pays 10 l. to the
the Lord and a stranger the Lord disagrees the stranger shall have all 20 E. 4. Fitz. Nuper obiit 14. If the Defendant in a Nuper obiit disclaim in the Blood the other Coparcener shall have all by descent and a Mordancester of all 22 H. 6.44 A Precipe against two if one disclaim all vests in the other So here in as much as the use passed by the contract if one of them will waive that contract and take himself to another bargain then the first contract will stand good for all to the other and the Inrollment for all shall relate to the use of the other and shall be paramount to the fine and destroy the Conveyance by the fine as it is in Pophams Case 5 Eliz. 2. But then comes in the next question this fine was but of part of the thing bargained and sold and therefore it will not destroy the contract for all but only for part that is for a Moiety of the services I take it that this contract being entire being destroyed in part is void for all Qui partem individui facit nihil facit I will example it with other Cases 34 H. 6.21 It is a good plea in an action of debt for rent that the Lessor entered before the day of payment for the contract was entire and therefore the rent not apportionable 22 Ass 53. Lease for life rendring rent for Land part in Franchises and part in Guildable in an Assise brought at Common Law for the rent Conizance shall not be granted for the rent is entire and the Kings Court shall be preferred contrary to Thorp as it is in 46 E. 3.8 But if the Land is in question conizance shall be granted for so much as lies in Franchises 9 E. 4.1 One is to lease a Chamber and find the Lessee his board for 6 s. a Week in an Action of Debt for the Money non demisit cameram is a good Plea for destroy the contract in part it is destroyed in all for it is entire 30 H. 8 Litle Broke I sell my Horse and another man 's for 20 l. to be paid at a day to come and before the day the other man recovers his Horse against the Vendee yet the Vendor shall have an action for all the money So here the Consideration of the money raises the use that 's an entire Sum and if you will have that the Demeasnes shall pass by the contract for the use and the services or part of the services shall pass by the grant what a confusion would that be and how much of the Consideration went for the one and what for the other I might that way maintain my conclusion that the whole Mannor passes to D. 9 E. 4. Choke A Mannor consists of Demeasnes and Services sever them and the Mannor is destroyed and in Sr. Rol. Heiwards Case none shall take by fraction of Estates 3. The third question being that the Husband purchases Lands by Bargain and Sale to him and his Wife and before the Deed is inrolled the Husband takes a Fine or a Feoffment of the Land to him and his heirs and then the Deed is inrolled what shall the Wife have and I say as I said she shall have nothing 3 H. 7.9 It is plain that if Lands be conveyed to a Feme Covert if her Husband disagree the Feofment made to her is made void and it shall return to the Feoffer But if a Feofment be made to I. S. and a Feme Covert and her Husband disagrees all vests in I. S. Rutland's Case li. 5. Cook is that the Husband by Indenture limits Lands to the use of his Wife but before the fine levyed by other Indentures he limited the same to other uses so in that case before the assurance is perfected the Husband by whose means and bargain making this use was to rise to the Wife before this Assurance finished makes a new bargain for himself and the Wife if he disagree can take nothing Kenn's C. Cook lib. 7. It is the Husband hath the power to contract for the use although it be of the Wives Lands 4. The next matter that I intend a question upon the Statute of Inrollments is supposing this Land is held in Capite Lands held in Capite are bargained and sold to a man and before the deed is inrolled the Bargainee dies his heir within age whether here be such a dying seised and a descent as his Son shall be in ward and I think it is There be divers Cases where the heir shall be in ward and yet the Ancestour dyed not seised 48 E. 3.8 If there be Lord and Tenant and the Tenant is disseised and dies his heirs within age the Lord may seise c. 20 H. 6. Tenant in tail aliens and dies his heir within age his heir shall be in Ward to the Donor 33 H. 6.5 Tenant for life the remainder in fee he in remainder dies his heir shall not be in ward for the remainder but if the Tenant for life die then by matter ex post facto he shall be 11 H. 4.61 By Hank and Norton If the heir recover in a writ of ayel on Cocinage he shall be in Ward If the Father lose by error or false verdict If the Son reverse the Judgment by error or attaint he shall be in ward If the Father recover and dies before entry or execution and the Son sue execution he shall be in guard Points upon the Statute Swinburn Fol. 175. I will that my villain be manumitted when my Son comes to age my Son dies before the age the villain shall be at Liberty when the Son would have been of age D. Enters and manumits a villain The Question is a man hath a Mannor to which be villains regardant he becomes a Bankrupt manumits the the villain Commission is agarded if the Commissioners may sell the villain and I have concluded they cannot For the villain being once at liberty in this case is infranchised for ever I grant that in divers cases a villain may be infranchised pro tempore and yet be a villain again 13 E. 4.2 As if Tenant in tail will enfeof his villain of the Mannor the issue shall have a Formedon and reduce both the Mannor and the villain 33 H. 6.13 Enfranchment by Tenant for years or for life is good but for their time And it is much controverted whether if a nieff marry a Freeman she be not for ever enfranchised Old Nat. Brevi fol. 6. If her Husband die she shall be a nieff again 33 E. 3. Statham Vil. She shall be neiff again even to her own Son when her Lord and Husband dies But as the Law saith there is nothing more respected than life and liberty So I am of opinion and I have authority for it that if she be once married either to her Lord or another Freeman she is at liberty for ever 31 E. 1. Fitz. vill 46. It is first questioned and some there are of