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
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
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
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
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
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
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
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
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.
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