will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of fee-Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and fee-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
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.
which ought to pay it 13. E. 4.6 The Title of the King appeareth yet he is not party the Court of Office shall adjudge for him Stamford cap. 29. fol. 96. Fitzh nat br 38. E. 31. 6. H. 7.12 and 11. H. 4.71 by customes the custom of London to retain a pledge cujuscunque fuerit until he pays binds not the King 35. H. 6.35 nonsale in market overt 35. H. 6.28 and Doctor and Student 40. nor Wreck Waise nor Stray binds not the King 35. H. 6.26 27. Custom that all distresses taken within his Mannor shall be impounded there binds not the King 21. E. 3 4. by Statutes which binds not the King where he is not named yet he shall take advantage of them As of the Stat of Waste of 9. R. 2. c. 3. of Error and attaint by him in reversion upon a recovery against Tenant for life And of W. 2. c. 7. fol. 140. If the King as Heir to his mother brings asur cui in vita the Plea shall not be delayed by the Nonage of the Heir the King not named is not restrained by Magna Charta cap. 10. upon which the Ne injuste vexes is founded for to avoid incroachment That if the King incroach more then he ought he hath no other remedy then by Petition The King bringeth a Quare impedit in the Common Pleas good notwithstanding Magna Charta quod communia placita c. 31. E. 3.18 E. 3.22 before fol. 240. Plenarty no Plea against the King 43. E. 3.14 Non obstante W. 2. cap. 5.32 H. 8. cap. 2. Of Limitations binds not the King The King may not suffer a Common Recovery for to Dock the Tail as a common person may because no precipe or Covenant lieth against him 12. H 7.12 by Constable So the King shall be in a worse condition then a subject or common person to bar the issue Anthony Brown Justice The name of King drowns the Sir-name of the King and includes it and his proper name also and this word of substance by it self may not be omitted in purchases Pattents or Writs Land given to Henry the seventh omitting King giveth nothing to him omitting his name of Baptism So a gift by him by these words in the Pattent Rex concessit That the name Politick of the King includes his natural name and when this name is conjoyned to his natural person it altereth the quality and degree of the person natural in the estimation of the Law So if that he be within age he shall be adjudged of full age and his attainder frustrate when he is King that the greater removes the Imperfection of the Lesser before fol. 138. the body politick hath the preheminence of the natural body as Land given to the King by the name of Baptism and of King also as to Henry the King and to his Heirs this shall go in succession as the Crown and if he dieth without issue the Heir of the part of his mother which hath the Crown shall have the Land also because this name King being the greater shall have the greater preheminence in the purchase and shall draw the land with him So that his brother of the half bloud being King shall have it yet here the King shall take in such body and in such estate and condition as the Donor limits and not otherwise So if a Gift had been made before the Statute to the King and the Heirs of his Body he had taken Fee Conditional as another Common person That if he dies without issue the Donor should enter without Office And if the King before the Stat. giveth to one and his Heirs of his body there the King shall not have the Reversion more then a Common person should have and there his Donee might alien after issue because the person of the King shall not rule the estate of the land but on the contrary for to make Remitter right and possession ought to discend to one person simul and semel 19. H. 6.59.58 and 45. before the Statute after Issue the Donee might do all acts of a full Fee because then he had full Fee and inheritance and not before 5 6 7 and 8. E. 3. And the words in the Statute hath given prius facia non extenditur intends not the Donees made by the Donors before the Statute but of alienations made by the Donees before the Statute and lawfully and after issue as a Lease for life and release of Tenant in Tail before the Statute good and barred the issue in Formedon after the Statute because it was not voidable neither before nor after the Act if it was according to the power that the Common Law permitted to them 44. E. 3. But the Statute extends as to Alienations after the Statute where the Gift was before So as to the Alienation before the Statute if it were not lawfull as a woman Tenant in Tail taketh Husband having issue they alien before the Statute the issue shall have a Formedon after the Statute that is a discontinuance to the wife because Covert and when she dies a right discends to the issue but if they have aliened by Fine it is good and bars the issue because there it is duly made in respect that she is examined 4. E. 2.12 H. 4.7 before the Statute the King might not Alien before issue had as a Common person might not because the King could not do wrong and his Prerogative could not alter his estate yet the person of the King might alter the course of the thing as purchase of the King shall discend to the eldest daughter onely but if land discend to the King another or Gavel kind to him and his brother the King shall have but the Moity but this Moity shall discend to his eldest Son onely because the quality of the person may alter the discent not the estate be it Fee or Tail So that the estate shall be in the King as in another before fol. 234. and before issue had the Donee could not alien after issue he might and this mischief and other Acts of the Donee the Common Law permitted to Bar issues and the Donor until remedied by the Statute So the Common Law permits other wrongs as Lessee to make waste So if one Joynt-Tenant takes all the profits of the land the other is without remedy at the Common Law Doctor and Student fol. 32. So if the King kill a man So disinheriting of another as here post prolem is a wrong suffered by the Common Law which otherwise the issue should have had and if the issue had not issue then the Donor before the Statute the Donor had not a Reversion yet the land reverted to him as land escheated to the Lord neither had he a Reversion after the Statute of W. 2. c. 1. Yet no word in the Act divides the Statute but the Construction of the Statute ex consequenti divides the estate for to execute the will of the Donor by the intent of
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
Marriage that she shall not refuse 9. H. 6.9 Recitall of an Indenture of defeasans concludes the party to deny the Deed. By the Counsell of the Plaintiffe the Act of Parliament cannot enure as a Confirmation of an Attainder and as a new Attainder also for then a man shall be twice convict of one Crime which shall be superfluous yet 1. H. 5.5 One attainted of Fellony may be arraigned of Treason because it is a higher offence and shall forfeit Lands of whomsoever holden if the Treason is committed before the Fellony but where offences are equall he shall not be twice attainted for one Deed shall not be a Confirmation and Grant of one same thing As the King recites by his Letters Patents that he hath made J. a Denison or hath manumissed him being his villain and confirm it and besides grants that he shall be a Denison or Free all this is but a confirmation because the Kings Patents shall not enure to two intents and therefore cannot plead the second Patent for his Legitimation or Manumission But the first Patent so 9. H. 7.2 before fol. 156. and 7. H. 7.14 The King grants Land by his Letters Patents and reciting them confirmes the Estate of the Patentee by the second Letters Patents by authority of Parliament and saith further that he gives and grants the same Land to the Patentee he shall plead the second by way of Confirmation because the Land pass by the first Patent not by the second if he doth not shew that the Land came again to the Kings hands after the first Patent But if the King grants Pasture for two Oxen in his Land and by the second Patent reciting his first Grant confirmes it and moreover giveth and granteth Pasture for two Oxen to the first Grantee there it shall enure as a Grant and confirmation also And the Grantee shall have Pasture for foure Oxen because they are severall things which are mentioned in the Confirmation and in the Grant And in the other Cases before it is one same thing mentioned in both and not severall Also the Statute recites none but persons therere cited to be attainted but the Plaintiffe was not attainted before for the reasons aforesaid therefore he is not attainted by the Statute as the King recites by name that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll c. that will take the benefit of it they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also and the Defendant will plead this so then his plea shall be double because he hath pleaded an attainder by the Common Law and also by the Statute But here it is not double because it is not a new attainder but a Confirmation And because he cannot plead the Confirmation without the thing that was Confirmed Also the Recitall and Confirmation by the Statute is not taken but pro ut And also the recitall being false shall be intended to be upon Information And therefore an averment lies against this recitall So a License to alien Lands holden of the King ut dicitur there he which hath the Lisence is not Estopped to say that it is holden of another then the King because the Tenure in Capite is not precisely affirmed but ut dicitur which taketh away all absolute affirmance 29. Ass 38. Also the Statute refers to an Attainder had before And so to a thing which is not inreâ— veritate for the cause aforesaid and therefore shall be void but if the things was before and wanteth force and effect then this shall be made good by the Statute and there the Act is good and hath power as to the thing 29. E. 3. 24. Grants Fitzh 100. The King reciting an Attainder by Parliament of one Mattravers by his Charter of Pardon reverseth the same and restores him and after this all is recited in another Parliament and Confirmed by the same Parliament and good for the Cause aforesaid So 38. H. 6.33 Parliament confirmes the first Letters Patents this enures according to the Effect and Purport of the first grant and shall not take away the Condition if any such be the King gives Land to J. S. the Parliament Confirmes it s a good grant And so when the Parliament Confirmes a thing which is defective it shall give power to it if it be Confirmed as here the Act shall be void to all purposes as 5. E. 4.40 and 41. If one Village hath Customes which is against the Law and Reason and no others and the Parliament Confirmes their Customes it is void because they had not Customes for things used meerly against the Law and Reason are not Customes notwithstanding such usage And if the branch of one Act recites another Act be it in the Commencement or Continuance it is void as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it this Statute excepts imbâ—sselling of goods by servants made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February and continuing untill the 24. of Aprill whereas it finished the fourteenth of Aprill and so Statutes which misrecite things and are referred to them should be void and conclude no man And so here the Statute which recites that the Plaintiffe was attainted and confirmes it whereas indeed he was not attainted shall be void Coles Case IF one gives to another a mortall wound 13. Eli. whereof he languish the 12. of February and the Queen by a generall Pardon by Parliament Pardon all misdemeanors c. the 20. day of February and after the party dies Now this murther is Pardoned Adjudged for that the wound was a Misdemeanor and the cause of death and then by consequence all that which ensueth the Cause is also pardoned The end of the first Book Newis and his Wife against Larke and others A Man devise his Lands to his eldest Son in tayle M. 13. 14. El. in the Common Pleas. Remainder to his youngest Son in tayle the Remainder to the heires of his body the Remainder over in Fee and moreover his Will was that if any of his entaylees do wrong vex or molest any other of them for the sayd Lands or should Mortgage bargaine and sell c. the sayd Lands or otherwise incumber it other then to Lease it to them that from thenceforth every such person and his heires that shal so doe shall be excluded and dismissed touching the said intaile and that the conveyance of the intaile of the said Lands against him or them shall be of no force But that it shall descend and come to the party next in tayl to him as if such disorderous person had never bin mentioned in the sayd Testament And after the eldest Son levies a Fine and after he and the youngest Brother suffer a common Recovery and their Sister enter and by
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS
compulsive so that he shall have prejudice if he doth not but is a thing obligable at the will of the Defendant and then his entry is not material but is at pleasure and therefore the not shewing thereof shall not make the Plea vicious Admitting that it be a Condition yet it is subsequent and in Defeasance of his Estate 30. And therefore shall not be shewed by him but by him which shall have benefit by the breaking of it So if a Condition be enlarged which may be good leaveth that out which is material because it is Surplussage Also it hath no Livery for to convey Title nor hath it enabled him any waies to take the benefit of the breach of the Condition if it were broken because he hath Demurred generally upon the Bar in which the Defendant hath not acknowledged any reversion And so it appeareth not by the Record that he is other then a meer stranger And by the Common Law no man shall take benefit of a Condition but such a one as is privy And therefore 38. H. 8.34 Pattentees of the King after 177. Also if it be a Condition during the Term it shall be intended all the Term as a man bound to perform Covenants is bound to perform all and his Feoffees fol. 30. Yet if he be sometimes absent and his Family there it is good because the Law shall have a reasonable Construction in things alwaies If W. dies then the Remainder is a Limitation and appoyntment of the time when the remainder shall vest But admitting that it be a Condition yet a Remainder may depend upon a Condition which every lawfull owner of the land may give to what person or persons and in what manner and at what time he pleaseth if his gift be not against Law or repugnant as 10. E. 3.39 A man makes to his Termor in surety of his Term a Charter of Feoffment upon Condition That if he be disturbed of any part of his Term that then he shall have Fee he was disturbed and afterwards outed and recovers in Assise which proves that the Franck-Tenant passed upon condition express to the Livery be it mediate or immediate it stales not the Remainder because his Livery shall be taken most strongly against him So 27. H. 8.24 Remainder to a stranger if the gift fail for bearing of the standard So in Plessintons case it is held That the estate of Free-hold there could not Commence upon Condition but the cause wherefore was because he had not the Free-hold upon performance of the Condition which was repugnancie So a Remainder upon condition contrary to the Law or impossible is not good because a Condition unlawfull or impossible may not obtain the thing by doing of it So if the Doâ—… aliens then it shall remain is not good because repugnant for when he hath aliened to one it may not remain to another Remainder ought to have estate precedent for that 9. H. 6.24 Lease to a Monk Remainder over void because a Monk hath not capacity and so the estate which precedes the Remainder void Remainder also ought to be of a thing in esse before and therefore a Grant of a rent out of land remainder in Fee void because the rent was not in esse before and the remainder here passeth presently by the Livery upon possibility to be afterwards performed and vests when W. dies and in the mean time rests in abeyance as 15. H. 7.10 Fee Tail passeth upon possibility That a Fem Covert and a married man may inter-marry and in the mean time the Inheritance viz. The Tail shall be in abeyance but holden there That they are seised in Tail presently and concludes that the Remainder is good and the pleading also and so the Plaintiff shall be Barred Plat against the Sheriffes of London ONe Goodlad was in Execution Ludgate upon a recovery in Debt had against him by plaint in the Guild-Hall of London 4 E. 6. In the Excheq and going with a Baston that is to say a Servant of the Gaolers attending upon him into Southwark in the County of Surrey and the Administrator of him which recovered brings his Bill of Debt into the Exchequer against the Sheriffs for the escape and adjudged that he should recover thereupon But no exceptions were taken to the Bill and the reasons of the Judgement were 1. For that the Action lyeth at the Common-Law by 45. E. 3.9 Debt against one Abbot or Prior and also for that That he had not remedy against him which escaped for by the esape he is discharged for ever against the party and the Goaler also and the Officer which suffers the escape is charged contrary to 13. H. 7.1 But the Action lay not by the Common Law by 42. ass 11. 2. Admitting that it lay not by the Common Law yet it lyeth by equity of the Statute of 1. R. 2. c. 12. which gives an Action against the Warden of the Fleet or by the equity of the Statute of Westm 2. c. 11. which gives an Action against the Gaoler which suffers an Accomptant for to escape 3. The defendants have admitted the action good by their Demurrer 4. That it is an escape because he was out of the Jurisdiction and Authority of the Sheriffs and that his Imprisonment is ended the last instant that he was in London and his escape began the first instant that he came into Southwark and so he was never in prison in Southwark for he had no guard there The effect of every suit contains and implies in it selfe 3. things First to shew the verity of the matter to the Judge thereof which is the duty of the party Secondly to have judgement to recover and execution thereupon and this is the duty of the Judge Thirdly the making of execution for to take the Defendants body and detain it in prison and this is the duty of the Officer and because he only hath offended it is reason that he be punished that is That he answer the loss to the Plaintiff for that he hath not any remedy against him which escapes nor the Gaoler never apprehended him because a personal thing once suspended is extinguished and therefore if the Debtee maketh the Debtor and another which surviveth the Debtor his Executors yet the Debt is extinct and the person of either of them discharged Therefore in respect that after the escape the Plaintiff shall not have other execution and so without any remedie against the Defendant in the first suit the Common Law which is Common Reason provides That the Plaintiff shall have an Action of Debt against the Gaoler in whose default the Execution of the Plaintiff or otherwise the Common Law will be defective in this point And therefore by 45. E. 3. 9. Abridged by Fitz. h. in Title Debt 130. which was before the Stat. of R. 2. where a Prior dative and removeable le ts one in Execution in his Guard for dammages recovered in his Court of Py-powder escape P.
by default against her and her husband had not any other remedy then a Writ of Right before the Statute of W. 2. cap. 3. which gives a Cui in vita and before W. 2. cap. 3. a faint Recovery against Tenant for life bound him in Remainder Litl Release 112. because the Law presumes the Title and case true So a Recovery upon a faint Title by a man of Religion was out of the penalty of the Statute of Religiosis untill W. 2. cap. 23. made a Recovery without Title in such plight as a Feoffment in Mortmain was for the truth supposed by the Law to be therein So here the Recovety is intended to be true and therefore the Plaintiff ought to shew matter if there be any to prove the contrary As in 11. H. 4.19 if the Tenant in a precipe vouch one of the Demandants he ought to shew cause because otherwise the Law will presume that he hath not cause against right So 15. E. 4.4 Contrary entry by Title general averment of Covin by the Plaintiff in Dower was not held good Matter in Law As to the matter in Law it seemeth here that the case is clear out of the words and penalty of the Statute of 11. H. 7. cap. 30. For although 27. H. 8. hath executed the Possession to the use yet this case remains here so as if 27. H. 8. had never been made and the Wife had continued Tenant in Tail in use and out of the words of the first branch because he hath an Estate Tail in the use in the land but hath not an Estate in the land in the use and the Statute speaks of an Estate in the Land and this Hereditament or use which is the matter and substance and the use it self which is the confidence of the thing differ But one may not have the state in Land and use also because suspended yet two may to the use of one of them as Husband and Wife to the use of the Wife and so it shall be intended here Also the first branch speaks of lands c. of Inheritance or purchase of the Husband but here the use is a new thing which Commenceth now and was not in being before and so is not the inheritance or purchase of the Husband and therefore out of the Statute as a Rent granted to one out of lands to the use of the Wife of the Grantor or if the Husband gives a signiory in Tail to the Wife for her Joyncture and the Tenancie Escheat and the Wife suffer a faint Recovery this is forth of the Statute So the Husband makes a Feoffment upon Condition to re-enfeoffee him and his Wife in Tail the Wife suffers a faint Recovery this is out of the Statute because the Feoffment of the Land from the Possession of the Husband and was her purchase and not the purchase of the Husband or his Inheritance for the Condition which is the cause of the gift is a new thing is not within the second branch because the Wife had nothing here of the gift of any of the Ancestors of the husband Nor the third branch because the wife had not possession by the Statute nor by the Feoffees to the use of him in Reversion but he in Reversion hath the present Title and so the Statute shall be intended and therefore he may enter presently If Tenant for Life suffer a faint Recovery but 11. H. 7. saith Enjoy according to their Title intends that he shall not Enter until after the death of his Ancestor because he hath no Title in the life of his Ancestor And therefore when the Wife assents to the Ravisher 6. R. 2. gives title of entry saying habeat titulum intrandi c. intends that he shall not have it in the life of the Ancestor And if the makers of the Statute of 11. H. 7. had intended that the issue in Tail should have entred presently they would have given to him Title by such like words as the Statute of 6. R. 2. hath but the end of the clause which saith That they shall enjoy according to their Title expresses that they intented not so For which causes it is probable that the Defendant is out of the penalty of the Statute and that the Plaintiff might not enter and so shall be Barred Whiddon Serjeant for the Plaintiff Because the Defendant hath said whose Heir he is he shall be taken that he is Heir special for a Plea which hath two intendments shall be taken most strongly against him which pleads it as 3. H. 7.2 in Trespass Release generally is no Plea because it may be taken to be delivered before the Trespass or after So 3. H. 7.8 and 9. and 26. H. 8. Entry to avoid Warranty Collaterall pleaded in Bar is no Plea because it may be intended after the discent for he may enter in the life of the Ancestor or after Also the Plaintiff need not shew how he is Heir because he was once seised by entry But if he had brought a formedon upon the Estate Tail he should because by way of Demand as 6. E. 4.1 Executor brought Trespass for a thing taken out of his Possession he shall not shew his Testament but if he Demands a thing whereof he had not ever possession he shall It is not needfull to shew Covin certainly which is a secret thing and the Law doth not enforce one to shew a thing when by intendment of Law it lieth not in his Conusance as 20. H. 7.7 A woman shall have Dower of a Rent Charge without shewing the Deed of the Grant because it belongeth not to her So the Lord shall have Covin generally for the Ward where his Tenant aliens and re-taketh for life the Remainder to his Heir being it lieth secretly in the breast as suspicion lieth for that he may justisie imprisonment for suspicion of Felony without shewing of the cause of his suspicion So 33. H. 6.5 In Trespass a man buys in a Market Overt the Plaintiff said That the said buying was by fraud between the Defendant and a stranger generally without shewing any thing speciall of the Covin and the Plea the e admitted good So in a Precipe against the Lord of ancient Demeasne and Tenant the Lord shall shew that he is Lord and this Action is brought against him by Covin generally So 9. E. 6.41 He which alleadges Covin ought to shew cause of the Covin and the cause is for that the Recovery or Title was tryed by Verdict because to say that it was by Covin shall not be intended true against a Verdict But Covin generally may be averred against a Recovery not gainsaying or default because this is cause of the Judgement and no Triall Wherefore in this case a man shall aver that this was by Covin generally And as to that which hath been said That execution ought to be shewed of the Recovery that needs not For the Statute speaketh only of the Recovery and without Execution it shall be
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
H. 8. c. 34. to enter for a Condition broken 2. The tender of the Rent on the Feast day is not requisite nor until the last instant of the 40. day 3. Notwithstanding that the Rent be apppointed to be paid out of the Land at the Feast day and not the 40. day by express words yet it shall be so intended by relation to the place last named 4. No demand here is requisite because that the Land which is Debtor is absent the contrary is upon a general reservation and if a Rent seck payable in a forreign County be demanded and denled there it is not a disseisen by Plowden contrary upon the Land The place which was once charged with the payment in the hands of the Lessor remains chargeable in the hands of any other because he hath this as a Liberty and Authority imposed upon it by the Lessor and such Liberty is saved by the Statute of suppression of Monasteries and therefore the Lessor nor the Lessee are not Trespassers by their coming there to tender and receive the Rent Rosse against Pope ROss acknowledged a reconusance to Pope after Levies a Fine to him of patcel of his Land 5. E. 6. In Chancery upon an Audita quetela and afterwards Pope sues Execution and takes the body of the said Rosse and he brings an audita querala in the Chancery and adjudged that it lieth not 1. For that the Land is not debter but the person and the Land is onely charged in respect of the person and not otherwise until Execution sued 2. For that the purchase was before Execution sued otherwise it had been if sued afterwards for then the Land was charged in facto and not chargeable And if any part be discharged by act in Law as discent or act of the party as Surrender Feoffment c. also it shall be discharged because the duty is personall and entire 3. Because that the Conusor shall not have contribution against the Feoffees but they shall have against him and here the Conusee shall not have Execution against his Feoffees for that they may not have contribution against him Wimbish against Willoughby Assize directed Coronatoribus in Lincoin upon the surmise of the Plantiff that the Sheriff was his Cosen and shewed also Tr. 6. E. 6. Assice against L. Wall That one of the Coroners was servant to the Defendant and adjudged good 1. For the speedy expedition of the Assize and the mischlef of the Plaintiff if it should be abated by the exception of the Defendant and no mischief to him and here the venire facias is awarded the first day as in a precipe 2. Coroners in Lincoln shall be intended Coroners of Lincoln for that they are the words of the King In the Argument of this case see first where a Writ Original shall be directed to the Coroners where not Secondly and when other Judicial process Thirdly an exposition of the words in and de in Writs Grants or c. Fourthly what words are sufficlent to make a Grant of a Rent charge Fifthly some matters touching challenges and where they shall be Traversed c. Partridge against Strange and Croker IN Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. H. 6. 7 E. 6. In the Common Leath Of buying and selling of pretenced Titles and Rights and alleadge this to be done 28. April 32. H. 8. where in truth it was not done this day and that the Defendants have made a Lease for years of a house and nine acres of Land pertaining to it whereof they nor their ancestors nor any by which the claim were in possession Reversion or Remainder nor took the Profits for one intire year before c. and holden 1. That the Statute need not to be specially recited and pleaded because it is general but for that it is misrecited it is not good by the Court sol 84. and yet is surplusage and it shall prejudice the party in some cases sol 29. as debt by I. S. Parson of D. it is a good Traverse because he is not Parson or that there is not such a village called D. 2. When the Term shall not be certainly pleaded for that it is Conveyance of the Action and is not material here and he which pleads it is a stranger as an Indictment of the death of a certain man unknown or the stealing of the goods of a certain man unknown 3. That a Lease for years or a grant of parcell of the Right is within the Statute because the Statute speaketh of any right and is not intended only of an entire right and that the entire value of the Land shall be forfeit by such Lease per Curiam fol. 87. That this Lease made by one in possession is out of the Statute for that it is not averred to be a pretenced right by Hales and Montague fol. 87. against Cook For they mean that he which hath possession one day or however may make a Lease or Feoffment bona fide and shall be forth of the Statute although that he hath not possession or taketh the profits one whole year without averment that it is made for maintenance and the Statute shall be intended onely of those which makes Leases c. having but a right and not the possession as Montague held a promise by him which is out of possession to depart with the Land when he shall attain the possession is within the danger of the Statute fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father and maketh a Lease for years this is within the Statute for that he Leases his ancient right So by Morgun if the heir release to the Abator and afterwards claiming by discent maketh a Lease for years this may be averred a pretenced right and then is within the danger of the Statute fol. 86 and a right is within the Statute which comprehends all rights Pretenced right is where one hath the possession and another which is out of possession claims this or sues for it by Mont. f. 88. Morgan Serjeant for the Defendant He which voucheth a Record and vary in the year or Term haith failed of his Record So the Statute here no Act without the consent of the King when all assent it shall have relation to the first day of the Parliament and from that time is an Act of Parliament unless it be otherwise appointed when it shall first take effect An act made in the first or second Session relates not but to the first day of the same Session Misrecital shall prejudice the party in some cases as Debt by I. S Parson of D. where there is no such Village D. a good Traverse and abates the Writ yet the naming of him Parson surplusage So here because it recites a Statute certain made such a day where it was not although that the day is surplusage it hath made the matter vitious although it
H. 6.25 Of vigor of an appeal pleaded against an excomunication the usuall form shall be observed and good as in debt when the defendant acknowledgeth himself to be bound c. So in forgery against one only quod falsa conspiratione habita good 11. H. 6.2 because the usuall form where a man may not have by common intendment precise notice of the certainty of a thing it sufficeth to alleadge this generally as 21. H. 6.9 9. H. 7.15 that executors have administred to B. without shewing what things good because he may not know that another hath administred and that he is not privy So 5. E. 4.8 Obleige to discharge the Sheriff of all things touching his office he said that he had discharged him generally good because for the infiniteness of it Talbot and Corbets case tempore H. 7. upon the same Statute 23. H. 6. where the issue was joyned that Corbet was chosen Knight for the Parliament and he was admitted to prove it c. So 2. E 4. 19. imprison to make an obligation to the defendant to others unknown without naming them good contrary in false imprisonment So 10. E. 4. 19. bound for to serve in all lawfull commands he said that he had served him lawfully untill such a day without shewing in what good So in 12. H 7.14 he had found him meat drink and apparel untill one and twentd yeers without shewing what good So monstraverunt homines without shewing the number because a great number for the Law compels not to shew the certainty of the thing which is not to be known or remembred Brook Chief Justice so 128. and in Parliament the most voices in the upper house shall be numbred by the Clerk of the house for every one there shall be severally demanded otherwise it is in the house of Commons for there the assent is tryed by voices sounding all at one time So in election of Coroners Sanders so 126. the County of Chester was alwayes parcel of the Realm of England yet Knights and Burgesses came not from thence untill the Statute of 34. 35. H. 8. ca. 13. Statute penall extends not further then the words and namely for to punish others as 21. H. 7.21 of malefactors in Parks extends not to Forrests So 13. H. 6. cap. 10. that Sheriffs shall not let their Counties extends not to him which Leases parcel of it 21. H. 7.36 the contrary was held 20. H. 7.12 and before fol. 87. So treble dammages for a forcible entry in an Assise or trespas extends not to entry in the nature of an Assise 7. H. 4. which limit order for the election of Knights extended not to the false return of the Sheriff untill 11. H. 4. was made if London inlarge the Ancient custome viz that a villen shall not be drawn out which hath remained there a yeer and a day because Ancient demeansne 7 H. 6.32 extends not to enlargment So England altered not the subjecton of Wales Rape is made fellony by W. 2. ca. 34. Abetters inquirable cap. 12. and at one time good 2. E. 2.22 E. 3. yet Chapter the 12. seeme to be intended of fellons before made and not by the same Statute Sanders justice the allegation alledged under the viz. is a plain precise and effectuall affirmation in deed proved by Rules in grammer the authority of Latine Authors by the Register 66.160 natura brevium 63.134 h. 135. b. and the opinion of the Doctors of the Civill Law 21. E. 4.49 and after so 143. by Catlin an Abbot in discharge to be collector saith inter Record of such a term continetum that R. 2. had granted to his predecessors that he nor his successors shall be collectors and naught for it may be contained amongst the Records and yet no Record escuage was first invented to suppress the Welch and Scots rebels against whom war was made by the King of England as against Rebels and not as against enemies for that they were subject to England H. 3. made E. 1. his eldest son Prince of Wales and so it hath continued to this time which Act of H. 3. was the first alteration of Wales King E. 1. made the Statute of Snowdon The third was the Statute of 27. H. 8. the welch may sue by quod ei deforceat in the nature of what action they will Statutes sometimes explaines the Common Law Merton cap. 2. quod vidua legare possunt bluda c. and late Statutes aided by equity Statutes made before so lineal warranty Bars not the issue in taile without assets by the equity of Glocester made long before after fol. 78. so Land delivered in execution by the Statute of Marchants 1â— E. 1. yet it shall be delivered also to so high extendors although 13. E. 1. speaketh not of it by equity of Acton Burnel 11. E. 1. cap. 2. which giveth goods prised at two high prises in dammage and that the Connusee shall have them for the price because it intended to aide things in like degree although not in esse then Brown Justice to the same purpose and said that in things touching Grammer their predecessors have consulted with Grammarians and pursued their Rules as it appeareth in our books that the the Judges have said proximo antecedenti fiet Relatio the which sentence they might take out of Grammar and he argued that licet was a plain affirmative and that the matter contained under the licet is an affirmation with greater vehemency then it should be without the licet and that the licet augments the affirmation And he argued further that the generall words of the Statute of 27. enabled the plantiffe to take benefit of the penalty and in what he said agreed with Sanders in effect Brook chief Justice Gavel kind commenced by the Brittans by partition of England Scotland and Wales between the three sons of Brute continued by Bellinus Brennus Ferrex and Porrex and was altered in England by the conquest of the Saxons and the eldest son by their Law was inheritable But Gavel kind continued in Wales until 27. H. 8. for it was not conquered Priviledges within certain precincts or Dominions followed not the enlargement of the place So 38. H. 6.10 Liberties granted to the Bishop of Durham in feedis suis extends not to the purchase after So 21. H. 6. Warren is granted to B. in all his Lands in Dale and he purchaseth other Land in Dale he shall not have warren there So a grant of Conusans of Pleas of a thing parcel of the mannor of Dale tenancy Escheats afterwards he shall not have of it For the grant taketh execution of his precinct and circuit at the time of the making of it and the services shall be then parcel of the mannor and not the demeans which now escheat So grant wreck to B. in all his Lands it shall not extend to the Land of which he was then disseised because not his but the disseisors pro tempore Reference to another
to some purpose and not to be void because it is made to some purpose as 21. H. 6.8 one may plead a Lease for years and a release as a Feoffment So 7 H. 6.7 and 22. H. 6.42 The Feoffment of a Joynt-Tenant as a confirmation So 9. H. 7.2 The King by Parliament confirms the estate of the Patentee dat conceditur he may use it as a Grant or confirmation So in 21. H. 7.23 Obligor may plead a Grant That it shall not be sued before M. in Bar or have a Covenant for it So here the party uses this as a Demise of the Land and not as a Grant of the Reversion for the Reyersion of the Land compriseth the Land as Litl fol. 106. after fol. 161. a release of all the land to him in Reversion is good So 5. H. 5.8 A Lease for years and after a grant of the rent this changes the reversion So Litl fol. 150. recovery of the land against Tenant for life will divest the reversion So 19. E 4.9 Writ of Covenant and the Concord is of the land to pass the reversion So Quid jur is clamat recites That the land was granted before the reversion was So before fol. 149. Formed on shall say de uno messuagio where the Reversion was granted in Tail So a Reversion in Fee Granted to a Termor he hath the intire Term presently in Possession for the reversion of the land comprises the land in substance one word will pass the thing by another word having the same sence yet varying in name because one same thing and intent of the party as 2. H. 6.4 before fol. 134. and afterwards f. 170. reverter for remainder So 3. H. 6.6 makes a Testament and commits Administration is an Executor So 20. H. 7.11 Retorn for revert by the Grant by Grant of the Church Advowson passes 14. E. 4.2 by Grant of the name of a Clerk a presentment passeth So before fol. 151. by Stagnum molendinum the Soil passes and the thing contained in the premises named in the Habendum by another name containing the same in substance is good So a Grant of the nomination of an advowson Habendum the advowson good So Manerium Habendum the services So mannor by Fine Habendum one acre of this in Fee he shall have the acre in Fee and the Mannor for life because it wanteth limitation of the estate in the residue of the Mannor So a Gift of a Mannor Habendum the reversion in Fee of one acre which is in Lease for life good Fee for the acre and for life in the Mannor because no estate is expressed in it So Litl fol. 120. confirms the estate of Lessee for life Habendum the land in Fee good because in the estate land was contained So a Joint-Tenant confirms to another Habendum the land to him and his Heirs the Fee will pass the Habendum may limit the estate to a stranger not named before in the premisses as 13. H. 7.17 a Devise to I. Habendum to him in Fee after the death of the Wife of the Devisor not named before hath an estate by implication of the intent of the party So 5. E. 3.17 a man gives land Habendum in Franck marriage with a Daughter So a Lease to A. Habendum to him for 20. years the remainder to B. in Fee good because the intent of the parties therefore a fortiori here the Habendum may explain the intent of the parties in the premisses Dieâ— Serjeant for the Plaintiff A reversion is Jus sine possessio revertendi nomen verbale quasi terra revertens after the particular estate ended proved by W. 2. of Advowsons of Churches and prayer to recite the reversion if he shall overlive the Tenant for life and bringeth wast good 14. E. 2. Fines saith remanera and not revertera where a reversion was granted before fol. 157. a reversion granted in Tail Formedon in remainder lyeth because the entire estate is not given Fitzh nat br 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass 33. H. 8. cap. ultima the not making of Leases in reversion is expounded That they shall not make Leases beginning after the first ends ad firmum dimiserunt imply that the parties intend that it shall enure as a Lease of the Demeasne for properly a man may not be Farmor of a reversion not have an Ejectione firma of a reversion No Attornment needs upon a Lease for years because it is a Contract interpretationem apportet esse benignam ut res valeat as 30. E. 2. Discendera pro Remanera 6. E. 2. recipe pro re-entry So a gift to one for life post ejus decessum to 1. in Fee good remainder for the manifest intent an Habendum giveth an estate which was not given before and to a stranger not named before and alters the estate given in the premisses as a Confirmation to Husband and Wife or to Tenant for life remainder in Fee to another good Litl 129. So Habendum by moity Litl 66. makes Tenants in common 8. E. 3.427 by the better oppinion a gift to two Habendum to one for life and after his decease to another in Fee the one shall have the entire for life onely notwithstanding the Joyncture in the premisses Otherwise fol. 153. if it be comprised within the Grant good in the Habendum as a Grant De dispositione Ecclesiae habendum advocationem grants de Soil the Wood habendum the Wood defundo domus habendum domum Manerium habendum the advowson appendant good but a Grant of Common out of the land habendum the land or herbage of a Park habendum the Park and such like are not good because not comprised in the premisses Stamford Justice rules of Exposition First deeds shall be taken most beneficially for the Grantee Secondly they shall not be void where the words may be applyed to any intent Thirdly words shall be applyed viz. expounded to the intent of the parties and not otherwise The intent directs gifts rather then the words as 41. E. 3.6 16. H. 7.10 by Fineux Grantee of annuity pro consilio hath divers faculties yet the Councel shall be given in such a faculty as was intended 9. E. 4.22 one bound to pay Recepta recipienda shall not pay what he received not but that which he hath received because the intent is taken more forcibly then the words 7. E. 3.7 Lessee of of a house which may for his profit make houses there within may not pull down or make waste for the intent was not so Sanders Justice to the same intent with the Plaintiff Exposition of Deeds shall be reasonable without wrong to the Grantor as a Grant of Corrody Estovers and Common for all Beasts he shall not have with Goats and with the largest advantage to the Grantee as a Disseisor releases all his right to the Termor he hath for his life
cannot do any thing without Record And so Acts that the King doth touching things which he hath in his body naturall require the same circumstances and order as things which he hath in his politique body by the union thereof for the thing possessed changeth not from the person of the King but the person nor doth the possession change the cause of a thing possessed Henry the 4. which was Duke of Lancaster held his Dutchie annexed to the Crown as parcel of it by the assumption of the Crown and because his Title to the Crown was defeasable and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land and of the Government of it viz. for the manner of Conveyance as it was before in the hands of the Duke as by Livery and Attornment but not severed from the Crown for the prerogatives of his person as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue and a procedendo with a Clause of not going to judgement Rege inconsulto So the person of the King for Dutchie land taken to be higher then a Duke because he shall not have aid untill after issue of the Duke for that he is a Common person and shall make a Lease by the name of KING because it drowns the name of DUKE in his Realm therefore Officers finding that he held of the King as of the Dutchie and not as of the Duke of and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal or should be void to the end that all possessions of it should be distinct used and known from the possessions of the Crown for the policie aforesaid because he was the Lineal heir to the Dutchie and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown annexed the Dutchie of Lancaster and made it to be forfeit to the Crown and so he altered the course of inheritance of it out of the natural body into the politick body of the King and his Successors but not in the manner of Government name c. but separates it from other possessions of the Crown in conveyance of it by another Seal and other means viz. by Livery and Attornment which are used for the possessions thereof as 21. E. 4.60 Land of the Dutchie in the County Palatine passe by Pattent out of it by Livery because there he hath it as Duke and by the Statute of 1. H. 7. the Dutchie was severed from the Crown and made inheritable to the natural capacity of the King as it was in H. 5. because H. 7. discended of the House of Lancaster so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine to be holden in Capite the Feoffee shall hold in Capite of the Crown and not as of the Dutchie for that the King is not Duke within his Realm but may be when he is out of the Realm Willion against the Lord Berkly A Fine was levied to two and to the Heirs of one 4. Eliz. in C.P. in an Ej. firme with Grant and Render to the Conusor in Tail the Remainder to King Henry the seventh and to the Heirs Males of his body ingendred remainder to the right Heirs of the Conusor the Conusor dies without issue and after H. 7. entred and died seised and H. 8. gave the land to the Queen his Wife for her life and died E. 6. Granted the reversion to one and his Heirs and dyed without issue the right Heir of the Conusor entred and his entry adjudged lawfull So the King shall be in a worse condition then a common person for a common person may bind the inheritance by a common Recovery suffered by him otherwise of the King by W. 2. cap. 1. after fol. 244. a. 1. That the Writ of Ejectione firme that wanteth words bona Cattalla ibidem inventa cepit asportavit is good if the truth of the matter be so and proces of utlarie lieth in this writ by the Common Law fol. 228. 2. The Entry of King Henry the seventh is lawfull without office for that the Law casts the Freehold upon him otherwise it is where he taketh an estate by Office as Ward Perquisites of villains c. and the right Heir may enter without Office or Ouster le main by the same reason fol. 229. a. 3. Where the parties agree upon the matter in deed and conclude upon the matter in Law thereupon Nilrefert but the Court shall adjudge according to the Law fol. 230. 4 Recitall of one part of a generall Statute is good enough otherwise it is of a particular Seatute fol. 232. a. 5. Omission of the date or place of Letters Patents is not materiall in pleading not Averment fol. 231. 6. A feoffment pleaded without entry of the Feoffee is good because it is included in the liverry fol. 232. b 7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue fol. 233 a. 8. The pleading that H. 7. had issue and died without issue is repugnant of his own shewing otherwise it is where it cometh on the part of the defendant fol. 233. 9. The pleading that one enter untill that the Lessor entred upon him and made the Lease is not good there without saying that he custed him and made the Lease The King shall be bound by the Statute of W. 2. of gifts conditional for that it is in preservation of an inheritance in benefit of the publike good and restitution of the intent of the donor and the exposition that the donee might alien after issue before the Statute of Gifts conditional hath been a common error As to the matter in Law it was said by the Sergeants of Counsel with the defendant that the capacity that the King hath in his naturall body after that he is King Remains and the State Royall confounds not this capacity as 45. ass pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle who exchanged it by a deed for another Mannor and died without issue and warranty and assets discended upon Edward the first his heir he is barred and therefore the assignee of the party to the exchange had restitution out of the hands E. 3. who had seised it and so by this warranty and assets which discended upon the naturall body of the King was a Bar to the reversion that he demanded in his body politike And as a King may take as heir by discent in his
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
shall not have it from him because once attached in him as the Kings Villain and his wife are Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
Testator and to the same use shall the Lease The Court increases the costs here Osburn against Carden and Jay A Woman guardian in Soccage taketh husband they make a Lease for years of the Land to Commence at Michaelmas M. 7. 8. El. in K. Bench Tr. and before Michaelmas the Lessee maketh a Lease for a lesser Term of years the Husband dies the Wife enters and being outed bringeth Trespass and adjudged lawful For that the Lease is voidable by the Wife because she hath the Wardship to another use and by reason of Natural affection presumed by the Law to be the nearest friend for the proximity of bloud for that the Custody of him cometh not to the executor Litl fol. 27. The Custody cannot be given by the Husband or forfeited by Utlary or Attainder longer then during the life of the Guardian because no such Natural affection there 33. H. 6.55 But the husband hath interest in the Custody in the right of his Wife for to participate with his Wife in all matters of interest and Prerogatives because they are one person in Law but looseth his interest when his Wife dies because Cessante causa cessat effectus And although Doctor and Student saith fol. 13. That the Wife cannot avoid the Act of the Husband as to give Demise or sell Chattels real or personal which she hath to her own use yet here she may because she hath it in anothers right and the Wardship of the body which is the principal remains which shall be maintained with the profits of the Land and this is in effect the suit of the Ward by the woman Caril against Cuddington A Woman seised of 2. acres in Fee the one holden of the Queen by Knights Service onely M. 7. 8. El. in the Court of Ward the other in Soccage taketh husband she and her husband levies a Fine sur Conusans come ceo of both the Conusee Grants and Renders to the husband and Wife and the Heirs of their bodies Remainder in Fee to the right Heirs of the wife the Husband and wife die their issue within the age of 14. years the Grand-mother on the part of the Mother enters and the Grand-father on the part of the Father of the infant sues as next friend in the Court of Wards because that the Queen hath the Wardship of the acre holden by Knights Service and of the body and adjudged that the Grandfather on the part of the father shall have the wardship of the acre holden in Soccage as Guardian in Soccage and not the Grand-mother for that the Grand-mother by possibility may have the Land by discent after the estate Tail determined and the Grand-father cannot but they are in equal degrees as to the estate Tail the wife here is a purchaser by the Fine of the Fee-simple and the Law is all one of land only as if it were of the land and body also Sherington c. against Stratton ANdrew Bainton by Indenture Covenants and Grants with his brother Edward M. 7. 8. El. in K. B. Tr. for the affection that he hath That the Lands shall discend and come to the Heirs males of their own bodies and continue in the bloud and name of the Baintons and also for brotherly love and good will That he his Heirs and Assignes shall stand seized to the use of himself for his life and after to the use of Edward Bainton for his life and after to the Heirs Males of the body of Andrew and afterwards to the Heirs Males of the body of Edward and adjudged that every of the considerations by it self being grounded upon Nature is sufficient to raise the uses according to the Limitation although it were without Deed. And so Covenant and Grant That he will stand seized to another use by Indenture without any valuable or natural consideration is good enough for that the deed imports consideration in the Will of the Covenantor by Plowden Quere notwithstanding Fleetwood and Wray for the Plaintiff An use is a confidence annexed to the estate with which he departs An use may be created by the Common Law First by Transmutation of Possession as by Feoffment Fine or Recovery to the use intended Secondly without Transmutation of Possession by one Act done importing good consideration which shall make the land subject to the use as a bargain and sale or Covenant or Grant upon good consideration First by a new Act done of two parts 21. H. 7.18 and 6. E. 6. by bargain and sale viz. Land for mony or 36. H. 8. Covenant for marriage because advancement to the Daughter and comfort to her parents Secondly where of one part onely as Covenant for Natural affection from the Father to the Daughter or Brother to Brother and a desire to have the land continue in his name and posterty For a new thing to be done by both is not requisite by the Councel of the Defendant But long acquainiance ancient familiarity or that they have been Scholars in their youth no considerations to raise a use because they are not considerations of value or recompence as if I promise to pay to you 10. l. because you are my Brother or old acquaintance it is Nudum pactum and so note that a use was at the Common Law A new use cannot be Created without consideration but being created and in esse may be granted over without consideration as another Chattel and Doctor and Student fol. 99. may be devised 1. Bromley and another Aprrentice with the Defendant and they Grant that there are two waies by the Common Law to make a Use without Transmutation of possession viz. Bargain and Sale and Covenant upon Consideration proved by the words of 27. H. 8. cap. 10. and Consideration arising from the one part onely good and it is not requisite to have Consideration and a new thing done by both the parties First Consideration It is natural to engender and nourish after engendred or otherwise the first is without effect the Father shall have the Custody and Education of his Son for his natural affection to him Litl fol. 25.33 H. 6.55 and Trespass for taking away his Son Fitzh nat br fol. 143. and 3. E. 4.12 And the Son shall have an Appeal of the death of his Father before others for his earnest intent of revenge and his reciprocal love So a Feoffment to the Son a Suit depending is not Champerty 6. E 3. cap. 274. yet within the words of Articuli super Chartas cap. 2. because by all Laws the Son ought to aid his Father and so out of the intent of the Statute and there by Herle the Son may abet his Mother to bring an appeal of the death of her husband and shall not answer Damages And Litl 8. The Son and Heir apparent endowes his wife ex assensu patruâ—… good without Livery because the wife of his Son is as his own wife for the love that the Law presumes is between the Father
and the Son and within his Charge So Litl fol. 4. the Donor shall pay Rent untill four degrees past upon a gift in Free-marriage upon another gift not because the Daughter advanced and the husband from thence forth undertakes to find his wife all necessaries I promise 20. l. to one if he marries my Daughter he shall have Debt for it in our Law because the Daughter is advanced and so consideration proceeding from Nature is a sufficient Consideration in our Law 22. E. 3. ass pl. 70. Fitz. nat br fol. 44. a. and 120. r. Doctor and Student 105. And so the Consideration here of A.B. for provision for his issues males good is a good Consideration to change the use of the land Second Consideration For the continuance of the Land in the name of the Baintons good to raise an Use and Males continue their Sir names and Females change them by marriage and the Male is most Soveraign 40. E. 3.37 2. H. 4.1 27 H. 6.8 and the Female and all inheritance is subject to the will of another 17. E. 4.5 I promise 10. l. to a laborer for to repair a high way or to a Surgeon for to cure such a man he shall have an action of Debt because it is Charity Doctor and Student 105. Third Consideration The good will and fraternal love wich he hath to his bloud and his brothers which is the nearest degree of bloud after Parents and issues good considerations here and so it seems by the better opinion in 20. H. 7.10 but is not there adjudged and they that joyn in bloud by nature joyn in love and therefore if the youngest enter after the death of the Father the elder shall have no action against him conrrary to 21. H 6.15 by Portington because the Law intends that he entred as a friend to preserve the inheritance in his absence because so near in bloud the Law intends as near in love So Littl f. 93. and 40. E. 3.24 no discent of the Puisne or any of his issues shall take away the entry of the eldest for the cause aforesaid So Litl f. 160. Warranty Collateral Bars without assets because the Law presumes that he will advance him as much as he hath prejudiced him by the Warranty So no battail between Brothers or Cosens in a Writ of right But a Nuper obiit lieth against Brothers and Sisters in Gavel-kind where their ancestor died seized or a Wriâ— De rationabili part against him which enters into all which Writs are to try bloud onely So a Juror is Brother or Cosen to one party a good challeng in every action for the affection which the Law presumes the one hath towards the other 21. E. 4.33 And Bromley said That 11. H. 4.12 by Tirwit and Cascoigne by the ancient usage all the bloud of him which was Murthered should draw the Felon found guilty in an appeal of Murther by a long corde to execution for the loss which all the bloud had by the Murther of one of them and for the revengement of his death and love that they had to him that was killed Fourth Consideration Consideration was the Marrige had between Edward Bainton and Agnes his wife Remainder upon Natural Consideration shall preserve the particular estate made without Consideration which precedes it but not on the contrary if the estate upon natural Consideration precede the other estate as A. Convenants with B. in Consideration that B. will marrie his Daughter to stand seized at the time of the Marriage to the use of himself for life after to the use of I. in Tail afterwards to the use of B. and his wife the Daughter of A. is a good use to I. without consideration for the Marriage is private and several Considerations for the estate of B. and his Wife because the Remainder to I. precedes the estate to B. and his Wife but if the Remainder to I. had been after the estate of B. and his wives the estate there had been void to I. but money might have been given in Consideration of all the estates In Mordants case 21. H. 7.19 No use was raised there because the Covenant was in the future Tense and also incertain and therefore was put to his Writ of Covenant there Good and sufficient Consideration raiseth an Use without Deed so a Deed raises Uses if there be any Consideration for it is made to some effect or otherwise should be void because you shall not have an action of Covenant here because an action of Covenant lieth upon a Covenant only in the preter or future Tense and not in the present Tense 1. Contract or Agreement for Lands or Chattels is by the Law First by Writing Secondly by Words First An agreement by writing without Consideration is not Nudum because a man hath great consideration and deliberation in passing things by Deed and the writing his sealing and delivery of it signifies fully his will is sufficient consideration that Land shall pass as his will is and shall bind the party without thinking what cause he hath to do it Secondly an Agreement by word without consideration is Nudum and binds not because words passes from a man suddenly and without advisement many times as 17 E. 4.4 I promise to give you 20. l. for to make your sale of new it is Nudum pactum if it be by Deed you may have Action of Debt upon this Deed and the Consideration there is not examinable and the cause of the Deed is not inquirable for every Deed imports in it self a Consideration without the will of the party which makes the Deed. So 11 H. 4.33 A Carpenter by word without writing undertakes to make a new house and no consideration for the making of it is Nude if it be by writing it is good So 45. E. 3.24 for that the Plaintiff demanded a Debt upon a contract for marriage money by Deed an action lies at the Common Law because there it becometh a Lay Contract by the Deed in Court Christian if it had been without Deed because the marriage which is the consideration is a thing Spiritual 14. E. 4.6 15. E. 4.32 which books are against the opinion of Thorp in the said case in 22. ass before fol. 35. Nudum pactum est ubi nulla subest causa praeter conventionem sed ubi subest causa fit obligatio parit actionem Information for Mines THe King shall have all the Mines of Gold and Silver in the Lands of his Subjects H. 10. El. in the Excheq by the Prerogative of his Crown and not by the proprieity of the Soil although it be not recited in the Treatise of Prerogative and albeit the Oar thereof in anothers land toucheth others Free-holds and inheritance which is proved by three reasons First for the excellency of the matter which being more excellent is appropriated by the Law to the person most excellent viz. the King So the King hath by the Common Law Whales and
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
Purview And therefore Stowell if he is bound by the Purview he is afterwards excepted and if he is not bound by the Purview he needs not to be excepted and so he is at large and out of the body of the Act which consists of the Purview and of the Exception Acts of Parliament are positive Laws consisting of Letter and sence which together make the Law And the Common Law is ancient to all positive Laws and this is to be considered to come to the sence of the positive Law viz. to put such sence to the Letter which excludes all mischiefes and inconvenience Those which Levie Fines are Parties their Heirs are Privies because there is privity of blood between them strangers are they which are not Parties to the Fine nor privies And the Fine excludes now Privies by 4. H. 7. before not Parties here and therefore it is no Mystery that the Letter of the Act will extend to them no Laches untill all the time is past Because they have Election to protract time untill the last of the five years or last day so that they within five years pursue intends Heirs also of those of full age for such sence stands best with equity reason which most avoids rigor and mischief Things within the Letter and yet out of the sence and intent of Statutes as 36. E. 3. and 4. H. 7.7 Doctor and Student 148. An Infant named a Disseisor vouched a Record and failed he shall not be imprisoned Notwithstanding W. â— ca. 25. Nor an Infant Baily or Receiver found in arâ—…rage of account shal not be committed to the next Gaol Notwithstanding W. 2. ca. 11. Nor an Infant which is convict of Ravishment of another Ward shal not be imprisoned for the Kings Fine notwithstanding Merton Cap. 6. Not if a woman Infant be Ravished and consent to the Ravisher within twelve years there the Heir shall not enter notstanding R. 2. ca. 6. But Infants are bound by Laches for a Title favoured for the Inheritance as Doctor and Student 148. An Infant shall be bound by Cessavit or Waste because an injury done by his Act and he shall purchase and the Law will presume if he hath policy to get a thing that he hath reason to defend himself So if an Infant Lord enter not for Mortmain within the year or before a Villain hath sold because he had but Title to the thing that it was never in him But Doctor and Student 29. and 27. Assises 32. Laches of Entry upon Discent or Warranty binds not an Infant because they have favour for Inheritance for Waife Stray Wreck or for Goods taken from them and offered to Images or taken by Enemies and not retaken before the Sun sets or sold in a Market Overt or Acts an Infant as Executor 35. E. 3.45 or as King before 213 or for necessity as an Obligation for meat and drink Doctor and Student 104. The Common Law is the foundation of this Act of 4. H. 7. and if the Father dies within a year after the Fine his Heir Infant is at large fol. 372. otherwise the imperfections which may happen sometimes within five years are to be considered as those which are at the time of the Fine or right then And because that the Statute provides for the Infant in the exception and in the Fine it will not be amiss in the middest And if one which hath a future right dies within five years his Heir within age shall have five à fortiori he which hath a present right as here because it is of greater estimation then a future If a stranger to a Fine cometh of Non-sane memory or is in prison the third year after Proclamations made and after the five years cometh of Sane memory or out of prison he shall not be concluded because constrained and acts involuntary but if he or she taketh Husband or go beyond Sea in the third year and after five years is discovert or within the Land he shall be bound because Acts voluntary An Expounder which adheres only to the Letter of the Statute of 4. H. 7. without adding reasonable sence will admit many absurdities as by the Letter of the Statute if an Infant which hath present right is excepted dies within age his Unkle being his Heir and of full age shall be barred So if an Infant by Entry within age avoyd the Fine after full age permit the Conusee to be for five years in possession without Claim he shall be barred by the Letter which saith that he shall take Action or Entry within five years after full age So an Infant being Diseisee in his Mothers belly when the Fine was Levied is not accepted by the Letter of the Act because his age is accounted from the time of his birth by intent of the Act here for every thing which is within the intent of the makers of the Act although that it be not within the Letter and intent also and of those exceptions the Letter binds none to five years after full age which were within age when the Fine was Levied and ingrossed and many years may be between the one and the other yet he that is born after the Fine levied and is within age when it is ingrossed goeth not at large but is bound to five years after full age as well as he which was born an Infant when the Fine was levied and ingrossed And if the Disseisee at full age when the Fine is levied die before the Proclamations his Heir within age then and when all the years pass is bound by the Letter because the Letter excepts him which hath right when the Fine is levied But the intent of the Exception intended to except those which had â—ight and are Infants when the five years commence so it shall be if the Disseisee cometh of Non-sane Memory or in prison before the Proclamations and after five years he cometh to sane-Memory or forth of Prison he shall have five years after this by the intent of the Exception Two Joint-Tenants Disseises the one within age the Disseisor levies a Fine four years passe after the Proclamations he of full age dies the Infant shall have other five years after his full age for all by Bendlos and severall five years shall be for severall Titles As A. disseiseth a woman sole taketh her to wife and have Issue A. is disseised and dies after a Fine levied by the Disseisor and before the Proclamations the Issue being of full age after the Mother dies the fifth year passe the Issue is bound as Heir to his Father because in this respect he hath but five years together But as Heir to the Mother he shall have five years to be accounted from the death of the Father for notwithstanding it is the self-same Land he hath severall rights the one the last as Heir to his Father and th' other the first right as Heir to his Mother And in respect of them hath severall times
So the Husband maketh a Feoffment of the Land of his Wife upon the condition which is broken the Feoffee levies a Fine the Husband dies in the fourth year after Proclamations having Issue by the Wife after the Wife dies and five years passe the Heir is barred to enter as Heir to the Father for the Condition but shall have five years from the death of his Father as Heir to his Mother for her right for the cause aforesaid by Saunders Ireland and Scotland are severall Realms But Scotland was holden of the Crown of England and was within the Fee and â—igniory of the Crown of England and he which is in any of the two Realms shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots Lunaticks and they which have the lethargy shall be comprehended in the words of Non-sane-memory as well as Mad-men For Zouch Peace which is the end of all Law described and the necessity and benefit thereof and those Laws which carrie most peace are the most estimable And the Statute which Ousts Nonclaim was to the universall trouble of all the Realm for the avoyding whereof and to make Fines to have their antient force the Act of 4. H. 7. was made and the Preamble of it is to be considered because it is a Key to open the minds of the Makers of the Act and the mischiefs that they intended to remedy and the preamble shews that the Makers of the Act were of Opinion that Fines ought to be of greater force for to avoid contention then they were before the Statute of Non-claim and now is used to the contrary viz. to the universall trouble of the Kings Subjects and therefore they were Enemies to former rights because that stirred up many Suits and made the Purview strongly against it Et lex si prospiciat majori parti retilis est All Infants are bound by the generall Purview which containeth them in the Exceptions As an Infant levies a Fine Proclamations pass he shall not have error yet within age for no Infant is excepted But he that is not Party to the Fine by Southcot and Walsh he is excepted out of the generall Purview in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute for that he had not right at the time of the Fine levied but then the right rested in his Ancestor which was disseised for the Exception is always an exemption of that which is contained before in the generall words otherwise could not be excepted As a Feoffment of a Mannor except such an Acre which is not parcell of it or a Lease of all Lands of the part of the Father except Lands of the part of the Mother is a void exception because this exception was not in the Feoffment nor Demise or right or not right is not the matter but claim or Nonclaim within five years is the matter where a Fine is pleaded to conclude any And this Tried by issue by the one or the other maketh an end of the matter Catline a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant shall make void the Fine and the Tenant shall be restored to the land because he claims signiory and services out of the Land and no right to the Land when the Fine was levyed and therefore is out of the purview which extends not from whom he claims or had right in possession Reversion or Remainder to the thing comprised within the Fine when the Fine was Levyed upon matter rising before The first saving giveth five years after proclamation to those which have right and their Heirs with a Condition annexed to it viz. so that they pursue their Title Claim c. within five years after Proclamations and as the saving is general to all Heirs notwithstanding they have their imperfections of Nonage Insanity c. So is the Condition general and extends to all Heirs whatsoever they are and this was the cause of the Judgement for otherwise the saving shall be for all heirs and the So shall be of all Heirs within age and then the So is not so large as the saving And so the Heir within age is bound to the Condition of the first saving as well as he is saved in the same because general tranquillity is more favored then an Infant and no time shall be gained by exposition or equity beyond the words of the act where the Act as here to strains all men to a time certain for the common tranquillity of the people and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there And therefore if one of the Terms limited by 4. H. 7. be adjourned because the Statute saith then next ensuing all the Proclamations before are void until the Statute of 1. Mar. cap. 7. Rastall Fines 12. because time limited by the act ought to be pursued and once attached in part ought to be continued So the 5. County upon Exigent ought to be the next to the fourth or it is discontinuance and Allocatur Comitatus shall not aid but is error And therefore an Infant at the Common law shall be bound to year and day otherwise f. 365. where by the Statute of 4. H. 7. The five years Commence in the father being of full age Non-claim within the time limited by the Common Law shall lose right and infancy there shall not aid the party as 7. H. 6.32 Nonclaim by the Lord of his villain by a year and day which hath fled into ancient Demeasne So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire So wood of another within a Forrest of the Kings seised into the Kings hand shall be forfeited by Nonclaim within the year and day before fol. 57. So if a Bastard die seised and Mulier claims not So 2. H. 7.10 one shall lose his appeal of Murther if he bringeth it not within the year and day So by the custom of some Mannor one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori time shall be peremptory where it is limited by the Statute for the common repose of the Realm which shall be more favored then the private profit of any single person be he Infant of non sane memory c. by Carus and Dier the right of a Mulier within age is bound by discent of the bastard because the Law in this case is a binding Law by Southcot and Sanders contrary because infancy shall excuse Laches of entry 31. ass 18. 22.36 ass 2. 33. E. 3. The second saving giveth new 5. years to other persons and hore Stowel is the same person which had five years with his ancestor by the first saving because the saving and the so is in the Copulative and the word
Land to him for fifty foure yeares rendring Rent hath issue and dyes before any Proclamation made and after the Proclamations passe and after the Husband and Wife dyes Adjudged that the Lease is good against the issue of N. in tayle by reason of the Rent otherwise it were if the Rent had not been reserved First The Lease had not been voyd against N. T. the Father himselfe if he had survived the Husband and Wife if it were by words notwithstanding it be a present contract because it depends upon an estate for life which is uncertaine when it shall determine otherwise it is if the first had been a Lease for yeares which containe certainty there the second Lease shall be voyd for the first terme except that it be by Deed poll with Attournment in which case it shall enure by way of a grant of the Reversion if the party will use it so or by Indenture or Fine which are matters of Estoppell Secondly The Lease is but voidable against the issue because of the Rent which is a recompence otherwise it is of a charge for it shall be voyd by the Remitter and inasmuch as this contingent Lease is not avoided but continues during the Proclamations the Statute of 32. H. 8. maketh this a barr against the issue during the terme Thirdly A Lease by word made by the Husband and Wife is the Lease of the Husband onely and not of the Wife possession without title is sufficient to make an Advowry for dammage feasant protection pleaded for part and Inter alia good by the Rule of the Court A Fine pleaded by way De finalie Concordia facta fuil and not that he levied a Fine and also pleaded that it was acknowledged in the Kings Court without saying in the Common pleas is good and 22. H. 6.13 A Fine is a Record although it be not ingrossed and shall be executed Fourthly How and in what degree this Lease passe at the beginning by the Fine The estate of N. not altered by the Fine of a stranger which had not any right or Estate in the Land but is Estopped for his life to say otherwise but that he receives fee simple by the Fine Leases by word by Deed Poll by Indenture are to be considered how they shall enure As if a Lease be made by words without Deed of Lands by one that hath see simple for one and twenty years to commence presently rendring a rent and after the same day maketh a new Lease by Paroll to another for the same terme or for a lessor terme the second Lease is void although that the first Lessee surrenders or forfeits because at the time of the first Lease he hath not but a Reversion and no interest in him to contract for the possession And he that will by contract make another possessor of the thing ought to be proprietor of the same himself As if one sells a Horse upon condition that the Vendee shall pay him forty shillings at Easter and after he sells the Horse to a stranger and after the first Vendee payes not the forty shillings at Easter and the Vendor reseiseth the Horse the second Vendee shall not have the Horse because the Vendor had him not at the time of the sale the Condition only inables him not to contract for the property and possession which he then had not but if the Lessee for one and twenty years be and the Lessor the same day grant the Reversion by Deed for twenty one years to commence presently it is good with Attournment and he shall have the Reversion during the first Lease and the Rent as incident thereunto because it is another thing then the possession So a Lease by word for years to commence after the first year is good because it is of another thing then the first Lessee had because the second Lessee is to have the possession after the first possession and interest expired A man leases for one and twenty years in possession and presently maks a Lease of it for one and thirty years by word this is good for the last ten years and Executory for it for a Lease for years is Executory and severall for every yeare and day and is as to execution as severall contracts And therefore such contract may be good in part and void in part So if he Leases for 21. years to commence 10. years after and he maketh a Lease for 31. years to commence presently it is good for the first 10. years and void for the last 21. years for that he had contracted before and was certain although that the first Lease were forfeited or surrendred otherwise it is if the first Lease had bin incertain as a Lease for life there the second Lease had bin good after the Tenants life not during his life although he surrendred or forfeited unlesse it had bin by Fine or Indenture because Estoppels if the second Lease for the same years be by Deed Poll there the reversion with the rent pass by Attornment by the demise of the land by the name of Land if the possession cannot as a Reversion upon an Estate for life passeth by bargaine and sale of the land by Deed inrolled and the Grantee may use his Deed as he pleaseth and therefore may use it as a Grant of a Reversion with attornment otherwise it is if it be by word because the Reversion for years cannot be granted by word But if Lessee for years will use a Leas Poll as a present Leas where he hath not attornment the Leas is void although the first surrendred or forfeited as it is if it were by word because a contract by Deed Poll passeth not that which another then injoyes But if the second Lease were by Fine or Indenture and the first surrendred or forfeited it is good for if one leases land to me which he hath not at the time by Fine or Indenture and after purchase it or it desends to him I may enter and occupy by Estoppell and I shall be compelled by Estoppell to pay the Rent because every one is concluded to say but that the land passeth in possession for fourty five yeares by Estoppell and shall be good in estate to have the other yeares because they are not incurred in the life time of the Tenants for life for if the Lease for fourtie five yeares had been by word and the particular Tenant for life had died the Lessee should have it against the Lessor If the estate given by the Fine is defeated the Fine shall be void although the Proclamations passe after for the Fine is the Principall and the Proclamations but accessary to the Fine as Tenants in taile disseised levies a Fine to the disseisor Sur conusans de droit or sur release and dies there the issue if he enters before all the Proclamations are passed is remitted and is not harred for that 32. H. 8. which saith that Fines after Proclamations bars tayle intends of Fines remaining
in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
their Husbands is contrary to the intent of the Statute and the intent ought to be thought on because the Purviewe extends not further then the intent of the makers of the Statute as the Wife infeoffs the Father of him with whom she intends to marry for to regive the Land to them after their intermarriage for lives or remainder in tayle to the Wife the Father doth so they have issue the Wife after the death of the Husband levies a Fine to other uses their issue may not enter yet it is with in the words of the Act of 11. H. 7. because the Father gave it to them But this cometh from the Wife her selfe by circumstance And the Father was but as an Instrument of it and therefore out of the intent of 11. H. 7. which restraineth the generalty of the letter of the Statute and maketh the Cases within the words out of the penalty of the Statute by the intent of the Makers As Infants and mad Men are excepted out of the Cases of Fellonies made by any Statute so neither those nor a Fem covert shall be concluded in the intent of the Statute which maketh them accessary which shall give them Meat Drink or other ayde to them which shall commit such an Act. So if a bargaine for Land be made before a Writ brought against him and the suite depending Livery and Seisen is made It is not Champarty 19. R. 2. because he ought to performe the bargaine made upon just consideration notwithstanding W. 2. Cap. 49. and Articul super Chart. Cap. 11. So a barr fee is within the letter but not the intent of the Statute of 32. H. 6. cap. 10. because appointed to the Sheriffe in the beginning by the order and discretion of the Court for his labour and attendance when the Prisoners are brought to their delivery 21. H. 7.16 So Wreck if a Man Dog or Car escapes alive shall be kept that the party may have his goods if he claimes within the yeare by W. 1. cap. 4. is intended of such things which will endure so long and not perish in the meane time as are Lemans Oringes c. So a rent granted by tenant in tayle for a release of right in other Lands is good 44. E. 3.21 because for the benefit of the estate tayle And W. 2. De donis c. intends not to restraine that which amends the estate tayle So Parsonages and Vicarages are within the words but out of the sense and intent of 1. E. 6. cap. 14. which inlargeth the words of the Statute and maketh that Cases within the like mischeife shall be within the Purview by equity as by the Book of entrys fol. 406. a man shall recover double damages for costs sustained with force by equity of 4. H. 4. cap. 8. which gives this for disseisen of the Land So that Executor which cometh first by distresse shall answer by equity of 9. E. 3. cap. 5. which speaketh of Executors by equity of Gloucester the Lessor shall have wast against the Lessee for half a yeare or for twenty weeks which pleads yeares So 1. E. 6. cap. 12. which takes away Clergy for stealing Horses takes it away also for one Horse because included in the Plurall Number and therefore Plowden disallows 2. E. 6. cap. 33. which taketh away Clergy for the stealing of one Horse as a superfluous Statute and was made in vaine And so 1. E. 6 cannot of Law but morall vertue which reforme the Law and the other equity is Quasi equality because in the like reason in the like Law Sobye against Molins TIthes shall be payd for the Boughs of Hornebeame H. 17. El. in the Kings Bench. Attachment upon prohibition Hasell Sallows Maple and such Trees which are not fit for building and so of the Trees themselves although that the Trees and Boughs are above the age of one and twenty yeares for they are not great Trees which are exempted and priviledged of Tithes by the Statute of 45. E. 3. cap. 3. or rather by the Common Law in affirmance of which this Statute was made as appeareth 50. E. 3.10 But Tithes shall not be payd for Ashes Oaks and Elmes Beech and such like Trees which are fit for building and of the age of twenty yeares nor for the Branches of them which are of the age of twenty yeares Quere if the Branches are within such age as the Timber trees which use to be lopped and lopt if Tithe shal be payd for them and it seemeth Tithes shall be payd of them by the Book The use at this day is upon suggestion to have a prohibition that the party shall be bound by Obligation or Recognisans to the King to preferr a Bill of attachment against the party which sues in the spirituall Court if he requires it and upon it to declare and joine issue or demurr upon the right of Tithes and award consultation which Plowden held vicious First for that the Defendant is not Actor and therefore may not have consultation upon such proceedings Secondly For that the Judgement upon the Attachment ought to be to acquit or attaint the party of the Contempt and not proceed upon the right of Tithes Thirdly For that the Plaintiffe cometh into the Court voluntarily Scilicet by his Recognisans to exhibit his Attachment where he ought to be brought in voluntarily by Process Fourthly Because the suggestion of the Attachment is false Fifthly For that if the Plaintiffe will not proceed the Defendant hath no remedy but a Recognisance forfeited to the King But Plowden held it to be the best course after the prohibition that the Defendant sues out a Scire facias against the Plaintiffe Quare consultatio concedi non debeat And upon this the Plaintiffe may declare and the matter shall be tryed and the Defendant may have consultation and then he will be an Actor Sanders and Archers Case ARcher gave Poison to Sanders to Poison his Wife H. 18. El. the Report of the opinions of Dyer Cheife Justice and Barham Justices of Assises in Warw. and Sanders gives this to his Wife in a roasted Apple which did eate part of it and gave the residue to their daughter being an Infant and after the Wife recovers and the Infant dyes and it was adjudged Murder in Sanders for which he was hanged but not in Archer for he was acquit to be no accessary to this Murder First For that Sanders had an evill intent of Murder at the beginning of his Act to kill his Wife and therefore the consequent of his Act by which the Daughter dyes shall be adjudged according to the commencement So if a man shoots at one and kills another or lyeth in waite to kill one and kills another otherwise it is where he hath no ill intent of killing any as to lay poyson to kill Rats and one eates of it and dyeth Secondly The consent of Archer to kill the Woman may not bee conjectured further then he gave it
and therefore shall not extend to the death of the daughter which is another distinct Act Otherwise it is if one had followed the other in one person As if I command you to rob J. S. and he resists and you kill him So if I command you to beat him and he dies of the battery So if I command you to burn the House of J. S. and you doe it and by the fire the House of J. D. is burnt I am accessary to both because the commandement reacheth to all the sequell thereof and is the cause of it and therefore I shall be partaker of what ensues this ill Act commanded by me otherwise it is if I command you to robb J S. as he is going to Sturbridge Faire and you rob his House in Cheapside for this is another manner of Fellony and there are severall Acts As if I command you to steale a white Horse and you steale a bay Horse or an Oxe or burne the House of J. whereas I commanded you to burne the House of B. there I am not accessary for that my assent may not be lyable to it because it is a thing distinct and contrary to my commandement directly But if I command you to kill J. and you kill him by another meane or Instrument another day or place then I command there I am accessary because the death is the principall matter and the others onely the manner and forme and the variance in the manner and forme of his commandement discharges not me to be accessary But if I countermand this before you kill I am not accessary for the minde of the accessary ought to continue to doe evill at the time of the act done If one be pardoned of Murder and the wife of the dead sue an appeale and a stranger receives him and gives him Meate and Drinke knowing of the Murder and Pardon he is accessary to the Fellony against the Wife although that he is not against the King because this Fellony is discharged against the King but remaines as to the Wife per Catlin But Popham held otherwise because that at the time of the receipt there is not any offence continuing against the Crowne and Dignity of the King for that he was pardoned before and one cannot be accessary without offence to the Crowne But Plowden held that if the Goaler suffer him to escape after the Pardon this is Fellony in him because he suffers a Fellon to escape for that he was in for Fellony for he was detained in Prison at the suite of the Wife appellant Nicholls against Nicholls THE Lord Lovell M. 17. 18. El. in trespas 18. E. 4. Lease for life to Thomas Wtright and moreover grants that if he dyes without issue that then the Lessee shall have fee And the Lord was attainted of high Treason by Parliament 1. H. 7. and all his Land forfeit to the King saving to every stranger such right title and interest which they had as if the Statute had not been ever made and after the Lord dyed without issue and in 11. El. an Office was found The question was whether the Lessee should have the Fee by the Condition and the saving And adjudged that he should have the Fee 1. That all the Fee Simple passeth not out of the Lord Lovell but continues alwayes in him untill the Condition which is precedent to the estate be performed 14. H. 8.17 Wheelers Case 10. Assi 15.6 R. 2. Plessingtons Case and 12. R. 2. That Action shall be brought against Lessee for years upon condition to have Fee and the Lessor together a Condition precedent shall have relation to the Livery for to avoid incumbrances for vesting the Fee which was at the time of the performance Husband and Wife may not take by Moities yet they shall vouch upon a Feoffment made to them before the Coverture because that although they were sole when the Warrant was made yet were Covert when the Recovery was So a Reversion is granted when they are sole and when they have intermarried the tenant attornes to them they have not distinct Moities because then the Reversion settles in them not to grant when sole and so time in which the thing vests is specially to be considered 2. That the estate in Fee appointed by the Condition nor Reversion because it commenceth at a day to come nor a Remainder because in its vesting it drowns the particular Estate but shall enure by way of inlargement of his Estate 3. That the Freehold in Deede or in Law but a right or Title onely is not vested by the word Forfeiture in this Statute without an Office to finde the certainty of the Land which the party attainted had as in 4. E. 4.22 the Lord Hungerfords Case for then the Statute of 33. H. 8. cap. 20. which now giveth Actuall possession to the King for Treason without Office should be made in vaine and goe to attainders hapning after this Statute of 33. not to those before as our Case is And if one be attainted of Treason the Freehold and Fee remaineth in him and shall not be in the King untill Office found by the course of the common Law for if he hath capacitie to take by new purchase so he shall retain the antient and shall be Tenant to the Precipe out when he dieth the Land cannot descend to his Heire because the blood is corrupted but it shall Escheat to the Lord if it be holden of a common person or to the King in the nature of a common Escheat if it be holden of him and not as an Escheat by Treason untill Office by Barham and Dier To the first Objection it was said That the Condition performed which is a reall agreement shall divest the state in Fee out of any stranger which hath the Reversion without privity as by grant Escheat c. For that the Land is charged with this agreement reall in whose hands soever it cometh and therefore the Fee shall vest in the Lessee by the performance of the Condition discharged of all incumbrances made after the Condition and the previty there is destroyed by the Act of the Lessor So 6. R. 2. Plessingtons Case where a man leases for yeares upon Condition performed to have Fee after levies a Fine the Lessee performes the Condition he shall have Fee of the Conusee but by Belknap there he shall have the moneys which the Lessee by his Condition ought to pay otherwise it is if the privity be destroyed by the Act of the Lessee as where the Lessee grants his Estate there the Fee shall not vest in him nor his assignee 4. fol. 483. 5. For answer to the second Objection it was said that the Condition shall be saved by the words which shall extend to all Conditions Rents Profits or other things out of or in Land and the saving of the right of him which hath not offended shall be taken beneficiall By some right is where a thing is taken
by Dyer was for that they pleaded that they were seised of the Rectory of the Parsonage of the Deane in the right of their Cathedrall Church of Worcester whereas it should be in the right of the Church of the Deane Plowden answered the fourth exception thus That they plead the seisen of all the intire thing otherwise if it were of parcell of it or things pertaining to it for there they should plead that they were seised of it in the right of the Church of the Deane But Judgement was given for the Bishop Eare against Snow and others TEnant in taile and his Wise which had nothing in the Land suffer a common Recovery in 23. Hen. 8. to his owne use in Fee H. 20. El. in the Kings Beuch Fiect firme the Husband by his Will in writing deviseth the Land to J. S. and after the Statute of 27. H. 8. is made and after that he publisheth his Testament of new and dies the issue in taile enters J. S. dies his heire within age the issue in taile dies the heire of J. S. enters upon the Son of the issue in taile And adjudged lawfull And no Remitter but that the estate taile shall be barred by the Recovery notwithstanding the overliving of the Wife for the Wife was named onely to be barred of her dower and forasmuch as she had not any estate nor no losse she shall not recover any estate nor any recompence and besides the estate recovered is an estate taile as the estate lost was to which the Wife was a stranger and although she shall have the recompence in value yet the issue in taile might enter and out her because the losse is his and not to the Wise and he shall not be estopped by conclusion of his Ancestors by joining his Wife in the Voucher and besides it is uncertaine what estate the Wife shall have in the recompence Welkden against Elkington LEssee for yeares devise that his Wife shall have and occupie the terme for so many yeares as she shall live H. 20. El. in the Common Pleas. Trespas and after her death he gave and bequeathed the residue of the said yeares of the said Lease then not expired to his Son and his assignes and made his said Wife his sole Executrix and dyed the Wife entred agreeing to the Legacie and after aliened the terme and the alienee granted it againe to the Wife and the Wife died within the terme And adjudged that the Son or his Administrator shall have the residue of the terme Assent to the particular estate shall reach to the Remainder also but an assent to the devise of a rent shall not extend to the devise of the terme and the devise is made of a rent or common out of the terme and after of the Land it selse payment of the rent by the Executor or his sufferance for the Devisee to use the common is not execution of the terme because the terme is one thing and the profit out of it is another but where soure yeares of a terme is devised to one and the remainder to another there otherwise it is because all is of one same thing fol. 621.524 so the same fol. 541. First The devise to the Wife for her life is not an absolute devise of the intire terme but conditionally or upon limitation if she lives so long for if she dies her Interest is determined by the limitation and devise to him for his life by implication because the residue of the terme is devised to the Son after the death of the Wife in which is implied that the Wife shall have it for her life and also determinable by the limitation as above said and the devise to the Son shall be expounded to precede the devise of the Wife and so both shall stand fol. 522.523 624. Secondly The devise to the Wife and Son is of one same thing setlicet Of the Land it selfe and the Wife shall have the Collaterall occupation onely of the Land by the devise but the very Interest and terme of the Land she shall have conditionally and so two parties of one terme the one to the Wife and the other to the Son and then the execution of the devise in the Wife shall be execution of the Legacie to the Son Thirdly The Alienation of the Wife hath not devested the interest of the Son which is accrued to him by the Condition or limitation nor extinct the Condition or limitation which shall transferr the interest to him Executor being legatory of a terme by the devise of the Testator enters generally he is possessed as Executor because it is his first title untill he maketh election to agree to the devise A Termor grants his terme to one for life the Grantee shall have the intire terme by Popham because for life which is a greater time then for yeares But Quere if he dies if the Grant be determined As Lessee for yeares grants a rent to one for his life he shall have the rent during all the yeares if he shall so long live which time of life includes all the years which is a lessor terme yet if he dies the rent shall be determined by Plowden fol. 525. and the Grantee hath but a Chattell in the rent for he may not have freehold out of a Chattell Lessee for yeares grants all his terme which shall be arreare after his death this is voide for the uncertainty for by the reservation of the terme for his life he hath reserved all the terme and therefore the Grant which is but one sentence without any Habendum is voide 7. E. 6. by devise good otherwise if he had granted his terme habendum after his death there the Grant is good and passeth the terme presently and the habendum is void for the Repugnancy But fol. 156. it is void 9. H. 58. A man maketh a Lease for ten years after maketh another Lease for six to commence the same day the second is void and he shall not maintaine an action of debt against his Lessee although the Lessee for ten yeares upon render because during the ten yeares he may not contract with another for a Lease to take effect during this time Implication in a devise giveth an estate for life to the Wife 13. H. 7.17 profit to be taken out of the Land is a distinct thing from the interest of the estate Execution of an occupation of a thing not of property it selfe as in a devise of a Book to use as 37. H. 6.30 Condition or possibility goes in privity and cannot be limitted to a stranger Circum locution in a devise or Lease is equivalent to a direct Grant as to have from day to day during life is all one Intent shall be observed in the Exposition of Wills as if one devise his Land by the premises to one and after deviseth the rent to another out of the same Land by the sayd Will this is a good devise of the Rent
first and after of the Land in sense and so by exposition the words shall be altered and so marshaled that the intent may take effect So a termor deviseth all his terme to his Son neverthelesse his Will is that his Wife shall have it for her life holden a good devise to both by conversion of the words So a Remainder to the Church of Saint Andrew in Holborne good by devise 21. R. 2. although the Devisee is not capable because the Testator intended that the Parson shall have it Cestuy que use at this day devise that his Feoffees shall be seised to the use of one A. in fee this is a good devise of the Land Adjudged in the Case of Lingen yet after 27. H. 8. he cannot have Feoffees to his use because the intent was that he should have the Land So the Executor shall not sell the Land according to the devise but take the profits for two years to his owne use the heire may enter because the intent of the Testator maketh this a Condition 38. Ass 31. Incertainty in Contracts reduceable to certainty by contingent standeth good As if I lease to one habendum from the death of J. untill such a Feast which shall be in the year 1620. good if J. dye before that otherwise it is void Two properties of a terme as where Lessee for yeares which grants over his terme enters for not payment of Rent and retaineth untill he be paid his Arrerages thereof So of a Conusee of a Statute which hath the Land extended so upon a Lease for yeares of a Mill except the Profits to the Lessor for his life and adjudged a good Exception And if the Lessor enters he hath a property incertain and the Lessee another 39. H. 6.37.8 So it is of Sheepe letten for to compester or a Chain of Gold pledged 5. H. 71. they have one Property and the owner another Cestuy que use devise the Profits and Issues of his Lands fol. 509. b Cestui que use before the Statute of 27. H. 8. Devise his Land and after the Statute publishes his Testament of new the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute Cestuy que use devises that his Feoffees shall stand seized to the use of himselfe for life with remainder over this is a good Declaration of the use during his life yet the Will cannot take effect untill his death Quere of this Case fol. 508. b. Bransbie against Grantham AN Executor having a Terme P. 20. El. in the Kings Bench E. firme as Executor devises the Terme to a stranger and maketh his Sonne Executor and dies the stranger enters into the Land by the Assent and Consent of the Executor And after the Executor enters And adjudged that his Entry was lawfull and the devise voide And by consequence the assent given to a voide thing shall be also void and shall not enure as a new grant but onely and assent to the thing devised 1. Because that the Executor cannot devise any thing which he hath as Executor 2. For that the Executor hath the Terme here to the use of the Testator and no man can make a devise of any thing except that he hath it to his owne use And therefore the Husband cannot devise the Terme of his Wife And then when the Executor dies his Executor hath it by Title before the devise as Executor of the first Testator and the property that the Devisor had as Executor is determined hy the determination of his Office of Executorship which is ended by his death and the last Executor hath it by Relation as immediate Executor of the first Testator So an Executor cannot devise the goods of his Testator and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator because the last Executor hath them as immediate Executor to the first Testator and to his use as if they never had been in the last Testator by Relation Hare against Bickley A Prebendary after Admission and Institution and before Induction and Installation grants an Annuity for him and his Successors The Bishop confirmes it and after the Prebendary is Installed and on the same day of the Installation the Dean and Chapter conconfirmes also and after the Prebendary dieth and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend and Adjudged that it lyeth not because the Grant before Induction was voide Induction giveth to the Probendary the possession Temporall and Freehold and the Confirmation is nothing without the Possession And therefore without Induction a man shall not have a Writ of Right nor Spoliation Trespasse nor Assise otherwise it is of a Quare Impedit For in the first he alledges Esplees but not in the last 26. H. 8.3 But by the Admission and Institution he hath care of Soules and is inabled to administer the Sacraments c. And the Arch-Deacon shall make Induction to the Parson and Vicar but shall not make Installation to a Prebendary but the Deane and Chapter shall doe it No Plenarty against the King before Induction for that it is corporall seisen and possession 38. E. 3.10 So the King confirmes to the Collatee of a Bishop before he is inducted the Confirmation is voide 11. H. 4.7.1 H. 5.1 He which hath the Nomination is Patron and he that presents is his servant Induction is triable by the Countrey So if Parson or not and it shall be tried where the Church is 21. E. 4.7 and 33. A woman recovers in Dower she cannot enter but ought to have seisen delivered to her by the Sheriffe as a Copyholder ought to be admitted by the Lord of the Mannor if it discends to him before he shall have seisen in judgement of Law So a Prebendary Parson or Vicar before he is Inducted or Installed hath not seisen nor is full Incumbent for to charge the Possessions of the Prebond Parsonage or Vicaridge Crosse against Howell THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London and in the 21. H. 8. they bargain and sell certain Land by the name of A B C and D. Master and Wardens of the Craft or Mystery of the Cookes of London to R. D. for money without naming his Heires and the Barganee enters and levies a Fine with Proclamations and five yeares passe And adjudged that the Corporation shall be bound by the Fine and Nonclaime and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed by him which had their Letter of Attorney so to doe is meerly void 1. The bargain and sale was made for the variance of the Indenture from their name of Corporation for they were
not because he had no recompence So in 17. E. 4.1 In Trespass for the taking of wheat the Defendant pleads That the Plaintiff sold it if he liked it upon view he should have it paying 40. d. and afterwards he saw it liked it and took it this is no good justification because he doth not alleadge payment so here So contracts conditional are good when they are performed but before performance they are onely communications Brook Recorder of London for the Defendant Where matters are to be tryed in the Civil Law there ought to be two witnesses here not necessary For where tryal is by twelve men because the Inquest may give a precise Verdict where there is no Testimony or Verdict or Evidence or Evidence be contrary to the Witnesses as in 14. H. 7.2 the Inquest acquit one indicted of murther he is arrained and acquit the Jury shall say who killed him although they have no witnesses and so witnesses are not necessary but where the matter is to be tryed by witnesses onely for if the witnesses were so necessary then it would ensue That the Jurors should not give their Verdict contrary to the witnesses where the Law is meerly contrary for when witnesses for tryal of the Fact joyn with the Jury if they cannot agree with the Jurors the Verdict of the 12. shall be taken and the witnesses rejected wherefore this point is clear enough And as to this which hath been said by Bradshaw That the deposition of Da. will make against us for that he saith That S. shewed to him that the entry was not made for more then 2000 Kintals Sir this saying is nothing to the purpose for if he cannot say something to prove the issue in which he cometh to depose then it is neither with us nor against us but it is of the same effect in Law as if he had said nothing or that he knew not of the matter and so this point is also clear enough And as to that which hath been moved also by Mr. Attorney That he ought to shew what rate in certain Sir this needs not here because it is expressed in the Statute 12. d. of every 20. s. and of general Statutes every one shall take notice And he argued and said That the agreement here shall be good and is within the intent of the Statute for in many Cases Gifts and Grants made will not be certain at the beginning and yet shall be good for that there is a mean to reduce them afterwards to certainty and yet the nature of Gifts and Grants is to be executed presently and every Gift is an agreement between the parties and so is every Grant and then if Gifts and Grants which are also agreements and the nature of which is to be executed properly at the time of the making of them it shall be good notwithstanding they are incertain at the beginning à fortiori Agreements Executory of things shall be good where they are incertain at the first and to prove that such Gifts and Grants shall be good notwithstanding their incertainty at the first there are many Cases and therefore if the King at this day grant over certain Lands which have come to his hands before and Grant over to the Grantee such Liberties Priviledges and Jurisdictions howbeit that the King knoweth not the certainty of the Liberties c. yet the Grant is good So in 9. H. 6.27 The King grants to the Dutches of York an Island with all Issues and Amerciaments c. there it is holden that the grant is good yet the King knew not what Issues or what Americiaments shall be afterwards forfeited but for that that when they shall be forfeit they will be certainly known and so hath a means to know the certainty of them this is the cause that the Grant shall be good And so in 5. E. 4. the King Granted to one called Garter the Office of the King of Heralds cum seodis prosicuis ah antiquo c. There this Grant purports a certainty of the Fees and Profits belonging to it and therefore good And so in 30. H. 6. The King Grants all such Lands as came to him by Attainder c. it is good although it comprehends no certainty And so if the King will pardon all Riots Pardon is good howbeit it comprehends no certainty 21. H. 6.43 A Parson grants to me his Tythe-wooll the next year or perquisites of his Court the Grants are good So Perkins 17. Feoffment of two Acres to hold the one for life the other in Fee without saying he shall have Fee if he lose both by default he may have Quod ei deforceat for the one and Writ of right for the other So if one grant a rent charge to another the Grantee may avow or have a Writ of annuity So in 9. E. 4.36 per. Litt. Grant 20. s. or a garment good because certain by the will of the Grantor So a Lease for so many years as I. S. shall name is good So Perkins Fol. 17. If I have a black and white Horses and I give one of them to I. S. this gift is good notwithstanding the incertainty by the election of the Donee And although it is not concluded who shall weigh and when yet it is good because there is an Officer in every Port which keeps a Beam and ought to weigh And although the Statute do speak of an agreement certain yet Law the reason aswaies exempts something out of the prohibition of the words of Statutes as 15. H. 7.2 by Keble a Prisoner which breaketh Prison by the words of the Statute is a Felon but if he break it when it is on fire not So 14. H. 7.29 Stamford 25. cap. 5. Jurors severed by a great Tempest shall not be Amerced and their Verdict good So W. 2. cap. 3. Gives not to a Fem Covert Receipt but where the wife is ready to answer yet the wife received by prayer in aid 20. H. 6.48 and there she is received where she is not ready to answer because otherwise she shall loose the recompence by warrantie So W. 2. cap. 1. say That Dones shall not alien yet 5. E. 2. is intended of their Issues so here for to avoid mischiefs c. Harris the Kings Serjeant to the contrary And he argued as the Kings Attorney did that is to say That the evidence which proves the agreement upon condition warrants not the issue which shall be intended a general agreement as if the Derendant in Trespass plead not guilty and give a licence in evidence or in formedon in discendre upon a gift in free marriage if the gift is traversed and a Deed is shewed of the gift in free Marriage the Remainder over in Fee or upon traverse of a Lease for years alleadged without Deed and the Deed is shewed in evidence this evidence warrants not the issue So here an agreement conditional maintains not the general agreement intended in issue the Collector could
not agree otherwise then for landing because the Statute will as if a Baily pay the debts of his Master he shall not be allowed for this in his accompt without specialty but if he pay Quit-Rents issuing out of the Land he shall be allowed for this for that the payment of this belongeth to his Office And so if the Collector accept another Agreement then is intended by the Statute this shall not help the party and said that agreement upon condition ought to be performed before it be pleaded as if I give all the money in my purse to I. S. he cannot have his action for it except that he alleadge the certainty of it So here wherefore judgement shall be given for the King Pollard Serjeant for the Defendant An agreement upon condition is an agreement as a Feoffment upon condition is a Feoffment and included in words of the issue that is to say in this word Agreement which contains every agreement So 36. H. 6.2 In debt upon a Regognisance and the Defendant saith That there is no such Recognisance whereupon they were at issue and at the day c. a Recognisance with condition was certified held good and that he had not failed of the Record because a Recognisance upon condition is held to be a Recognisance So here the agreement general was put in issue the which shall be intended the more common agreement and this is the general agreement and the evidence given by W. proves a special agreement viz. an agreement upon condition which is other then the agreement tendred by the issue therefore the Demurrer shall be adjudged for the King and Informer Sir as to this I answer That by the arguments made before nothing hath been put in issue but if they agree according to the Statute so here admitting that the agreement general had been in issue but the especial is The especial matter viz. Tempest super hoc agreavit are in the affirmative and may stand together and therefore both remain as one entire matter and substance of the issue As if the Tenant pleads special Bastardy against the Plaintiff in mort D'ancester and alleadge this incertain as he ought viz. That the Plaintiff was ingendred between I. and A. and born before marriage then they marry and conclude as he ought and so Bastard This conclusion hath not avoided the special matter before for if so then it should be Bastard generally and triable by the Bishop and then shall be by him certified Mulier because such is a mulier in the law spiritual but shal be tried here by Assize and therefore the special matter remains and the issue is taken thereupon So 3. H. 7.5 by Keble One counts of a gift in formedon and being demandant maintains it by recovery in value by reason of a Warranty and so gave the Tenant ought not to traverse the conclusion viz. as he should do if he had avoided the special matter before because it is matter in fact triable by the Countrey but he ought to answer to the recovery triable by Record which proves That the special matter before the conclusion shall remain So 32. H. 6.14 by Litl If the Plaintiff in Assize makes to himself a Title and concludes and so he was seised until by the Defendant disseised now if this conclusion hath avoided the especial matter before then it ensueth that the Defendant cannot answer to the Title but the Law is That he ought to answer to the Title and traverse it by which it is proved that the conclusion hath not avoided the especiall matter before and in all these cases the matter before the conclusion and the conclusion are in the Affirmative as in Debt the Defendant pleads payment and so ows nothing and in Trespass the Defendant pleads a gift of the goods and so not guilty when it is agreed between any That a principal thing shall be done or had and before that this may be done or had there is another thing first to be done which is not certainly agreed who shall do the other thing the Law appoints him which hath the most skill to do the said other thing So 9. E. 4.4 One is bound to make the great Bell of M. tunable with the other Bels there in that case to say in Debt by Obligation That the Bell was not weighed judgement if action is no Plea because in construction of the Law he shall weigh it for it belongeth to his Office So a Taylor bound to make a gown shall shape the cloth So here the Collector in behalf of the King shall have the Subsidie which is the principal thing and therefore he shall weigh for it belongeth to his Office to try the certainty for without certainty the King may not be satisfied And in Trespass because that he justisies the necessary circumstance and mean or hath Title to the principal thing as 2. R. 2. Fitz. Bar. 333. and Perkins fol. 23. He may cut and carry trees granted to him and justifie it although the grass is spoiled by it So one may take Fishes in a Pond with Nets and justifie it but if he digg a Trench to drain out the water not A Collector may weigh when he pleases for where one shall have benefit upon the first act to be done by him and no time is limited when he shall do it the Law saith That it shall be done at his pleasure So the Mortgager shall pay when he pleaseth when no time is limited so one may marry the daughter of A. when he pleaseth if no time be limited so in the principal case for as much as payment shall be made to the Collector upon the weighing and no time is limited for the weighing the Law refers the time of it to the will of the Collector and so the agreement is good and perfect 3. H. 7.11 The Sheriff takes A. by Capias now he doth well but if he return non est inventus then he shall be a Trespassor ab initio but here the not weighing because the King refers this to the Collector in the behalf of the King in his default the agreement shall not be made void ab initio in prejudice of the Defendant which before was good notwithstanding that the agreement special is an agreement as Sanders confesseth yet it shall be construed best viz. general for the King as he urged The rules of the Common Law in the construction of Statutes prohibite this for Statutes Penal shall be taken and restrained to their general words favourably and to the benefit and not prejudice of him against whom the pain is inflicted and shall not extend farther then the words as W. 2. cap. 40. saith where the husband aliens the land of his wife quod secta mulieris non differatur c. per minorem aetatem heraedis qui warrantizare debet and saith not the Heir of the husband nor of a stranger yet 18. E. 4.16 and 17. E. 4.59 postea 47.