other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
by consent of their Guardâ—ans shall marry within the age of twelve b Lit. l. 2. c. 4. and here both Sexes have the same Laâ— that after marriage so had under age by designation of the Guardian They are no morâ— obliged to his arbitrement the bond of Matrâ—mony being dissolved by death c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And thâ—â— by an inequality of marrying them thâ— Guardian shall loose his ward and shall liable to satisfie the freinds of the ward so disparaged for so great a damage d Brit. c. 67. Lit. l. 2. c. 4. Instit Jur. com 24. 9. Heretofore when an Heir female was at â—ge and held of divers Lords in Fee it was sufficient for her in marrying to require the â—ssent of the next capitall Lord to whom her Ancestors had done legiance e Eract d. l. 2. c. 37. n. 6. but at this day she that is of age is not obliged to ask the conâ—ent of her Lord to marry f Brook tit Guard 7. 10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry shall marry in his Fathers life time his Father being dead the Lord of the Fee shall have a Writ of Ravishment because it is in the power of the Heir to repudiate his wife when he shall come to that full age g F. B. 143. m. and a woman who holdeth of the King in this manner being thus married is at her own election when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender h 17 E. 2. Stat 1. c. 5. 11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings consent And if they do otherwise the King may by distress seise himself of those lands and renements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose i Slan Pâ—er c. 4. Glan l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 174. 17 E. 2. 1. Magna charta also doth affirm that common persons may exercise the same power over their Widdows k c. 7. And there is this reason given least the Kings Tenants should enter marriage with his capitall enemies l Fl. l. 1. c. 13 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the marriage shall for such trespass suffer imprisonment for two years And if he doth not restore the said ward but marries him or her and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life m Flet. l. 1. c. 13. 13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents or at least those who had the Gard of her he shall suffer two years imprisonment without Bail or at least be fined for his said offence according to discretion of the Star chamber n This power is now in the Chancery But if he shall defile her being so stolne away or any way contract marriage with her against the consent of her Parents or Guardians he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands Tenements and Hereditaments which at the time of such consent given she had either in possession Reversion or Remainder o 4 5 Phi. Mar. c. 8. Cook l. 3. Nut. Case f. 39. 14. Villaines are not to marry without consent of their Patrons p Lit. l. 2. c. 11. Also if a freeman shall take away ones native in marriage without the consent of her Lord although the Lord cannot take her from him yet he may have his action for the Ravishment of her q Idem ibid. 15. Women that marry noble men shall have the appellation and priviledges of noble persons for that dignity they derive from their husbands untill they shall again marry with common persons q Idem ibid. for by marrying they make themselves the same flesh with their Husbands r 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency according to the Statute in that case provided we 21 H. 8. c. 13. cannot answer without distinguishing For second marriages will not prejudice those which shee had during widdowhood But she cannot impart the same priviledge to them which she shall have after the second marrying because her nobility is extinct t Cook l. 4. Actons Case f. 117. Notwithstanding that it seems to be otherwise with those which are born noble and derive not their nobility from marriage u Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and honored with us then they which take it onely from their Husbands 16. If any come together against the leviticall Law we neither understand them man and Wife nor do we allow of their contracts marriage or Dower Their Issue gaining no other esteem then to be termed naturall w 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers whose Marriages are nul'd for that there may be a seperation a mensa thoro and yet the Matrimonial bond remain unbroken x Term. Jur. verl Divorce 17. Those which are unlawfully begotten cannot possibly be made ligitimate But they are often made capable of Preisthood or exercising sacred functions by dispensation y Bract. l. A spurious Issue may by silence and patience be rendred legitimate as in case a Wife shall conceive by another man besides her Husband notwithstanding that it be apparent yet if the husband entertain such Issue in his Family and bring it up and call it as his Child he makes it his owne lawful Son and Heir which is equally true if he do not so call it expresly if he do not remove it and renounce it nor is it materiall whether the Husband be ignorant or knowing of it or whether he doubt for it shall be reputed his lawfull Heir because born of his Wife so long as it may be presumed that her Husband begot it And this may be said also of a supposed Issue for that often a common opinion passeth for a truth z Bract. d. l. 2. c. 27. n. 4 5. 18. There are with us two consequences and effects of Marriage The first that all moveable Goods which by us are tearmed personall Chattells which the Wife brings with her do presently passe into the husbands Patrimony without any distinction being thereby
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
be of a thing uncertain but if it be agreed between the parties that there shall be so much paid for the thing bought as such a one shall value it at unlesse that party will sell the price Or in case he refuse or be not able there shall be no Bargain and Sale as not having agreed upon any price e Brac. ib. n. 1. Flet. l. 2. c. 58. Dyer fol. 91. n. 11. 2. And to the making up of a Bargain and Sale it seems consistent with our Law that the price for the thing bought be in money numbred otherwise it is but a Contract in the nature of an Exchange f Fulb. par c. Exch. 32. Perk. 244. Although if such things be exchanged as cannot conveniently be transferred without writing The word Exchange ought necessarily to be inserted to make an Exchange g Fulb. ib. h Bro Exch. 2. 12. And it may be the reason is because the word Exchange implies a warranty h 3. In a Bargain and Sale before and after Delivery he who hath the thing runs the hazard of it unlesse it be otherwise agreed from the beginning because indeed he who hath not as yet delivered the thing to the Buyer is still reputed Master of it For by Liveries Uses the Owner-ship is transferred For Example If an Oxe dye before it be delivered or a House be consumed with Fire or Land in part or whole be drowned and lost it seems that all the hazard shall be upon the Vendor On the contrary if after Sale and before Delivery any thing happen to be added to a Feâ— the profit shall redound to the Vendor For the Commodities ought to goe the same way with the Discommodities and the profits ought to be his who runnes the hazard and danger i Brac. Glan ib. But there needs no Livery where Lands are sold by Deed inrolled k N. Terms Bargain Dr. Stu. l. 1. c. 7. Lit. l. 1. c. 8. or alienated by Exchange 4. Bargain and Sale may also be contracted among some either Pure or Conditionally As if the Buyer like a thing in a certaine time it shall be his for so much money otherwise that it should be restored l Brac. l. 2. c. 27. n. 2. Flet. l. 2. c. 58. 5. But if one buy a thing sacred of a Vendor in regard the Contract cannot stand the Buyer shall recover as to his Interest against the Vendor that he be not deceived although the Buyer be obliged to know what and whose the thing is which hee buyeth whether sacred or not and whether bound or not m Iidem ib. 6. But if a Vendor sell any thing for sound and without maime which afterwards proves maimed and unsound and that it can be proved by the Buyer to have been so at the time of the Contract made the Vendor is obliged to take it again But if it were sound and without maim at the sale the Vendor is not responsible for what shall happen afterwards n Glan l. 10. c. 14. Brac. l. 2. c. 27. n. 2. F. N. B. 94. Dr. Stu. l. 2. c. 42. Flet. l. 1. c. 58. Dyer fol. 75. n. 23. 7. When any one sells a thing immoveable as Land and in the Sale promiseth it to be free when as it is servile or disingaged and not bound whereas it is bound and ingaged The Contract is not broken by this but the Buyer may have his Action against the Vendor for non-performance of promise which is alike good if hee assume to make good either for the quantity or quality and afterwards the contrary be found o Fulb. par Barg 15. 8. The Vendor and his Heirs are bound to warrant to the Buyer and his Heirs the thing sold whether it be moveable or immoveable p Glan ib. c. 15. Brac. ib. l. 5. tr 4. Dyer 75. n. 23. Flet. l. 7. c. 38. l. 6. c. 23. Though some are of opinon that they are not obliged to warranty by the Law but in cases expressed by the Law q Fulb. ib. Coo. l. 3. Fermors caâ—e 78. l. 4. Nokes case 80. 9. Things incorporeall cannot with us be sold or bought without writing r Dr. Stu. l. 1. c. 8. 10. Meats which stink and are putrified and Commodities which are fallacious are prohibited to be exposed to sale s 13. H. 4. c. 1. 11. E. 4. c. 7. 1. R. 9. c. 1. with others but these things belong to the publique Law 11. The property of things alienated in Fairs or publique Markets are altered unlesse they be the Kings or that the Contracts be by Covin and Collusion so that in this case the Buyer is free from all feare of Eviction t Dr. Stu. l. 1. c. 25. l. 2. c. 47. 49. provided there be such things observed in the buying of Horses as the Law requires u Brac. l. 2. c. 28. Cromp. Juriâ—d 221. Dyer fol. 99. n. 66. 12. And lastly as Actions cannot be given so neither can they be sold except it be to the King or by the King w Plow 79. Bro. chosein Action 4. Of Letting and Hiring TIT. XXV LEtting and Hiring is next to Bargaine and Sale because as Bargain and Sale is contracted after the price is agreed upon so Letting and Hiring is for a set Hire or Rent a Glan l. 10. c. 19 Brac. l. 2. c. 28. For when a man lets his Estate to another for a certain Term and Rent the Lessor is bound to give the thing leased for use and the Lessee to pay his Rent b Brac. ib. Flet. l. 2. c. 59. 1. Rent doth chiefly consist in moneyes numbred yet it may also be in Corne and the like c 34. Eliz. c. 11. And sometimes the sole Reward or Hire is in Fealty d Lit. l. 1. c. 7. But when Land is leased for Land this is an Exchange e Id. ib. 2. Emphytensis which the Romans tooke for either Bargain and Sale or Letting and Hiring promiscuously wee call Fee-farme of which we have spoken enough before 3. We also do let and hire Moveables as Horses Oxen Sheep f F. N. B. 86 D. Bro. Leases 23. and Immoveables as Land g F. N. B. 146. K. Lit. l. 1. c. 8. So also things incorporeall as right of Pasture h F. N. B. fo 86. B. Entries Agistment Tiths i Terms v. lease but those not without writing k Bro. lease 1. 5. 12. 17. 21. 23. H. 6. c. 10. unlesse any corporeall thing as a Church Churh-yard Glebe Parsonage houses c. be cheifly and particularly let for so under the name of the appurtinences Tithes and Oblations passe likewise l Bro. lease 15. 20. So also Services and Labours m Entries Servant Dr. Stu. l. 2. c. 38. but not safely as to the quantity for that Errors are easily this way contracted 4. He who hires Cloaths Gold or Silver or
Charter l Id. 134. D. 6. If one lets Lands for a certaine Rent and deviseth the reversion of them to another by Will the Legatee may claime the Rent of the Lessee m Id. 121. N. 7. The Kings Customer having the Kings money in his hands is Debtor to him to whom the King by his Charter hath granted an annuity to be received yearely from such a Customer n Id. ib. F. 8. Lastly we are obliged by the Contracts of our Wives Children and Servants for Wares taken in our names and converted to our uses as if we had made the Contracts our selves o Dr. Stu. l. 2. c. 42. Fulb. par c. contr fol. 3 4. Plow fol. 11. Dyer 234. n. 17. By what Persons an Obligation is acquired unto us TIT. XXIX AN Obligation is acquired unto us by Procurators and by Children which we have under our power and jurisdiction by our selves and children of our own and by Free-men who serve us and that by two causes Viz. by works of their owne and for something which is ours Also by our own proper servants or servants which are common or in which we have an use or others which we do bona fide possesse provided they covenant and bargain in our names a Brac. l. 3. tr 1. c. 2. n. 12. Flet. l. 2. c. 60. By what meanes an Obligation is taken off TIT. XXX AN Obligation is taken off by Payment because every Obligation is removed when that which was due is paid whether he payes it who owes it or another for him And that whether the Debtor know it or not or whether he be willing or not a Brac. ib. â— 1. Flet. ib. which is only true according to some where the writing if there were any be cancelled or an Acquittance be to be shown by the debtor b Dr. Stu. l. 1. t. 12. To the explanation of which assertion some put a difference between a simple and Conditionall Obligation and affirme that the payment of a conditionall Obligation may be proved by Witnesses although the writing remain intire and no Acquittance be shewen And that because the Party being bound to a certaine time under a penalty he cannot without danger expect the delivery of the Writing or Acquittance seeing he is more strictly bound then if the Obligation were simple So if the party pay his Surety is free And so on the contrary c Brac. ib. 1. An Obligation is taken off also by Releases which is an imaginary payment As if it be said have you received all that I owe you upon any cause whatsoever And it be answered or if the Debt be in writing written I have acknowledged to have received all d Perk. 749 750. Dyer 222 n. 22. And this may be done for part of a Debt as well as for the whole As also all other things whatsoever are reduced into a Covenant may be taken off thus and in the same way which Obligations are They may also be renewed and reduced into another Obligation or more into one as if a certain summe of money be promised for many Debts Causes and Obligations e Brac. ib. n. 13. Lit. l. 3. c. 8. There is also a Release in Law as where a man makes his Debtor his Executor for in this case hee for gives the Debt f Bro. Testam 118. which is so farre true that it is whether he take upon him the Execution of the office or not g Plow 184. 2. Also if Lands be charged with an Annuity and the Debtor neglect payment for some yeares and afterwards upon the payment of one yeares Rent obtain an Acquittance from the Creditor the action for the residue is utterly extinguished h Dyer f. 271. n. 26. 3. So also by renewing of Altering as where an Obligation is transferred from one person to another who cannot be bound it is wholly lost As from the person of one who is of age to another who is an Infant And in renewing or altering there may intervene a surety and a penalty as also a Condition That if the Surety doe not well and truely pay the Princiall shall remain i Brac. l. 3. tâ— 1. c. 2. n. 13. 4. In briefe it is to be observed that an Obligation may be dissolved the same way and by the same means by which it is contracted if it arise from a Contract or any such like thing namely by the thing as if the thing be restored by words as if it be to the contrary and in contrary words k Dyer fo 75 n. 25 26 c. By writing As if I write my self to owe money and the Debtor write that he hath received By consent as if they agree mutually to recede from the Contract By delivery as in case the thing be re-delivered By joyning as in case it be done on the contrary l Brac. ib. 5. Bracton also declares that an Obligation may be taken away by sundry exceptions and that many wayes whom any one that pleaseth may read m Id. ib. 6. There is also another way with us which we call waging of Law for if any one challengeth money of me upon a simple contract I may wage my Law against him n Id. l. 5. tr 5. c. 13. n. 3. i. c. I may promise to come into the Court at a day judicially assigned and performe the Law Now to perform the Law is in this case To doe that which the Law requires namely to make Oath that neither the sum required nor any part of it is due And to bring others with me who shall affirme upon Oath likewise that they beleive the Oath I have taken to be true o Brit. c. 28. F. N. B. 122. l. Now this is nothing else but a Judiciall transaction which our Lawes permit us The End of the Third Booke THE Fourth Book of the Institutes of the Lawes of ENGLAND Of Obligations arising from Crimes TIT. 1. THERE are Obligations also which arise from Crimes or from things of the same nature Now Crimes and Trespasses proceeding from words and facts are to be distinguished according to the intention and will where with they are committed for the will and the intention are the Interpreters of the facts And from these Delinquencies proceed greater crimes as Treason Homicide Theft Rapine c. a Brac. l. 3. tr 1. c. 2. n. 14. of which wee shall discourse hereafter Or lesser crimes as Injuries and Trespasses for under these all our Writers comprehend Obligations arising from private crimes 1. The Civill Law punisheth manifest Theft by adjudging restitution to be made four-fold and Theft lesse manifest by rendring two fold But the Lawes of England punish neither with lesse then death provided the thing stollen be to the value of 12. pence b Fortesâ—ue c. 46. Bro. Crown 2. 2. Theft is divided into Larceny and Robbeâ—y Larceny is defined The taking away of Chatâ—els personall in the
c Id. ib. which 〈◊〉 leave to be considered by the studious 17. If there be two Joint-tenants of a Silva câ—dna and either of them the Wood being sold retain the whole money to himself his fellow can have no Action against him d nor could Joint-tenants or Tenants Dr. Stu. l. 1. c. 14. in Common formerly be forced to make Partition e Little ib. unlesse it were by the Custome of the place f F. n. b. 62. C. but this is otherwise at present g 31 H. 8. c. 1 32 H. 8. c. 32. and yet Joint-tenant or Tenant in Common being eiected by their fellow may have an Action of forcible Entry against him 18. Tenants in Common for that they are in by divers Titles if they be eiected by a stranger must bring their Actions severally which in Joint-tenants is otherwise h Little ib. yet Tenant in Common may sue iointly for a thing which cannot be divided i Bro. Tenants in com 2. 5. and. 25. 19. This is the difference between those who hold chattells reall and those who hold chattells personall in common that they being eiected by their fellow may have an Eiectione firme or an Eiectione custodiae terrarum as their case requires but the other cannot but are left to take them themselves when opportunity happens k Little ib. 20. Tenants in common of chattells reall or personall may leave their part to their Executors l F. n. b. 118 H. 21. If two possesse Goods in common and one of them deliver them to a third person he onely may have his Action of account against the detainer and not his fellow m Id. ib. 22. this is equally true amongst partners Ioint-tenants and Tenants in common that they must bear an equall burden for that which they possesse in common for if one or more refuse to contribute the rest may bring their Actions against the refusers n Id. 162 127. 23. Lastly there is another kind of Tenure in Common with us which comes either by reason of agreement o Common in Grosse or of Tenements amongst those of the same Fee p Common appendant or appurtinent or sometimes of divers q Common by reason of vicinage Dier fo 47. n. 12 13. for in many Mannors the Lord hath spacious and large grounds in which every Tenant according to the rate of his Tenement hath a Right of pasture or of digging Turf But in regard these kind of grounds for the conveniency of the Common-wealth cannot admit of Partition Every one who hath such a Right in them may if through covetousnesse they put in too great a number of Cattel be recalled to iust and equall bounds r F. n. b. f. 125 Of Commandements and Attornments TIT. XXVII A Command may with us as with the Civil Law be contracted six manner of wayes viz. by the sole cause of the Commander a F. n. b. 121. or of the Commander and the party commanded or of a third person or of the Commander and a third person or of him that is commanded a third person or lastly of the commander or master the party commanded or servant and a third person Examples might be easily given but mens endeavors are not alwayes accepted and therefore this command is not much in use with us wherefore these are to be implied from the Examples of letting and other Contracts b Glan l. 11. Brit. c. 28. New Book of Ent. Account Attorn Commandment Terms of the law v. Account Dr. Stu. l. 2. c. 24. Flet. l. 2. c 71 72. 1. The Servant cannot have his Action against his Master for commanding him any thing uniust c Brit. c. 28. Flet. l. 6. c. 27. but a third person may if the command bring him any prciudice d Brac. l. 4. tr 1. c. 10. 26 27. for that the Law supposeth the Act of the Servant to be the Act of the Master e Plow 289 290. 2. There is nothing hinders with us but that a command may be deferred untill a lay or be done upon condition and is extinguished either by the death of the Master or Servant f Flet. l. 3. c. 15. 3. The ends of a Command are diligentâ—y to be looked after and observed and â—â—pt g Perk. 118. Fulb. pural c. Contracts fol. 3. Plow fo 14. Of Obligations which arise from implyed Contracts TIT. XXVIII OBligations by our Law arise from implyed Contracts many wayes As for transacting businesse Tutelary dividing of Common But as for the transacting of businesse and the like a Dr. Stu. l. 2. c. 51. Brac. l. 3. tr â— c. 2. n. 10. Flet. l. 2. c 60. that which is done by the command or for the sake of one that is absent if Lawyers have informed mee aright is rather left to the conscience and integrity of him whose businesse it is then to an Action to be satisfied Nay which is more to be admired it oft happens that for doing well a man may incurre the guilt of a Trespasse As if hee drive his Neighbours Cattell out of anothers Corne or carry Tithes exposed to Cattell into the Parsons Barne b Dyer fo 36. n. 38 39. 1. Gardians may lue the debtors of their Pupils And the Guardianship being ended as they are lyable to render accompts so may they claim the Expences which they were at by reason of their Office of their Pupils c F. N. B. fol. 118. B. Terms v. Gardain in socage Flet. l. 3. c. 15. 2. A Donee also who sues a Donee for the partition of a thing given joyntly to both and a Partner who brings a Writ of partition against his fellows may be referred hither d Flet. l. 2. c. 60. 3. Furthermore Executors may sue the Debtors of their Testators and may be sued by the Creditors and Legatees e Id. fo 119. M. 121. O. 145 D. H. which is true also in the Administrators of those who dye intestate f Id. fo 120. D. And in these successions also whole Predecessors owed money or had moneys owing to them in the name of their Abbies g Id. fo 121. K. 122. E. And in the Husband whose Wife was indebted before Marriage or had money owing unto her h Id. 121. C. 4. A Keeper of a Prison who â—ets a Prisoner for Debt at liberty renders himselfe bound to the Creditor for the said money i Id. 121. A. P. 131. B. V. Dyer 175. n. 46 47. fol. 278. n. 5. 5. An Heir is bound also by the Obligation of his Ancestor if hee be named in it and receives sufficient from him to satisfie k F. N. B. 120. l. which however I suppose to be true only where the Moveables will not satisfie debts or where the Executors are not mentioned An Heir also is bound to warrant Lands alienated by his Ancestor with Charter of warranty if hee be named in the