go according to those agreements nature and reason allowing those provisions which equity and honesty is the use and the use being created in this sort the statute of 27 H. 8. containeth the estates of the Land as the use is appointed and so this covenant to stand seised to uses is at this day a conveyance of land and with this difference from a bargaine and sale in that this needs no inrolement nor needeth not to be a writing indented as a bargain and sale must and if the party to whose use he agreeth to stand seised of the land be not wife or Child Cosin or one that hee meaneth to marry then will no use arise and so no conveyance Vpon a fine Feoffement or recovery a man may limit the use to whom he will without consideration of bloud or money otherwise in a bargaine and sale or Covenant for although the law alloweth such weighty considerations of marriage and bloud to raise uses yet doth it not admit so trifling considerations as of acquaintance Schooling service or the like but where a man maketh an estate of his land to others by Fine Feoffment or Recovery he may then appoint the use to whom he listeth without respect of marriage kindred money or other thing it is not so when he maketh an Estate but agreeth to stand seised nor when he hath taken any thing as in the cases of Bargaine and Sale and Covenant to stand seised to Uses The last of the six conveyances is a Will in writing which course of conveyance was first ordained by the statute of 32 H. 8. before which statute no man might give land by will except it were in a Burrowgh-Towne where there was a speciall custome that men might give their lands by Will as in Lond. and many other places In what manner the statute of 32. H. 8. giveth power to dispose of lands by Wil. By the Statute of 32 H 8. a man may give lands by will in this sort first it must be by Will in writing Secondly he must be seised of an estate in Fee-simple for tenant for another mans life or tenant in taile cannot give lands by Will by that statute If a man be seised of Capite Lands and Socage he cannot devise but two parts of the whole Thirdly he must be solely seised and not jointly with another and then being thus seised for all the Land he holdeth in socage being tenure he may give it by the Will except he holdeth any peece of Land in capite by Knights service of the King and laying all his lands together he can give but two parts by will for the third part of the whole aswell in socage as in capite must discend to the heire to answer Wardship Livery and Primmer seisin to the Crowne And so if he hold Lands by Knights service of a subject he can devise but two parts of his Lands and the Lord by Wardship and the heire by discent is to hold A conveyance by devise of Capite Lands to the wife for her Joyner or to his Children for their good or to pay debt is void for a third part by 32 H. 8. And if a man that hath three Acres of Land holden in capite by Knights service do make a Jointure to his wise of one and convey another to any of his children or to friends to take the profits to pay his debts or Legacies or daughters portions then the third Acre or any part therof he cannot give by Will but must suffer it to descend to the heir and that must satisfie Wardship Yet a man having three acres as before may convey all to his wife and children by conveyance in his life time as by Feoffment Fine Recovery Bargaine and Sale or Covenant to stand seised to Uses and to disinherit the Heire but if the Heire be within age when the Father dieth the King or other Lord shal have that Heire in VVard and shall have one of the three acres during the VVardship to sue Livery and primer Seisin But at full age the Heire shall have no part of it but it shall go according to the conveyance made by the Father It hath been debated how the Thirds shall be set forth for it is the use The King nor Lord can intermeddle if a full third part be left to descend to the heir Entailed lands part of the Thirds that all lands which the Father leaveth to descend to the Heire being Fee-simples or in taile must be part of the Thirds and if it be a full Third then the King nor Heire nor Land can intermeddle with the rest if it be not a full Third yet they must take it so much as it is and have a supply out of the rest This supply is thus to be taken if it be the Kings VVard then by a Commission out of the Court of VVards whereupon a Jury upon Oath may set downe so much as shall make up the Thirds except the Officers of the Court of VVards can otherwise agree with the parties if there be no VVardship due to the King then the other Lord is to have a supply by a Commission out of the Chancery and a Jury thereupon But in all the Cases these Statutes do give power to him that maketh the VVill The Statute giveth power to the Testator to set out the Thirds himselfe and if it be not a third part yet the King or Lord must take that in part and have a supply out of the rest to set forth and appoint of himselfe which lands shall go for the Thirds and neither King nor Lord can refuse it and if it be not enough yet they must take that in part and onely have a supply in manner as before is mentioned out of the rest A Feoffment made to the use of ones VVill if his VVill be declared before or at the time of his Feoffment it cannot be altered because it is executed otherwise it is if his Will be declared afterwards 20 H. 7. 11. vide fol. 27. b. What persons may make Leases at this day There be three kinds of persons at this day which may make Leases for three lives c. in such sort as hereafter is expressed which could not so do when Littleton wrote Any person seised of an Estate in Fee-simple in the right of his Church and any person seised of an Estate in Fee-taile in his owne right Any Husband and VVife seised of any Estate of Inheritance in Fee or in Fee-taile in the right of his wife or joyntly with his wife before the Coverture or after viz. The Tenant in taile by Deed to bind his Issues in taile but not the Reversion or Remainder The Bishop by Deed without the Deane and Chapiter to bind his Successors the husband and wife by Deed to bind the wife and her and their Heires and these are made good by the Statute of 32 H. 8. which enableth them thereunto but to the making
life make a Feoffment that is a forfeiture and yet nothing passeth but his own estate But making a Livery in fee it is a forfeiture though none of the remainders be divested Coke 2. pars fol. 76. b. Bredons case vide plus fol. 50. this is a forfeiture and yet no reversion or remainder is divested out of the King A particular Estate of any thing that lyeth in Grant cannot be forfeited by any grant in Fee by Deed As if Tenant for life or years of an Advowson Rent Common or of a reversion or remainder of Land by Deed grant the same in fee this is no forfeiture But if such a Tenant levy a Fine c then it is a forfeiture Note The diversiâ—y between Livery and Seâ—sin of Land and the delivery of a deed and what is a good delivery of a deed in Law there is a diversity between Livery and Seisin of Land and the delivery of a Deed for if a man deliver a Deed without saying of any thing it is a good delivery but to a Livery of Seisin of Lands words are necessary as taking in his hands the Deed and the ring of the doore if it be of a house or a turff or twig if it be of Land and using the words aforesaid And a Deed may be delivered to the party without words without any act of delivery As if the Writing sealed lyeth upon the Table and the Feoffor or Obligor saith to the Feoffee or Obligee Go and take up the said Writing it is sufficient for you or it will serve the turne or take it as my Deed or the like words it is a sufficient delivery Cokes Littleton title Dower fol. 36. a. 29 H. 8. Dyer fol. 95 43 Eliz. inter Hawsly Lacker in Banco Rs. Hillary 12 Jac. Rs. in Com. Banco The Grant of a Seignory Rent-charge Rent-seck Attornment in toto withall incidents therunto as also the Remainder or reversion of any of these or the remainder or reversion of the Land it self is nothing worth without Attornment viz. the agreement of the Tenant that must be presently charged As Lord Mesne and Tenant the Lord grants his Seignory the Mesne must attorne and not the Tenant prevaile for the Mesne is Tenant to the Lord Lord and Tenant the Tenant letteth the Land for life or giveth in taile saving the reversion to himself Now if the Lord grant his Seignory he in the reversion must attorne to the Grantee and not the Tenant for life or Tenant in taile for he in the reversion is Tenant to the Lord and not the other But if the Tenant had let his Land to one for life the remainder in fee thereupon a grant of the Seignory the Tenant for life must attorne for he is Tenant to the Lord so is not he in the remainder so long as Tenant for life liveth If Lands be let for years or given in taile saving the reversion upon a Grant of the reversion the Tenant of the Land must attorne And an Attornment may either be by word as to say I agree or am content with the Grant Or I attorne to you and become your Tenant by force of the Grant or else by the delivery of a penny and to the Grantee c. in name of Attornment or by any other matter implying an agreement as by a surrender to the Grantee of the reversion praying in aide of him c. and if such an Attornment be not to the Grantee in the life of the Grantor then the Grant is void In the Grant of a Reversion depending on a Freehold the attornment of the Freeholder is sufficient though he be not the Tenant that must presently be charged As if Lands be let to a man for years the remainder to another for life and hee in reversion grant the reversion to another the attornment of him in the remainder is sufficient 1 Littleton fol. 1â—… 〈◊〉 the 〈…〉 nly and where not If a man bind himself and his Heires in an Obligation or 〈◊〉 covenant by writing for him and his 〈…〉 or 〈◊〉 grant an Annuity for him and his â—…res in all these cases the Law chargeth the Heire after the death of the Ancestor with this Obligation Covenant Annuity Warranty yet with these three cautions that the party must by speciall name bind himself and his Heires for if the party in the bond Covenant Annuity or Warranty doth not bind himself as well as his Heires in such case the Heire shall never be bound 2. Some Action must be brought against the Heire whilest the Land or other Inheritance resteth in him unalienated away For if the Ancestor dye and the Heire before an Action be brought against him upon those Bonds Covenants or Warranties do alien away the Land then the Heire is cleaned discharged of the burthen 3. No Heire is further to be charged then the value of the Land descendeth to him from that Ancestor that made the charge and that not to be sold outright but to be kept in extent and at a yearly value untill the Debt or damage be run out Neverthelesse if an Heire that is sued upon such a Debt of his Ancestor doth not deale clearly with the Court when he is sued that is if he come not immediatly by way of confession and set down the true quantity of his Inheritance discended and so submit himself as the Law requireth then that Heire shall be charged of his owne other Lands Goods and money for this Deed of his Ancestor As if a man bind himself and his Heirs in an Obligation of a hundred pounds and dieth leaving but ten acres of Lands to his Heire if his Heire be sued upon the Bond and cometh in and denieth that he hath any by discent and it is found against him by verdict that he hath ten acres this Heire shall be now charged by his false plea of his owne Lands Goods and body to pay the hundred pounds though the Land be not worth ten pounds All words which do prove by specialty Words onely which do shew a man to be a Debtor to another is a good Obligation without binding the Executor that the maker of the Writing is a Debtor to another that is a sufficient Obligation and though the Executor or Administrator are not expressed yet the Law will charge them because they represent the Estate of the Testator but the Heire shall never be charged without expresse mention of the Heire Dyer fol 2 3. Acquittance for one Rent is a discharge of all former Rents Those cannot be heirs If a Rent be behind for twenty years and the Lord make an Acquittance for the last that is due all the rest are presumed to be paid and the Law will admit no proofe against this presumption Cokes Littleton fol. 373. A Bastard can be no Heire nor have any unlesse it be his owne Child A man attainted of Treason or Felony can be no Heire nor have an Heir though it be his
owne Child Attainders which give Escheat Attainder by Verdict Confession Outlawry Abjuration but upon either of them judgment must be given Forfeiture of Goods and Chattels Going beyond the Sea without license Exigent awarded in Felony though he yeild his body thereupon Clergy in Felony standing mute in Felony Felo de se Flying for Felony though he returne and be tryed and found not guilty These bring a forfeiture of all a mans Goods and Chattels as well reall as personall Attainder to what time it shal relate for the forfeiture of Lands and Goods Forfeiture He that is attainted of Felony by Verdict Confession or Outlawry doth forfeit all the Lands he had at the time of the offence committed so that he can do no Act afterward to encumber the Land If Tenant in taile be attainted of high Treason he shall forfeit for no longer time then for his owne life If a man have an Estate for life of himselfe or of another do commit Treason or Felony the whole Estate is forfeited to the King but no escheat to the Lord. But a Copyhold of Fees as for life is forfeited to the Lord and not to the Crowne and if it be entailed Forfeiture by a Copy-holder the Lord is to have it during the life of the Offender and then his Heire is to have it A man attainted may purchase Pardon Corruption of blood but it shall be to the Kings use untill the party be pardoned yet the pardon giveth not back their Lands or Goods without a speciall Patent of Restitution which cannot restore the blood without an Act of Parliament So if a man hath a Son and then is attainted of Felony and pardoned and then purchaseth Land and then hath issue another Son and dieth the Son he had before the pardon though he be his eldest Son and the Patent have words of restitution to his Lands yet he shall not inherit them but the second Son shall inherit them because the blood is corrupted by the Attainder and cannot be restored by Patent alone but by Act of Parliament And if a man hath two Sonnes Where a man shall be said to dye without Heire although he have one and the eldest is attainted in the life of his Father and dieth without issue living the Father the second Son shall inherite the Fathers Lands but if the eldest Son have any Issue though he dye in the life of his Father then neither the second Son nor the Issue of the eldest shall inherit the Fathers Land but the Father shall be there accounted to dye without Heire and the Land shall escheat whether the eldest Son hath issue or not though he be pardoned after the death of his Father Note that the Heires procreate after the Attainder shall not inherite the Lands of his Father nor of his Mother But the Heires begotten before the Attainder shall inherit the Lands of that Father and of that Mother which was not attainted but the Lands of his Father attainted or of his Mother which is attainted he shall not inherit although the King hath pardoned the Attainder The operation and effect of a pardon For a pardon doth but onely cleare the corruption of the bloud of these children which be borne after the pardon and so to make them capeable to inherit such lands which their Ancestor shall purchase at the time of the pardon or any time after but not to inherit such lands as the Ancestor was seised of before nor to purge the bloud of those children begotten before the pardon as to make them inheritable to any Ancestor Alien and Denizen A man seised of lands in Fee hath issue an Alien borne out of the Kings Leigeance he cannot be heire Propter defectum subjectionis though he be born within lawfull marriage if made Denizen by the Kings Letters patents yet cannot he inherit to his father or any other but otherwise it is if he be naturalized by act of Parliament for then he is not accounted in law Alienigena but Indigena but after one is made Denizen the issue that hee hath afterwards shall be heire to him but no issue that he had before If an Alien come into England and hath issue two sons these two sons Indigenae subjects borne because borne within the Realme and yet if one of them purchase land in Fee and dieth without issue his brother shall not be his heire for there was never any inheritable bloud between the Father and them and where the sons by no possibility can be heire to the Father the one of them shall not be heire to the other An Alien that is naturalized by Act of Parliament is to all intents and purposes as a naturall born subject differs much from denization by Letters patents for if he had issue in England before his denization that issue is not inheritable to his father but if his father be naturalized by Parliament such issue shall inherit so if an issue of an English man be born beyond Sea if the issue be naturalized by act of Parliament he shall inherit his fathers land but if he be made denizen by Letters Patents he shall not and many other differences there are between them An Alien borne out of the Kings leigeance his ancestors not being of the faith and leigeance of England is neither heire to inherit nor to purchase within this realme yet the Lord shall not have the escheate because he died without heire but the King which is the supreame head and the supreame person shall have this Land by the common Law But an Alien borne out of the Realme and within the Legiance of the King his Father and Mother being then and all their live of the legiance of the King shall inherit by the common Law Infants borne out of the Kings legiance the father and mother at the time of the birth being leigemen of England shall inherit by the Statute of 25 E. 3. so that the mothers of the children pass the Sea with the husbands leave and consent this statute extendeth all to children whose fathers and mothers were dwelling in England If an Alien marry here an english woman and hath issue this issue shall inherit to the wife the same law where the husband an English-man marry a woman that is an Alien and hath issue he shall inherit his father All which said trusts every one of them the said A. B. C. D. for himselfe severally and respectively Covenant severall no joynt covenant and for his severall and respective heire Executors and Administrators for as much as shall concerne him or them and his or their said heires Executors or Administrators c. doth covenant c. And the said A. B. C. D. do severally and respectively that is to say either of them for himselfe and by himselfe his severall heires Executor When Covenants are severall they are as severall Deeds written in one Parchment Coke 5. part fo 23.
tillage of the occupier in whose hands soever the land commeth if it be not in the hands of the Parson himselfe And all this matter was agreed by the Justices and Serjeants but they were in severall opinions if the Parson Lease parcell of Gleeb Lands for yeares or life reserving a rent whether the Lessee shall pay tythes or not Quere Dier fo 44. If a man levy a fine of land in ancient demaine at the common law to another Ancient demain deceit now the Lord of ancient demaine shall have a writ of deceit against him that levied the fine and him that is tenant and thereby he shall reverse the Fine and there he which hath given the Land shall be restored to his possessions and title which he had given by the Fine because that the Fine and gift therby is utterly defeated But if he that levied the Fine had after the Fine released to him which had the possession by the Fine by his deed or confirmed his estate by his deed in the land then it seemeth that he to whom such release or confirmation is made shall retaine and have the Land notwithstanding the Fine be reversed because that this release or confirmation made to him being in possession maketh his estate firme and rightfull against him and his heires which released or confirmed Na. Bre. fo 98. A. Pace regis reginae fo 68. Terminus Terminus annorum tempus annorum in the understanding of the Law doth not onely signifie the limits and limitation of time but also the estate and interest that passeth for that time as if a man make a lease for twenty one yeares and after make a lease to begin a fine expiratione predicti termini 21. annor dinnisor and after the first Lease is surrendred the second lease shall commence presently but if it had been to begin post finem expirationem predict 21. annorum in that case although the first terme had been surrendred yet the second lease shall not begin till after the 21. yeares be ended by effluction of time And so note that diversity between the terme of 21. yeares and 21. yeares Coke 1 a pars fo 154. If A. make a lease to B. for ten yeares and covenant that if B. pay 100 l. to A. infra dictos decem annos that B. shall have Fee if B. surrender his terme to A. and after pay the 100 l. within the 10 years he shall have Fee but otherwise it is where it is covenanted that if he pay a 100 l. infra terminum praedictorum decem annorum folio eodem Tripartite Indentures In witnesse whereof c. the parties above named to these present Indentures Tripartite interchangeably have set their hands and seales dated the day and yeare above written In Witnesse whereof all the said parties have to every part of these presents set their Hands and Seales the day and yeare first above written IN witnesse whereof to the first part of these Indentures remaining with the said Sir Jo. Tracy Sir Will. Coke and Sir Thomas Eastcourt the said Sir H. Poole hath set his Seale 1. Sir H. Poole 2. Sir Jo. Tracy Sir Will. Cooke Sir Thomas Eastcourte And to the second part of the said Indentures remaining with the said William Guies Iohn Bridgman and Fr. Marsh the said Sir H Poole Sir Jo. Tracy Sir Wil. Cooke and Sir Thomas Eastcourt have set their Seales 3. Will. Guies Io. Bridgeman Fra. Marsh And to the third part of these indentures remaining with the said Sir H. Poole the said Sir Jo. Tracy Sir Wil. Cook Sir Thomas Eastcourt Wil. Guies John Bridgeman and Fra. Marsh have set their seales even the day and yeare first above written To the first part of these Indentures remaining with the said H. Poole the said William Bridges Tho. Nichoas William Freame Giles Bridges and Jeffrey Bath have set their Seales 1. Henry Poole 2. Will. Bridges Tho. Nicholas Will. Freame To the second part of these presents remaining with the said Wil. Bridges Tho. Nicholas and Wil. Freame the said Hen. Poole Gi. Bridges and Jeff. Bathe have set their Seales 3. Gi. Bridges Jeffery Bathe And to the third part of these presents remayning with the said G. Bridges and Jeffery Bath the said Hen. Poole W. Bridges Thomas Nicholas and Will. Freame have set their Seales TO one part of this Indenture remaining with the said Sir Hen. Poole the said Dorothy Vnton and Geo. Shierley have set their Seales 1. Dorothy Vnton 2. George Shierly 3. Sir Hen. Poole To another part remaining with the said Geo. Shirley the said Dorothy Vnton and sir H. Poole have set their Seales To another part remaining with the said Dorothy Unton the said Sir Hen. Poole and Geo. Shierley have set their Seales TO one part of these Indentures remaining with the said Geo. Raleigh the said Gab. Pountney and Edw. Raleigh Tho. Spencer and Edward Essex have set their Seales And to one other part remainder with the said Gab. Pountney and Edward Raleigh the said Geo. Raleigh Thomas Spencer and Edward Essex have set their Seales And to one other part remainder with the said Tho. Spencer and Edward Essex the said Geo. Raleigh Gab. Pountney and Edw. Raleigh have set their Seales 1. Geo. Raleigh 2. Gab. Pountney Edward Raleigh 3. Tho. Spencer Edward Essex TO the first part remaining with the said Fran. Shirley the said Jo. Shirley and Jane Ralph Shirley Robert Brooksbey Jo. Brooke William Vnderhill have set their Seales To the second part remaining with John Shirley and Jane the said Fra. Ralph Jo. Brook Robert and Will. Underhill have set their Seales 1. Fran. Shierly Ralph Shierley 2. Jo. Shirley Jane Shirley 3. Rob. Brookesby John Brooke Wil. Vnderhill To the third part remainder with Rob. Brookesby Jo. Brooke and William Vnderhill the said Fra. Jo. Jane and Ralph have set their Seales Livery void Tenant for terme of life makes a Lease for yeares then granted tenemenia predicta to C. to have from Michaelmas next ensuing for life after the said feast of Michaelmas tenant for yeares attorned this grant to C. is void for a grant of a Frank-tenement may not commence in futuro and the grant being void at the beginning the attornment after shall not make the Frank-tenement to passe for every frank-tenement ought forthwith either to commence in possession reversion or remainder And when a man makes a Lease for life to commence at a day to come he may not make present Livery to a future estate ideo nothing passeth secunda pars L. Coke fo 35. But if a man make an estate for life to commence at Michaelmas next and then the Lessor himselfe after Michaelmas execute livery to the Lessee the estate is made good only by the Livery but if the Livery be so made by warrant of Attorney of the Lessor then the livery and the Lease are both void If Tenant at will sowe the Crop set Roots
c. those which are meere Recognizances are not sealed but are inrolled And sometimes are sealed with the seale of the party and may be with condition annexed or may bee single and then to have indentures of defeasance Also the King may by his commission give authority to any man to receive connusance of another man and to returne it in Chancery and by vertue of such commission if the man knowledge it before a commission any debt to another to be paid to him at a certain day and that certifieth into the Chancery with the commission c. Now upon certificate made of this connusance if he doth not pay the debt at the day he shall have an elegit upon this recognizance so taken aswell as if it were taken in the Chancery Upon a Recognizance there shall not goe a Capias but a Scire facias returnable in Chancery and upon the returne thereof they use to award a Capias a fieri facicias or an Elegit at the election of the Connusee 48 E. 3. fo 14. Upon a Recognisance the connusee may not have an action of debt against the heire for the recognizance is quod tunc vult concedit quod dictae pecuniae summa de bonis catall terr tenementis c. levetur so that the charge is imposed upon his Goods and Lands so that debt lieth not therupon against the heire co 3. 15. Yet upon a recognizance acknowledged to the use of the King although the words of the recognizance are de bon catt terr tenemenntis c. levetur the King shal have liable to his execution as wel the body as the lands goods of his Debitor see co 3. 12. b 11 93. a. Execution by force of a Recognizance in case of a common person shall bee of all the Goods and Chattels of the Connusor except his Plowcattle and implements of husbandry and of the moietie of his lands west 103. Note that this word Recognizance extendeth oftentimes in our Books to Statute Merchant and Statute staple Execution by Elegit AN Elegit is a Writ judiciall and lieth for him that hath recovered debt or damages in the Kings Court and must be sued within the yeare Tearmes de ley By force of an Elegit the Sheriff may take in Execution and deliver unto the party scil unto the cerditor the one halfe of the lands of the Connusor and all his good and chattels praeter Boves affros de carvia sua saving onely his Oxen and beasts of his plow untill the debt be levied upon a reasonable price or extent And this is by force of the Statute of Westminster 2. cap. 18. which is the first statute that did subject land to be taken in execution or upon a recognizance which is in the nature of a judgement 13 E. 1 ca. 18. co 3. 12. This Statute of Westminster 2. which giveth the Elegit provideth quod Vicecomes liberet ei omnia cattalla c. medietatem terrae suae quousque debitum fuerit levat per rationabile praetium extentum which last word praetium is to be referred to Chattels extentum to be referred unto lands rationabile praetium extentum ought to be sound by inquisition and verdict scil the apprizing of the goods and the extent or valuation of the Lands ought to be per sacram 12. probor legalium hominum c. for the Sheriff himselfe cannot appraise the goods nor value nor extend the lands upon an elegit neither can the Sheriff upon an elegit deliver any goods in Execution or extend any lands but onely such as are appraised and valued by the Jurors of the inquisition Co. 4. 74. otherwise it seemeth of all other sorts of Executions The words of this Statute of Westminster 2 ca. 18. are thus liberent ei medietaeem terrae debiteris which by construction of Law is the moietie of all that he hath at the time of the judgment given or at any time after Co. 7. 19. and by the equity of that Statute the Sheriff may deliver to the Creditor or Connusee the moietie of the Rents Br. Parliament 10â— Plow 178. Also these words in the said statute quousque debitum fuerit levatum shall be intended be or might be levied for if the Conusee or tenant by elegit or tenant by statute Merchant or Staple neglect to take the profits yet when the connusee might have been satisfied of his debt according to the extent the connusor shall have againe his land but it seemeth he may not enter in such case but is put to his scire facias Co. 4. 82. If Tenant by elegit be outed by a stranger there the time shall on and he is put to his remedie against the trespasser ibm If the Connusee be outed by wrong by the connusor or by any other claiming under him for life or years c. the connusee shall hold over co 4 66. If the lands delivered in execution be lawfully recovered taken or evicted from the possession of the connusee before his debt be satisfied he shall have a scire facias and upon that a new writ of Execution Statute 32 H. 8. ca. 5. co 3. 87. This Statute of Westminster 2. cap 18. that giveth the elegit doth not extend to Copyhold Lands for it should be prejudiciall to the Lord and against the custome of the Mannor that a stranger should have interest in the land holden by copy where by the custome it may not be transferred to any without c. co 3. 9. Terme for yeares may not be extended by the Sheriff upon elegit without finding the beginning and certainty of the terme by inquisition for execution by elegit ought to be by inquisition and if it be found by the inquisition that the debitor was possessed of certain land per terminum quorandum annorum ad tunc ventur This inquisition is insufficient for they ought to find the certainty and the reason is because that after the debt satisfied the party is to have again his terme if any part thereof remaine which certainty of terme ought to appear upon the returne of the Sheriff as it seemeth Cok. 4. 74. But upon a Fieri facias the Sheriff may sell the lease or terme without reciting any certainty scil the Sheriff may recite that the Debitor hath a terme of such a thing pro terminis diversis annorum ad nunc ventur and that he sold that by force of a fieri facias to I. S. and that is good so if the Sheriff sell all the interest that the Debitor hath in the Land that is good notwithâ—standing misreticall for by the common intendment the Sheriff may not have precise connuzance of the certainty of the commencement and certainty of the end of the terme but if he take upon him to recite the terme and mistake it reciting it falsly and sell the same terme this sale is void because there is not any
cast up will shew you the yeare of our Lord in which the years shall end so that if your Lease commenced at Michaelmas it will end at Michaelmas in the same yeare Or if it begin the twenty fourth of March in that yeare which is but one day before the end and change of the yeare then it will end the twenty forth of March the said yeare As for example A Lease began Michaelmas Anno. 7. Eliz. 1564. to endure for the terme of ninetie yeares I demand how many yeares is to come of this Lease and when the same terme of yeares will be determined first I set downe the day of the Month and the yeare of our Lord in which the Lease tooke his commencement as at Michaelmas 1564. unto which summ I adde the number of yeares which was granted by the Lease being ninety yeares which being cast up maketh the summe to be one thousand six hundred fifty four in which yeare at Michaelmas the yeares will be expired and the Lease determined then to know how many yeares are to come of the same Lease I set downe the Lease will expire and then substract out of that summe the yeare of our Lord which then is as for example one thousand six hundred twenty eight whereby I find the substracted number to be twenty six and so many yeares there is yet to come from Michaelmas 1628. A Lease was made for eighty yeares to commence at Michaelmas 1567 80 1647. the Lease will end The yeare of our Lord 1628 substracted sheweth that 0019. there is 19. yeares to come at Michaelmas 1628. A Warrant to Summon a Court of Surveigh THese are to will and in his Highnesse name to require you to give notice warning to be given to all singular the Tenants aswell Freeholders as Copiholders and they that hold by Lease or at Will of or within his Highness Mannor of C. in the County of S. that they and every of them do make their personal appearance at his highnes Court of Surveigh there to be holden upon Wednesday next being the 16. of July 1655. by 8. of the Clock in the forenoone of the same day at the usuall place of keeping the Court of the same Mannor and that they and every of them do then and there bring and shew forth or cause to be brought and shewd forth all their Deeds Leases Copies of Court-Rolles and all other their evidences whereby they and every of them doe pretend or claime to hold any Lands and Tenements whatsoever of or belonging to the said Mannor And also that they and every of them doe then and there bring and shew forth all such Rentalls Court-rolls Surveighes Terrats Suit-rolls and all other Escripts Writings Minuments and Records which they or any of them have any way concerning the said Mannor or any part member or parcel of the same and to give such further attendance in and about his Highnesse said service of survey as shall be of them and every of them necessarily required wherof faile not as you tender his Highnesse service dated c. Your loving friend I. N. To the Bayliff of his Highnesse Mannor of C. or to his deputy or to every of the Tenants of or belonging to the said Mannor and the members thereof Cause this to be published in the Church at the time of divine service and cause the under Tenants to give notice to them whose undertenants they are that dwell remote ARTICLES to be enquired of at a Court of Survey and Court-Baron for the Mannor c. 1. IMprimis you shall declare the true circuit and generall Boundarie or Boundaries of this Mannor Butts and Bonds and how farr and into what place or places doth the same extend and upon what other Lords Lands doth the same bound and border aswell on the East West North and South sides and whether have any of the generall or utmost bounds Meers or Markes been altered and by whom and where Concealments 2. Item whether do any person or persons within the precinct of this Mannor or any other whatsoever covenously conceale and wrongfully occupy any part or parts of this Mannor and who the same persons be and where and in what place and what be the names of the grounds concealed or encroached and in whose occupation be they and how long have the same been concealed or enclosed The mansion house demean lands 3. Item you shall enquire of the chiefe Scyte and Capitall Mansion house of this Mannor with the perticular Members and buildings and what demeane Lands Meadowes Pastures Arable Grounds Woods Underwoods hereditaments whatsoever are belonging to the same what be their severall names and where and in what parts of the Mannor doe the same lie and how be they butted and bounded and who be now the occupiers thereof and under what Estates Rents Herriots or services to your knowledge 4. Item what free-hold Lands Freehold Tenements or hereditaments be holden of this Mannor who be they that be seised thereof and what Rents reliefes workes customes or other duties do they pay or ought to pay for the same and by what tenure to your knowledge doe they and every of them hold and how are they butted and bounded and what quantity and number of Acres do the same containe and what is the true yearly value thereof 5. Item Copy-hold lands what Lands or Tenements be holden by Copy of Court-Roll within this Mannor who they be that are seised thereof and what Rents Herriots works customes or other duties do they pay or ought to pay for the same and what quantity and number of Acres do the Tenants severally hold and the quality therof and what is the true yearly value of the same 6. Item Tenants at will Tenants by Indenture Who be they that be tenants at will or tenants by Indenture what lands or tenements doe they hold or what rents or duties do they pay or ought to pay for the same and what is the quantity or yearly value therof 7. Item Decay of houses whether there be within this mannor any ancient houses decaied or fallen downe or any houses or buildings out of reparations and where and how long have the same been ruinous decayed or out of reparations and in whose default and to what charge or value would the new erecting or repairing of them or any of them amount unto 8. Item you shall enquire of all the falling down Wast Woods destruction and wasts of any Woods Underwoods or Trees in and upon the said Mannor or any part or parcell thereof made or done by any person or persons and by whom where and when and to what value Names of commons c. 9. Item what be the names of the Lords VVasts Heaths or Commons of what name or kind soever belonging to this Mannor which of them are free for the Lord of this Mannor to use in severalty and who be they that doe enter-common
with the tenants of this mannor in any part or parts thereof and with what Chattle and where and bywhat right custome or duty to your knowledge Enter commoners 10. Item VVhether may the Lords and Tenants of this Mannor enter-common in the VVasts Downes Heathes Moores or commons of any other Mannors or Lordship And if they may then with what kinde of Cattle and what be the names of the Mannors and commons and who is now seised thereof to your knowledge Exchange of Land 11. Item what exchanges have been made of any land within this Mannor by whom when and where were the same exchanges made and what lands and for what terme Lands forfeited or escheated 12. Item whether have any parts or members of this Mannor been forfeited or escheated or ought have been unto the Lord of this Mannor and not yet seised to his use by reason of any death Bastardy granting of Leases without license aliening of copy-hold land by feoffment Wast Demise or otherwise what and were be the same lands and who do occupy the same and how and in what manner were the same so forfeited or escheated 13. Item what Herriots reliefs or other duties Herriots reliefs c. are or ought to be due unto the Lord of the Mannors upon the decease of any tenant of what estate soever or upon any alienation or surrender and whether such as doe hold under divers rents ought to pay diverse Herriots And if they doe of what kind or kinds be the said Herriots or ought the same to be to your knowledge 14. Item what quit rents workes Quit-rents work customes c. customes or other duties are or have been of old time of right paid out of this manner and to what person or persons and upon what cause 15. Item you shall enquire if any evidences Court-Roles or writings belonging to this Mannor Writings or Court-Rolles concealed are with-holden or kept back from the Lord of this Mannor and by whom The interpretation explanation and meaning of divers words used in ancient Charters c. Fleta Sock A Power to seek after Thieves and to do justice upon them after such inquisition Also a Liberty to have Suitors to their Courts that have the same Also it is taken for a company of Tenants which live within such a Liberty and they are by the same exempted from the common services of the Prince and Country whereunto other Subjects are ordinarily bound Sochemans Are men to whom some special Liberties are given Ham Socha Is the dwelling of a Farmer Dr. Cowel Ham is a Town and from thence comes Hamlet Sack Signifieth Causa and from thence cometh this saying For whose sake scilicet For whose cause Skene de verb. signif Lam. f. 132. Sack Is called Placitum emenda de transgressione hominum in curia nostra It is the Amerciament paid by him which denieth the thing proved against him to be true or affirmeth the contrary to the truth Fleta Sack Significat acquietantiam de Secta ad Comitatum hundredum l. 1. c 47. Cassaneus in consuetudine Thol or Toll Tolvetum alias Theo onium hath two significations viz. 1. A Liberty to buy or sell within a certain precinct which importeth to a Fair or Market 2. And in the second it is a Liberty to take Toll as to be free from the payment thereof He that is infeoffed with Toll is Custome-free and payeth no custome Skene when it is written Hoc est quod vos homines vestri de toto homagio vestro fint quieti de omnibus mercanciis de tolveto de omnibus rebus emptis venditis Privy contracts were held unlawfull and therefore the Lord of the Fair or Market in testimony of the contract received toll Is a power to have slaves which are called Nativi Bondi Villani Teame alias Theme And all Baronies infeoffed with Theam hath the same power for unto them their Bond-men their Children Goods and Chattels properly belong It is a Royalty granted onely by the King himself A compound of three Saxon words Infangthef the Preposition In fang to take thef a Felon Infangthef est Justicia cognoscentis latroniâ— de homine suo si captus fuerit super terram suam Illi vero qui non habent has consuetudines coram Justicia regia rectum faciant in Hundredis Wapentagiis vel Shiris An out-taken-thief Vtfangthef Bracton l. 2. c. 24. diciturlatro extraneus veniens aliunde de terra aliena qui captus fuerit in terra ipsius qui tales habet libertates Significat acquietanciam misericordiae intrationis in domum alienam vi injuste Handsok Fleta l. 1. c 47. Grith a word of the old Angles signifying Peace Brich quasi Breach Grith brich Rastal expositione verborum Those amerciaments due for Bloudshed Blout in Saxon est Sanguis Wite est Culpa Blodwite D. Cowel A liberty to take amerciaments pro melletis Flitwite Bona utlegatorum Fredwite Significat quietanciam misericordiae de latrone suspenso absque consideratione Hengwite Fleta l. 1. c. 27. Cowel Cowel est muleta pro homine injuste suspenso Liâ—…wite Is a liberty to take amends of him that defiles your Bond-woman Flemene frith A liberty to challenge the Cattel or amerciaments of your man a Fugitive Forstall To be quit of amerciaments and cattle arrested within your lands and the amerciaments thereof coming Gidel Grest A kinde of purgation in old time whereof there was two sorts viz. per ignem aquam Henfare An amerciament for flight for murder Vetito namio is power to have Pleas of Withernam that is if any of his men or Tenants to whom such power is given be arrested in another Liberty the next man of that liberty that comes into his Fee shall be taken and deteined untill the other be freed In a Charter of King Edward the Third dated at Walton 25. Junii Anno Regni sui 12. reciting divers former Charters doth declare and grant That by the obscure and dubious and general words in the former Charters the Grantees should have all amerciaments as well of Free-men as of Villains and that they should receive all that the King ought to have for any fault or transgression to be amerced in the Court of the King before the Barons of the Exchequer before the Justices of the Bench or before his Justices Itinerant at Common Pleas or before his Justices assigned to take Assizes or to deliver Goals or to whatsoever Inquisitions to be made or amerced before any other Justices Sheriffs Inquisitors Reeves Bayliffs or other ministers as well of the Forrests as others to whatsoever Office they were deputed by the King And that they have the Goods and Chattels of Utlaws Condemned persons and Fugitives and of Felons as wâ—ll of themselves as of all other Felons
in one Moneth From the day of Easter in three weekes Trinity Terme begins the Friday sevennight after Whitsunday On the morrow of the holy Trinity In eight daies of the holy Trinity From the day of the holy Trinity in fifteen daies From the day of the holy Trinity in three weekes Michaelmas terme begins the twenty third of October and endeth the 28. of No. 1. FRom the day of St. Michael in three weeks Octo. 20. Octob. 21. Octob. 22. Oct. 23. 2. From the day of S. Michael in one month Octo. 27. Octo. 28. October 29. Octo. 30. 3. On the morrow of all Souls No. 3. Novem. 4. Novem. 5. Nov. 6. 4. On the morrow of St. Martin No. 12. Nov. 13. Nov. 14. Nov. 15. 5. In the daies of St. Martin No. 18 Novem. 19. Nov. 20. Nov. 21. 6. From the daies of St. Martin in 15. daies No. 25. Novem. 26. No. 27. Nov. 28. A SVPPLEMENT TO HE LAW OF CONVEYANCES OR Decimall Tables For the speedy and exact computation of the Interest and Rebate of Money and Annuities whether in present or reversion With a CONCORDANCE of yeares from the time of WILLIAM the CONQVEROR untill the present time wherby the yeare of our Lord and the yeare of each King may be presently found A SUPPLEMENT TO THE LAVVYERS DIRECTORY CHAP. I. To convert the parts of a pound into Decimalls and the contrary IN the buyng and selling of Land or Houses we ought as well to consider the value of that which is bought or sold as the manner of conveyance now the interest of money being the generall ground to vallue the purchase by we will here annex such propositions thereof as are convenient to be knowne by the buyer and the seller both And the propositions or questions concerning money are of two sorts viz. such as have reference to the increase or to the rebate thereof The increase or interest of money is either simple or compound Simple interest is that which ariseth or is computed from the increase of the principall onely as if a 100 l. be forborne two yeares the simple interest thereof after the rate of 6. pounds for 100. pounds for 1. yeare will be 12. pound viz. 6. pound due at the first yeares end and 6. pounds due at the second yeares end Now the questions of simple interest being in our usuall Tables performed by addition onely doe seeme very easie but many times there are so many summes to be added together that it proves very tedious in the opperation and multiplication which is nothing but a speedy addition in numbers of severall denominations will I am sure to the generallity of men be much more difficult but the difficulty hereof may be avoided by the table entituled of a Table reduction of money into Decimalls and the contrary for illustration sake we will adde an examle in each To reduce money into Decimalls LEt it be required to find the Decimall answering to 6 l. 7 s. 5 d. 3. farthings your pounds are integers of themselves and need no reduction and because 2. shillings is the tenth part of a pound halfe the number of shillings is the decimall thereof to be annexd to the number of pounds with a point between thus in our example the decimall of 6 l. 7 s. is 6. 3. c. rather it is the decimall of 6. 6. for the halfe of seaven cannot be exactly taken and therefore have taken the least halfe for the Decimall sought I looke the remainder which is 1. shilling 5. pence 3. farthings in the table and I find the Decimall thereof to be 739583. which being annexed to 6. 3. the Decimall of 6. 7. shillings 5. pence 3. farthings will be 6.3739583 To find the value of a Decimall given in the known denomination of money LEt it be required to find the value of this Decimall in money 6.3739583 the 6. which is severed from the rest by a prick is the integer and represents 6 l. the next figure which is 3. being doubled is 6. s. and the remainder 739583 being sought in the table gives me 1. shilling 5. pence 3. farthings and therefore the summe represented by the decimall is 6 l. 7. shillings 5. pence 3. farthings and the severall denominations or parts of a pound as shillings pence and farthings being thus reduced into one denomination or into a decimall all questions concerning the interest or rebate of money whether simple or compound may be with much ease and exactnesse answered by multiplication and the help of these tables following as shall appeare by example first in simple and then in compound interest CHAP. II. Of Simple Interest BEfore we can compute the interest of any summe of money propounded we must have given the time after which it is lent and the rate of the profit required and our bonds for money lent are usually made for six months time but if we reckon that in the usuall manner from a certaine day in one month to the same day in the sixt month following there will be one or two daies error as from the tenth of February reckond by months the six months or halfe yeare will fall upon the tenth of August but there being 365. daies in a yeare the halfe therof is 182. daies and an halfe and because it is fit to allow the time to the borrower rather then lender you cannot account less then one hundred eighty three which being reckoned from the tenth of February will fall upon the twelfth of August two daies beyond the other to prevent all such mistakes we have in the Table intituled a Table of simple interest at 6. per cent besides the number of daies in every month added the daies in a yeare by which you may know the exact time of any part of a yeare in daies as well as the interest due for any time or number of daies For one month 〈◊〉 the twelfth part of a yeare we ought to reckon 31. daies For 3. Months or one quarter 92. daies For six months or halfe a yeare 183. daies For 9. Months or 3. quarters 274. daies And how you may know from any time given when any of these termes exspire we will cleare by example Question 1. If a bond be dated the 5. of March when is the 3. month or 92. daies expired To answer this question I observe in the Calender what number of daies answer to the fifth of March and I find 64. to which if you adde 92. they make 158. and the day of the month answering to 158. daies is the 7. of June and that is the daie on which the 3. months doth expire Question 2. If a summe of money be lent from the the 17. of July to the 29. of November for how many daies is the money lent To answer this question Observe what number of daies do answer to the 29. of November which are 333. as also what number of daies doe answer to the 17. of July which are a 198. these being
2. What is the present worth of an annuity or rent of 50. pound per annum payable yearely for 21. yeares accounting compound interest after the rate of 6. per cent per annum In the second columne of the 6. Table right against 21. yeares is 11.75407 which being multiplyed by 50. the product is 588.20350 from which cutting off 5. figures for the decimall parts of the number found in the table the answer is 588 l. and reducing the parts 4. shillings 3. farthings Question 3. What annity to begin presently and to continue 21 yeares payable at yearely payments will 588. pound 4. shillings 3. farthings purchase compound interest being reckoned at 6. per cent per annum In the second column of the 7. Table right against 21. yeares is 085. which being multiplied by 588. 203125. the Decimall of 588 l. 4. shillings 3. farthings the product is 49 998065325. from which if you cut 9. figures for the number of parts in both the termes given the yearly annuity is 49. pounds and the Decimall 99806 c. gives 19 s. 11. pence 2. farthings Question 4. What is an annuity of 25. pounds per An. for seven years payable yearly and to begin 3. years hence compound interest after the rate at 6. per cent worth iâ—… present First find by the second question of this Chapter what an anuity of 25. pounds per annum for 3. yeares at the rate propounded is worth in ready money and then what an annuity of 25. pounds per annum for 3. and 7. yeares that is for 10. yeares at the same rate is worth in ready money the difference of these two is the answer to the question propounded In the second columne of the 6. table right against 3. yeares is 2.67301 which being multiplyed by 25. the product is 66.82525 and the number answering to 10. years is 7.36008 which being also multiplyed by 25. the product is 184.002005 from which deduct 66.82520 there rests 117.17675 that is according to the former directions 117. pounds 3. shillings 6. pence farthing the present worth of the 7 yeares in reversion Question 5. If the Lease of a house or lands be worth 127 l. fine and 9 l. rent per annum payable yearly for 20. years and the Lessee be desirous to bring downe the fine to 40 l. and so to pay the more rent the question is what rent the tenant shall pay accounting compound interest at the rate of 6. per centum per annum Find the difference between the fines which is 87 l. then by the seventh table find what annuity or rent to continue 20. yeares is equivalent unto 87 pound ready so will you find 758466. that is being reduced 7 l. 11 s. 8. pence 1. farthing which being added to the old rent 9 l. gives 16 l. 11 s. 8. pence 1. farthing which the tenant must pay to the end that the fine may be diminished unto 40. pound Question 6. There is a lease af certaine Lands to be let for 20. yeares for 40. l. fine and 16. shillings 8. pence 1. farthing rent per annum payable yearly but the tenant is desirous to pay lesse rent viz. 9 l. per annum and to give a greater fine the question is what fine ought to be paid to bring down the rent to 9 l. per annum accounting compound interest at the rate of 6. per centum per an Find the difference between the rents which is 7 l. 11. shillings 8. pence 1. farthing then by the 6. Table see what an annuity or rent of 7 l. 11. shilling 8. pence 1. farthing per annum to continue twenty yearers is worth in ready money so shall you finde eighty six pound nineteen shillings ten pence proxime which being added to the first fine forty pound gives 126. pound 19. shillings 4. pence which the tenant must pay to the end that the rent may be brought downe to nine pound per annum Question 7. There is a lease of certaine lands worth 32 l per annum more then the rent paid to the Lord for it of which Land there is a Lease yet in being for 7. years and the lessee is desirous to take a Lease in reversion for 21 years to begin when his old Lease is expired the question is what sum of money is to be paid for this lease in reversion accounting compound interest at the rate of 6. per cent per an Find by the 6. Table what 32. pound rent is worth in ready money for 21. yeares as if it were to begin presently which will be found 376. 4.5024 l. then by the 5. table find what 376.45024 l. due at the end of 7. yeares to come is worth in ready money so will it be 250 l. 7. s. 2. d. proxime which is the answer to the question The first Table A Table turning Shillings Pence or Farthings into Decimall parts S. d. Decimals 1. 1 010417  020833  031250 0. 1 041667  052083  062500  072917 0. 2 083333  093750  104167  114583 0. 3 125000  135417  145833  156250 0. 4 166667  177083  187500  197917 0. 5 208333  218750  221967  239583 0. 6 250000  260417  270833  281250 0. 7 291667  302083  312500  322917 0. 8 333333  343750  354167  364583 0 9 375000  385417  395833  406250 0.10 416667  427083  437500  447917 0.11 458333  468750  479167  489583 1. 0 500000  510417  520833  531250 1. 1 541667  552083  562500  572917 1. 2 583333  593750  604167  614583 1. 3 625000  635417  645833  656250 1. 4 666667  677083  687500  697917 1. 5 708333  718750  729167  739583 1. 6 750000  760417  770833  781250 1. 7 791667  802083  812500  822917 1. 8 833333  843750  854167  864583 1. 9 875000  885417  895833  906250 1.10 916667  927083  937500  947917 1.11 958333  968750  979167  999583 2. 0 1.000000 The second Table A Table shewing the Simple Interest of one pound for the first 4. Months of the yeare at 6. per Cent. Daies  January  Febru  March  April day Parts day Parts day Parts day Parts 1 1 000164 32 005261 60 009863 91 014959 2 2 000329 33 005425 61 010027 92 015123 3 3 000493 34 005589 62 010192 93 015288 4 4 000657 35 005753 63 010356 94 015452 5 5 000822 36 005918 64 010520 95 015616 6 6 000986 37 006082 65 010685 96 015781 7 7 001151 38 006246 66 010849 97 015945 8 8 001315 39 006411 67 011014 98 016109 9 9 001479 40 006575 68 011178 99 016274 10 10 001645 41 006739 69 011342 100 016438 11 11 001802 42 006904 70 011507 101 016603 12 12 001973 43 007068 71 011671 102 016767
the perticular Tenant If a man hath issue a Son of nine yeares and makes a Lease till his son shall come to his full age then the remainder to another in Fee nothing vesteth forthwith to him in remainder and the remainder is utterly void and yet it may take effect because the remainder ought to passe out of the lessor forthwith executed or executory either to him in remainder or to be in abeyance or custodie of the Law and a franktenement in such case cannot be an abeyance and therefore the remainder void Lease for yeares the remainder over in Fee if the tenant enter before livery his terme is good but the remainder is void because the remainder was not out of the lessor at the time of the possession taken by the particular tenant but if I appoint the Lease to commence at Michaelmas next the remainder over in Fee there although the lessor make Livery to the Lessee yet the Livery and Seisin and the remainder shall be void because there was no estate present whereunto the Livery may be annexed and whereunto it might unite in the meane time HEE to whom the remainder is appointed must at that very time be a person able and of capacity to take the remainder or else the remainder shall be void and it is a principle in Law that in all gifts be they by devise or otherwise it behooveth to have a Donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest There is a diversity between a remainder limited by a particular name for a remainder limited by a general name may be good though the person be not in esse at the time of the remainder limited as in this case next following This remainder to I S may be good yet he hath no heir at the time of the remainder limited so of a remainder limited Primogenito filio But a remainder limited in particular by name of Baptisme and Sirname is not good if the partie be not in esse Coke 2. part Fo. 51. Sir Hugh Cholmleis case the gift shall be void Plowden Fol. 345. And therefore if a Lease be made to one for life the remainder to the Mayor and Commonalty of Cirencester which then have not capacity to purchase Lands and after they have gained a capacity to purchase and then the tenant for life dyeth the Mayor and commonalty shall not take the remainder because he was not a person able at the time of the remainder appointed to take it so if the remainder were appointed to him whom tenant for life shall name If a Lease be made to one for life the remainder to I. S. in Fee who is a monke professed and afterwards is derained and then the Tenant for life dyeth I. S. shall not have the remainder because he was not a person able to take it at the time of the remainder appointed But if Land be given to one Et filio suo primogenito and he hath no issue at the time of the gift and afterwards he hath a son that Son shall have the Land by way of remainder and yet the remainder was not out of the lessor neither did it vest at the time of the Livery but the law shall conster the Livery and limitation most strong against the lessor Plowden 296. Lessee for yeares the remainder to the right heires of I. S. this remainder is utterly voide and the Livery thereupon is voide because there is no person capable to take the Franke tenement at the time and Livery Seisin may not be in suspence where the frank-tenement may not be in obeysance but Affees may where the franck-Tenement is well disposed and where there is a Tenant thereof to the Precipe THe thing whereof a Remainder shall be created must be in esse before and at the time of the appointment and creation thereof or else the remainder is voide For if I grant a rent out of my Land Vide fo 38. the remainder in Fee this remainder is void because the rent was not in esse before But at the beginning of a grant a man may grant a rent in such manner as pleaseth him And a man may grant a rent newly created to begin after the death of I. S. But when a rent is in esse or a reversion remainder or other thing a man may not make it to be in esse for a time and to cease for another time as to grant it to one after the death of another or from a day to come reserving to him an estate in the meane time NO remainder may commence upon any repugnancie or impossibility precedent nor upon any condition that goeth to the destruction of the perticular estate for conditions alwaies inure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor donor and Lessor and their heires And as none shall avoide an estate formerly made by the breach of a condition but onely the privies see none shall take a new estate by the performance of a condition but onely the privies If a Lease be made to two the remainder over in Fee after the death of the first of them this remainder is voide because the Servivor shall hold place after the death of the first and therefore repugnant and void If a Lease be made for life the remainder for life and if the first tenant for life dy then the remainder over to a stranger over in Fee this remainder dependeth on a repugnancy precedent and therefore voide If a Lease be made for yeares rendant rent and upon condition of none payment the remainder to a stranger and Livery is made accordingly that is a void remainder which doth commence upon a repugnancy precedent and which dependeth upon a condition which goeth to the destruction of the perticular estate and especially where such a remainder is created by livery and sesin But by a limitation of a devise or by limitation of use such remainder is good as a Feoffment to the use of I. S. for years and upon payment by him of twenty pounds the remainder to I. D. for life this is a good remainder So it is where the remainder is created by the limitation of a last will as if a man devise his Lands to his wife c. If a man make a Lease for life rendant rent and upon condition that if the rent be behind then the remainder to a stranger in Fee after the first estate ended that remainder is void because conditions inure alwaies in a privity c Lessee for life upon condition that if I.S. pay the lessor twenty pounds that then the lessor shall enter upon Tenant for life and then the remainder over to another that remainder is void because by the
that reversio terrae is the returning of the Land which is as much in sence as my Lord Dyer defineth it as the Land returning so that reversio terrae is terra revertens which is the Land in a certain degree that is to say when it is discharged of the perticular estate and possession thereof is come thither where the revertion was Plowden 160 196. Creation of Estates The Creation of all manner of Estates by the Habendum of the Deed. TO have and to hold to the said William Hum her his Executors Administrators and Assignes from the ensealing and delivery of these presents unto the end and terme Habendum and for and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing and fully to be compleated and ended if the said William Humber so long shall live and if it shall happen the said William to decease before the end and determination of that said Terme living the said Margaret then to have and to hold the same messuage c. from and immediately after the decease of the said William unto the said Margaret for and during the whole Terme of 100. yeares from thenceforth then next and immediately ensuing and fully to be compleated and ended if the said Margaret so long shall live and keep her selfe sole and unmarried and if it shall happen the said Margaret to decease before the end and determination of the said tearme or not to keep her selfe sole and unmarried during the said tearme then to have and to hold the said Premises unto Henry Humber Habendum To have and to hold to the said Edmund Clark and his Assignes immediately from and after the death and decease of the said Maud Symmes unto the end and tearme and for and during the whole time and tearme of 100 yeares from thenceforth next and immediately following fully to be compleated and ended if the said E C. so long live and to have and to hold the said Messuage c. to the said Jane C. and her Assignes immediately from and after the decease of them tâ—e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth c Note that in such a Lease all those that shall take in remainder Note must be made parties to the Lease To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof c from hence forth from the ensealing and delivery of these presents unto the end and terme and for during the whole terme of his naturall life and from and immediatly after the death of him the said R. I. the said Messuage or Tenement and all other the Premises with all and singular their and every of their appurtenances to remaine and be unto the said I. I. and her assignes for and during the tearme of her naturall life And after the death of the said R. and I. c. To have and to hold unto the said R. I. his Executors and Assignes for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid shall so long live To have and to hold to the Lessee and his heires during the lives of A. B. C. and the longest liver of them To prevent an Occupant this limitation shall prevent the occupant and yet the Lessee may assigne it to whom he will or if he hath already an estate for another mans life it were good to assigne his estate to diverse men and their heires during the life of ceste que vie For If A. hath Land conveighed to him for the life of B and A. dieth without making any estate of it whosoever first entreth into the Lands after the death of A shall have the Land during the life of B. For to the heire of A. it cannot goe because it is no inheritance nor to his Executors because it is not a testimentary estate that should goe to the Executors as goods and Chattels Limitations which do determine an estate without entrie or claime vide plus fo 17. To have and to hold to the Lessee quousque viz. untill I. S. come from Rome A Lessee to a woman quam diu casta vixerit or to a Widdow for her life si tam diu in pura viduitate vixerit or to another dummodo solverit talem redditum or quamdiu as the Lessee shall be dwelling on the Mannor or quamdiu the Lessee se benegesserit donee us quead quousque tam diu to have to the Lessee for 100. yeares if the Lessee so long live all these are limitations which do determine the estate without any entry or claime A Lease is made to A. and his assignes habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives and the longest liver of them Lo. Coke 5. part fo 13. A Lease to A. and B. for their lives A. dieth B. shall have it during his life it is an interest But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation Habendum reddendum To have and to hold unto the said I. W. his Executors and Administrators from and immediately after the time that the estate tearme and interest which the said I G now hath of in or to the Premises shall happen to be ended by the death forfeiture surrender or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll by Sir S. P. Knight deceased to the said I G. and I W. and to one Do. White deceased for the tearme of their lives and the longest liver of them successively at the will of the Lord according to the custome of the Mannor of R. aforesaid which said Copy of Court-roll beareth Date the fifth day of Aprill in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years from henceforth then next and immediately ensuing and fully to bee compleated and ended Reddendum if the said I. W. A. W. and B. W. or either of them so long shall live yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited at the Mannor house of the said Sir H. P. at Saparton aforesaid the sum of thirteen shillings four pence of currant english money at the feasts of St. Michaell the Arch-angell and the Anuntiation of the blessed Virgin Mary by equall portions the first payment thereof to begin and to be made
M. and of his heires for ever And as for and concerning the said Mannor of c. Vses raised for payment of debts and performance of his last Will. to the use of F. M. for life and then to daughters for portions in such manner as is next before limited And from and after such time as the said severall summes of c. shall or may be had levyed or taken then to the use and behoofe of the Executors and Administrators of the said F. M. for and during the terme of ten yeares then next following for and towards the payment of the debts of the said F. M. the father and for and towards the performance of his last Will Testament and from and after the end of the said terme of 10. yeares then to the use and behoofe of the said E. M. for his life without c. and so on with an intaile et supra Reddendo reservando A rent must be reserved out of Lands or tenements whereunto the Lessor may have resort or recourse to distrain therfore a rent cannot be reserved by a common person out of any incorporeall inheritance as advowsons commons Offices corody multure of a Mill. Reservations of Rent with all incidents belonging thereunto and how tenant in taile must reserve the rent upon his Lease A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this case if the lesser die between the feast of St. Mic. and the end of the month the heir shall have the rent as incident to the reversion and not the executors as rent behind because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over and the Tenant attorne the Grantee shall have the rent as incident to the reversion Tithes Faires Markets Liberties Priviledges Franchises and the like But if the lease be made of them for years by deed it may be good by way of contract to have an action of debts but distrain the lessors cannot neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion but if any grant be reserved in such case upon a lease for life it is utterly void because in that case no action of debt lieth But if a man deviseth the vesture or herbage of his land he may reserve a rent for that the thing is maynorable and the lessor may distraine the cattle upon the land a reversion or remainder of Lands or Tenants may he granted reserving a rent for the apparent possibility that it may come in possession they are tenements within the words of Litleton Vide fo 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch or a month after with condition of re-entry and the Lessee tenders the rent at the last instant of the day of the feast of Pasch The Lessor in the case may not re-enter upon demand made the last instant of the month because the Lessee hath liberty to pay it then and the diversity was taken between the disjunctive reservation and when the reservation is at a certain feast and a condition is added that if it bee behind by the space of a month after the feast that then the Lessor shall re-enter there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day because he hath not such liberty and election as in the other case and it was resolved by all the Justices that in the said case of the disjunctive reservation if the lessor dy between the said two daies the heire shall have the rent and not the Executor A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas and the Anuntiation or within 12. daies after every of the said feasts payable at the Fontstone in the Temple Church London upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof as is aforesaid therof as is aforeraid that then the said Lease shall be voide and it was adjudged that the lessee in safegard of his Lease shall have 12. daies after the 12. daies to pay the rent for when the rent is not paid at the first day it is as much as if it had been reserved upon the twelfth day after And where it is said per perdictum spacium 12 dierum post c. by good construction all the words ought to take effect viz. post aliquod festorum praedict seu dierum solutionis inde and dies solutionis is the 12. day after the feast and therefore the Lessee shall have 12. daies after the twelfth day which is dies solutionis post festum c. and that for the most a vaile of the Lessee for whose benefit over time was given and those words praedictum spatium 12. dierum standeth well in good sence viz. post praedictum spacium 12. dierum post praedictos 12. dies for that is praedictum spacium though it hath not the same commencement a the other hath And so the quere in 3. and 4. P. M. fo 142. well resolved Dier A Parson of a rectory made a lease for yeares rendant rent at Michaelmas or within a month after The Lessor died ten daies after Michaelmas and was barred by judgement of the Court because the lessor died before the rent was due Dame Eliz. Pawlet seised of the Mannor of Wade for her life by Deed indented demised the Mannor to William Pawlet for 99. yeares if she the said Dame Eliz did so long live yeilding the rent of 100. pounds at Michaelmas and Pasch or within 40. daies after either of the said feasts W. Pawlet made Dulcibel his wife Executrix and died Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor died the thirteenth day after Michaelmas her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. tota Cuâ—ia contra quaerentem Yeilding and paying therefore yearly during the said terme unto the said c. the yearely rent or sum of a 100. pounds Rent reserved to be paid of the thing demised and without any demand of the rents so note that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof Nomine penae forfeited for non-payment of rent without any demande made at two tearmes or Feasts in the yeare most usuall by equall portions the first payment therof to begin at the Feast c. next ensuing the date hereof the same payments to be made yearely at or in
Recovery c. by transmutation of the possession out of the estate of the Feoffees conusees c. Coke 6. part fo 27. Twines case fo 83. Lo. Coke 3 pars IF a man make an estate for life Conditions Vide plus fo 17. 6. fo 35. the remainder in taile the remainder over in Fee upon condition that any of them in remainder shall doe a certaine act then if hee doth not do it the Feoffer and his heires may enter without any words of re-entry in the proviso and thereby shall defeate the estate in possession and all the remainders for he that entreth for a condition broken and a condition in Deed is in of such estate he had before the condition made but otherwise it is where an entry is made upon a condition in law Coke 8. pars Whittinghams case Vide. fo 50. b. For if Lessee for life or yeares grant a Rent charge out of the lands or make a Lease of some part of the terme or doth acknowledge a Statute or Recognizance and then afterwards doth make a Feoffment in Fee or commit any acts which are forfeitures in Law or doth surrender his estate to his Lessor yet the Lessor shall hold the Land charged And note that a condition in law which by force of a Statute giveth a recovery is stronger then a condition in Law which giveth an entry without a recovery For if Lessee for life make a Lease for yeares and then entreth into the land and doth Waste and the Lessor recover in an action of Waste against the Lessee for life he shal avoid the Lease made before the Waste committed But if the Lesse for life make a Lease for yeares and then entreth and makes a Feoffement in Fee the Lessor shall not avoide the Lease for yeares So if the Tenant make a Lease for yeares and then is attained of Felony or dieth without heire although the Lord recover by Writ or escheat yet he shall not avoide the tearme 8. pars fo 44. Whittinghams case Remainder If I make a lease for life upon condition that if the Lessee doth such an Act hee shall have Fee and he doth it accordingly there he shall have Fee because he is privy to the condition and therefore shall take the benefit therof Remainder Lessee for 5 yeares upon condition that if he pay me 20 pound within two yeares that then he shall have Fee the Fee passeth out of the lessor forthwith Remainedr So where a Lease is made for life upon condition that if I. S. marry my daughter during the Estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may bee founded and the condition goeth not to the destruction of the particular estate If I make a Lease for yeares the remainder for life upon condition that if he in remainder doth such an act that the remainder shall be void now before the condition broken the remainder is good and in him to whom it is appointed But if the condition be broken then the remainder is out of him and in the person of the Lessor againe Lessee for life the remainder to A. his wife for her life if she live so long sole and unmarried the remainder to D. their son for his life the remainder to D. is good though it commence upon a conditon because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the perticular estate which maketh the latter to be good though it doth commence upon the condition but quaere whether the second remainder shall begin either upon her marriage or her death If a man for him and his Heires warrant lands to one and his Heires that is a generall Warranty Warranty and what words make a generall Warranty for that it is not restrained against any person in certaine Coke 1. pars fol. 2. This word give in a Feoffment importeth a generall VVarranty against all men during the life of the Feoffor And this word Grant in a Chattel-real doth import a VVarranty in it selfe alone without any clause of VVarranty so as there be in the Deed no speciall matter to qualifie the VVarranty by some speciall Covenant But this word Concessi or Demisi in case of Frank-tenement or Inheritance doth import not VVarranty Coke 5. pars fol 18. The clause of without impeachment of waste Waste in toto and the full definition of the word without impeachment of Waste and what is Waste giveth power to the lessee which shall produce an interest unto him if he doth execute his power during the privity of his Estate and therefore to examine it in reason these words Absque impetitione vasti are in effect as without demand for waste for Impetitio is derived of In and peto and petere is to demand and petio is a demand and sine impetitione is without any manner of demand or impeachment Then this word Demand is of a large extent for if a man disseise me of my land or take my Goods if I release unto him all Actions yet I may enter into the land or seise my goods for by the release of the Action the right or interest is not released but if in such case I release all Demands that shall exclude me not onely of my Action but also of my entry and sciser and of the right of my land and property in my Chattels But if the words had been Absque impetitione vasti per aliquod breve de vasto then the Action onely shall be discharged and not the property in the Trees but the Lessor after the cutting of them may seise them and the diversity appeareth in 30 E. 3. 44. in Walter Idles case where a Lease was made without being impeached or impleaded for waste whereupon it was gathered that these words Without being impeached for waste were not sufficient to barr the Lessor of his property And that if the Lessor had granted that the Lessee might do waste he by that hath power not onely to do waste but also to convert it to his owne use And the opinion of Wray chiefe Justice and Manhood cited in Herlakendens case was not judiciall but prima facie upon Arbitrement without any argument Coke 11. pars fol. 82. When Tenant in fees granteth all his estate to another the Grantee shall have no Fee-simple for want of these words Heires but estate for life but his estate in such case shall be without impeachment of waste as the estate of the Grantee of Tenant in taile shall be and the Feesimple shall be in Nubibus there as well as it shall be of an estate taile and there if he doth commit Treason and dieth the Fee-simple shall escheat to the Common Lord of whom the land is holden for that the blood is corrupt between him and his
Heires so that his Heire may not have it by discent and the King shall not have it because he that did the Treason had not the Fee at the time of the Treason or afterward Plowden 562. 556. If a man do lease or assure his land to another and all the Mynes and Pits thein for life or yeares the lessee may open and dig the ground for Coale Morter Stone c. and take and carry away the same although there were not any Myne open at the time of the lease for by this assurance it appeareth that the lessor was contented that waste should be made in any part of the ground leased by myning or digging And in this case the lessee may sell and dispose the same Coale Stone Marle Morter c. at his pleasure for it is as much as if the lease had been made without impeachment of any manner of waste to be committed by Myne Pits or digging Lessee for life the Remainder for life the Remainder in Fee the first doth waste that is not punishable by him which hath the Fee by reason of the meane Remainder otherwise it is if the meane estate be for years If Lessee for life be the Remainder for life and the Lessee for life doth Waste this Waste is dispunishable at this time for the advantage of him in Remainder for life And where a Lease for life is granted and then the Reversion is granted for life and the Tenant attorneth an Action of Waste lyeth not yet vide the Register 75. that Waste lyeth where there is a mean estate for life in Remainder And though the Waste be unpunishable in the first case yet it seemeth the Chancery may enjoyne him upon complaint against the first Lessee that he shall not do Waste for that he ought not to do Waste by the Law although no Action lyeth The Process in Waste is Summons Attachment and Distresse and if he appeare not at the Distresse then a Writ to the Sheriff to enquire of the Waste by the Oath of twelve men There are two kinds of Waste viz. Voluntary or permissive Waste in houses Waste may be done in houses by pulling them downe or by suffering them to be uncovered whereby the Spars or Rafters Planchers or other Timber of the house are rotten But if the house be uncovered when the Tenant cometh in it is no Waste in the Tenant to suffer the same to fall downe But though the house be ruinous at the Tenants income yet if he pull it downe it is Waste unlesse he reedifie it againe if Glasse-Windowes though glazed by the Tenant himselfe be broken downe or carried away it is Waste for the Glasse is part of the house And so it is of Wainscot Benches Doores Windowes Furnaces and the like annexed or fixed to the house either by him in Reversion or the Tenant Though there be no Timber growing upon the ground yet the Tenant at his perill must keep the house from wasting If the Tenant do Waste or suffer Waste to be done in houses yet if he repaire them before an Action brought there lyeth no Action of Waste against him but he cannot plead Quod non fecit vastum but the speciall matter Waste in Gardens and Orchards If the Tenant cut downe or destroy any Fruit-trees growing in the Garden or Orchard it is Waste but if they grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Lopping of Trees by a Copyholder is not a forfeiture but a Copyholder may not lop and burne them in another house of the Land or Mannor nor sell the Lops unlesse by the Custome he may do waste Kitchin forfeiture 125. Waste in building of a new house If the Tenant build a new house it is Waste and if he suffer it to be wasted it is a new Wast if the house fall downe by tempest or be burned by the lightning or prostrated by enemies or the like without a default of the Tenant or was ruinous at his coming in and fall downe the Tenant may build the same againe with such matterials as remain and with other Timber which he may take growing on the ground for his habitation but he must not make the house larger then it was if the house be uncovered by tempest the Tenant must in convenient time repaire it Waste in Dove-houses Parks Ponds c. Waste in Timber-trees If the Tenant of a Dove-house Warren Parke Ponds or the like do take so many as such sufficient store be not left as he found when he came in this is Waste Waste properly is in houses Gardens Timber-trees viz. Oke Ash and Elme and these be Timber-trees in all places either by cutting them downe topping them or doing any act whereby the timber may decay Also in Countries where timber is scant and Beeches or the like are converted to building for the habitation of man or the like they are also accounted timber that is if the Tenant cut downe timber-trees or such as are accounted timber as is aforesaid this is Waste And if he suffer the young Gerignes to be destroyed Wast in cutting Beeches c. this is destruction Cutting down of Beech Willowes Birch Aspe Maple or the like standing in the defence and safeguard of the house is destruction if there be a Quick-set fence of Whit-thorne if the Tenant stub it up or suffer it to be destroyed this is destruction and for all these and the like destructions an Action of Waste lyeth turning of Trees to Coales for Fewell when there is sufficient dead Wood is waste If the Tenant suffer the houses to be wasted Waste digging for Gravell Cole c. and then fell downe timber to repaire the same this is a double waste digging for Gravell Lyme Clay Brick Earth Stone or the like or for Mynes of Mettall Coale or the like hid in the Earth and were not open when the Tenant came in is waste but the Tenant may dig for Gravell or Clay for reparations of the house as well as he may take convenient Timber-trees If the Tenant convert arrable land into Wood Wastin converting arrable into wood or Meadow into arrable or wood into arrable or Meadow into arrable it is waste The Tenant may take sufficient wood to repaire the Walls Pales Fences Hedges and Ditches as he found them but he can take no new and he may also take sufficient Plow-bote Fire-bote and other House-bote The Tenant cutteth downe Trees for reparations and selleth them and after buyeth them againe and imployes them about necessary reparations yet it is waste for the Sale he cannot sell Trees and with the money cover the house burning of the house by negligence or mischances waste An Occupant shall be punished for waste and so if an estate be made to A. and his Heires during the life of B. A. dieth the Heire of A. shall be punished in an action of waste If a Lease be
covenanteth and granteth to be seised to his use in Fee although no consideration be expresly showne because the Indenture is an Estopell to say it was not a good consideration and it seemeth the Court may not examine the consideration and there is a diversity where the Grant is by Indenture and where by word only Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives But if a man hath power by proviso to make any lease or Grant provided that such lease or Grant exceed not the number of three lives or 21. yeares there he may make a lease for ninety nine yeares if three lives so long live for that doth not exceed the number of three lives but that in truth is lesser for every tearme for yeares which is but a Chattle is lesser in estimation of the law then estate for life which is Frank-tenement If A. be Tenant for life the remainder in taile and A. hath power to make leases for twenty one yeares rendant the ancient rent he may not make a lease by Warrant of Attorney by force of his power because he hath but particular power which is personall unto him Lands may be conveyed 6. manner of wayes First by Feoffment executed from one man to another man and his heires by solemn livery and Seisin By Feoffement By Fine By recovereys Bargain and Sale By use By Covenant By Will if a lesser Estate be given then Fee-simple is it not calâ—ed a Feoffement unless the Fee-simple be conveighed A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land to the use of himselfe for life and afterwards to the use of his son in taile and the deed is not inrolled according to 27 H. 8. the use and profits is charged because the statute speaketh of bargain and sale only and the use is not because of Bargain and sale only but also for marriage Ploudens case Manxell fo 4. A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines What a Fine is and how lands may be converred therby Tenant for life the remainder to A. in taile the remainder to B. in tail c. with diverse remainders over and tenant for life suffers a common recovery wherein he voucheth A. and he the common vouchee that shall binde all the otheir remainders for no Covin or collusion may be supposed when the next in remainder in taile which hath the immediate inheritance is vouched Coke 10 pars fo 48. a rent may be reserved but no condition or Covenant this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme and for foure termes together and if any man having right to the same make not his claime within 5. yeares after the proclamations ended hee looseth his right for ever an Infant a Feme covert a Madman or one beyond the Seas only excepted whose rights are saved so that he claime within 5 yeares after full age death of her husband recovery of the Wits or returne beyond the Seas it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not if he claime by him that levied the fine A recovery barreth entailes and all remainders and reversions that should take place after the entailes saving where the King is giver of the entaile and keepeth the reversion to himselfe then neither the heire nor reversion is barred by the recovery And now by use recoveries are become common assurances against entailes remainders and reversions and the greatest security purchasers have for their money for a Fine will barr the heire in taile but not the remainders nor reversions Why recoveries doe barr remainders and reversions but a common recovery will bar them all and the reason why the heires remainders and reversions are thus barred is because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate as the Land should have done and then it was not reason to allow the heire the liberty to keep the land it selfe and also to have recompence and therefore he loseth the Land and is to trust to the recompence Vpon Feoffements and recoveries the estate doth settle Vpon Fines Feoffements and recoveries the estate doth settle according to the intent of the parties as the use and intent of the parties is declared by word or writing before the act was done as for example if they make a writing that any of them shall levie a Fine make a Feoffement or suffer a common recovery to the other but the use and intent is that one shall have it for his life and after his decease a stranger to have it in taile and then a third in Fee-simple in this case the Law setteth an estate according to the use and intent declared And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine Feoffement or recovery according to the use and intent of the parties The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances viz. Bargaines and Sales and Covenants to stand seised to uses for this statute wheresoever it findeth an use conjoyneth the possession to it and turneth it into like quality of state condition rent and the like as the use hath But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them peradventure in an Alehouse or a Tavern upon straineable advantages did therefore gravely provide another Act in the same Parliament that the Land upon payment of this money should not pass away unlesse there were a writing indented made between the said 2. parties and the said wrighting also within six months inrolled at some of the Courts of Westminster or in the Sessions Rolls in the Sheir where the land lieth The first conveyance by covenant is a conveyance to stand seised to uses it is in this sort A Covenant to stand seised to a use needeth no Inrolement as a Bargaine and Sale to an use doth so as it be to the use of Wife Child or Cousin or one he meaneth to marry a man that hath a wife and children brethen and kinsfolke may by writing under his hand and Seale agree that for him they or any of their heirs he wil stand seised of his lands to their uses either for life in taile or in Fee so as he shal see cause upon which agreement in writing there ariseth an equity or honesty that the land should
good of such Leases by the said Statute there are nine things necessary to be observed belonging to them all and some other to some of them in particular 1. The Lease must be made by Deed indented 2. He must be made to begin from the day of the making or from the making thereof 3. If there be an old Lease in being it must be surrendred or expired or ended within a year of the making of the Lease and the surrender must be absolute and not conditionall 4. There must not be a double Lease in being at one time As if a Lease for years be made according to the Statute he in the Reversion cannot expulse the Lessee and make a Lease for life or lives according to the Statute nor e converso for the words of the Statute be to make a Lease for three lives or one and twenty yeares so as the one or the other may be made and not both 5. It must not exceed three lives or one and twenty yeares from the making of it but it may be for a Lesser terme or fewer lives 6. It must be of Lands Tenements or Hereditaments maynorable or corporeall which are necessary to be letten and whereunto a Rent by Law may be reserved and not of things that lye in Grant as Advowsons Faires Markets Franchises and the like out whereof a Rent cannot be reserved 7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made so as if it be letten for eleven yeares at one or severall times within those twenty yeares it is sufficient A Grant by Copy of Court Roll in fee for life or yeares is a good letting to farme within this Statute for he is but Tenant at will Secund. Cons Manerii And so it is of a Lease at will by the Common Law But those lettings to Farme must be made by some seised of an Estate of inheritance and not by a Guardian in Chivalry Tenant by Gurtesie Tenant in Dower or the like 8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors their Heirs and Successors c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made Hereby first it appeareth that nothing can be demised by authority of this Act but that whereon a Rent may be lawfully reserved Secondly that where not only a yearly Rent was formerly reserved but things not annuall as Herriots or any Fine or other profit at or upon the death of the farmor yet if the yearly rent be reserved upon a Lease made by force of this Statute it sufficeth by the expresse words of the Act And if twenty acres of land have been accustomably letten and a Lease is made of these twenty and one acre which was not accustomably letten reserving the customably yearely rent and so much more as exceeds the value of the other acre this Lease is not warrantably letten and the rent issueth out of the whole If Tenant in taile let part of the land accustomably letten and reserve a rent pro rat or more this is good for that is in substance the accustomable Rent If two Coparceners be Tenant in taile of 20. acres every one of equall value and usually letten and they make partition so as each have ten acres they may make Leases of their severall parts each of them reserving the halfe of the accustomable rent If the usuall Rent had been payable at foure dayes or Feasts of the yeare yet if it be reserved yearly payable at one Feast it is sufficient for the words of the Statute be reserved yearely Ninthly nor to any Lease to be made without impeachment of Waste therefore if a Lease be made for life the Remainder for life c. this is not Warranted by the Statute because it is dispunishable for VVaste but if a Lease be made to one during three lives this is good for the Occupant if any happen shall be punished for VVaste the words of the Statute be seised in the right of his Church yet if a Bishop that is seised in jure Episcopatus A Deane of his sole possessions in jure Decanatus An Arch-deacon in jure Archidiaconatus A Prebendary and the life are within the Statute for every of them is generally seised in jure Ecclesiae All Grants Feoffments Leases and other Conveyances or Estates to any Master or Fellowes of a Colledge Deane and Chapiter Master or Guardian of an Hospitall Parson Vicar c. other then for one and twenty yeares or three lives from the time of such Lease or Grant reserving the accustomable yearely rent yearly payable shall be meerly void 18 Eliz cap. 11. All Leases made by such persons as 13 Eliz. cap. 10. before where another Lease for yeares is in being not to be expired surrendred or ended within three years next after the making of such new Lease shall be void All Bonds and Covenants for renewing or making of any Lease contrary hereunto or to 13 Eliz. cap. 10. before shall be void But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives c. of lands usually letten reserving the usuall rent it must be also confirmed by the Patron and Ordinary because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are Notes of things well and duty to be observed other then for the terme of one and twenty years or three lives from such time as any Grant or assurance shall be given whereupon the old and accustomed yearely rent or more shall be reserved And to that effect is the exception in the Statute of 13 Eliz. First it is to be understood that neither of these nor any other do in any sort alter or change the enabling Statute of 32 H. 8â— but leaveth it for a patterne in many things for Lease to be made for others Secondly it is to bee knowne that no lease made according to exceptation of 1 Eliz and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop or any sole Corporation but it must be confirmed by the Deanes and Chapiters or others that have interest as hath been said in the case of the Parson and Vicar but examples do illustrate If a Bishop make a Lease for one and twenty yeares and all these yeares being spent saving three or more yet may the Bishop make a new Lease to another for one and twenty yeares to begin from the making
and if it be presented at the next court Ceaque use shall be admitted thereunto But if it be not presented at the next court according to the custome then the surrender becometh void and so it was clearly holden Pasch 14 Eliz. in the court of common Pleas. the Lessee afterwards taketh a Lease for twenty years upon condition that if he doth such an act then the Lease for twenty yeares shall be void and after the Lessee breakes the Condition by force whereof the second Lease is void yet the Lease for forty yeares is surrendred for the Condition was annexed to the Lease for twenty yeares but the Surrender was absolute So if a man make a Lease for forty years and the Lessor grants the Reversion to the Lessee upon Condition and after the Condition is broken the terme was absolutely surrendred And the diversity is when the Lessor grants the Reversion and when the Lessee grants or surrenders his Estates to the Lessor for a Condition to a Surrender may revest the particular Estate because the Surrender is conditionall But when the Lessor grants the Reversion to the Lessee upon Condition there the Condition is annexed to the Reversion and the Surrender absolute If Lessee for yeares accept a new Lease of his Lessor to begin presently or at a day to come that is a present surrender of the first Lease And if Lessee for forty yeares take a new Lease to him and his Son by Deed indented for twenty yeares by which Deed the Lessor covenanteth that if the Son dye within the terme that then the first Lease shall stand in his force the same Lease or any other thing notwithstanding although the Son dye within the said twenty yeares yet this Covenant shall not revive the first Lease And if a Lease be made for twenty yeares to begin at Michaelmas and after before Michaelmas the Lessee excepteth a new Lease of his Lessor of the same land by Deed indented for sixteen yeares the Lessee upon his entry at Michaelmas is but Termor for sixteen yeares and that is by reason of the Deed indented and the agreement which amounteth to a Grant of the first Lease c. for an interest of a terme may not be surrendred before that it be in possession nor the Lessee shall not have Ejectione firmae nor Action of Trespasse before he be in possession But he may forfeit or grant such interest of a terme yet some hold that such interest may by acceptance of a new Lease be surrendred very well And they take a diversity where the second Lease may determine before the beginning of the first then the acceptance of that is no Surrender otherwise it is if it containe a day after the beginning of the other then they say that it is a Surrender But it is a Principle that it behoveth that he that surrendreth be seised or possessed of the Estate and of the thing surrendred at the time of the surrender made for a surrender made by Tenant for life disseised is void for that he hath but a right at the time of the surrender the same Law of a surrender made by a Fome which hath title to Dower is void Also a man may not surrender a right to a terme and a man may not surrender that which he hath not as a terme which is to begin at a day to come nor a terme before that the Lessor which surrenders hath entred lawfully by force of his Lease for a Release made to such Lessee by the Lessor before the beginning and before the possession had of his Lease is void Also the Lessor remaineth possessed of the Demesne and hath not any reversion before that And in every surrender these foure things are to be considered and observed viz. Foure things to be observed in every surrender 1. It behoveth him that surrendreth to have in him the thing surrendred at the time 2. The surrender ought to be made of the thing leased for this word Surrender is of such effect to give againe and nothing may be given againe but that which was created before 3. It behoveth alwaies that there be a privity between him that surrendreth and him to whom the surrender is made which privity is defeated and destroyed by granting over of their Estates 4. And it behoveth also that he to whom the Surrender is made hath in him and in his right the immediate Reversion or Remainder of the thing at the time of the Surrender made and of such Estate so that the thing surrendred may draw therein for surrender made to him which hath but a right of Reversion as to the Disseisee or to Tenant in Law as to the Heire or to the Lord by Escheat before that they have entred or have seisin or possession in Deed or to the Discontinuee of Tenant in taile c. is a void surrender And note that there is a Surrender in Deed and a Surrender in Law of a terme for yeares Surrender in deed and Surrender in Law and therfore if Tenant for yeares and the Lessor make a Feoffment or Lease for life that shall be taken the Livery of the Lessor and the surrender of the Lessee for the terme thereby is extinct and yet there is not any word of surrender but it shall be so taken by the Judgment of Law which alwaies incline the words of the parties to the minds of the parties But if Tenant for life and his Lessor make a Feoffment in fee by Deed that is the Feoffment of Tenant for life and the Confirmation of the Lessor although there be not any word of Confirmation in the Deed and that shall not be taken to be a Surrender in Law But if Tenant for life speaketh that he agreeth or sheweth his contentment to enable him in the Reversion onely to make a Feoffment and Livery and Seisin to a stranger that is a Surrender in fait But if he surrender by word in another County that is not a Surrender untill he to whom it is made hath entred And it is to be thought that if Tenant for life take a new Estate of his Lessor for twenty yeares that this is a surrender in Law of the Lease for life for otherwise the second Lease was made to him when he was seised or possessed of the first Lease Surrender by expresse words Note that a Surrender by expresse words is where the Lessee saith to the Lessor that his will is that he shall have againe the land or that he will no longer occupy the same if the Lessor thereunto agree and enter that is a Surrender and else not But if Tenant for life waive the possession and the Lessor enter that is no Surrender In Chenies case it was resolved in Curia Hardorum 27 Eliz. that where he in Reversion enfeoffed his Lessee for yeares to the use of others that although the Lease be surrendred and extinguished by the Common Law yet by the saving of the Statute of 27 H.
Administration of the goods at this day to the Wife if she require it or children or next of kin if they refuse it as often they doe because the debts are greater then the estate will beare then some Creditors or some other will take it as the Bishops Officers shall think meet It groweth often in question what Bishop shall have the right of proving Wills and granting Administration of Goods In which Controversie the rule is thus That if the party dead had at the time of his death Bona notabilia in divers Diocesses of some reasonable value the Arch-bishop of the Province where he died is to have the approbation of his Will and grant the Administration of his Goods as the case falleth out otherwise the Bishop of the Diocesse is to do it If there be but one Executor made yet he may refuse the Executorship coming before the Bishop so that he hath not intermeddled with any of the Goods before or with receiving Debts or paying Legacies And if there be more Executors then one so many as list may refuse and if any one take it upon him the rest that did once refuse may when they will take it upon them no executor shal be further charged with Debts or legacies then the value of the goods come to his hands So that he foresee that he pay Debts upon Record Debts to the King Then upon Judgments Statutes Recognizances then Debts by Bond and Bill sealed Rent unpaid Servants Wages payment to head-workmen and lastly Shop-books and Contracts by word for if an Executor or Administrator pay Debts to others before to the King or Debts due by Bond before those due by Record or Debts by Shop-book and Contracts before those by Bond Arrearages of rent and Servants Wages he shall pay the same over againe to these others in the said degrees But yet the law giveth them choice that where divers have debts due in equall degree of record or specialty he may pay which of them he will before any Suit be brought against him but if Suit be brought he must first pay them that get Judgment against him Any one Executor may convey the Goods or release Debts without his Companion and any one by himselfe may do as much as all together But one mans releasing of Debts or selling of Goods shall not charge the other to pay so much of the Goods if there be not enough to pay debts but it shall charge the party himself that did so release or convey But it is not so with Administrators for they have but one Authority given them by the Bishop over the Goods which Authority being given to many is to be executed by all of them joyned together And if an Executor dye making an Executor the second Executor is Executor to the first Testator But if an Administrator die intestate then his Administrator shall not be Executor to the first But in that case the Bishop whom we call the Ordinarie is to commit the Administration of the first Testators Goods to his Wife or next of kin as if he had died intestate Alwaies provided that that which the Executor did in his life time is to be allowed for good And so if an Administrator die and make his Executor the Executor of the Administrator shall not be Executor to the first Intestate but the Ordinarie must new commit the Administration of the Goods of the first Intestate Again if the Exetutor or Administrator pay Debts or Funeralls or Legacies of his owne money he may retaine so much of the Goods in kind of the Testator or Intestate and shall have property of it in kind Legacy PRoperty by legacie is where a man maketh a Will and Executors and giveth legacies he or they to whom the Legacies are given must have the assent of the Executors or of one of them to have his Legacy and the property of that Lease or other Goods bequeathed unto him is said to be in him but he may not enter nor take his legacy without the assent of the Executors or of one of them because the Executors are charged to pay debts before legacies And if one of them assent to pay legacies he shall pay the value thereof of his own purse But this is to be understood by debts of Record to the King or by Bill and Bond sealed or Arrearages of Rent or Servants or Work-mens Wages and not debts of Shop-books or Bills unsealed or Contract by word for before them legacies are to be paid And if the Executors doubt that they shall not have enough to pay every legacy they may pay which they please first but they may not sell any speciall legacie which they will to pay debts or a lease of goods to pay a money legacy But they may sell any legacie which they will to pay debts if they have not enough besides If a man make a Will and make no Executor or if the Executors refuse the Ordinary is to commit Administration cum Testamento annexo and take Bonds of the Administrators to performe the Will and he is to do it in such sort as the Executor should have done if he had been named A Lease was made to one William Cecill for the terme of one and forty yeares if he so long live and if he dye within the terme aforesaid Remainder void fol. 56. then E. the wife of the said W. should have and hold all the said Premisses for the residue of the said terme if she so long live and if she die within the same terme then W. Cecill Son of the said W. Cecill should have and hold all the Premisses for the residue of the terme aforesaid unexpired By Catelin and Dier the Remainders are all void because that the terme is determinable on the life of W. Cecill so the residue of the said terme may not remaine Dyer fol. 253. Releases AS a Release of Suits is more large and beneficiall then a Release of Querela's or of Actions so a Release of demands is more large and beneficial then any of them for thereby is released all that which are released by the others and more By a release of all Demands all Free-holds and Inheritances Executory are released as Rents and the like by a Release of all Demands all Executions are released by a Release of all Demands to the Disseisor the right of entry to the land and all which is contained within it is released So it is resolved in Chamies case 34 H. 8 titulo Release that he which releaseth all Demands excludeth himself of all Actions Entries and Seisures Littleton holdeth cap. Garranties 80. 170. That if Tenant in taile enfeoff his Uncle who enfeoffs another in fee with Warranty if after the Feoffee by his Deed release to his Uncle all manner of Warranties or all manner of Covenants reall or all manner of Demands by such Release the Warranty which is a Covenant reall and executory is extinct And the reason of all that was
during his life If a rent be granted to one for life by deed and willeth that the Grantee and his heires distraine in the Lands charged for the same rent the grantee hath in this case fee-simple in the rent and not estate for life for the distresse is the creation of the rent-charge and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse for therein he retaineth it for a terme which is as long as he hath in the Land and therefore hath not any certainty that terme will ever commence and therefore the grant void And where Lessee for yeares without any habendum granteth to another all his tearme which shall be to come at the time of his death shall be all void A Termor reciting by Indenture his terme and lease granted all his terme estate and interest to another habendum sibi assign suis immediate post mortem ipsius the Grantor and the case was ruled and adjudged that the habendum was void and the premises of the grant good to make the whole terme to passe forthwith Dier fo 272. If I have a rent in Fee if I grant it to another and stay there this is a grant for life but if I goe further and say habendum after the death of I. S. there all shall be void vide fo 2. If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee the grantee shall not have a state of Frank-tenement because he cannot have a stare of Frank-tenement derived out of a Chattel reall but he shall have the rent during all the yeares if the Grantee so long shall live Plowden fo 525. If I have a rent in fee and grant it to another post mortem I. S. this grant is void for the nature of a grant is that the thing ought to passe forthwith If a man make a lease for yeares and afterwards the lessor grants a rent charge out of the Land that grant shall charge the reversion And this proveth that the Land and the reversion are nor two distinct things but that in the reversion the Land is contained Plowden fo 173. The Abbot leased land for life and afterward leased the reversion to have the Land from Michaelmas next after the first Lease ended by death surrender or forfeiture for 21. yeares this is a good Lease Plowden fo 146. A grant of a reversion Habendum the said reversion after the end and expiration of the Tenant for life Attornement needdes for sixty yeares this is a good grant without Attornement If I make a Lease to one for life and afterwards I grant the reversion to another habendum from the Feast of St. Michael next ensuing to him and his heires this grant is void because that no franke-tenement be it in possession reversion or remainder may be limited to commence at a day to come If I have a rent in Fee I may not grant it to commence in futuro or at a day to come but if I have land I may grant a new rent out of it to commence at a day to come for there I shall not have any particular estate in the meane for it was not in esse before but doth commence of new and therefore I may appoint it to commence when I will Pertinentiis A man makes a Feoffement of a house cum pertinent nothing passeth by these words cum pertinentiis but the Garden Curtilage and close adjoyning to the house and whereupon the house is built and no other Land though other Lands have been occupied with the house A man leased a house cum pertin no land passeth by these word but otherwise it is where a man leaseth a house cum omnibus terris eidem partin there the lands therewithall used doe passe If a man makes a Feoffement of a house ac omnes terras tenementa heriditamenta eidem messuagio pertin aut cum eodem occupata locata aut dimissa existent hereby the land used with the house doth pass Tenant in taile and the Lessee shall acknowledge the Tenements to be the right of one A stranger Lease by fine to bind Tenant in Taile and his issue and that A. shall grant and render by the same fine to the Lessee for 60. yeares the remainder to the Lessor and his heires and it was with proclamations which shall bind the taile after proclamation made If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee Recovery the best to barr estates taile and remainders who voucheth tenant for taile who voucheth over c. there the tail shall be barred because that he when he commeth in as vouchee shall bee in the degree of tenent in taile and the recompence in value which he hath or may have shall goe in taile and therefore such manner of recovery is best and the surest way to barr the taile and all the remainders and the reversion also If A. be tenant in taile the remainder to B. in taile the remainder to C. in taile the remainder to B. in Fee A makes a Feoffement the Feoffees suffer a common recovery wherein B. is vouched he over the common vouchee In this case A. is not bound but B. and all the remainders over are barred For although that by the Feoffment of A. all the remainders were discontinued and the estates that B.C.D. had converted into meere rights and though the remainders may never be remitted before the estate taile in possession be recontinued yet in case of a common recovery which is the common assurance of the Land he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had though the precedent estate wherupon the state of the vouchee dependeth be devested or discontinued Coke 3 pars fo 60. Tenement is a large word Tenement and Hereditament to passe not onely lands and other inheritances which are holden but also Officers Rents Commons Profits apprender our of lands and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento but an Hereditament is the largest word of all in that kind for whatsoever may be inherited is an hereditant be it corporeall or incorporeall reall or personall or mixt Vesturam terrae If a man hath twenty Acres of Lands and by Deed granteth to another and his heires Vesturam terrae and maketh Livery secundum formam chartae the Land it selfe shall not passe because he hath a particular right in the land for thereby he shall not have the houses timber trees and other reall things parcell of the inheritance but he shall have the vesture of the Land that is the Corne Grasse and Vnder-wood Sweepage and the like and shall have trespasse quare clausam fregit Herbagium terrae If a man grant herbagium terrae he hath a
be charged with this Covenant for although the rent reserved was increased in respect of the stock or the summe yet the rent doth not issue out of the stock or summe but out of the land onely and therefore as to the stock or summe the Covenant is personall and shall bind the Covenantor his Executors and Administrators and not his Assignee for it may be wasted or otherwise consumed or perished by the Lessee and therefore the Law cannot determine at the time of the Lease made that such Covenant shall bind the Assignee If a man demise or grant land to a woman for years and the Lessor covenanteth with the Lessee to repaire the houses during the terme the wife taketh a husband and dieth the husband shall have an action of Covenant as well upon the Covenant in Law upon these words Demise or Grant as upon the expresse Covenant But it was resolved by Wray chief Justice and all the Court that this word Concessi or Demisi in case of Frank-tenement or inheritance doth not import any Warranty see the Statute of 32 H. 8. cap. 24. what act was resolved to extend to Covenants which touch or concern the thing demised and not to collaterall Covenants Demise Grant Dier Upon these words Demise grant in Leases for years or lives 9 Eliz. 257. the Lessee and his Assignes shall have a Writ of Covenant alwaies provided there be no speciall Covenant following after in such Leases for then this generall Covenant is qualified and the former word Demise Grant shall loose his operation Coke 4 pars Nokes case And if a man be bound in an Obligation to perform all Covenants Grants Articles and agreements c. in such Indenture now the Lessee or his Assignes upon eviction may bring an Action upon the Obligation by reason of the Covenant in Law which is broken viz. Demise Grant Co. 4. pars Assignment of Estate If Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his election but if the Lessor accepteth rent of the Assignee he hath determined his election and shall not have an action against the Lessee afterward for rent due after the assignment no more then if the Lord once accept the rent of the Feoffee he shall not avow upon the Feoffor Co. 3. pars Walkers case Proviso that the Lessee or his Assignes shall not alien to any person without license of the Lessor afterward the Lessor gives license to alien or demise the land or any part thereof the Lessor doth alien accordingly this one license hath determined the Condition so that no alienation to be made afterwards can break the Proviso be it done by the Lessee himself or his Assignes so that a dispensation with one alienation is a dispensation of all other 4 pars â—ol 119. A Lease was made to three upon Condition that they or any of them should not alter without the assent of the Lessor after one aliened with his assent then the other two aliened without license the Condition being determined to one by license of the Lessor was determined in all and so adjudged And the case in Dyer fol. 334. was denied for Law 4. pars fol. 119. Note that a Condition may not be apportioned or divided by the acts of the parties 4 pars fol. 119. Recovery Recovery against Baron and Feme by Writ of entry in the Post where the wife is Tenant in taile and they vouch over and so the demandant recovereth against Baron and Feme and they over in value that shall bind the Taile and the Heire of the Wife This assurance was made by the advice of Brudnell and other Justices Quere de hoc Where a Writ of entry in the Post is brought against Tenant for life to bind the Feoffees he ought to pray aid of him in reversion and then they to vouch upon the joynder c. and such a recovery with voucher is used to dock the taile in ancient Demaine upon a Writ of Right and Voucher ever If an Obligation of 100 l. be made with condition for payment of 50 l. at a day Tender and at the day the Obligor tenders the money and the Obligee refuseth the same yet upon an action of debt upon the Obligation if the Defendant plead the tender and refusall he must also plead that he is yet ready to pay the money and tender the same in Court but if the Plaintiff will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever If a man be bound in two hundred quarters for delivery of a hundred quarters if the Obligor tender at the day the hundred quarters he shall not plead Uncorprist because albeit it be parcell of the Condition yet they be bona peritura and it is a charge for the Obligor to keep them and the reason wherefore in the case of the Obligation the summe mentioned in the Condition is not lost by the tender and refusall is not onely for that it is a duty and parcell of the Obligation and therefore is not lost by the tender and refusall but also for that the Obligee hath remedy by Law for the same But if a man make a single Bond or knowledge a Statute or Recognizance and afterward make a Defeasance for the payment of a lesser summe at the day and the Obligee or Cognisee refuse it he shall never have any remedy by Law to recover it because it is not parcell of the summe contained in the Obligation Statute or Recognizance And in this case in pleading of the tender and refusall the party shall not be driven to plead uncorprist or to tender it in Court. Neither hath the Obligee or Cognusee any remedy by Law to recover the same summe contained in the Defeazance And so it is if a man make an Obligation of a hundred pounds with condition for delivery of Corne or Timber c. or for the performance of an Arbitrement or the doing of an act that is collaterall to the Obligation that is to say is not parcell of it and therefore a tender and refusall is a perpetuall Bar. Tender upon a Mortgage If the Condition upon a Mortgage be to pay to the Mortgagee or his Heirs the money c and before the day of payment the Mortgagee dye the Feoffor may not pay the money to the Executors of the Mortgagee for in this case the money ought to be paid to the Heire Et in hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum And the Law will never seek out a person when the parties themselves have appointed one vide Coke 5. pars 96. Goodales case Dyeâ— 2 Eliz. fol. 181. But if the Condition be to pay the money to the Feoffor his Heires or Executors then the Feoffee hath election to pay it either to the Heire or Executors Payment on a
next jure propinquitatis that is by right of representation and by right of propinquity And Littleton meaneth of the right of representation for legally in course of discent he is next of blood inheritable And the issue of C. doth represent the person of C. and if C. had lived he had been legally next of blood And whensoever the Father if he had lived should have inherited his lineall heire by right of representation shall inherit before any other though a Mother be jure propinquitatiâ—… neerer of blood But if there be Father and Son and the Father hath a brother that is Uncle to the Son and the Son purchase lands in fee and die without issue living the Father the Uncle shall have the lands as heire to the Son and not the Father yet the Father is neerer of blood because it is a Maxime in Law that inheritance may lineally descend but not ascend yet if the Son in this case die without issue and the Uncle enter into the land as heire to the Son and after the Uncle dieth without issue living the Father the Father shall have the land as heire to the Uncle and not as heire to his Son for that he cometh to the land by collaterall discent and not by lineall ascent and his Uncle enter into the land for if the Uncle in this case doth not enter into the land then cannot the Father inherit the land for there is another Maxime in Law herein implied That a man that claimeth as heir in Fee-simple to any man by discent must make himself heire to him that was last seised of the actual Freehold and inheritance And if the Uncle in this case doth not enter then had he but a Freehold in Law and no actuall Freehold but the last that was seised of the actuall Freehold was the Son to whom the Father cannot make himself heire And therefore Littleton saith And his Uncle enter into the land as he ought by the Law to make the Father to inherit as heire to the Uncle Note that true it is that the Uncle in this case is heire but not absolutely heire for if after the discent to him the Father hath issue a Son or a Daughter that issue shall enter upon the Uncle And so it is if a man hath issue a Son and a Daughter the Son purchaseth land in fee and dieth without issue the Daughter shall inherit the land but if the Father hath afterward issue a Son this Son shall enter into the land as heire to his brother and if he hath issue a Daughter and no Son she shall be Co-partner with her Sister As he ought by the Law These words as a Key do open the secrets of the Law for hereupon it is concluded that where the Uncle cannot get an actuall possession by entry or otherwise there the Father in this case cannot inherit And therefore if an Advowson be granted to the Son and his Heires and the Son die and this discend to the Uncle and he die before he doth or can present to the Church the Father shall not inherit because he should make himself heire to the Son which he cannot do And so of a rent and the like But if the Uncle had presented to the Church or had Seisin of the rent there the Father should have inherited For Littleton putteth his case of an entry into land But for an example if the Son make a Lease for life and die without issue and the Reversion discend to the Uncle and he die the Reversion shall not discend to the Father because in that case he must make himself heire to the Son If the Father make a Lease for years and the Lessee entreth and the Father dieth the eldest Son dieth before entry or receipt of the rent the younger Son of the half blood shall not inherit but the Sister because the possession of the Lessee for years is the possession of the eldest Son so as he is actually seised of the Frank-tenement and the Inheritance and consequently the Sister of the whole blood is to be heire And so if lands be holden by Knights service and the eldest Son is within age and the Guardian entreth into the lands An so likewise if Guardian in Socage enters But in the case aforesaid if the Father make a lease for life or a gift in tail and dieth and the eldest Son dieth in the life of Tenant for life c. the younger brother of the half blood shall inherit because the Tenant for life or Tenant in tail is seised of the Freehold and the eldest Son had nothing but a Reversion expectant upon the Freehold and therefore the youngest Son shall inherit the land as Heire to his Father who was last seised of the actuall Freehold And albeit a rent had been reserved on the estate for life and the eldest Son had received the rent and died yet it is holden by that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land but Liber Ass part 2. seemeth to the contrary Ideo quaere He that claimeth Lands Tenements Maxime upon collaterall discent or Hereditaments as collaterall heire to any one must claim from such an one that had an actuall possessession and died actually seised of the Frank-tenement and the inheritance in Fee-simple of those lands which he so claimeth by discent and not from such a one who had but a possession in Law or a reversion in Fees expectant on a Frank-tenement discendible unto him But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase it is sufficient Actuall possession Note that an actuall possession must be gained either by a mans own act or by the actuall possession of another but if neither by his own act nor by the possession of another he doth gain no more then discendeth unto him then the brother of the half blood shall inherit Possessio quid And this word Possessio is no other but pedis positio and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession for when the eldest Son hath not an actuall possession or if it be such inheritance whereof any possession may not be gained per pedis positionem or by any other act then the inheritance by the Law shall discend to the brother of the half blood As for example The King by his Letters Patents createth a Baron and giveth the Dignity to him and his Heires and he hath issue a Son and a Daughter by one venter and a Son by another venture and dieth the eldest Son dieth without issue To whom shall the dignity discend To the younger Son for it may not be said that the
elder son was in possession of the dignity no more then of his blood for the dignity is inherent to his blood and neither by his own act nor by the act of another hath he gained more actuall possession then by the Law descended to him Coke 3. pars fol. 42. Actuall possession quid Possession in Law quid Here 's jure proprietatis heres jure representationis An actuall possession is when a man entreth in Deed into lands to him discended A possession in Law is when lands be discended to a man and he hath not yet really entred into them nor hath seisin of the rents reserved upon any estate made for life by him from whom he claimeth Every one that is heire unto another is as the eldest Son shall inherit onely before all his brothers Aut heres jure representationis as where the eldest Son dieth in the life of his Father his issue shall inherit before the youngest Son for although the youngest Son be magis propinquus yet jure representationis the issue of the eldest Son shall inherit for he doth represent the person of his Father And even as none may be procreate but of one Father and one Mother and ought to have in him two bloods viz. the blood of his Father and the blood of his Mother those two bloods commix in him by lawfull marriage doth constitute and make him heire So none may be heire to any one unless he hath in him both the bloods of him to whom he shall make himself heire And therefore the heire of the half blood shall not inherit because he wanteth one of the bloods that should make him inheritable for as in this case the blood of the Father and the blood of the Mother make but one blood inheritable and both are necessary to the procreation of an heire therefore desiciente uno non potest esse haeres And this is the reason of the Maxime of Possessio fratris de feodi simplex facis sororem esse haeredem Co. 3. pars Ratcliffs case fo 37. If a man be attainted of felony by judgment the heires begotten after the attainder are foreclosed from all manner of hereditary Succession as well on the part of the Mother as on the part of the Father And Britton gave this reason because the Son procreate after the judgment had not two bloods inheritable in him for at the time of his birth the blood of his Father was corrupt for ex leproso parente leprosus generatur filius And when the Father is attainted of felony the blood in respect of what it shall be inheritable being corrupt the Son as like to it hath not but half blood viz. the blood of the Mother in him without corruption And therefore he holdeth that such a Son shall not inherit his Mother And with him Bracton accordeth for saith he Non valebit felonis generatio nec ad hereditatem paternam vel maternam si autem ante feloniam generationem fecerit talis generatio succedit in hereditatem patris a quo non fuit felonia perpetrata Because that at the time of his birth he had two lawfull bloods commixt in him which may not be corrupt by attainder subsequent but onely as to that Father or that Mother by whom the Felony was done and committed Assise To arraigne an Assise is to cause the Demandant to be called to make the plaint and to set the cause in such order as the Tenant may be inforced to answer thereunto and is derived of the French word Arrayner to order or set in right place and the Assise is Arrained in French and entred in Latine Executed and things executory a difference There is a diversity between Inheritances executed and Inheritances executory As Lands executed by Livery c. cannot by Indentures of Defeasance be defeated afterwards And so if a Disseisee release to a Disseisor it cannot be defeated by Indenturs of Defeasance made afterward but at the time of the Release or Feoffment c. the same may be defeated by Indentures of Defeasance for it is a Maxime in Law Quae in continenti fiunt in esse videntur But Rents Annuities Conditions Warranties and such like that be inheritances executory may be defeated by Defeasance made either at that time or at any time after And so the Law is of Statutes Recognizances Obligations and other things executory Distress for a mercement He that distraineth for an Amercement and such like must be sure to distraine the Goods and Chattels of him that is amerced because he may not distraine another mans beasts for this amercement But for rent or services it is otherwise for the party may distraine the beasts found in the land that are levant and couchant there N. B. fol. 100. B. Distress Damage-feasant And if a man take beasts for Damage-feasant and the other offer sufficient amends he refuse c. Now if he sue a Replevin c. for the beasts he shall recover Damages onely for the Detinue of them and not for the taking for that was lawfull F.N.B. 69. The Lord may seise a Herriot service aswell as a Herriot custome Herriot service Herriot custome may be seised Warde and so it was then adjudged by the whole Court Plow fo 96. Replevin Woodland versus Mantle It was resolved that when the King maketh an heir apparent which in age of a Tenent by Knights service a Kt in the life of his ancestor after the ancestor dieth the said heir within age in this case he shall be out of ward and shall pay no value of his marriage nor the Lord shall have the custody of the Land for in such ease by the making of him Knight in the life of his Ancestor he is made as of full age so that when his Ancestor dieth no interest either in the body or in the land ever vesteth in the Lord. It was also resolved that when the heir within age is made Knight after tender made to him although that he within age marry else where yet he shall not pay the forfeiture of marriage Cok. 6. pars fo 73. Sir Drue Druries case If an infant in the life of his father be made Knight and his Father die he shall be in Ward but otherwise it is where an infant in Ward is made Knight there he shall be out of Ward 2. E 6. tit Garde 42. Magna Char. Cap. 3. Touching the time of the beginnning of a Lease for yeares it is to be observed Commencement of a lease Inclusive exclusive that if a Lease be made by indenture bearing Date the 26. of May c. to have and to hold for 21. yeares from the Date or from the day of the Date it shall begin the 27. day of May. If a Lease beare Date the 26. of May. c. to have and to hold from the making hereof or from henceforth or from the sealing and delivery hereof
there he hath but an estate for life for there want words precedent to direct the words in the disjunctive these words Heires are of the essence of the estate and without them no estate of inheritance shall pass And so by the same reason if a reversion upon a Feoffement in Fee be made to one or his heires such reservation is good no longer but during the life of the Feoffor A. covenants to make a lease to B. and his assignes for 21. yeares the sence of these words shall be taken that he shall make the Lease to B. or his Assignes for 21. yeares Plow Com. fo 289. The defendant bound himselfe by Indenture to pay to the Plantiff a certaine sum if so be that the Defendant did not enfeoffee the plantiffe nor his heires of certain Land when he came to his aunt and the Plantiffe declared that the Defendant came to his aunt and the Plantiffe required him to enfeoffee him and he did not enfeoffee him per quod actio accrevit and exception was taken to this declaration because the condition was in a disjunctive that is to say that the Plantiff should have the sum if the Defendant did not enfeoffee him nor his heires and he hath said that he did not enfeoffe him not speaking of the Feoffment to his heires and if he had performed any of the parts ' of the disjunctive the Plantiffe might not have the debt but the Count was holden very good notwithstanding that exception for the plantiff might not have an heir during his life so that although the condition in words be disjunctive yet forasmuch as the Plantiffe was alive in sence it was not disjunctive for he might not have an heir being alive and the sence of the words are to be taken to enfeoffee the Plantiffe if he be alive if he were dead then to enfeoffee his heires and as the Plantiffe may not have an heire during his life so heere in the case above B. may not have an executor during his life and as the condition there in the disjunctive to enfeoffee at a time to come him or his heirs was taken to enfeoffe him at the time limitted if hee were alive and if he were dead at the time then to his heirs so here the Covenant to make a lease at a time to come to him and his assignes copulatively shall be taken disjunctively in sence that is to say to him if he be alive and to his assignes if he be dead Plow com fo 289. Of uses in esse in futuro A. makes a Feoffment in Fee to the use of D. for life and after to the use of him which shall be his first son in taile and for default of such issue to the use of B. in taile and for default of such issue to the use of C. in fee. In this case forthwith by the Feoffment D. hath estate for life the remainder to B. in taile the remainder to C. in Fee and no estate is put in abeyance or left in the Feoffees but if after A. hath issue a son then the possibility which the Feoffee had becomes to an estate in Law and forthwith the statute of 27. H 8. cap. 10. executeth the possession according to the limitation of the use But if Tenant for life be disseised before the birth of the son and after he hath issue a son now nothing vesteth in the son because there ought to be a use in esse before that the Statute can execute the possession But who shall enter to remoove the impediment and to restore the privity of the estates Surely if the tenant for life shall re-enter hee shall revive all the former estates which the statute of 27 H. 8. hath executed to the former uses in taile and for that also the statute transferreth the estate of the Land to the son in taile for that is the privity which the Statute requireth scil privity of estates which the same statute hath executed upon the lymitation of the uses in the same conveyance before and after the death of tenant for life the Feoffees may enter and revive the use and as lessee for yeares or for life upon condition to have fee may not have increase and inlargement of his estate but upon the privity of the estate of the Lessee so no remainder of a future use may be transferred in estate by force of the Act before the particular estates executed by the statue upon lymitation of uses in the same conveyances be recontinued but if Tenant for life make a Feoffment in fee or dy before the birth of the son his remainder is destroyed as if a Lease be made for life the remainder to the right heires of I. S if lessee for life make a Feoffement or die during the life of I. S. the remainder to the right heires is destroyed and that is the best construction of the statute of 27 H. 8. The chief Baron said that Scintilla juris which is mentioned in 17 Eliz. is like to Sir Tho. Mores Eutopia and they said that after this Statute no trust or confidence was reposed in the Feoffees for now as Walinslow said the Feoffees non possunt agere aut permittere aliquid in prejudice of ceste quâ—… use before the Statute the office of the Feoffe was to execute the estate according to the use but now the statute hath taken all Walinslow said even as a fountain giveth to every one that commeth in their time unto it their just measure of water so likewise the first estate and seisin in fee given by the first Feoffment to the feoffees is sufficient to all persons to whom any use present or future is limitted a competent measure of estate in their time proportionable to their estate which they shall have in the use so that the first seisin by force of the Feoffment whereby the fee-simple is given to the Feoffees shall bee sufficient to serve all their particular uses as well future as present in their severall times and nothing shall remaine in the Feoffees but Walinslow said that all the estate shall be first vested in those which are in rerum natura and the possession shall bee vested in him which hath the future use when that commeth in esse by force of the first livery and shall divide the estates which were conjoyned before If a feoffment in fee be made to the use of one for life and after to the use of the right heires of I. S. the fee simple of the land shall be in abeyance and before the Statute if a man had made a feoffment to the use of one for yeares and after to the use of the right heires of I. S. the Fee-simple of the land shall be in abeyance And before the Statute if a man had made a Feoffement to the use of one for yeares and after to the use of the right heires of I. S. this limitation had been good for the Feoffees shall remaine
tenants of the Frank-tenement but such limitation after the Statute is void for then the Frank-tenement shall be in suspence for nothing may remaine in the Feoffees But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life and although the remainders are in custody of the Law yet they ought to be subject to the rules of the law for the law will never preserve any thing against the rule of the Law and because that the rule of the law is that he in remainder ought to take the Land when the particular estate determineth or otherwise the remainder shall be void and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture then those in the future remainder were not in esse to take it for this cause these remainders in futuro by this matter ex post facto were all utterly destroyed made void And no diversity when the estate of tenant for life determineth by the death of tenant of life and when it determineth in right by his forfeiture for in both cases entry is given to him in the next remainder and then if he may not take the Land when the particular estate determineth the remainders void A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee and after A. S. dieth his right heire shall never have the remainder nor any Charter that concerneth it for the estate of the Land was by the feoffment of S. in taile divested and discontinued and all estates vested in the Feoffee and there was not any particular estate either in esse nor in right to support the remainder when that shall fall for by the Feoffment of S. in taile his right heire was utterly gone But if tenant in taile were deceased and dieth that shall not toll the remainder for there is a right of particular estate to support the right of the remainder but when tenant in taile made a feoffment no right remained in him and so note that there ought to be a person in esse of both parties viz. that shall be seised to use and that shall take the use so that there needeth not onely to have a use limited but a person capable of the use when this Statute transferreth the possession thereunto and therefore if a person wanteth it is impossible to have the possession executed by this Statute to one which is not in rerum natura for the Statute saith c. If by a Feoffment to uses the estate shall be utterly out of the Feoffees and all vest in them which have the present uses then the future use shall never rise for it is impossible that it should be raised out of the possession of ceste que use for a use may not be raised out of a use for if A. enfeoffe B. in fee to the use of C and his heires with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires that is utterly void for the future use ought to be raised out of the estate of the Feoffee and not out of the estate of ceste que use And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse and that in the mean time all the uses in esse shall be vested and when the future use commeth in esse then the Feoffees if the possession be not disturbed by disseisin or other meanes shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute and that seisin and execution ought to concurr and meet together at one selfe same time and in such case when the future use commeth in esse the Feoffees shall have by force of the act a qualified estate sufficient to serve the future use All the Justices and Barons of the Chequer but Periam Walmsley Gawdy concluded c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse and not to any uses that depend in possibility onely for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law and by consequence they may be destroyed or discontinued before they come in esse and by all such meanes as Uses might have beene discontinued or destroyed by the common law And all the Justices and Barons of the Chequer agreed with the chiefe Baron and VValmsley in this point that these remainders limited in use in the case at the barr shall follow the rule and reason of estates executed in possession by the common law and therefore they al only agreed that if the estate for life in the case at the barr had been determined by the death of the Feoffees before the birth of the eldest son that the said remainders in futuro were void and never shall take effect although that the son were borne afterwards for a remainder in use ought to vest either during the particular estate or eo instante when the particular estate endeth as well as estates in possession All these cases last before touching contingent uses see Coke prima pars fo 120. Chudleis case unto the end of the said case If a future use come not in esse during the particular estate then it shall never take effect because it is in nature of a remainder which ought to take effect and vest during the particular estate and no use shall be executed by 27 H. 8. which are limited against the rule of the common law A use is in nature of a remainder and therefore in the raising of uses the order and rule of the common law touching remainders in all things must be observed but upon and by the limitation of a devise or limitation of a use a remainder may commence upon a condition which goeth to the destruction of the particular estate and one fee-simple may depend upon another If a man at this day make a feoffement in Fee to the use of A. for yeares and after to the use of the wife of B. which shall be this limitation to the right heirs to the wife is void because if it had been void it had been limited in possession So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be if A. dieth and then B. dieth or taketh a wife this remainder limited to the right heires or to the wife of B. is void for it were void if it had been limited in possession And 72 H. 8. intended to restore the good and the ancient common law and not to give more priviledge
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he
a man recover debt or damages against against another he may chuse to have a cap. or elegit but if he take the Capias he shal not have the Elegit afterwards nec e converso 15 H. 7. 15. Fieri facias THis Writ of Fieri facias is onely against the goods scil Leases for yeares or moveables goods as Cattel Corne House-hold-stuffe Money Plate Apparrell and this Writ ought also to be sued within the yeare after the judgement Co. 3. 12. In the execution of a Fieri facias it is the surer course for the Sheriff either to keep the goods untill the parties be agreed or else to take good security of the Plantiff to defend and save him harmeless and to stay the returning of his Writs untill he may be well advised what to doe therein But if he take a bond of the Plantiff it is questionable whether it be good or no in law and not within the compasse of the Statute of 23 H. 6. ca. 10. to be taken colore Officii But the safest and surest course for the Sheriff or Officer is not to take in execution or not to meddle at all with any such goods as shall not not plainly appear to them to be the proper goods of the Defendant for it seemeth that the Officer is bound at his perill to take knowledge whose the goods are or at lest that they be the proper goods of the defendant Note that after the Fieri facias a man may have the Elegit but not e contra because the Elegit is of a higher nature then the fieri facias Upon a fieri facias the Sheriff may sell a Lease or terme of yeares and upon a fieri facias the Sheriff ought to sell to levy the debt Co. 5. 90. Co. 8. 171. Upon a fieri facias if the Sheriff sell the goods and after the judgement is reversed in a Writ of Error yet the defendant shall not have restitution of his goods but the value of them for what they were sold and those which so buy such goods of the Sheriff may lawfully enjoy them for the Sheriff which made the sale had lawfull authority to sell and by the sale the Vendee hath absolute property in the goods and if the sale of the Sheriff by force of the Fieri facias shall be avoided by subsequent reversall of the judgement then no man will buy and by consequence no execution shal be done Co. 5. 90. and 8. 96. and 143. Levari facias THis Levari facias is onely to be executed upon the profits of the Lands and upon the goods or the Sheriff may hereupon take the rents payable by the tenants in execution for the debt and bring them in Court but he cannot seise the land and deliver that to the party by this VVrit Plow 441. a. and this ought to be sued within the yeare after the day of payment to be made by the recognizance or after the judgement for after the yeare the Connusee or Plantiff is now by the Statute of Westminster 2. cap. 45. to have a scire facias whereby the Sheriff is commanded that he give knowledge to the Defendant that he appeare in the Chancery at a certaine day there to shew what he can say why he should not pay the debt or dammages and if he come not at the day or doe come and can say nothing why execution ought not to be done then the Sheriff shall be commanded to do execution Fitz. 266. c. And if the Sheriff upon the Levari facias shall returne that he hath levied part of the sum scil 20 l. part thereof which he hath delivered to the party now upon this returne the party which ought to have the money may have a sicut alias Levari facias directed to the Sheriff to levy the residue of the sum Fitz. 265. h. Summons SUmmons is a Writ to the Sheriff to cite or warne one to appeare at a certaine day and the Summons must be made by or in the presence of two or three Summoners and these summonitors ought by law to be liberi legales homines as it seemeth In Summons in reall actions the Summoners in the presence of the Pernors or Veiors ought to summon the tenant first to keep his day of the returne and to name that in certainty to answer c. Secondly they ought to name the name of the demandant and Lastly they ought to name the Land in demand co 6. 54. This word Pernor seemeth to signifie the Pernor of the profits of the land or the Occupier or Farmer therof And this Veior to signifie such as are sent by the Court to take view of the place in question for the better decision of the right Minshaw Note that the Defendant ought alwaies to be summoned 15. daies at the least before the day of the returne of the Writ 28 E. 1. cap. 15. Fitz. 177. Note when the Tenant appeares by the summons he may not take advantage after to say that he was not well summoned and so if he bee essoined for all that affirmeth the Summons 46 E. 3. Br. Summons 22. Note also if the Sheriff shall summon him which hath no land to or by his person and shall returne him summoned it is good And in Actions of annuity Covenant or the like Summons is the process hath he land or not and where a man hath no land where he may be summoned there the Sheriff may summon him by his person 33 H. 6. 4. H. 7. 7. In a Writ of right of Advowson the Sheriff may summon the Defendant in the Church Br. returne 101. 11 H. 6. In a quaere impedit the Sheriff may summon the Defendant in the Church IX H. 6. and so by advise it was done inter Lancelotum episcopum Eliens and the Author of this book Anno 16. Jacobi regis In a Praecipe against 4. the Sheriff cannot summon the one but that is a summons to all 3 E. 4. Br. Summons 10. In a Praecipe there ought to be two summoners for if there be but one and the Tenant maketh default and loseth by default he shall have a Writ of disceit against the Sheriff Plow 393. Note that the Tenant may wage his law of non summons and yet a corporation recluse and decrepit may not do their Law but their summons shall be tryed by the country 33 H. 6. fo 8. Thel 334. Quaere Attachment ATtachement cannot bee by land nor by Chattel reall as a lease for yeares 7 H. 6. 27 H. 6. neither may a Table dormant or any other thing fastened unto the free-hold be attached 21 H. 7. fo 26. but an Attachment must be made by mooveables which may be forfeited by outlary and which shall be forfeited by the default of the party if he appeare not Br. 1. 4 In debt trespasse or the like a man ought not to attach the Defendant by his horse whereupon he rides where he hath other goods whereby he may be attached
And that they have all the Goods and Chattels forfeited of all their men and Tenants resident or not resident and of all others resident within or upon their Tenements Lands or Fees There are divers Immunities granted by divers old Charters as to be quit de Geldiâ—… Danageldis Hildagiis Carucagiis Auxilis Wardpenny Averpenny Thething penny Theolonio Pontagio Passagio Pavagio Cestagio Tallagio Carriagio c. And are explained in that which follows Certain Saxon words in Doomsday Book expounded by Mr. Agar of the Receit in the Exchequer A. ALneâ—um a place where Alder-trees grow Alodium the old translation of the Saxon Laws useth this word for Bockland Aloacii or rather as I take it Alodacii they that hold Bockland or Charter-land Arabant they that held by tenure of Plowing and Tilling ground Arpens the Frenchmen say that an hundred Perches make an Arpent 18. Foot a Perch 12. Inches a Foot Columel l. 5. c. 1. Demi-arpent they take for Jugum or Jugerum Arsura concerning Coynage Avera Service or Avarage B. BAtsweines we call them Botswains or Bothouls Berewich I am of Mr. Cambden's minde in his Book that it signifieth a Town-parcel or belongin to another Berquarii I take it for to be Shepheards we call Bercarium a Shepherd both seem to come from the French Beragiâ—… Bordacii they be Tenants that occupy part of the Demesns which are called Bordlands i. Terra ad mensam Bruaria we call that which the Latines term Erica Bruere Heath Burse or Colibti it may be this word is written for Bury which sometime I reade in this Book Bure is that which the Dutchmen call a Bore Colâ—…s a Paysant Burgheristhe I think it should be Burgberiche Violatio Pacis in villa Buzecatle Bursecapls or Botsecals the same that Botswain Merchiner or Shipmen C. CAballa I think it should be Caballus a Horse Caruca a Plough Carucata a Plough and Land Censarii such as might be taxed Cervisarii the Saxons had a duty called Drinkleum that is retributio potus Canutus Laws c. 8. 28. 38. whereupon such Tenants may be called Cervisarii Circset the Saxons call it Cirikseat but Fleta calleth it Circseâ— quasi semen ecclesiae Corn paid to the Church Coliberts see Burf Cosez Cottages Cotemans Cotigers of Coten or Coath an house Cuna servicii a Kan of Drink B. DEna terrae a hollow place between two Hills Drenchs in Cheshire a Fermor F. FOrtgingels Ferthindel is the fourth part of an Acre or Penny or any thing else Ferlingi a quantity of Land in Huntingdon Somerset and Hampt Feudum that which we call Feodum Firma Rent in money or victual but properly in victual in the Charter of Edgar to Ely it is limited for a penalty to pay one nights ferm if the privileges be broken by any man Foristell Forestall the stopping of ways that is now used for such as buy things before they come at the market Fraxmetum a place where Ashes grow Frustum terrae a piece of Land G. GAllum the Saxons called it Gasell custom paid to the King or rent Garb Garben a Sheaf of corn Garsum â—…e a Fine or Amerciament Goldum Solutio Gribrige Grith brecbe Fractio pacis H. HAga est in Burgo vel in Civitate Hangennita Hanguits Latro suspensus sine indicoÌ„ Harduices in Burgo Glouc. ubi sunt currucat terrae villanni Hede or rather a Hide a port or landing-place Henfare an amerciament for flight for murder Hesthas a service to the King in Closhaw Hasta I think rather it should be so written Henewarde a duty to the King in Cambridgshire Hominacio it may be called Dominacio many use Hominum where we use Homagitum Huscarbus Famulus a servant in your house Hida an uncertain quantity of arable land in several Counties I. INewardus one attending the King in Hereford and Cambridgshires Inland so the Saxons call the Demesns of a mannour and the Lands that were holden of them Vtland Jugum half an Arpent 50. Perches nota that in one place of Doomesday Book it is said tenet unum jugum terrae ust di car L. LAgeman that is homo habens legem Lagh is Law Landgeble the Saxons call both rents and customary payments of works or other things and tribute Gastel and they had special names for sundry sorts as Beregavel payment of Burly-cheese Gavel rent-cheeses Pridgavel the Welchmen use for Landgavel Legruita or rather Lethervita but more usually Lierwite punishment for lying with a woman Lenna A mesne of a mile of Land Lenga A mesne of a mile of Land Lennides A mesne of a mile of Land Libras arsas pensatas a quantity of coin M. Mansum Houses Mansura Houses Marsum a quantity of of coin quâ—…re P. PAracium the tenure that is between parceners viz. that which the youngest oweth to the eldest Pasuagium money taken for mast or feeding of Hogs we call it Pannage Bracton calleth it Pessona Pensa in Saxon Peza a weigh of cheese or other thing Q. QVarentena that which the Saxons call Furlang is translated Quarentena in divers places O RAdechenistres Bracton amongst other tenures speaketh of Rhode Knights which I suppose this word expresseth Radechenight for che is writen often-in Doomesday Book for C. or K. as Chent for Kent their tenure is to ride with their Master or Mistris the Saxons call Padâ—…ayarney Radmans I think it all one with the former word unless peradventure this be derived from Reade counsel and so Readmans signifieth Counsellours Relevacion Revalementum a French word of Celever to lift up again for the Land by the Tenants death is as it were fallen into the Lords hands and the Heir raiseth it up again but that which the Book of Doomesday mentioneth seemeth rather to express the Harriot or Heryate of the Saxons spoken of in Canutus's Laws c. 69 Reveland that is reaved from the King S. SAca Conusans of Pleas in causes concerning his own Tenants Sâ—ca Suit to ones Court or Mill or any other liberty Scangium exchange quaere Scotum solutio Sochemans Sochi Sochemanni men to whom some special liberties and privileges are given Solin Solus 400. acr di faciunt 2. Solinos di T. TAilla Taxes or Tallages Taini thegnes ministri Regis vel aliorum Taniland terra quam tenuerunt Thani Trabes Thraves Corn 24. Sheafs make a Thrave vel potius a weigh of Corn. The four Termes with their Returnes Hillary Terme beginneth Jan. 23. and endeth Feb. the 12. In 8 daies of St. Hillary Jan. 20 Jan. 21. Jan. 22. Jan. 23. From the day of St. Hillary in 15. daies Jan. 27. January 28. January 29. Jan. 30. In the morrow of the Purification of the blessed Mary Feb. 3. Febr. 4. Febr. 5. Feb. 6. In 8. daies of the Purification of the blessed Mary Feb. 10. Feb. 10. Feb. 11. Feb. 12. Easter terme begins 17. daies after Easter and ends and returnes FRom the day of Easter in 15. daies From the day of Easter in three weekes From the day of Easter