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
may not be apportioned nor divided B. extinguishment 49. conditions 193. Suspension If a Lease be made for yeares rendantrent upon condition of non payment by such entry of the lessor into parcell of the land leased the condition is suspended in all And if the Lessor after such entry make an alienation of this parcell to a stranger the condition is thereby destroyed and extinct in all for the condition which is a thing entire may not be apportioned by the act of him which is to take a vaile thereof But by the act of the Law or by the Act of him which is charged with the condition the condition may in some speciall cases be apportioned An Obligation is made solvendum numquam this solvendum is void and the thing presently due 21 E. 4. 36. Obligation A. is bound to B. solvendum eidem A. this is a good obligation and the solvendum is void for the plaintiff may declare upon a solvendum to himselfe 4 E 4. 29. An annuity granted pro concilio impendendo or a Feoffment ad erudiendum filium or ad solvendum ten shillings is a condition without words conditionall Condition otherwise the party hath no remedy If the Lessor enter upon his Lessee for terme of yeares and make a Feoffment in Fee with Livery the rent is suspended for ever Suspention of rent Re-entry upon such as faile to pay their Rent at the day although the Lessee re-enter for it is a tortious entry And if it happen c. That then and from thenceforth this present Demise and grant onely in respect and having regard to the state and interest demised or granted or hereby mentioned or intended to be demised or granted to the said A.B. C. and D. and every of them which shall make default of payment of the said yearely rent in such manner and forme as is aforesaid aforesaid to be utterly void and of none effect and that then and from thenceforth at all times then after it shall and may bee lawfull to and for the said Lessor his heires and Assignes into the said Messuages or tenement Lands Tenements Hereditaments and Premises with their and every of their appertenances onely in respect and having regard to the estate and interest demised and granted or hereby mencioned c. to such of the said A. B. C. D. as shall make default of payment of the said rent aforesaid in manner and forme aforesaid wholly to re-enter and the same to have againe and repossesse as in his or their former estate and every such of the said A. B. C. D. as shall make default of payment of the yearely rent aforesaid in manner and forme aforesaid utterly to expell a move and put out any thing in these present Indentures to the contrary therof contained in any wise notwithstanding Tithes To the Parson belongeth of common right the tenths of all manner of yearely encrease which we call Dismes or Tithes and therefore by a Lease of Rectoria the Lessee shall have the Dismes and Offerings of the same Church for they are incident unto it 15 H. 7. 8 Fitz. Na. Br. 175. And if a Parson demise his Gleeb to any man hee shall pay tithe because they are of common right Heire This word Heires in the plurall number is worthy observation for if a man give Lands to one and to his heire in the singular number he hath but an estate for life for his heir cannot take a Fee-simple by discent because he is but one and therefore in that case his heire shall take nothing and observeable is this conjunctive Et. for if a man give lands to one to have to him or his heires he hath but an estate for life for the incertainty ses suis If a man give Lands to two to have and to hold to them heredibus omitting suis they have but an estate for life for the incertainty But it is said if land be given to a man heredibus omitting suis a Fee-simple passeth But follow Littleton Cokes Litt. fo 8. b. Such unity which is within the Branch of the said Act ought to have four qualities Tythes What vnity is sufficient within the Statute of 31 H. 8. to discharge the Land of Tythe first the unity ought to Iusta and rightfull and not by wrong secondly it ought to be equall that is in Fee one with the other for if the Abbots Priors c. have holden by Lease time out of memory that is no unity within the statute thirdly it ought to be perpetuall time out of memory c. and fourthly it ought to be free from payment of any tithes for if their Farmours at will for yeares c. have paid tithes unto them the unity perpetuall shall not serve Coke 11. pars fol. 9. Pruddy and Nappars Case An Abbot is Parson imparsonee and hath Lands within the same Pasonage and all commeth to the King by suppression and the King grants the personage to one and the land to another this was argued upon demurrer in the Kings Bench and the opinion of the Justices there was that Tithes should not be paid more now then the Abbey paid before the suppression The King shall not pay Tithes for Lands which are in his hands although the Leviticall Law saith that every one shall pay Tithes ut dicitur No Tithes shall be paid for Sea-coles which a man findes and diggeth in his Land for it is not yearely profit ut accidit in W. C. and Master Leech Fitz. Na. Br. 53. and Register 54. Note that by the Statute of 27. Eliz. cap. 1. it is ordayned vacua Henry the second granted unto the Abbot of York the tenth of all his Venison in York shire by his Charter By this it appeareth that for Wild Beasts there was no Tythe due for then might not the King have granted another mans Tythe c. Itner Pickering fo 170. b. The Prior of Lancaster did claime the Tythe of Venison and the Tythe of pawnage viz. decimam bestiam in carne corio per manus ministrorum de sorresta and the tenth penny of the pawnage when the pawnage of the Forrest was collected and he made his by vertue of a grant made by the Lord of the Forrest unto one of his Predecessors and his claime was allowed of for good Itin. Lanc. anno 10. Ed. 3. fo 64. b. c. No prohibition lieth where a Parson demandeth Tithes of Horne-beam Sallows Hasells Maples and such like although they be of the Age of 40. yeares for they will not serve to build otherwise it is of Oakes Ashes Elmes and such like and also of their bowes which are above the age of twenty yeares Coment Plowden fo 470. It was never seen that any Tythes should be paid of great trees because they are parcell of the inheritance and this is proved by the Statute of 45. E 3. Cap. 3. in that such case a prohibition lieth If Timber Trees have
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
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
the terme of his life without c. and from and after his decease to the use and behoofe of B. P. his wife for and during the terme of her life for her joynter And from and after the severall deceases of them the said H and B P. then to the use of the heires males of the body of the said H P lawfully to be begotten And for default of such issue then to the use of Dame F. P. for and during the terme of her life untill such time as she the said Dame F. or any other by her allowance shall by any publick act by him or them done or suffered to be done seek endeavour To the use limited for life untill she shall practise to do an act or put in practise for to avoide or question the joynter of the said B P either in part or in all or any other estate grant Lease or use whatsoever now made or at any time hereafter to be made and limited by the said H P of any part or parcell of the said Mannors Lands and other the Premises and immediately from and after such publike act as aforesaid or after the decease of the same Dame F then to the use of H P Esquire son of the said c. untill c. And for and concerning the inclosed ground and Park to the use and behoofe of the said H P for his life To the use of a woman for part of her Joynter Joynter by way of the lymitation of a yearely anuity and after his decease to the use of the said Dame G. for terme of her life for part of her Joynture And after her decease to the use intent and purpose that such other wife as the said H P. shall have at his decease other then the said Dame G shall and may receive and take out of the said Parke ground and other the last mentioned Premises one yearly rent of 200 pounds of lawfull money of England for the terme of the life of such wife for her joynter the said rent to be paid at the feast of St Michael the Arch-angell and the anuntiation of our Lady by equall portions And after c. to such uses intents and purposes Vses limited to ones last will and testament and for want of such will to any other uses c. vide plus 18. 2. 8 Vses first of all raised for divers mens lives as the said H P by his last will and Testament in writing or by any writing or by any writing to be made by him sealed and subscribed shall limit and declare and for default of such limitation or declaration to the use and behoofe of the said H P. and his heires for ever That is to say to the use and behoofe of the said F M and of his Assignes for and during the joynt lives of him the said F M. and the said E M his son without impeachment c. and from and after the decease of the said F in case the said F shall fortune to depart this present life during the life of the said E M. his son then as for and concerning the mannor and Lordship of T. with all his rights members appurtenances to the use and behoofe of the said A. now wife of the said F F.M. and of her assignes for and during the terme of her naturall life if the said E. M. the son shall happen so long to live and from and after the decease of the said E. M. Vses raised for satisfaction of Joynter dower then as for and concerning the Scite or chiefe Mansion house c. to the only use and behoofe of the said B. for terme of her naturall life for and in full satisfaction and recompence of all such Joynter and Dower as to the same B. shall or of right ought to belong or appertaine by from and after the decease of the said E. M her husband And as for and concerning the residue of the said Mannor of c. to the onely use and behoofe of the said A. and of her assignes absolutely for tearme of her life in full satisfaction of the Joynter of the said A. And then after the lives ended the use of the reversion expectant on those lives is setled And as for and concerning the reversion and reversions remainder or remainders of the said Mannors c. as the said uses estates and interest therof herein before lymited or expressed shall be fully ended and determined and for and concerning the said Mannor of c. as the estates and interests therof before limited or expressed in these present Indentures shall fully end and determine Then to the use and behoofe of the said F. M. for terme of his naturall life without c. and from and after his decease then to the use and behoofe of E. M. for terme of his life without c. and from and after his decease to the use and behoofe of the first son to be begotten by the body of the said E. M. and of the heires males of the same first son lawfully begotten To the use of every other the sons as they shall be in seniority or age Lands conveighed to uses for the raising of portions for daughters and so to the second son unto the tenth son And for default of such issue then to the use and behoofe of every other the sons to be begotten by the body of the said E. M. successively as they shall be in seniority or age and of the heires males of their severall bodies lawfully begotten And for default of such issue then to the use and behoofe of all and every the daughters which the said E. M. shall have begotten on the body of the said B. at the time of his decease being then unmarried and of their assignes from and after such time as each of them shall have accomplished their severall ages of 18 yeares or be married to and untill such time as every of the same daughters successively one after another as they shall be in seniority or age shall or may levy receive and take to every of their own propper uses and behoofes of the rents profits and issues of the Premises the severall summes of 300. pounds a peece of currant money of England or otherwise shall be fully satisfied contented or paid of the said severall summes by such person or persons to whom the next immediate reversion or remainder of the premises shal then by the intent and meaning of these presents of right belong and appertaine And from and after such time as the said severall sums of 300. pounds shall be fully levied received or paid as is aforesaid c. and for default of such daughters whichsoever of them shall first happen Then to the use of T. M. second son of the said F. M. for tearme of his life and so on with an intaile as before and for default of such issue then to the use and behoofe of the said E.
the Mannor house c. And if it shall happen the said yearly rent of 100. pounds or any part or parcel therof to be behind unpaid in part or in all by the space of 40. dayes over or after any the said Feasts or dayes of payment thereof before mentioned at or on which the same ought to be paid as aforesaid that then and so often without any demand to be made at the said Mannors or either of them or other the Premises or to the person of the said H. P. his Executors and Assignes the said H. P. his Executors Administrators and Assignes shall forfeit loose and pay for and in the name of a paine or nomina paenae the summe of 5. pounds of c. and then and from thenceforth it shall and may be lawfull to and for the said A. B. C. D. their Executors Administrators and Assignes or any or either of them into the said Mannors Lands Hereditaments and Premises with the appurtenances to enter and distraine as well for the said rent of 100. pounds or any part or parcell thereof so behind and unpaid and the arrearages thereof if any bâ—… as also for the said sum of 5. pounds nomine paenae so to be lost as aforesaid and the distresse and distresses so there taken and had lawfully to lead drive take carry away imparke and impound and in pound to detaine and keep untill they shall be thereof lawfully satisfied and paid And if it shall happen the said yearely rent of c. A re-entry for non payment of rent though no demand be made of the rent vide plus fo 13. or any part or parcell thereof to be behind and unpaid in part or in all by the space of 40. dayes over or after any or either the said Feasts or daies of payments therof before mentioned at or which the same ought to be paid as aforesaid that then and so often and without any demand thereof as aforesaid it shall and may be lawfull to and for the said A. B. C. D. their or either of their Executors Administrators or Assignes into the said Mannors and Premises with the appurtenances to re-enter and the same to have againe retaine repossesse and enjoy as in their first and former estate any thing herein to the contrary contained in any wise notwithstanding Note when any summ nomine paenae shall be forfeited demande must be made precisely at the day a convenient time before sun setting In the one case in respect of the condition and in the other in respect of the penalty unlesse it be made without any demand as it is in this last case before Coke 7. part fo 28. Maundes case Demand of Rent and how it ought to be made to take benefit of a re-entry How to make a perfect demand to re-enter for non-payment of rent ANd if it happen the said rent to be behind and upaid by the space of ten daies after any the said Feasts c. The last instant of the last ten daies is only of effect aswell for the Lessee to be ready to pay it as for the lessor to demand it and to demand it the last instant of the tenth day is sufficient for him without any demande at the first day or Feast when it was first due Howbeit the Lessor must make demand the last instant of the tenth day before the sun setting or else he may not re-enter and if the lessor do not come upon the land the last instant of the last day for to demand the rent nor the Lessee is there to pay it the Lessor shall never enter because he ought to do the first act viz. to demand it and such demand shall not be untill the other be holden to pay it and that is not till the last instant of the last day which time is onely materiall for them both Plowden fo 173. If a man make a Lease for life or yeares rendant rent at such a Feast and if it be behind that he shall enter there the Lessor ought to come to the Land and demand the rent otherwise he shall never enter for there the rent is onely payable upon the land and the land is his Debtor and therefore though the Lessee be absent yet the lessor ought to demand the rent of the Land as of the principall Debtor and as that which may yeild a distresse if the rent be not ready thereupon for if he doth not make a demand he shall never enter for default of payment although the lessee be absent for the lessors being upon the land at the extreame time of payment of the rent and to testifie to the jury that he was there ad petendum redditum and not prove quod petebat redditum his being there before sun set and staying there after sun-set doth nothing availe Plowden Kedwelley vers Brande If a Lease be made rendant rent with re-entry for default of payment if the rent be behind and title of entry given and then the lessor distraineth for the rent he shall never enter afterwards for that rent then behind because that by the distresse he affirmeth the terme to have continuance Plowden fo 133. If the lessor made an acquittance to the Lessee for rent behind after the time in which the condition is supposed to be broken hee shall never re-enter afterward If one Lease two Acres for life rendant to him and his heires for the one 12. pence and rendant to him 12. pence for the other his heir shall not have the 12. pence last reserved because it was not reserved to him his heires and yet if he had reserved the rent without saying any more the law would have said that he and his heires should have had it but when hee saith reserving to him the law will not helpe any further then his owne words extend Plowden fo 171. Yeilding and paying to the Lessor How tenant in taile ought to reserve the rent reserved on his lease and to every person to whom the inheritance or the reversion of the Premises shall appertaine during the terme this is a good reservation for the law will distribute it to whom any limitation of use shall be made but it was agreed that the clearest and surest way was to reserve the rent yearly during the tearme and leave the law to make distribution without any expresse reservation to any person but it was resolved that all the said three severall wayes were good and effectuall Coke 8. part fo 69. Whitlocks case Queen Eliz. made a lease for yeares rendant rent Demand where it must be made payable at her receit of her Exchequer at Westminster or to the hands of her Bayliffe or Receavor c. with the usuall condition to bee voide for non for non payment of the rent afterwards the Q. granted over the reversion to another to his heires now where the patentee should demand the rent was the question And in this case it was
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
made to A. for life the Remainder to B. for life the Remainder to C. in Fee in this case where it is said in the Register and in Fitz. R. B. that an Action of waste doth lye it is to be understood after the death or surrender of B. in the mean Remainder for during his life no action of waste doth lye But if a Lease for life be made the Remainder for years the remainder in fee an action doth lie presently during the term in Remainder for the mean terme for years is no impediment If waste be done Sparsim here and there in Woods the whole Woods shall be recovered or so much wherin the waste Sparsim is done And so in houses so many roomes shall be recovered wherein there is waste done But if waste be done Sparsim throughout all shall be recovered it hath been said that if the Hall be wasted the whole house shall be recovered because the whole house is denominated of the Hall but latter authority is to the contrary In many cases a Tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto and shall not be punished for the same in any action of waste As if a house be ruinous at the time of the Lease made if the Lessee suffer the house to fall down he is not punishable for he is not bound by the Law to repaire the house in that case and yet if he cut down Timber upon the ground so letten and repaire it he may well justifie it the reason is for that the Law doth favour the supportation and maintenance of houses of habitation for mankind If the Lessor by his Covenant undertake to repaire the houses yet the Lessee if the Lessor doth it not may with the timber growing upon the ground repaire it though he be not compellable thereunto A man hath Land wherein there is a Myne of Coals or the like and maketh a Lease of the Land without mentioning any Mynes for life or years the Lessee for such Mines as were open at the time of the Lease made may dig and take the profit thereof but he cannot dig any new Myne that was not open at the time of the Lease made for that should be adjudged waste And if there be open Mynes and the Owner make a Lease of the land with the Mines therein this shall extend to the open Mynes only and not to any hidden Myne but if there be not open Mynes and the Lease is made of the land together with all the Mynes therein there the Lessee may dig for Mynes and enjoy the benefit thereof otherwise these words should be void A. enfeoffeth B. to the use of A. himself for life Vses and remainders of Uses vide plus fo 18. Touching revocations see 6 pars fol. 32. 28. 63. 10. pars fo 78. 143. 1. pars fol. 111. 173. 175. 3. pars fol. 5. 82. 83. Plowden Com. fol. 102. 5. pars fol. 90. and then to the use of B. in taile and then to the use of C. in fee with Proviso and liberty to revoke the uses and to limit new Uses if A. survive B. and after A. makes a Feoffment and B. dieth whether A. may limit new Uses against his owne Feoffment is the question He cannot because a livery is of such force that it giveth and excludeth the Feoffor not only of all present Rights but of all future Rights and Titles Admit the Proviso had been onely that if A. survived B. that then he might revoke the first uses in this case it were very cleare that after the said Feoffment he might not revoke for then he should have the land againe against his owne Feoffment which were against reason In this case the Proviso goeth further viz. And that he may alter change c. admit then that he should have power to revoke the ancient uses and power to limit new Uses to a stranger how should this stranger have this new use why surely by force of the first First Feoffment made by A for out of that all the present and future uses do grow And the stranger should have this use in manner by the said A. against his last Feoffment and own livery which may not be So if a man covenant to do a collaterall act in this case before the breach thereof a release of all Actions Suits and Quarrels doth not availe for before the breach thereof there is not any duty or cause of Action but the breach ought to precede and so it was adjudged but in the same case a release of all Covenants shall be a bar to the Covenant But if the power of Revocation had been present as the usuall Provisoes of Revocations are then it may be extinct by a Release made by him which hath such power to any that hath estate of Frank-tenement in the land in possession remainder or reversion and therefore the estates which before were defeisible by the Proviso are by such release made absolute Albaines case 1. pars fol. 3. There is a diversity betweene a Condition that is compulsary and a power of revocation which is voluntary for a man that hath power of revocation may by his own act extinguish his power of revocation in part as by levying a Fine of a part or making of a Feoffment of a part and yet the power shall remain for the residue because it is in nature of a Limitation and nor of a Condition and so it was resolved in the Earle of Shrewsburies case in the Court of Wards Pasch 39 Eliz. Mich. 40. and 41 Eliz. but destroy a Condition in part and it is destroyed in the whole for a Condition cannot be apportioned He that hath power by Proviso to alter uses in land may revoke and alter part at one time and part at another and so to the residue till he hath revoked all But he may revoke but one self part at one time unless he hath new power of Revocation to the Uses newly limited Where a Revocation is to be made by Deed indented to be enrolled that is as much to say as by Deed indented and inrolled for no Revocation shall be in that case untill the Deed of Revocation be inrolled And therefore a Fine levied by him that hath such power of revocation before the Deed of Revocation be inrolled doth extinguish the power of Revocation But if a Feoffment be made by A. to divers uses with Proviso that if B. shall revoke that the Uses shall cease then B. may not release this power and a Fine levied and a Feoffment by him shall not extinguish it for the power of B. is meerly collaterall See many good causes more to this purpose fo 51. and the land doth move from him nor the party shall not be by him nor under him But a Fine Feoffment or Release by A. if the power had been reserved to him shall extinguish it 1. pars Diggs case fol. 173. Where
Uses are raised by way of Covenant that Covenantor may not make leases by any Proviso But he may make voide the Indenture of Covenant and all the Uses in the same Indenture if he hath such a Proviso Nicholas Scroope seised in Fee of divers Mannors Vses and powers in Contingency and possibility may be by mutuall assent of the parties revoked and determined for as they may be raised by Indenture so by Proviso or Limitation annexed to them in the same Indentures they may be extinguished and destroyed either before or after their essence Co. 10. pars fol. 68. A Fine shall be paid to the King for the execution of an Vse upon a Covenant though no Fine be levied by force of the Proviso in the Statute of 27 H. 8. which otherwise should not have been 6. pars Coke fol. 28. having issue Anne his Daughter by Indenture dated 26. Junii 23 Eliz. for the preferment of Wynifride his Wife and Anne their Daughter covenanted with divers to stand seised of the said Mannors to the use of the said Nicholas Wynifride and Anne for their lives and after to the said Anne and of the Heires of her body with other Remainders over with a Proviso that if the said Nicholas during his life and after the debts paid mentioned in the Schedule annexed to the Indenture should be disposed or determined to disanull change alter enlarge diminish or make void the Uses or Estates or any of them of the Premisses that then it shall be lawfull to and for the said Nicholas at all times at his will and pleasure by his writing indented under his hand and Seale subscribed in the presence of thirteen Witnesses to determine disanull c. And also by the same writing at his will and pleasure or any other writing whatsoever signed and subscribed as aforesaid to limit declare and appoint the Uses of the same to the persons abovesaid or to any other person or persons c. Wynifride dieth and then Nicholas espouseth Elizabeth Morris and by Indenture ultimo Novemb. 33 Eliz. subscribed in the presence of three witnesses in consideration of a Joynture to be made to the said Elizabeth covenanted with W. and W. to stand seised of the said Manors to the use of the said Nich. and Eliz. for their lives and then to the use of the right Heires of the said Nicholas for ever The Covenant in this case to stand seised to the use of himselfe and of his wife Elizabeth and after to his right Heires is a good revocation in Law of the former Uses and the last Vses are well raised though he never made any expresse signification to determine or disanull the same But it was resolved that all incident circumstances prescribed by the Proviso viz. As to the subscription witnesses and other circumstances ought to be observed in the second Indenture Note that in the case of Cheny in Cur. Wardor 27 Eliz it was resolved that where he in reversion enfeoffed his Lessee for yeares to the use of others that although the Lease should be surrendred and extinguished by the Common Law yet by the saving of the Statute of 27 H. 8. of Uses the terme of the Feoffee was saved Also in the same Court 28 Eliz. in the case of one Ised it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copy-hold estate by the saving of the said Act was preserved Where any be seised to the use of a Trustee of another Ceste que use or Trustee shal have the possession in such quality manner and condition as he had the Use or Trust So when any be seised to the use or intent that another shall have a yearly rent out of the said lands Ceste que use of the rent shall be deemed in the possession thereof of like estate as he had that use 27 H. 8. cap 10. Vses created by Bargaine and Sale and by way of Covenant Bargaine and Sale and Covenants vide fol. 7. A Deed was made Habendum eis heredibus eorum imperpet ad propriū opus usū of the Feoffees imperpetuum and not heredum suorum cum clausula warranti heredibus assign suis in forma praedicta whereby it was doubted that the Feoffees had not fee because it was to them without Heires but if those words had failed it had been cleare that the consideration of seven hundred pounds had given fee for the Law intends sufficient consideration by reason of the said summe but when the Use is otherwise expressed by the party himselfe otherwise it is Dier 169. If a man sel his land by Deed indented and inrolled to I. S. and his Assignes the Barginee hath but estate for life for the word Assignes conteyned in the Deed interrupt the operation and construction of the Law and maketh exposition that it was not the intent of the parties to have a Fee-simple transferred A man selleth land to another and executeth an estate to the Vendee Habendum sibi imperpetuum without the words heires where the intent of the Barginor is to sell the Feesimple and the vendor upon request refuseth to make other assurance the vendee shall have a subpoena liber fundment legum Angl. A man in consideration of 100 pounds and of marriage covenanteth from thenceforth to be seised of certaine land to the use of himselfe for life and after to the use of his son in taile and the Deed is not inrolled according to the statute of 27 H. 8 yet the use and possession is charged because the said statute speaketh of Bargaine and sale only and the use is not because of bargaine and sale onely but also for marriage Plowden fo 4. Manxils case A consideration not expressed in the Indenture may be averred though that otherwise is contained in the said Indenture besides that which is averrable as for marriage and mony of marriage nothing is spoken It seemeth that any consideration which is good and reasonable and where there is a quid pro quo Bargaines and Sales to raise an use of inheritance or freehold must be by Deed indented and inrolled within six months in a court of Record at Westminster or in the county where the Land lyeth 27 H 8. cap. 10. is sufficient to alter an use at this day and the statute transferreth the possession to the use except only in case of Bargaine and sale which is excepted by the statute of uses Plowden fo 301. A consideration expressed in the Indenture is not examinable be it true or false Dier fo 169. A man by Indenture doth covenant in consideration that it shall raigne before Easter next and grant to bee seised to the use of another in Fee this altereth the use although the cosideration doth not availe for the consideration is not examinable where it is by Indenture and much more an use altereth where an Indenture is made for diverse good causes and considerations that he
been usually lopt Tythes shall not be paid for them for as the Law priviledgeth the body of the Tree being parcell of the inheritance so doth it priviledge the Branches also so if a man cut his timber trees Tythes shall not be paid for the boughs or sprouts which are going out of the roots or stowles in respect that the root is parcell of the inheritance so if a timber tree become arda sicca non portans folia nec fructus in aestate nec existens macorin and the owner cut him no Tythes shall be paid therof in respect of the inheritance which was once in him so for the barke of Oakes being timber no tythes shall be paid but for Acornes tythe shall be paid because that groweth yearely Inheritance doth passe without livery and seisin by a grant If I grant all my Trees within the Mannor of G. to one and his heires the Grantee shall have inheritance in them without any Livery and Seisin Coke Barringtons case S. pars fo 137. And so if I grant to you my Trees in my Wood you may come with Waines or Carts over my Land to carry them Coke 11. pars fo 53. Vsery Clayton requested Reynolds to lend him 30. l. and upon communication between them Reynolds lent Claton 30. pound the sixth day of December 34 Eliz. unto the second of June next following to pay unto him for the principall and Lone thereof 33 l. upon the said second of June if the sonne of Reynolds were then alive and if he died before the day that then he should pay unto him twenty seven pounds which was 3 l. under the principals this is by the resolution of the whole Court was usery within the letter of the Statute Coke 5. pars fo 70. It was agreed between T. W. and A. G that A. Boortons case Coke 5. pars fo 69. should lend to T. W. 100 l. and that the said T. W. should grant to the said A. and his heires a rent which was in esse of 20 l. upon a condition that the said A. should lend to the said T. W. 100 l. as aforesaid And that the said T. should grant to the said A. and his heires the rent of 20 l. upon this condition that if the said T. should pay to the said A. 100 l s. the 17. of July 1580. which was a full yeare before the contract made that then the rent should cease and hereupon the money was received and the rent granted accordingly This was not within the statute of usury because nothing was to be paid by T. W. the Grantor within a yeare and a quarter after the Grant made for within the 17. day of Iuly 1579. and Christmas 1580. at which time a distres was taken for the rent no rent was limitted to be paid and if the Grantor had paid the 100 l. the 17. of July 1580. the rent had ceased without paying any thing for the same 100 l. So the whole Court adjudged that it was a plaine bargaine and conditionall purchase of such a rent and no usery But it was resolved by the Court that if it had been agreed between the Grantor and the Grantee that notwithstanding such power of redemption that the 100 pounds should not have been paid at the day and that the clause of redemption was inserted to make an evasion out of the Statute then it had been an usurious bargaine and contract within the Statute Coke 3. pars fo 69. Where a man for 100 l. selleth his land upon condition that if the Vendor or his heire repay the sum citra festum Pasch or such like then next comming that then he may re-enter that is not usury for he may repay it the morrow after or at any time before Pascâ—… And therefore he hath not any gaine certaine to receive any profit of the land And likewise where any Defeasance or Statute is made for the repayment citra tale festum But it is otherwise if the condition be that if the said Vendor repay such a day such a yeare or two yeares after this is usury for he is sure to have the Land and the rents land or profits that yeare or these two yeares And so when a Defeasance or Statute is made for the repayment at such a feast which is a yeare or two years after B. Usury 1. If a man morgage his Land upon Defeasance of repayment to re-enter by which Indenture the Vendee leaseth the same land to the Vendor for yeares rendant rent there if there bee a condition in the Lease that if the Vendor repay the same before such a day that then the lease shall be void that is not usury But otherwise it is if he be to pay it such a day certaine or such a yeare or more after B. usury 2. 32 H. 8. Inheritances lineall and collaterall Lands purchased may goe to the heires both of the part of the father and mother of the Purchasor unlesse it be once attached in the heire of the part of the Father for the heir of the part of the Mother shall never have it because they are not of blood to him that was last seised But Lands discended goeth onely to the heire of that part from whence it discends as if from the Father who did purchase it then it may goe to the heirs of the part of the mother of the same father but not to the heirs of the part of the sons mother for though they be of blood to the sonne that was last seised yet they are not of blood to the father which was the first purchasor And if a man Purchase Lands in Fee-simple and die without issue he which is next Cousin collaterall of the whole bloud how far soever he be from him in degree may inherit and have the Land as heire to him These words do intend that where a man doth purchase lands and dieth without issue and having neither brother nor sister then his next Cosin collaterall shall inherit So as there is implied a division of Heires viz lineall who shall ever first inherit and collaterall who are to inherit in default of lineal for in discent it is a Maxime in Law Quod linea recta semper praefertur transversali Lineall discent is conveyed downward in a right line as from the Grandfather to the Father from the Father to the Son and so downward collaterall discent is derived from the side of the lineall as Granfathers Brother Fathers Brother c. Vpon this word Next I put this case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth C. the eldest Son hath issue and dieth A. purchaseth lands in Fee-simple and dieth without issue D. is his next Cosin and yet shall not inherit but the issue of C. for he that is inheritable is accounted in Law next of blood And therefore here is understood a division of next viz. next jure representationis and
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
it shall begin on the day in which it is delivered for the words of the indenture are not of any effect till the delivery and thereby from the making or from henceforth take their effect But if it be a die confectionis or a die datus or a datu then it shall begin the next day after the delivery If the habendum bee for the terme of twenty one yeares without mentioning when it shall begin it shall begin from the delivery for there the words take effect as is aforesaid If an Indenture of Lease beare Date which is void or impossible as the 30. day of February or the 40. of March if in this case the terme be limited to begin from the date it shall begin from the delivery as if there had been no date at all And so it is if a man by his indenture of lease either recite a Lease which is not or is void or recite a Lease amisse in point materiall which is in esse to have from the ending of the former Lease this Lease shall begin in course of time from the delivery therof Coke 5. pars fo 1 12. Eliz. Dier fo 286. 14. El. Dier 307. 5. Eliz. Dier fo 218. Re-enter and take the profits untill c. If a man make a lease for yeares reserving a rent with condition that if the rent bee behind that the Lessor shall re-enter and take the profits untill therof he be satisfied there the profits thereof shall be accounted as parcell of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he taketh the profits but if the condition be that he shall take the profits untill the Feoffor be satisfied or paid off the rent without saying thereof or to the like effect there the profits shall not be accounted in part of the satisfaction but to hasten the Lessee to pay it New Littleton fo 203. 30 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21. Livery Seisin Tantamount Of free hold and inheritances some be corporeall as Houses Lands c. these are to pass by Livery and Seisin by Deed or without Deed some bee incorporeall as Advowsons Rents Commons Estovers c. these cannot passe without Deed but yet without any Livery And the Law hath provided the Deed instead of a Livery and so it is if a man make a Lease and by Deed grant the reversion in Fee here the Free-hold with the Attornment of the Lessee by the Deed doth pass which is in lieu of the Livery To say that money is fallen Actions on the case that he hath gone about to get poison to kill the child that such a woman goeth with that a man did lie in wait to rob one or procured another or agreed with another to murder him or sought his life for his land to call a Marchant bankerupt but not to call a Gent. c. bankerupt is not actionable to call an Attorney Ambidexter or or to say that he dealeth corruptly But words of choller and heate as to call one cousiner crafty-knave common Extortioner Drunker Witch Rogue Pillory-Knave Villain unlesse he say Villaine to such a man or regardant to such a Mannor are not actionable But if the speaker be able to justifie the words for then it is not falsely As to call a man perjured by reason of a perjury comitted in the Star-chamber Murtherer Thiefe or such like upon a conviction too but to call one Theife or Murtherer upon an inditement or common fame is actionable If one having another mans goods convert them to his owne use if a Smith cloy my horse these are actionable but not if he take him to cure without warranting of him and doing all he can yet the Horse impaire If being committed to the Goale the Jaylor of malice put upon me two many Irons or otherwise use mee so hardly that I become lame thereby this is actionable Sir Hen. Finch fo 186. A grant by an Infant under the age of twenty one yeares A grant one out of his right mind whom wee call non sanae memoriae or non compos mentis or one compelled to doe an act either by duress of imprisonment or feare of some bodily hurt threatned to himselfe but not to his Father mother Brother c as losse of life and member or though it be but of imprisonment for imprisonment is a corporeall paine and one may be imprisoned that he die of it otherwise of menace to breake or burne downe ones house for that is but the losse of ones goods is avoidable and may be avoided at any time by entry action c. if they deliver it with their hand as in a grant of a rent advowson c or a Feoffment by letters of Attorney it is meerely void and nothing at all passeth So if a grant made by one which hath no understanding as if he be borne Dumbe Deafe and blind but one Dumb may make a good grant or borne dumb and deafe for diverse may have understanding by their sight only though dumb and deafe If an infant bargaine for his necessary meat drink and apparell c. it shall bind him Other Grants of his where himselfe hath likewise benefit we call it quid pro quo are onely voydable and not void as if he let lands for yeares reserving a rent Sir H. Finch fo 102. Pretended right None shall buy sell or get or take promise or grant to have any pretended rights or titles to lands c. except the seller or these by whom he claimeth were in possession or took the profits by the space of a yeare next before upon paine that the sellor c. shall forfeit the value of the land and likewise the buyer knowing the same provided he that is in lawfull possession by taking the yearly profits may buy c. anothers pretended right 32 H. 8. ca. 9. Tole in market The seller shall not pay Toll but the buyer neither shall a man pay Toll for the things he bringeth to the Faire but for the things he selleth but by the custome he may for every thing brought to the faire and for his standing also Finch fo 166. If the Parson of a Church purchase a Mannor within his Parrish now by this purchase and unity of possession the Mannor which was titheable before is now made non decimabilis because hee cannot pay tithes to himselfe but if the Parson make a Lease of his Parsonage and Rectory to a stranger now the Parson himselfe shal pay Tythes of his Mannor to the Lessee of the Rectory and if the parson make a Feoffment of the Mannor the Feoffee shall pay Tythes to the Feoffor Parson because that Tythes may not be extinct by any unity of possession as rent-charge may which is issuing out of Lands but tythes are due by the Law of God ex debito by the manurance and
to the Execution of uses then to estates which are executed by the ancient common law vide fo 51. In proofe whereof it was resolved by all the Justices of England Pasch 35. Eliz. in the Earle of Bedfords case which was such Francis Earle of Bedford made a Feoffment in fee of diverse Mannors to the use of himselfe for years after to the use of Jo. L. Russel his son and heir apparent and the heires males of his body begotten and for default of such issue to the right heires of the said Earle and afterward the said Jo. L Russel died without issue male in the life of the said Earle and it was resolved that the use and the estate limited by way of remainder ought to vest during the particular estate prima pars Co. fo 129. 130. If a man make a feoffment in fee to the use of himselfe for life and after to the use of his first Son to be begotten in taile and tenant for life dies or makes a feoffment in fee before the birth of his son the remainder is destroyed for ever and so in this case if tenant for life die his wife privily with child and then a son is borne that issue shall not have the use ut opinor A Lease to A. for life the remainder to the right heires of B. B. having a daughter dieth his wife being privily enceint with a Son the daughter claimeth that by purchase and therefore the son born afterwards shall never divest it Coke 1. pars fo 95. Shellies case Forfeiture De pace regis regni tit forfeiture fo 222. THe King shall have all the goods of Felons which be condemned What goods of Felons the King shall have and which be fugitive viz. all their goods moveable and unmoveable for the King shall have the corne growing upon the land of the felon attainted and the issues and profits of the Land which he hath in his owne right or in the right of his wife during the time of his life Forfeitureâ—… upon flying or untill he doth purchase his pardon But touching the profits of fugitives lands there is a difference between a flying presented before a Coroner and a flying found by verdict upon an acquittall for upon a flying presented before the Coroner he shall forfeit the profits of his lands untill his death or untill he be acquit or untill he hath purchased the Kings pardon But upon a flying found by verdict upon acquittall he shall forfeit no issues of his Lands for by his acquittal the Land is discharged and consequently the issues thereof The law hath restrained offendors in treason and Felony to certaine times to make alienation of their Lands and goods and hath prefixed limits From what time forfeiture of lands shall have relation whereunto the forfeiture of their said lands and goods shall have relation and yet with this difference that as soone as any treason or Felony is committed the offender therin is restrained to make any alienation of his lands for then it is not his land but by the committing of the treason or felony he hath forfeited all the estate he had therin and therfore if between the time of the committing of the treason or felony of the offenders attainder thereof the offender doth make an alienation or assurance of his land after the time that the offender shall be attainted of the same treason or Felony the said assurance shall be void whether the same attainder be by verdict confession or utlary for the forfeiture of the land shall have relation from the time of the offence committed From what time the forfeiture of goods shall have relation The forfeiture of Goods and Chattels shall not look back so far as forfeiture of lands nor shall have relation from the time of the treason or felony committed but from the time of the attainder of the treason or Felony and therfore if one do commit treason or felony and in the meane time between the treason or felony committed and the offendors attainder therof the offendor doth give away his goods this is a good gift for as yet they be not forfeit but be his owne to maintain himselfe his family untill he be attainted and by the law adjudged unworthy to possesse or enjoy goods or to have sustenance and therefore if upon a fugam fecit presented before the Coroner one doth forfeit his goods he shall not forfeit those goods he had at the time of the felony committed but shall only forfeit those goods which he had at that day when the fugam fecit was presented against him and in like sort if one that is indicted of Felony be acquitted thereof by verdict and in their verdict the Jury finde that the Prisoner fled for the felony in this case the Prisoner shall forfeit those goods which hee had the day of the verdict given and not any goods which hee had before And so it is if one be convict by verdict the goods shall bee forfeited which the offender had the day of the verdict given and not those he had before and he that is outlawed of treason or felony shall forfeit those goods which he hath at the time of the Exigent awarded and not those which he had before and hath aliened But if a man commit treason or felony and is arrested therof and as he is carrying to a Justice to be examined or to the Goale by the Constables or others doe break away or in making of rescous or resistance is slaine by those which doe so carry him because he will not yield and be justified by the law in this case those goods shall be forfeited which he had at the time of the felony committed and so it is if one commit a felony and when the Sheriff Coroner Constable or others do attempt to apprehend him he is slaine because he doth resist and will not yeild to be arrested the goods shall be forfeited which he hath at the time of the felony committed Note this difference is to be observed in the seising of a Felons goods for where the goods be forfeited before the felony tryed as where one is found guilty before the Coroner of the death of another or where it is found before the Coroner that one did fly for a felony in such case the goods shall be presently seised upon the forfeiture of them though there be no conviction of the felon and upon such forfeiture the goods be presently the Kings the felon is to have no maintenance out of them Daltons office of Sheriffs tit forfeiture fo 32. And yet lest the goods should be disorderly wasted imbesseled or sold away the Sheriffe c. before the attainder of the felon may take surety that the goods be not imbesseled c. ss may cause the owner or some of his friends to finde surety and for want of sureties the Sheriffe c. may seise them and deliver them to the towne ss
to some of the neighbours of the towne where the goods were by them safely to be kept and by the opinion of M. Brook tit forfeiture 44. this order ought to be observed concerning the goods of every one which committeth felony untill he be attainted but yet the felon must have reasonable maintenance out of them for himselfe and his family in the meane time Plowden 68. Sur Statute Merchant of the body Lands and Goods Statute Staple of the body Lands and Goods Recognizance Elegit Of the moietie of the Lands and al the goods Executions Of the moiety of the Lands and of all the Goods of the Debitor Capias ad satisfact Of the body only Fieri facias Of the goods only Levare Facias Of the profits of the Lands and Goods Statute Merchant AN execution finall is when the Defendants lands are extended or his goods sold and delivered to the Plantiff who accepting this in satisfaction ends the suit Execution finall quousque An execution with a quousque and not finall is in the case of a Capias ad satisfaciendum where the body is taken to the intent to satisfie the Plantiffe but is no satisfaction but a pledge for the debt Note that the statute Merchant is a bond or obligation of record acknowledged before the Major of London York Bristoll or of other City or before the Bayliffe of any Burrough or Towne or before other persons there to that purpose appointed and it is sealed with the seale of the Debitor and of the King the forme wherof see Wests pre 106. If a Statute Merchant be not sealed by the party non valet 6 R. 2. Fitz. Execution 131. If a man be bound in a Statute Merchant and doe not pay the debt at the day execution shall be done thereof in this manner How the Statute Merchant shall be executed the money being unpaid at the day First the Connusee may come to the Major or other Officer before whom the Statute was acknowledged and pray him to certifie the same into the Chancery under his seale c. and if he will not certifie it then a Writ of Certiorare must be sued forth of the Chancery directed to the said Officer of the place where the Statute was knowledged to certifie the acknowledgement of the same Statute into the petty-bag Office in the Chancery Executions shall be of body and upon the certification a Writ of Execution ss a capias shall goe out against the body only of the Cognisor si laicus sit to take his body and command the Sheriff to keepe him safely in Prison untill he hath agreed for or fully satisfied the debt But the debitor after he is taken hath liberty given him within a quarter of a yeare to sell his lands and goods to discharge his debts and if he do not agree for his said debt within the next quarter Lands and Goods then all his lands and goods shall be delivered by the Sheriff to the Creditors upon a reasonable extent to hold untill the debt be paid and yet neverthelesse the body of the debitor shall remain in Prison untill the debt be paid And this Writ may be returnable into the Court of Common Pleas or into the Kings Bench. But upon the returne by the Sheriff of that Shire to whom the capias was directed quod laicus est non est inventus in Bal. sua then shall go out an extent against all the Connusors lands and goods and against his body see the Register 247. And upon such an extent come to the Sheriffs hands the Sheriff shall or may presently cause the moveable goods of the debitor to be prized and sold as far as the debt doth amount and the debt without delay to be paid Stat. Acton Burnell 13 E. 1. Note that if the Sheriff can finde no buyer he shall cause the same goods to be delivered to the Creditor at a reasonable price as much as doth amoūt to the debt and if the Prizers of the goods doe set an over high price to the damage of the Creditor then shall the things so prized be delivered to the prizors at the same price and they shall be forthwith answerable to the Creditor for his debt But the Sheriff must sell the goods to them which offer most for them And yet if the Sheriff shall sell them at an underprice it seemeth the Debitor hath no remedy Fitz. Extent 7. see the Statute of Acton Burnell If the Debitor have no moveables whereupon the debt may be levied then shall his body bee taken and kept in prison untill he hath made agreement 13 E. 1. If the Sheriff doe not returne the Capias or do return that the Writ came too late or that he directed it to the Bayliffe of some Franchise he shall be punished and yeild damages to the party grieved according to the Statute of Westminster 2. cap. 39. If the Sheriff returne that the Debitor is a Clark then shall there go out an extent against his lands and goods onely to be delivered upon a reasonable extent as aforesaid but his body shall not be taken If the Debitor found sureties which acknowledged themselves to be principall debitors after the day passed they shal be ordered in all things as the principall debitors scil for their bodies and delivery of lands and goods Stat de mercator But so long as the debt may be fully levied of the goods of the Debitor the sureties shall receive no losse Stat. de Acton Burnell And if any of these Debitors being in prison shall happen to escape the Sheriffe or Goaler must answer the body or the debt and therefore it behooveth the Sheriffe and Goler that the prisoners be safely kept Statute de mercator Note that when any Statute Merchant is certified into the Chancery and thereupon a Writ awarded to the Sheriff and returned into the Common place and the Statute there once shewed that howsoever the process after the same shewing be discontinued that at what time the party sueth to have the process recontinued and to have execution of the same Statute that the Justices of the Bench where the Statute was once shewed may upon the same Record make and award full Execution of the Statute Merchant aforesaid without having the sight thereof another time 5 H 4. cap. 12. And the Dier fo 180. Terminum Pasche anno 2. Eliz. where the Connusee of a Statute Merchant having the same certificate into the Chancery upon a certiorari directed to the Major thereupon sued a Capias against the Connusor returnable into the Bench at which day the Sheriffe returned non est inventus and the connusee there shewed the Statute as he ought and had another Capias before the returne whereof the Connusee died and it was doubted whether his Executors should have a scire facias against the Connusor or that they should begin of new ss to sue a new speciall Writ out of the Chancery
to the Major to make Certificate notwithstanding the first Certificate and to have out of the Chancery a new Capias or no or whether at the suite of the Executors the Justices of the Bench might have awarded an alias Capias or a Writ of extent upon the first proceeding or not But it was agreed by the Court that no Scire facias did lie in this case but upon oath made by the Executors in the Chancery that the debt is not satisfied they shall have a new Certiorari to the Major c. to make a new Certificate of the Statute and so to begin all anew again Dier 180. Satute Staple THe Statute Staple is of two sorts or in two manners the one by force of the Statute 27 E. 3. cap. 9. the other by force of the Statute 23 H. 8. cap. 6. The first is an obligation of Record acknowledged before the Major of the Staple in presence of one of the Constables of the same Staple and is sealed with the seale of the Staple and Seale of the party but such Statute Staple shall not be taken but onely amongst Merchants of the same Staple and for Marchandizes of the same Staple 23 H. 8. ca. 6. The other is an obligation also of Record and of the same nature and force as the first is as to the execution thereof But it is acknowledged before the one of the chief Justices and in their absence out of Terme before the Major of the Staple at Westminster and the Recorder of London and is sealed with their Seales viz. with the Seale of the Connusor of the King and of one of the said Justices or of the Major and Recorder 23 H. 8. cap. 6. The formes of these Statutes Staple vide West 108. 109. Note that all Statutes Merchant and Staple shall be brought to the Clarke of the Recognizances within 4 Months and inrolled within six months or else such Statute shall be void against Purchasors c. 27. Eliz. cap. 4. A Statute Staple must be certified into the Chancery in the like manner as a Statute Merchant and upon that Certificate a Writ of execution shall go presently forth both against the body si laicus sit and against the lands and goods of the Connusor returneable in the Chancery in the petty-bagg Office there and not into the Court of common Pleas or Kings Bench as the Writs of Execution upon a Statute Merchant shall and upon the Writ of execution the Sheriff shall take the body of the Connusor and shall also per sacramentum proborum legalium hominum juxta verum valorem Fitz. 131 d. presently extend and price and shall seise into the Kings hands his Lands his Goods and Chattels and that extent and prizement or valuation of the Lands and goods shall returne and certifie into the Chancery as aforeraid and therupon the Reconusee shall have another Writ called a liberate to the Sheriff out of the Chancery to deliver to the Conusee those lands and goods to the value of his debt and upon that liberate delivered to the Sheriff then such lands and goods as are taken in execution shall be delivered to the Connusee by the Sheriff and not before And this execution shall be made in manner as is before declared upon a Statute Merchant 27 E 3. cap. 9. Plow 62. b. And so note that upon a statute Merchant the connusor shall bee imprisoned for halfe a yeare and if hee doth not sell his lands within the same time for to pay his debts then his lands shall be delivered to the obligee until his debt be satisfied And upon statute staple the Debitor or connusor after that hee is taken shall not have liberty to sell his lands and goods within the halfe yeare as he shall have upon Statute Merchant But by force of this statute Staple if the money be not paid at the day forthwith after certificate therof in the chancery the creditor may have Execution of the body Lands and goods of the Debitor ss the connusor shall be imprisoned and all his lands and goods shall be extended instantly 27 E. 3 cap. 9 Also note that upon Statute staple the extent shall be first made and returned and aftet a Writ of liberate shall be awarded but delivery shall not be made at the beginning untill the thing appeareth certainly by the return of the Sheriff Plow 62. b. All obligations and specialties made to the King or to his use for any cause shall bee of the same force as Statute Staple is 33 H. 8. cap 59. and so for obligations made by parsons for their first fruits 26 H. 8. cap. 39. The lands of many Accomptants to the King shal be liable and put in execution as if they had been bound in Statute Staple 13. Eliz. Cap. 4. The heir that claimeth by the gift of his Ancestor shall be bound to pay the Kings debt 33 H. 8. cap. 39. The heir in taile by the same Statute shall be liable to pay the Kings debt due by his Ancestor Plow 240. b. 249 b. 554. b. Fitz. 217. c. But if tenant in taile become in debt to the King by receipt of the Kings moneyes or otherwise unlesse that it be by judgement recognisance obligation or other specialty and dieth the land in the seisin of the issue in taile by force of the said act of 33 H. 8. shall not be extended for such debt of the King For the Statute of 33 H. 8. extendeth only to the said 4. cases and all other debts of the King remain at the common law Execution upon Statute IF Tenant in Taile become in debt to the King by one of the said 4. wayes scil by judgment recognisance obligation or other specialty and dieth and before any prosces or extent the issue in taile bona fide alien or Lease the Land intailed now this Land shall not be extended by force of the said Act of 33 H. 8. C. 7. 22. So where debt was originally due to a subject and after comes or accrues to the King by reason of attainder Out-lawry Forfeiture gift of the partie or by any other way or meane such debt is not within the said Statute of 33 H. 8. to charge lands intailed in the possession of the heir in taile Co. 7. 22. But lands in fee-simple were extendable at the common law for debt of the King into whose hands soever they should come and therefore as to them the said Statute of 33 H. 8. was not but a declaration of the ancient law Co. 7. 21. Two Joyntenants in fee the one of them being a debtor of the King dieth the other shall hold discharged Fitz. Execut. 113. The heire shall bee chargeable to pay debt of the King although he bee not named or that this word Heir be not comprised within the recognizance obligation or specialty 33 H. 8. cap 39. The King shall be preferred in his suit and execution before common persons by the Statute 9 H. 3.
deliver his goods in pledge after shal be condemned in personall actions there such Sheep or goods shall not be taken and put in execution untill the lease be determined or the money paid for the pledge Br. distresse 75. So it seemeth of Goods which are distrained for just cause as for rent amercement damage feasant such like and are impounded they are now in custodialegis as long as they are so they may not be taken in execution Br. pledges 28. If the Connusor enfeoffe the King that land is discharged from execution Fitz. 266. so all other lands of the King are exempted from distresses and executions Plowden 242. b. If many men be severally seised of lands and they all severally joyne in one recognizance Satute Merchant or Statute staple in this case the connusee may not extend the land of any of the Connusors onely but all the Connusors ought equally to be charged the one of them alone shall not beare all the burthen because they are all in equall degree and in executions which concerne the realty and charge of the land the Sheriff may not doe execution of the Land of the one alone Co. 3. 13. a 14. When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged because he himselfe is the person which was the debtor and which was bound and therefore he and his lands may be solely charged Co. 3. 14. Br. suite 10 12. And as to a purchasor of lands although their said Lands after the judgement recognisance or Statute be subject to the execution yet such purchasors have greater priviledges given to them by the law then the Connusor himselfe or his heires have So that if land of a purchasor be onely extended for the entire debt such purchasor shall have contribution against all the others of the purchasors and against the connusor or his heir but note that by this word contribution it is not to be understood that the others shall give or allow to him any thing by way of contribution but ought to be intended that the purchasor or party which hath his lands onely extended for all may by Audita querela or scire facias as the case requireth defeate the execution and therby shall be restored to all the meane profits and drive the Connusee to sue execution of all the land so that in this manner every one shall be contributory that is the land of every ter-tenant shall be equally extended co 3. 14. But if the Connusor enfeoffee the connuse of parcell of the land and a stranger of another parcell and reserve parcell in his hands now the connusee shall not have execution against the stranger or any other Feoffee for all shall be extinct against the Feoffees but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands If connusor of Statute Merchant or statute Staple be taken and die in Execution yet the connusee shall have execution of his lands and goods co 5. 86. 87. Fitz. 246. b. If the connusor upon a Statute c. be taken in execution and escape yet his goods and lands upon the same statute may be extended for the escape and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co 5. 86. By the statute of 3. Jacobi cap. 8. no execution shall be stayed or delayed by Writ of Error or superseded for reversing of any judgement in any action of Debt except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given to prosecute the said Writ of error with effect and to pay all the debt damages and costs c. if the judgement be affirmed and also costs and damages for such delay And therefore if a man be condemned in any court and his body put in execution and after he procures a Writ of corpus cum causa or certiorari to be directed to the Sheriff to remove his body there the Sheriff upon the said Writ ought to return the truth scil that his prisoner is condemned by judgement given against him upon which the Prisoner shall be forthwith remanded to prison there to remaine untill he hath satisfied the Plantiff 2 H. 5. cap. 2. Fitz. 151. e. If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor then it seemeth that the said statute hath lost his force against both see the Register 147. If execution be sued of the body and of the land and after the connusor enfeoffeth the connusee of the Land or surrender parcell descended to him in all these cases the body shall be discharged for by discharge of part of the thing in Execution all is discharged Plow 72. b When the extent upon a Statute is satisfied and ran out by efluxion of time the Connusor may enter againe Co. 4. 67. But when the extent is satisfied by casuall profit the Connusor must have a Scire facias ibid. Defeasance to a Statue made after execution is good and defeateth aswell the Statute as the execution thereupon Co. 6. 13. But note where the Statute of Actor Burnell is that if the Prisors of the goods of the Connusor prize them too high in favour of the Debitor and to the dammage of the Creditor the things so prized shall be delivered to the Prisors by the same price and they to yield the Credtior his debt these Statutes are penall and extend not to any other Writs of execution but upon the Statute Merchant or Staple or recognizance and therefore upon a Writ of Elegit or other Writ of execution upon judgement if the extenders or prisors praise the lands or goods too high the Plantiff scil the Creditor hath no remedy Benl 4. P. and M. Note that when the lands or goods are delivered to the extenders they forthwith shall answer to the Creditor his debt by the words of the Statute and yet they shall not pay the money untill the daies assessed and limited in the extent Plow 205. b. If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate yet he hath no remedy Stat of Actor Bur. for in such cases the Debitor may pay the money and recover his lands and good 15 H. 7. 15. The creditor may well refuse to accept because the Sheriff will not deliver but parcell of the lands of the Connusor for if he accept it he shall be concluded to demand all afterward Fitz h. execution 84. 88. Execution upon a Recognizance REcognizance is an obligation of record acknowledged in any Court of Record or before any Judge or other Officer having authority to take it as before the Judges of the Kings Bench or of commons Pleas the Barons of the exchequer the masters of Chancery the Justices of Peace
such lease or terme yet false recitall notwithstanding if the Sheriff sell also all the interest that the Debitor hath in the said land that sale is good Also the Sherriff need not to mention any certainty of a terme in his returne of Fieri facias but generally quod fieri fecit de bon catall c. Note that it is at the election of the Sheriff to extend or to sell a lease or terme as long as it remaineth in the hands of the Debitor scil the Sheriff at his election may sell that quite or he may extend and deliver it to the Connusee at a certaine yearely value as of Frank-tenement and there the Connusee to whom the terme is delivered hath a property which is uncertain and the Lessee or connusor himselfe hath another propetty so that upon the payment of the debt or upon the debt received of the revenew of that by the connusee the connusor shall have his terme Plow 5. 24 Co. 8. 171. Note there a diversitie between the sale by the Sheriff of a terme and an extent of a terme and that upon sale of a terme by the Sheriff the partie hath no remedie to have his terme againe if any remain after the debt satisfied as it seemeth Execution upon Capias ad satisfaciendum NOte upon a Capias ad satisfaciendum although the Defendant be not found the Plantiff may not have another execution 20. E. 2. and this capias ad satisfaciendum is onely against the body which the Sheriff must be sure to keep safe or else perhaps pay the debt himselfe and therefore if the Sheriff shall take a upon a Capias ad satisfaciendum to him directed or shall have any prisoner to him committed for debt upon any execution and he after shall let the Prisoner goe at liberty before the debt be satisfied the Creditor may either have his action of debt against the Sheriff and shall recover his debt or the Creditor may have his action of the case against the Sheriff 22 H. 7. 23 Fitz. 93. a. c. And if the Prisoner doe escape of his owne wrong against the Will of the Officer although he escape and get out of sight or into another County where the Sheriff or Officer hath no authority yet if fresh suite be made and he be taken again upon the fresh suite he shall be said to be still in execution Co. 3. 52. And if the Prisoner do escape against the will and without the consent of the Sheriff or his Officer may then the Sheriff or his Officer take him again where or whensoever hee can find him by vertue of the same Writ before the returne thereof yea though it be in another County And if that the prisoner which so escaped be followed with fresh suite and taken again before an action be brought by the Plantiff against the Sherriff for the escape it shall be adjudged no escape Co 3. 44. 52. And if the Plantiff hath brought his action against the Sheriff for the escape before he hath taken the prisoner againe Or if upon the escape the Sherriff or his Officers did not make fresh suit after the Prisoner yet in both these cases if the escape were against the will of the Officer the Sheriff may take such prisoner again and keep his body in custody untill the prisoner hath made his agreement with the Sheriff or otherwise the Sheriff may have his action upon the case against such prisoner for such his wrongfull escape if the prisoner that so escaped be able to make him satisfaction And the prisoner in these cases shall not be relieved because the escape was of his owne wrong and without the consent of the Sheriff or Officer co 3. 52. If the connusor of a Statute Merchant or Staple is taken and dies in execution yet the connusee shall have the execution of his goods and lands Co. 5. 87. Connusor upon a Statute is taken and escape yet his goods and lands upon the same statute may be extended For although by the law unica tantum fiat executio yet that is to be understood of an execution with satisfaction Where 2. men are condemned in debt and the one is taken and dieth in execution yet the other may lawfully be taken in execution co 5 86. So if two be bound joyntly and severally in one Obligation and the one is sued condemned and taken in execution yet the other also may be sued and taken in execution untill the Plantiff be satisfied in deed of his intire debt co 5. 86. If a man hath judgement in an action of debt and after the judgement outlawes the Defendant there if the Defendant be taken by Capias utlegat at the suite of the King he shall be in execution for the Plantiff if he will co 5 88. Also in all cases when the Plantiff may have a cap. ad satisfaciendum and the defendant is taken by cap. pro fine there the Defendant is in execution forthwith if the Plantiff will without any prayer of the partie co ibidem And in such cases if the Sheriff suffer such prisoner to goe at large it seemeth to be an escape and that thereby the Sheriff is subject to pay the Plantiff his debt Fitz. 121. p. By the law those which are in execution ought not to goe at liberty within the prison much lesse abroad though with their keeper but such prisoner ought to be keept in arcta salva custodia yea the Sheriff may keep such as are in execution in Gives and Fetters to the intent that they may the sooner pay and satisfie their creditors 13 E. 1. cap. 11. 2 R. 2. cap. 12. co 3. 44 Plow 360. a Where the Sheriff hath one in execution for debt an Habeas Corpus commeth to him to have the body in the Kings Bench at a certain day and he carrieth his prisoner to London to an Inne c. and the Prisoner of his owne head goeth at large and after commeth againe to the Sheriff so as the Sheriff at the day of the returne of the Habeas corpus doth deliver the body in court this was adjudged to be no escape for that the commandement of the Writ is performed scil to have the body in court at such a day and in such case the Sheriff may go and take what way or place he shall think to be most sure and safe for himselfe and to carry his prisoner co 3. 44. It was adjudged if one being in execution no commandement although of the K. himselfe without Writ is sufficient Warrant to discharge the Keeper c. and so by the same reason shall not discharge the Sheriff But note that inasmuch as escapes are so penall to Sheriffs Bayliffs of Liberties and Goalers the Judges of the Law have alwaies made a favourable construction as much as the law will permit in favour of the Sheriffs Bayliffs of Liberties and Goalers who are Officers and Ministers of Justice co 3. 44. Note if
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