A TREATISE OF THE PRINCIPAL GROUNDS AND MAXIMES OF THE LAWES Of this Nation Very usefull and commodious for all Students and such others as desire the knowledg and understanding of the Laws Lex plus laudatur quando Ratione probatur Written by that most Excellent and Learned Expositor of the Law W. N. of Lincolns-Inn Esquire The second Edition with Additions LONDON Printed by T. N. for W. Lee D. Pakeman R. Best and G. Bedell and are to be sold at their shops in Fleetstreet and Grays-Inn gate 1651. An Analysis of the Laws of England by the honorable and most learned William Noy Esq Atturney Gen and of the Privy Councel to the late King Justice is a constant perpetuall will to render every man his own right It is Naturall According to law whereare considered Law Divine Law of Reason Law Humane Forreign English Common where is treated I. Of law where is considered The law it self which is By Tradition which is General and belongs to * Written Statute Injuries forbiden by that Law Private against The person and goods Publique against the King Commonwealth 2. Of the manner of delivering that Law Civill Ecclesiastical Temporal In peace the Admiral In warr the Marshal * The Person where is considered the Quality as Name the King the subject who is of Baptism Creation Natural who is Politick Free who is Villain In his own Power where is considered Not in his own Power Intention Action there Cause Time Place Efficient Material Formal Final by Nature Action of the person by common law or the Kings Charter The Thing which is universal which is Of natural Right Out of divers causes Particular in which dominion may be gained Where are considered Peculiar which belongs to the King to the Subject according to his prerogative Legal ordinary Regal absolute According to peculiar Custom of place prescription of persons 1. Things or goods themselves which are Real Personal Primary Secondary Simple Compound Of the land Upon it Corporate Incorporate 2. To have ownership which is by Estate and Propriety by Right By his own Right Right of another Single Joint by Possession Possibility Of franktenement Chattels Hereditary Frank-tenement alone in Fee in Tail absolute conditional qualified general special by Law by Gift as Dower curtesy of Engl. for Life or Life of another Real Personal Term of years at Will Animate Inanimate Remote Near reversion remainder Parceners joint tenants Tenants in common Interest and Propriety Use Authority of Action of Entry 3. The manner of acquiring ownership by Law by Purchase Discent or Forfeiture absolute With consideration by Writing by Word by Devise by Record by Deed Fine Recovery Executed Executory with Voucher without Single Double Feoffment Grant with atturny Barg sale inrol'd by Grant Ratification Release Confirmation Render Election Concord Assignment by Common-law by Statute 4. The manner of admitting ownership by operation of Law by act of the party Extinguishment Suspension Discent which takes away Entry Commission Omission Discontinuance Warranty Estoppell Forfeiture II. The manner of delivering the law is By Law By act of the party Immediate Mediate by actions in Courts where are considered Claim Entry 1. The diverse Actions in which Right is given Writs Plaints Original Judicial Real Personal Mixt For the Right The possession For the Person The Goods Of Right of law Of the Kings grace Of Course Magistral Pleas of the Crown Common Pleas 2. The divers Courts where remedy is had here are considered The Courts themselvs Their jurisdictions there Temporal Of the King The subject Superior Inferior Of Record Of Barony The persons Pleas Of the Courts In them Judges Ministers Demand ' Tenant Real Personal Plaintiff Defend ' Of the Crown Common 3. The manner of prosecution in Courts Direct Collaterall By Processe By Pleading with that Pleas Tryall Judgment Execution by the Court-Adjornment by persons in the Court as-Essoin 4. The manner of defeating the Process by Prohibition assignation of Errors 5. The manner of taking away the punishment Flight Pardon CHAP. I. The Laws of England are threefold Common Laws Customes and Statutes THE COMMON LAW THE Common Law is grounded on the Rules of reason and therefore we use to say in Argument That reason will that such a thing be done or that reason will not that such a thing be done The rules of reason are of two sorts some taken from Learning as well Divine as Humane and some proper to itself onely OF THEOLOGIE 1. Summa ratio est quae pro Religione facit ATenure to finde a Preacher if the Lord purchase parcell of the Land yet the whole service remaineth because it is for the advancement of RELIGION 2. Dies Dominicus non est Juridicus Sale on a Sunday shall not be said Sale in a Market to alter the property of the Goods OF GRAMMBR OF Grammer the rules are infinite in the Etymologie of a Word and in the construction thereof what is nature is single 3. Ad proxium antecedens fiat relatio nisi impediatur Sententia As an inditement against I. S. servant to I. D. in the County of Middlesex Butcher c. is not good for servant is no Addition and Butcher shall be referred to I. D. which is the next Antecedent OF LOGICK 4. Cessante causa cessat effectus THe Executor nor the husband after the death of a woman Guardian in soccage shall not have the Wardship because viz. the natural affection is removed which was the cause thereof Some things shall be construed according to the original cause thereof 5. The Executor may release before the probate of the Will because his title and interest is by the Will and not by the probate To make a man swear to bring me money upon pain of killing and he bringeth it accordingly it is felony Outlawry in Trespass is no forfeiture of Land as outlawry in felony is for although the non-appearance is the cause of the Outlawry in both yet the force of the Outlawry shall be esteemed according to the heynousness of the offence which is the principal cause of the Process 6. According to the beginning thereof As if a Servant which is out of his Masters service kill his Master through the malice which he bare him when he was his servant this is petty Treason 7. According to the end thereof As if a man warned to answer a matter in a Writ there he shall not answer to any other matter then is contained in the Writ for that â—as the end of his coming 8. Derivativa potestas non potest esse majus primitiva A Servant shall be stopped to say the Frank-Tenement is belonging to his Master by a recovery against his Master although the servant be a stranger to the Recovery for he shall not be in better case then he is in whose Right he claimeth or justifieth 9. Quod ab initio non valet in tractu temporis non convalescit If an Infant or a married woman
do make a Will and publish the same and afterwards dyeth being of full age or sole notwithstanding this Will is void 10. Vnumquodque dissolvitur eo modo quo colligatur An Obligation or other matter in writing may not be discharged by an agreement by word but by writing 11. He that claimeth a thing on high shal neither have gain nor loss thereby As if one Joynt-Tenant make a Lease o◠his Joyntee reserving rent and die the heire which surviveth shall have the reversion of his Joyntee but not the Rent because he cometh in by the first Feoffer and not under his companion Also where the husband being leased for yeers in right reserving a Rent the woman shall have the residue of the terme but not the rent 12. Debile fundamentum fallit opus When the estate whereunto the Warrantie is annexed is defeated the Warrantie is also defeated 13. Incidents may not be severed As if a man grant Wood to be burnt in such a house wood may not be granted away but he which hath the house shall have the wood also 14. Actio personalis moritur cum persona As if battery be done to a man if he that did the battery or the other die the Action is gone If the Leasor covenant to pay quit-rents during the terme his Executor shall not pay it for it is a personal covenant 15. Things of higher nature do determine things of lower nature As matters of writing do determine an agreement by words If an offence which is murder at the Common law be made high Treason no appeal lieth for it for that the Murder is drowned and punishable as Treason whereof no appeal lieth 16. Majus continet minus Whereby the Custom of a Manor a man may demise for life he may demise to his Wife durante viduitate 17. Majus dignum trahit ad se minus dignum As the Writings the Chest or Box they are in OF PHILOSOPHY 18. Naturae vis maxima NAtural affection or brotherly love are good causes or considerations to raise an use And one brother may maintain a suit for another 19. The law favoureth some persons Viz. Men out of the Realm or in Pison Women married Infants Ideots Mad-men Men without intelligence Strangers that are neither parties nor privie and things done in anothers right A descent shall not take away the entry of a man out of the Realm or in prison or of a married woman or of an infant And a lease made to the husband and wife after the death of the husband the wife shall not be charged for waste during the mariage An Ideot shall not be compelled to plead by his Guardian or next friend but shall be in the Court and he that pleadeth the best plea for himself shall be admitted If a dumb man bring an action he shall plead by his next friend If a Lessee for years grant a Rent-charge and surrendereth the rent shall be paid during the terme to the Stranger A man Out-lawed or Excommunicated may bring an Action as an Executor 20. And a mans person before his possessions Mentioned of corporal pain shall avoid a Deed but not his Goods 21. And matter of possession more then matter of right when the right is equall As if a man purchase several lands at one time held of several Lords by Knights service and dieth the Lord which first seizeth the Ward shall have it otherwise his elder Lord. 22. Matter of profit or interest shall be taken largely and it may be assigned and it may not be countermanded but matter of pleasure trust or authority shall be taken strictly and may be countermanded As licence to him in my Park or in my Garden to walk extendeth onely to himself and not to his servant nor any other in his companie for it is matter of pleasure only otherwise it is of a Licence to hunt kill and carry away the Deer which is matter of profit A Church-way is matter of ease OF POLITICAL 23. NOthing shall be void which by possibility may be good If Land be given to a man and to a woman married to another man and the heires of their two bodies this is a present estate Tayle because of the possibilitie 24. Ex nudo pacto non oritur actio No man is bound to his promise nor any use can be raised without good consideration A consideration must be some cause or occasion which must amount to a recompence in Deed or in Law as money or natural affection not long acquaintance nor great familiarity 25. The Law favoureth a thing that is of necessity As to pay several expences shall not be said to Administer to distrain in the night dammage feasant to kill another to save his own life A servant to beat another to save his Master if he cannot otherwise choose To drive another mans cattel amongst mine own untill I come to a place to shift them is no Trespass 26. And for the good of the Common-wealth As killing of Foxes and the pulling down of an house of necessity to stay a fire 27. Communis error facit jus As an Acquittance made by a Major alone where there be a hundred presidents is good 28. And things that are in the Custody of the law Goods taken by Distress shall not be taken in Execution for the debt of the owner thereof 29. The husband and the wife are one person They cannot sue one another nor make any Grant one to another And if a woman marry with her Obligor the debt is extinct and she shall never have any action if another were bound with him for by the mariage the Action is suspended and an action personal suspended against one is a discharge to all 30. An Obligation with a condition to enfeoff a woman before such a day and before the day the Obligor taketh her to wife the obligation is forfeited because he cannot infeoff her but he may make a lease for years with a remainder to his wife When a joynt Purchase is during the marriage every one shall have the whole When a joynt purchase during the mariage is made and the husband sell the wife shall have a Cui in vitâ for the whole against both and on a feoffment made to one man and his wife and to a third person the third person shall have one moity 31. All that a Woman hath appertaineth to her Husband Personal things and things absolutely reall as Lands rents and so forth or Chattels reall and things in Action are onely in her right notwithstanding real things and things in Action he may dispose at his pleasure but not Will or charge them and he shall have her real Chattels if he survive Of things in Action the woman may dispose by her last Will and she may make her husband her Executor and he shall recover them to the use of the last will of his wife If a Leassee for years grant his terme to a man or woman and to another they are
Of general Statutes the Judges will take notice if they be not pleaded but not of special or particular All Acts of Parliaments as well private as general shall be taken by reasonable construction be collected out of the words of the Act only according to the true intention and meaning of the maker Foure lessons to be observed where contrary Laws come in question 1. The inferiour Law must give place to the superiour 2. The law General must yeild to the Law special 3. Mans laws to Gods Laws 4. An old law to a new law And oftentimes all these laws must be joyned together to help a man to his right as if a man disseized and the disseizor made a Feoffment to defrand the plaintiff in this case it appears that the said unlawfull entrie is prohibited by the law of Reason But the Plaintiff shall recover double dammage and that is by the Statute of 8 Hen. 6. And that the dammage shall be sessed by 12. men that is by the custome of the Realm and so in some case these three laws do maintain the Plaintiff's right And these laws concern either mens possessions or the punishment of offences And so much shall be sufficient to be said touching common Law Customes and Statutes CONCERNING POSSESSIONS The difference between Possession and Seizin is Lease for years is possessed and yet the Lessor is still seized and therefore the termes of the Law are that of Chattels a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized CHAP. III. Of possession of Frank-Tenement TEnant in Fee-simple is he which hath Lands or Tenements to hold to him and his heires for ever It is the best Inheritance a man may have He may sell or grant or make his Will of those Lands And if a man die they do discend to his heire of the whole blood CHAP. IV. FEE-TAYLE Fee-Tayle is of what body he shall come that shall inherit Tenant in Tayle is said to be in two manners Tenant in Tayle General and Tenant in Tayle Special GEneral Tayle is where Lands or Tenements be given to a man and his wife and to the Heires of their two bodies or to his heires males or to his heires females Tenant in Tayle is not punishable for waste Tenant in Tayle cannot Will his Lands nor bargain sell or grant but for terme of his life without a Fine or Recovery If a man will purchase lands in Fee it behoveth him to have these words Heires in his purchase If a man would grant Lands in Tayle it behoveth him to appoint what body they shall come of Yet a devise of lands to a man and his heires males is a good Intayle and of lands to a man for ever a good Free-Simple How Lands shall discend Inheritance is an estate which doth discend it may not lineally ascend from the son which purchaseth in Fee and dyeth to his Father but discendeth to his Uncle or Brother and to his heires which is the next of the whole blood for the half blood shall not inherit But the most worthy of Blood as of the blood of the Father before the Mother of the elder Brother before the other and borne within espousall A discent shall be intended to the heire of him which was last actually seized That the Sister of the whole blood where the elder Brother did enter after the death of his Father and not his Brother of the halfe blood nor any other collaterall Cosen shall inherit yet notwithstanding such a one is heire to a common Ancester in which Rule every word is to be observed and so in every Maxim if the Land Rent Advowson or such like do discend to the elder Son and he die before any entry or receit of the rent or presentment to the Church the younger son shall have and inherit and the reason is because that in all inheritances in possession he which claimeth title there unto as heire ought to make himself heire to him that was last actually seized Here the possession of the Lessee for years or of the Guardian shall invest the actual possession and Frank-Tenement in the elder brother But he dying seized of a Reversion or a Remainder or an estate for life or in tayle There he which claimeth the Reversion or Remainder as heire ought to make himself heire to him that had the Gift or made the purchase Feodo excludeth an estate tayle where the second son shall inherit before the daughter And if the Lands be once settled in the blood of the father the heire of the mother shall never have them because they are not of the blood of him that was last seized And to the heire of the blood of the first Purchaser As if the Father purchase Lands and it discendeth to the son who entreth and dieth without heires of the Fathers part then the Lands shall discend to the heires of the mother or father of the father and not to the heires of the mother of the son although they are more neer of blood to him that was last seized yet they are not of the blood of the first Purchaser If the heires be females in equal distance as Daughters Sisters Aunts and so forth they shall inherit together and are but one heire and are called Parceners Gavill-kinde Doth discend to all the sons and if no sons to all the daughters And may be given by Will by the Custome CHAP. V. PARCENERS Parceners are of two sorts Women and their heires by the Common law Men by the Custom THey may have a Writ of Partition and the Sheriff may go to the Lands and by the oath of 12 men make Partition between them and the eldest shall have the Capitall Messuage by the Common Law and the youngest by the Custome Where the parties will not shew to the Jewry the certaintie there they shall be discharged in conscience if they make Partition of so much as is presumed and known by presumptions and likelyhoods Parceners may by agreement make partition by Deed or by Word and the eldest first choose unless their agreement be to the contrary Every part at the time of the partition must be of an even yearly value without incumbrance Rent may be reserved for equality or Partition and may be distrained for without a Deed. Parceners by divers discents before partition being disseized shall have one assize A Parcener before partition may charge or demised her part The entrie or Act of one Copartner or joynt-Tenant shall be the Act of both when it is for their good If a Parcener after Partition be entred she may enter upon her Sisters part and hold it with her in Parcenary and have a new Partition if she hold none of her part before she was outed viz. in exchange CHAP. VI. JOYNT-TENANTS IOynt-Tenants be such as have joynt estates in goods or lands where he that surviveth shal have all without incumbrance if the Tenements abide in the same plight as they
without a Deed is void if the Reversion be not in the reserâ—or if a Rent be granted from the Reversion it is a Rent-seck He which is not seized of a Rent-seck is without remedie for the same The gift of a peny by the Tenant in name of seizin of a Rent-seck is a good possession and seizin No Rent may be reserved upon any Feoffment Gift or Lease but only to the Donor and his heires not to any stranger A Rent-charge is extinct by the Grantees purchase of parcell of the Land but by the purchase of any of his Ancesters it shall not it shall be apportioned like Rent-service according to the value of the land but if the whole Land discend of the same inheritance the rent is extinguished By the grant of the Reversion the rents and Services pass If Rent be granted to a man without more saying he shall have it for terme of his life If the Lord accept of Rent or service of the Feoffment he excludeth himself of the Arrerages of the time of the Feoffment For a Rent-charge behind one may have an Action of annuity or distrain Distress For what when and where a man may distrain A man may distrain for a Rent-Charge Rent-Service Herriot service and all manner of Service as Homage Escuage Fealtie Suite of Court And Relief c. HErriot custome must be seized and for Amerciaments in a Leete upon whose ground soever it be in the liberty a man may not distrain for rent after the Lease is ended nor have debt upon a Lease for life before the estate of Frank-Tenement be determined A man may not distrain in the night but for dammage Feasant A man may not distrain upon the possessions of the King but the King may distrain of any Lands of his Grantee or Patentee A man may not distrain the beasts of a stranger that come by escape untill they have been Levant and Couchant on the ground but for dammage Feasans A man may not distrain the Oxen of the Plough nor a Mil-stone nor such like that is for the good of the Common-wealth nor a Cloke in a Taylors shop nor victuals nor corne in sheafes but if it be in a Cart for dammage Feasans A distress must be always of such things as the Sheriff may make a Replevin A man may not sever horses joyned together or to a cart If a man put cattell into a pasture for a week and afterwards I. N. doth give him notice that he will keep them no longer and the owner will not fetch them away I. N. may distrain them dammage Feasans If a man take beasts dammage Feasans and driving them by the high way to a pound the beasts enter into the house of the owner and the taker prayeth the delivery of them and the owner will not deliver them a Writ of Rescous lyeth If a man distrain goods he may put them where he will But if they perish he shall answer for them If cattell they ought to be put in a common pound or else in an open place where the owner may lawfully come and feed them and notice given to him thereof and then if they die it is in default of the owner Cattell taken dammage Fesans may be impounded in the same land but goods or Cattell taken for others things may not Sheep may not be destreined if there be a sufficient distress besides No man shall drive a distress out of the County wherein it was taken No distress shall be driven forth of the hundred but to a pound Overt within three miles A distress may not be impounded in several places upon pain of five pounds and treble dammage Fees for impounding one whole Distress Four pence The executor or administrator of him which had Rent or Fee-Farme in Fee in Fee-tayle or for life may have debt against the Tenant that should pay it or distrain and this is by the Statute 32 H. 8. So may the husband after the death of his Wife his Executor or Administrator So may he which hath Rent for another mans life distrain for the arrerages after his death or have an action of Debt 32. H. 8. But if the Landlord will distrain the goods or cattell of his Tenant and do sell them or worke them or convert them to his own use he shall be executor of his own wrong CHAP. XXIII Diseizin of Rents Three causes of Diseizin of Rents-Service Rescous Replevin Inclosure Foure of Rent-Charge Denyer Inclosure Forestalling is a Diseizin of all FOrestalling is when the Tenant doth with force and armes way-lay or threaten in such manner that the Lord dareth nor distrain or demand the Rent Denyall is if there be no distress on the Land or if there be none ready to pay the Rent c. And of such diseizins a man may have an action of Novell diseizin against the Tenant and recover his Rent and arrerages and his dammage and costs and if the Rent be behind another time he shall have a Redisseizin and recover double dammage Rescous and Pound-breach IF the Lord distrain when there is no rent nor service behind the Tenant may not rescue otherwise if another distreine wrongfully but no man may break the Pound although he did tender amends before the cattell were impounded If the Lord come to distrain and see the beasts and the servant drive them out of his fee the Lord may not have Rescous because he had not the Possession but he may follow them and distrain but not dammage feasans CHAP. XXIV COMMON COMMON is the right that a man hath to put his beasts to pasture or to use and occupy ground that is another mans There be divers Commons viz. Common in gross Common appendant Common appertinant Common because of neighbourhood viz. the termes of Law The Lords of Wastes Woods and pasture may approve against their Tenants and neighbours with common appertenant leaving them sufficient Common and pasture to their Tenants As if one Tenant surcharge the Common the other Tenants may have against him a Writ de admensuratione pasturae But not against him that hath Common for beasts without number neither may the Lord enclose from such Tenants if he do the Tenant may bring an assize against him and recover Treble dammage but the Lord may have a quo jure and make the Tenant shew by what title he claimeth CHAP. XXV WAYES The Kings high-way is that which leadeth from village to village A common high-way is that which leadeth from a village into the fields A private way is that which leadeth from one certain place unto another 3. Ed. 3. IN the Kings high-way the King hath onely passage for himself and his people and the Frank-Tenement and all the profits are in the Lord of the soyle as they be presented at the Leete Of a Common high-way the Frank-Tenement and profits are to him that hath the land next thereto adjoyning and if it be stopped and I be damnified by it I have no remedy
did accept it as that he paid the sum in full satisfaction and that he accepted thereof in full satsfaction An acquittance is a good bar c. Where a man is bound to pay money to make a Feoffment or renounce an Office or the like and no time is limited when the shall do it then upon request he is bound to perform it in so short a time as he may Buâ— where the time is limited if he doe refuse before the day it is no matter if he be readie to perform it at the day Where a Covenant or Condition is to marry or Enfeoff a stranger by such a day the refusall of the stranger is no Plea as that of the Obligee is The Obligee is to be ready on the Land at his own perill a Stranger must be requested if he refuse the Obligation is forfeited wherefore it is good to have these words if the Stranger do there unto assent Entrie THe determination of an estate is not effected before entrie When any person will enter for a Condition broken he must be seized on the same course and manner he was when he departed from his possession It behoveth such persons as will re-enter upon their Tenants to make a demand of the rent If the Lessor demand before he die his heire may enter If the Lessor distrain he may not re-enter The Lessor may accept of the Rent and yet re-enter but if he receive the next rent he may not for that establisheth the Lease Entry into one acre in the name of more is good it doth not extend into two Counties By the Entry of the Husband the Francktenement shall be in the wife and so of such like In Gavill-kind Land the eldest son only shall enter for the breach of a Condition Demand THe Land is the place where the rent is to be paid and demanded if there be no other place appointed And there the Lessor himself or his sufficient Attorney a little before Sun set in the presence of two or three sufficient witnesses shall say here I demand of I. B. 10. l. due to me at the Feast of c. for a Messuage c. Which he holdeth of me in Lease by Indenture c. and there remain the last day the rent is due to be paid until it be dark that he cannot see to tell the money CHAP. XI WARRANTIES There are three manner of Warranties Lineall Collaterall By Discent VVArranty Lineall is where a man by his Deed bindeth him and his heires to Warranty and dieth and the Warranty doth discend to his issue Warrantie Collaterall is in another line so that he to whom it diseendeth cannot convey the title that he hath in the Testaments by him that made warranty Warranty by Disseizin is where he which hath no right to enter entreth and maketh a warranty this is by Disseisin and barreth not Line all Warranty barreth him that claimeth Fee and also Fee-taile with assets in Fee if he sell his son may have a Formedon Collaterall Warranty is a barr to both except in some cases that be remedied by Statute as Warranty by Tenement by the curtesie except he hath enough by discent by the same Tenement Tenant In dower for life not remedied but do barre the heire and him in reversion AWarranty diseendeth alwaies to the heir at the Common law viz the eldest Son and followeth the estate and if the estate may be defeated the Warranty may also It barreth not the second Son in Gavill-kind although all the sons shall be vouched and not the eldest alone Yet he only shall be barred To plead a Warranty against him that made it or his heires is called a Rebutter Where Fee or Frank-tenement is Warranted the party shall have no advantage if he be not Tenant Where a Lease for years is warranted it shall be taken by way of Covenant and good if he be outed The Feoffor by the words dedi concessi shall be bound to warranty during his own life CHAP. XLI COVENANTS COvenants are of two sorts expressed by words in the Deed or implyed by the Law A covenant in Deed is an agreement made by the Deed in writing between two persons to performe some things and sealed for no writ of Covenant is maintainable without such a specialty but in London c. When a Covenant doth extend to a thing in being parcell of the demise or thing to be done by force of the Covenant is quodamodo annexed or appertaining to the thing demised and goeth with the land it shall bind the assignee if he be not named as to repair the houses it shall bind all that shall come to the same by the act of the law or by the act of the party But if the Covenant do concern the land or thing demised in some sort the Assignee shall not be charged although he be named as to make a Wall at anothers bodies house or to pay a sum of money to the Lessor or to a stranger But the Lessee his executors and Administrators shall be charged If the Covenant do extend to a thing that had no being but to be made new upon the Land it should binde the Assignee if he be named because he shall have the benefit of it If a man make a Lease for years and the Lessee covenanteth and granteth to pay c. to the Lessor his heirs and assignes yearly during c. ten pound his Executors shall have it A Covenant in Law upon a demise or grant the Assignee in Deed or in law may have a Writ of Covenant An Obligation to perform all Covenants and grants is forfeit on the breach of a Covenant in law A Covenant in Law is not broken but by an elder title A Covenant in Law may be qualified by the mutual consent of the parties CHAP. XLII How Chattels personal may be bargained sold exchanged lent and restored AContract is properly where a man for his mony shall have by the assent of another certain goods or some other profit at the time of the contract or after In all Bargaines Sales Contracts Promises and Agreements there must be quid pro quo presently except day be given expresly for the payment or else it is nothing but communication If a man do agree for a price of wares he may not carry them away before he hath paid for them if he have not day expresly given him to pay for them But the Merchant shall retain the wares until he be paid for them and if the other take them the Merchant may have an action of trespass or an action of debt for the money at his choice If the bargain be that you shall give me ten pound for my Horse and you do give me a penny in earnest which I do accept This is a perfect bargain you shall have the Horse by an action of the Case and I shall have the money by an action of debt If I say the price of a Cow is four pounds and you
rather beat him then suffer him to take or carry them away CHAP. XLIV How far other mens Contracts and misdemeanours do binde us A MAN shall be bound by many Trespasses of his wife but not to sustain corporal punishment for it For Murder Fellony Battery Trespass borrowing or receiving of money in his Masters name by a Servant the Master shall not be charged unless it be done by his command or came to his use by his assent If I command one to do a Trespass I shall be a Trespassor or otherwise if I do but consent There is no accessary in Trespass We shall be charged if any of our family lay or cast any thing into the high way to the noisance of his Majesties Liege People Every man is bound to make recompence for such hurt as his beasts shall doe in the corne or grass of his neighbour though he knew not that they were there and for his Dogs Beares c. if they hurt the goods or Chattell of any other for that he is to govern them A man shall not be charged by the contract of his wife or his servant if the thing come to his use having no notice of it But if he command them to buy he shal be charged though they come not to his use or had notice therof If a Wife or Servant use to buy or sell if he sell his Masters Horse and exchange his Oxe for wheat that cometh to his Masters use his Master may not have an action of Trespass for it but he shall be charged for the corn and the other need not to shew that he had warrant to buy for him If a man-servant that keepeth his shop or that useth to sell for him shall give away his goods he shall have Trespass against the Donee But if I deliver my Goods to another to keep to my use and he do give them away I shall not for the Donee had notice whose goods they were as in the case of the servant If a man make another his general receiver which receiveth money and maketh an acquittance and payeth not his Master yet that payment dischargeth the debtor If a servant keep his Masters fire negligently an action lieth against the Master Otherwise if he bear it negligently in the street If I command my servant to distrain and he doth ride on the distress he shall be punished not I. If a man command his servant to sell a thing that is defective generally to whom he can sell it deceit lieth not against him Otherwise if he bid him sell it to such a man it doth A Contract or a promise made to the wife is good when the husband doth agree so it is to a servant and it shall be said to be made to the husband and Master himself If a man taketh a wife that is in debt he shall be charged with her debts during her life if she die he shall be discharged CHAP. XLV Wills and Testaments Having hitherto treated of such contracts as de take effect in the life time of the parties with their differences it is now to deale with Instruments which take effect after their Deaths that those things which they have preserved with care and gotten with paines in their life might be left to their posterity in peace and quietnesse after their Death of which sort are last Wils and Testaments There are two sorts of Wils Written and Nuncupative ANuncupative Testament is when the Testator doth by Word onely without writing declare his Will before a sufficient number of Witnesses of his Chattels onely for Lands passe not but by writing It may for the better continuance after the making be put in writing and proved But it is still a Testament Nuncupative A written Testament is that which at the very time of the making thereof is put in writing by which kind of Testament in writing only Lands and Testaments pass and not by word of mouth only Two things are required to the perfection of a Will by which Lands pass viz. First writing which is the beginning Secondly the death of the Devisor which is the finishing In a Will of Goods there must be an Executor named otherwise of Lands A man may make one Executor or more simply or conditionally for a time or for parcel of his Chattels If no Executor be named then it still retaineth the name of last a Will and shall be annexed to the Letters of Administration in regard of the Gift Gavil kinde Lands may be devised by custome Lands bolden In Socage tenure all is devisable Knights Service 2 parts 3 in writing FEAR fraud and flattery three unfit accidents to be at the making of a Will A woman may make a Will of the goods of her husband by his consent and license by Word is sufficient and of the goods she hath as Executor without his consent but she cannot give them unto him A boy after his age of fourteen and a Maid after her age of twelve may make a Will of their goods and Chattels by the Civil Law The will of the Donor shall be alwayes observed if it be not impossible or greatly contrary to the Law A Devisor is intended Inops consilii and the Law shall be his Counsell and according to his intent appearing in his Will shall supply the defect of his words A Prerogative Will is five pound in another Diocess A man may not traverse the Probate of a Testament or Letters of Administration directly but he may say against the Testament that the Testator never made the party his Executor CHAP. XLVI DEVISES A Devise ought to be good and effectual at the time of the death of the Devisor The Devisee may not enter into the terme or take a Chattell but by the delivery of the Executor But he may sue for it in Court Christian Into Frank-tenement or inheritance he may enter Devisees are Purchasees as if a Lease for years be Willed to a man and his Heires the Heire shall have it for Heire is a name of purchase here A Reversion of Lands or Tenements will pass by the name of Lands and Tenements in a Devise If a man devise all his Lands and Tenements a Lease for years doth not pass where he hath Lands in Fee and also a Lease there otherwise it will If a man devise all his goods a Rent-charge which he had for years will pass and all other his personall Chattells And if a man give all his moveables to one he shall have all his Horses Cattell pans and personall chattells and all his immoveables to another he shall have all his Corn growing and fruit on his Trees and the chattells reall A man may devise Lands or goods to an Infant in the mothers belly or goods to the Church-wardens of D. There is great diversity where the property is devised and when the occupation is devised A man may devise that a man shall have the occupation of his Plate or other chattells during his life or
to him and his heires until B. die without heire of his body for in the one case the Donor hath but an Estate Tayle and in the other a Fee simple determinable hath a possibility of Revertor for if B. die without heire of his body then whether A. be living or dead shall revert to the Donor but such possibility of Reversion for he that hath but such a possibility hath no Estate nor hath he power to give his possibility but in the other case the Donor hath Estate in Fee and therefore he hath power to dispose thereof at his pleasure Remainder A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates whereupon it doth depend as if S. seised of lands in Fee demiseth the same to B. for life the remainder to C. and the heirs of his body the remainder to D. and his heirs In this case I. S. hath a particular Estate of the Lessor is then also disposed to C. and D. ut supra whereby B. hath an Estate for life C. a Remainder in Tail and D. a Remainder in Fee depending in order upon the particular Estate in possession and in every Remainder five things are requisite First That it depend upon some particular Estate Secondly That it pass out of the Grantor Donor or Lessor at the time of the creation of the particular Estate whereon it must depend Thirdly That it veste during the particular Estate or at the instant time of the determination thereof Fourthly That when the particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Fifthly That the person or body to whom the Remainder is limitted be either capable at the time of limitation thereof or else in potentia propinqua to be thereof capable during the particular Estate If Lands be given to I. S. and his Heirs the Remainder for default of such Heir to I. D. and his Heirs that Remainder is void because it doth not depend upon any particular Estate But if Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good for it is not limited to depend upon a Fee-simple but upon a particular Estate which is onely called an Estate for life of I. B. descendable if Lands be given to B. for 11. years if C. do so long live the Remainder after the death of C. to D. in Fee this Remainder is void for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years but if a Lease be made to B. for life the Remainder to the Heires of C. who is then living this Remainder is good upon a contingency that if C. dye in the life of B. for that Remainder may well pass out of the Leassor presently without be yaunce without any inconveniency because onely the inheritance separated from the Free-hold is in abeyance if Lands be given for life with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void because it died not vest or settled either during the particular Estate or at the time of the determination thereof for until I. S. die no person is thereof capable by the name of the Heir But if Lands be given to I. S. for terme of his life the Remainder to his right Heir in the singular number and the Heirs of his body and after I. S. hath issue a Son and dyeth that is a good Remainder and the Son hath thereby an Estate Tail for although it were unpossible that such Remainder should vest during the particular Estate because during his life none could be his Heir yet it might be and did vest at the instant of his death which was at the time of his determination of the particular Estate Concerning the fourth thing if a man seised of Lands in Fee granteth out of the same a Rent or Common to Pasture or such like things which before the grant had no being to I. S. for terme of life the Remainder to I. D. in Fee this Remainder is void because of this thing Granted there was no Remnant in the grant to dispose And because some heretofore have been of opinion that albeit the same cannot take no effect as another Grant of a new Rent or Common Vtres magis valeat quam operat This is a rule in Law that a thing enjoyed in a superior degree shall not pass under the name of a thing in any inferior degree and therefore if Lands be given unto two persons and unto the Heirs of one of them unto the Husband and Wife and Heir of the Husband and he that hath the Estate of Inheritance granteth the Version of the same Land to another in Fee such Grant is void because the Grantor was thereof seised in a superiour degree viz. in Possession and not in Reversion as appeareth 22. Ed. 4. fol. 2 13. Ed. 3. Brook title of Grants 137. And concerning the first and last thing if a Lease be made of Land for term of life the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein being this Remainder is meerly void albeit the Kings Majesty by his Letters Pattents do create such Corporations during the particular Estate for at the time of such grant the Remainder was void because then there was no such body corporate thereof capable or potentia propinqua to be created and made capable thereof during the particular Estate but the possibility thereof was then forraign and probably intended The like law is if a remainder be limited to I. the Son of T. S. who had then no Son and afterwards during the particular Estate a Son is born who is named John yet this Remainder is void for at the time of such a Grant as was not to be probably in tender that T. S. should have any Son of that name Also before the dissolution of Abbies if a Lease of Land were made to I. S. for life the Remainder to one that then was a Monk such Remainder was void for the cause before alledged albeit we were deraigned during the particular Estate But if such Remainder had been limited to the first begotten Son of I. S. it had been good and should accordingly have vested in such a Son afterwards born during the particular Estate Rights A Right in Land is either cloathed or naked a Right cloathed is when it is wrapped in a possession Reversion or Remainder a naked Right which is also most commonly called a Right is when the same is separated from the possession or Remainder by dissessin discontinuance or the devesting and separating of the possession as for example if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee in this case I. S. hath a Right cloathed with a Remainder
in Plowdens Commentaries It is to be noted that the premisses may be inlarged by the Habendum but not abridged as it plainly appeareth aswell in the said case of Throgmorton as in Worteslies case reported also by Master Plowden and I have read as my collections tell me that it is required of the habendum to include the premisses Moreover the habendum as W. N. Esquire hath it in the treatise of the grounds and maximes of the Law must not be repugnant to the premisses for if it be it is void and the Deed will take effect by the Premisses which is very worthy of Observation The Tenendum Tenend ' THe Tenendum before the Statute of Quia emptores terrarum made 18. Ed. 1. was usually de Feoffatoribus haeredibus suis non de capitalibus dominis feodorum c. viz. of the Feoffors and their Heires and not of the chief Lords of the Fee c. whereby there hapned divers inconveniences unto Lords as the losing of their Escheats or forfeitures and other rights belonging to them by reason of their Seigniories which as the same Statute expresseth it durum difficile videbatur c. whereupon it was granted provided and enacted quod de caetero liceat unicuique libero homini terras sitas seu tenementa sua seu partem inde ad voluntatem suam vendere ita tamen quod feoffatus teneat terram illam seu tenementum illud de capitali domino feodi illius per eadem servitia consuetudines per quae feoffator suus illa prius de eo tenuit Q' estat ' fuit fait as saith one pur l'advantage de Senior ' which statue was made for the advantage of Lords and indeed I easily believe it Now it is evident from that which hath been declared out of the said Statute that at this day the tenendum where the Fee simple passeth must be of the chief Lords of the Fee c. for no man since the said Statute could convey Lands in Fee to hold of himself out of which rule the King only I think may be excepted and 't is not in silence to be passed over that where Lands c. are conveyed in Fee though there be no tenendum at all mentioned yet the Feoffee shall hold the same in such manner as the Feoffor held before quia fortis est legis operatio the Statute so determines The clause of warranty Et ego haeredes mei c. warrantizabimus c. defendemus c. WArrantizo is a verb used in the Law and onely appropriated to make a Warranty Littleton in his chapt of Warranty saith Que cest parol c. that this word Warrantizo maketh the Warranty and is the cause of Warranty and no other word in our law and the argument to prove his assertion is produced from the form and words used in a fine as if he should say Because the word defendo is not contained in fines to create a Warranty but the word warrantizo onely ergo c. which argument deduced and drawn à majori ad minus is very forcible for the greater being inabled needs must the lesser be also inabled Omne majus in se continet quod minus est quod in majori non valet nec valet in minori But certainly Littleton is to be understood only of an express warranty indeed and of a warranty annexed to Lands for there may be and are other words which will extend and inure sufficiently to warrant chattels c. and which will imply a warranty in Law as dedi c. and excambium as I have heard say implyeth a warranty in Law which from Glanvil's vel in excambium or escambium datione lib. 3. cap. 1. may receive some confirmation And Littleton in his Chapter of parceners teacheth that partition implyeth a warranty in Law c. And lest some may here say that defendemus stands for a cypher I will tell them what Bracton declareth of it speaking about a warranty in deed from the Feoffor and his heirs whose words are these per hoc autem quod dicit scilicet Feoffator defendemus obligatse haeredes suos ad defendendum fi quis velit servitutem ponere rei datae contra formam donationis c. Lawyers in their Books make mention of three kindes of Warranties viz. Warranty lineall Warranty collaterall and Warranty which commences by disseisin The first is when one by Deed bindeth both himself and his heires to Warranty and after death this warranty discendeth to and upon his Heire The second is in a transverse or overthwart line so that the party upon whom the warranty descendeth cannot convey the title which he hath in the Land from him that was the maker of the Warranty The third and last is where a man unlawfully entreth upon the Freehold of another thereof disseising him and conveyeth it with a warranty but this last cannot barr at all Of these you may read plentifull and excellent matter and examples in Littletons Chapter of Warranty and Sir Ed. Coke learnedly commenting upon him to whom for further illustration hereof I referr you as also unto Master Cowels interpretation of words in the title Warranty who there remembreth divers things very worthy observation concerning it Before I come to the fifth part of the Deed of Feoffament give me leave to observe that a Warranty alwayes descendeth to the Heire at the Common Law and followeth the Estate as the shadow the substance and whensoever the Estate may the Warranty may also be defeated and every Warranty as saith Sir Ed. Coke which descends doth descend to him that is Heire to him which made the Warranty by the Common-Law And moreover it is to be noted as may be gathered from what hath been formerly said that an Heire shal not be bound to an express Warranty but when the Ancestor was bound by the same Warranty for if the Ancestor were never bound the Heire shall never be charged And I remember I have read a case in Br. abr 35. H. 8. pl. 266. to this purpose Si home dit en son garrantie Et ego tenementa praedicta cum pertinentiis praefato A. B. le donee warrantizabo ne dit ego haeredes mei il mesme garrantera mes son heire nest tenus de garranter pur ceo que Heires ne sont expresse en le garranty B. garr 50. So I will forbeare to speake any further herein being a very intricate and abstruse kinde of learning requiring the pen of a most cunning and experienced Lawyer and now I address my self to the fifth orderly or formall part of the Deed of Feoffament The clause of in cujus c. In cujus rei testimonium THis clause is added as a preparatory direction to the sealing of the Deed for sealing is essentially required to the perfection thereof because it doth plainly shew the Feoffors consent to and approbation of what therein is contained