although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
because that had this Condition annexed viz. I ordain A. mine Heir and if he will not be Heir then my will is that B. shall be my Heir e Inflit. eod now this of ours iâ— not bound but is rather tacitely imposed contrary to the Legator as namely thus I give and bequeath such a Fee to A. and if he accept it then I will that such or such shall be his Heir or Successor f Westminst 2 c. 1. Dr. Stu. l. 7. c. 24. 2. In like manner if we bequeath any thing conditionally to any one we make Substitution to another in Case the condition be not performed for Example I give a hundred pounds to A. when he shall marry a Wife or if he shall not get a son of my Daughter lawfully then I give the said hundred pounds to B. Of Pupillary Substitution TIT. XVI IN this Substitution we do not so much regard the power of our Countrey as the liberty of tâ—e Testator so that a Legat oâ— may make a Substitution Pupillary either to his own chidren or to strangers Legatees who are under age As I give to A. my own child or anothers a hundred pounds when he shall come to age and if he shall die before then I bequeath the same one hundred pounds to B. But in regard that Cases of Wills are for the most part tried in the Ecclesiasticall Courts and by the Rules of the Civill and Pontificiall Law a Bra. l. 2. c. 26 n 2. therefore our Law hath as it were past by for the most part this and other things of the same nature and leaveth them to be determined by the Civill and Pontificiall Law How Wills are invalidated TIT. XVII WIl ls cannot be justly made ab initio by those who are not permitted to make Wills those who are we have mentioned before they may also be nulled by a later Will a Perk. 476. 479. 480. Fulb. paral Devises fo 47. or invalidated by Treason c. as where one is condemned for Treason or Felony after his Will made b Stan. pl. corp l. 3 c. 20. and c. 32. or if the Testator revoke his Will or be deprived of the Executor whom he named c Bro. Exec. throughout 1. Suppose A. make two Wills one in the sixth the other in the eighth year of Eliz. at length he is sick and speechlesse B. his familiar friend comes unto him giveth him into his hands both the Wills and desires him to return that which he would have stand for his Will A. returns that which was made the sixth yeare in this Case that will which he returned shall be esteemed the later d Perk. 479 2. And it happens sometimes that a mans will which according to the Civill Law is ambulatory or alterable untill Death cannot be altered in regard of prejudicing another Contract upon which account the will was made for Example A. is seised of Lands in Fee which he alienates to B. upon condition that they shall be his for life to the use of the said A. the Remainder e in ip Co. I am arcisc l. omnium 19 C. de Testa f Dier fo 49. n. 12. to C. and his Heires for ever and upon this A. makes his last will after having given the possession to B. This will quatenus to the alienation cannot be nulled by a later and the Reason is because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred so that he may immediately sell them if he please g Id fo 325. n. 73. Perr 480. Of those Wills which were called by the Civilians Testamenta inofficiosa TIT. XVIII THe Plaint or Action in the Case of Testamentum inofficiosum is not in use with us for as concerning Lands holden by Knights Service in case the Father do not leave his lawfull Heir either while he lives or at his death a third part according to the Statute the will is void as to that part a 32 H. 8. c. 1 so that the Heir may notwithstanding take possession thereof or else if he have gotten it he may immediately himself refuse b Brac. l. 2. c 30 n 2 the parcell bequeathed or quit it or remove it by Law c Id ib 1. For the disposing of Chattells there are severall Customes in severall places of which there remain very clear signes in the ancient writers of our Law d Glan l 7 c 5 and 7 Brac l 2 c 26 n 2 but by the Common Law the Testator had alwayes a Free will of disposing e Id ib wherefore that writ which is called Breve derationabili partebonorum which liâ—s for the wife or children against the Executors for the recovery of part of the Goods f Regist fo 142 b F n 122 â— is not generall but peculiar to certain Countreys where the Custome is that Debts being paid the Remainder should be divided into parts viz. one part to the wife the other to the Children and the third to be left at the will of the Testator Of the Quality and difference of Heirs TIT. XIX HEirs as they are taken with us were necessary in time past as to the driving an Inheritance from our ancient Predecessors to the next Ancestor a Glan l 7 c 1 as they are now with us as to part b 32 H 8 c 1 and that not onely as to a Succession in the Estate but also as to the drawing upon themselves the Debt of their Ancestor c Brac l 2 c 16 n 7 and they were also for ever bound and obliged to warranties that is to the assurances which either they or their ancestors ingaged and promised to those to whom they sold any Land 1. But for that it is evident that children naturall and legitimate are preferred before others to Succession it were not amisse to see the Estate and difference of Children which really is very much for of Children some are naturall and legitimate and of this sort some are Sons and Heirs some Sons but not Heirs some also are Heirs of the Father some of the Mother some both of Father and Mother some also are not Heirs although legitimate and naturall some by accident begin to be Heires and some cease to be so so also of naturall and legitimate Issue some are near some more near some are removed some more removed d Brac. l. 2. c. 29 30. Brit. c. 118. Coo. l. 3. Ratc. Case fo 40 41 42. Plow 28. Flet. l. 6. c. 1. but of this elsewhere Of Devises TIT. XX. THat kind of Donation which is in Case of Death is where the Testator had rather that himself should injoy the thing bequeathed then that the party to whom it is bequeathed should have it and yet that he had rather that the party to whom it is bequeathed shall have it then his owne Heire a Brac. l. 2. c. 21. n. 1. 1. Our Common Law
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
other Ornaments or Oxen either giving or promising hire such a care is required of him as a diligent Master of a Family would have which being had if the thing by accident happen to be lost hee is not bound to make restitution unlesse it be agreed otherwise Nor is it sufficient that he have such a care of them as of his own goods o Brac. ib. Dr. Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59. 5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others wherefore it is requisite that wee should speak more largely in this place of these particulars Every one may make a lease of Lands who holds them in Fee whether he have Fee-simple or Fee-taile and whether he be possessed in his own Right in the Right of his Wise or of a Church p 32. H. 8. c. 28. which is also true in those who hold as Partners q Lit. l. 3. c. 3 So also Cestuy qui use r Id. ib. c. 5. a body politick may make a lease but not without writing s Bro. lease 32. 42. As also he who hath a Free-hold t Id. ib. 4. or a Lease provided he exceed not his term and Guardians until their Pupils and Wards come to age 6. He that hath a Fee-simple in his owne Right may make a lease for as many years as he pleaseth provided it be not to a Body politick lest by exceeding it seem a Demise in Mortmaine u Bro. ib. 47. He who hath a Fee-tail in his owne or Fee-simple in anothers Right viz. either in the right of a Church or of his Wife is tied a little more strictly for that they cannot lease Land by a new lease which is already let for above the term of a yeare Nor any which were not usually wont to be let within the space of 20. yeares past nor those for a lesse rent then they formerly were let for or for a longer terme then 21. years or three lives and that without permission of waste To these also may be added that he who hath a Fee in right of his Wife may let it joyntly with his Wife but hath no power to alienate the Rent but it shall come to the right Heir of his wife after her decease w 32. H. 8. c. 28. 7. Arch-bishops Bishops cannot let the Lands of their Churches for above 21. years or 3. lives to be accompted from the beginning of the lease nor for lesse Rent then it formerly went for nor for lesse then formerly it used to be let for x 1 Eliz. not printed Dyer fo 145. n. 65. 8. Masters and Fellowes of Colledges Deans and Chapters Wardens of Hospitalls and all Ecclesiasticall persons are prohibted y 13. Eliz. c. 10. to let their Church or Colledge Lands for more then 3. lives or 21. years to be accompted from the beginning of the lease nor this without their private Statutes permit Nor so unlesse the lease which is on foot if there be any be within three yeares of expiring z 18. Eliz. c. 11. Besides the Colledges of both Universities as of Eaton and Winchester are obliged to take the third part of their Rent in Corn a 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City Burrough Towne corporate or publique Market Town with the Lands belonging to them provided they exceed not ten Acres according to the Common Law of England if it be not contrary to the private Statutes of their Colledges b Id. ib. 9. It is not without reason questioned whether a Prebendary of a Cathedrall Church may lawfully let part of his Prebendary procuring the said Lease to be confirmed by the Dean and Chapter without any consent of the Bishop the Bishop being both Patron and Ordinary of every Prebendary but continuall and daily Custome hath rendred his consent unnecessary and uselesse c Dyâ—r fol. 61. n. 30. 10. Those who have Benefices cannot make a Lease for any time longer then they reside there the liberty of being absent 80. dayes every yeare being alwayes permitted them unlesse by the Lawes they are permitted to have two In which case in regard hee cannot possible continually reside at both he may let one to his Curate d 13. Eliz. c. 20. 11. Lands and Tenements are often let for the life of the Lessee e Lit. l. 1. c. 6. or anothers life f Id. ib. or for more lives g Id. ib. or for terme of years h Id. ib. or lastly for a life and afterwards that being expired for a term of years i Bro. leas 51. and that either by writing or without k Littl. ib. nor by Indenture only but by Deed-Pol l F N B 148 12. But if any one letteth his Lands by writing or without not mentioning any tearm but giving the Lessee possession He is presumed to let them for the life of the Lessee m Lit. l. 2 c. l Plow 152. 13. There is no need of giving possession to a Lessee for years for he may enter by vertue of his Lease unlesse besides the Lease there be a Grant of a Remainder to another for life or in fee in the same Deed n Lit. l. 1 c. 7. for if a man makes a Lease of lands for years though he were Lessee before yet he doth rightly take possession of the said Lands by this means o Id ib 14. Lessor is bound to warranty to the Lessee for the Lessee being ejected before the terme ended may have his Action of Covenant against the Lessor p F N B fo 145 M Dier 328 n 8 and that whether he be disseised by the Lessor himself or by a more ancient Title nor only he but his Assignee q Id. ib 15. But if a third person eject him against Right he shall recover damages against the Ejector r Id ib unlesse the Lessor agreed by Indenture that in case the Lessee were ejected he should have his action of Covenant against him s Id id 16. Lessee for life by Indenture in regard he hath a Free-hold shall not have an action of Covenant against the Lessor in case he eject him before his tearm ended but an Assise t Id. ib. 17. Where a Lease is but for a year and so from year to year the Lessor cannot eject the Lessee at the end of the Tearm nor can the Lessee go out against the will of the Lessor For whosoever of them would recede from the agreement ought to give the other warning u Bro. lease 13. 22. 18. Lessor cannot remove his Tenant at Will so as to hinder him from taking the profits of his Seed or Corn sowen or without granting him convenient time to remove his Houshold stuff because the time is well enough force-seen and known to him
others viz. not only those who killed their Kinsmen but even those also who did by any capitall deceit plot any thing against their Estates Members or Honours As also those Servants who committed any such crime against their Mastes Or who lay with their Masters Wives Daughters or Concubines or counterfeited their Seals k Flet. l. 1. c. 37. Spec. Just l. 2. Now the punishment due to this crime is to be drawn from the Prison to the place of Execution and there to be hanged by the neck untill they be dead l Cromp. Iust fol. 18. Flet. l. 1. c. 37. but a woman is punished for this in the case of High Treason Their goods also are forfeited to the Exchequer and their Lands to the Lord of the Mannor yet so as the King was wont to have a yeare and a day and waste m Stanf. l. 1. 6. 2. 11. The residue of Capitall Crimes are comprehended under that one name of Felony Although Felony in a more large signification includes Treason n Lamb. l. 2. c. 7. Plow 333. and is sometimes more strictly extended to Murder o Perk. 349. 22 H. 8. c. 14. 12. Of Felonies there are some which are against the Common-wealth and some which are against private persons principally though by consequence they also are against the Common-wealth Oâ— the first sort are raising of Devils Witch-craft Conjuring by which any one is killed Or any other whatsoever after the first conviction by meanes whereof the body of any party lies sick and languishing and these formerly went under the name of Felony p 5 Eliz. c. 16. But at this day those who use Invocations Conjurations or raising of Devils or who take counsell of Evill Spirits make any bargain with them or deale with them by way of Commerce Or who do any way command cherish or reward them for any end or purpose Those who dig up any dead body out of a Grave or Dormitory or who draws off the skinne or the bone of any dead body to use them in Inchantments Lastly those who practice any manner of inchantment charm or sorcery whereby any person shall be killed destroyed wasted consumed pined or lamed That such Offenders their Aiders Abettors and Counsellors shall suffer pains of Death as Felons without benefit of Clergy And it is further provided for the utter extirpation of such wicked Blasphemy that whosoever shall take upon them by Witchcraft Inchantment Charm or Sorcery to tell or declare in what place any Treasure of Gold or Silver may be found or lies hid Or to provoke any person to unlawfull love Or to destroy and waste any ones Cattell or Goods or to destroy or hurt any ones person although the same be not effected or done every such offender shall suffer a year Imprisonment without Baile or Mainprise and once in every quarter of the said year shall in some market town stand openly upon the Pillory for the space of six houres and there openly confesse their errour But if being once convicted they do again commit the offence they shall suffer death without benefit of Clergy q 1. Jam. c. 12 13. And hither we may aptly refer that Sodomiticall sin with bruit beasts r 25. H. 8. c. 16 the entertaining of Jesuits Preists brought up in the Seminaries beyond the Sea s 27. Eliz. c. 2. the sefusing of Abjuration by Papists and their return into England after having abjured t 35. Eliz. c. 1. 2. the assembling of Rebells u 1. Mar. c. 12. which Statute is now expired the art of multiplying Gold or Silver w 5. H. 4. c. 4. the procuring or causing of Congregations of Masons to be assembled x 3 H. 6. c. 1. the departure of Souldiers Mariners ot Gunners from their Captaines y 18. H. 6. c. 19. 2. and. 3. E. 6. c. 2. 4. 5. the exportation of Horses into Scotland z 23. H 8. c. 16. 1. Eliz. c. 7. the conveying of sheep beyond the Sea the second time a 8. Eliz. c. 3. the return of vagabonds into England having been banished b 39. Eliz. c. 4. the cheatings and robbings of those Vagabonds which call themselves Egyptians c 1. 2 Phil. and Mar. c. 4. 5. Eliz. c. 20. the idle wandring of Souldiers and Mariners d Ibid. the counterfeiting or deceitfull using of Letters Testimonialls e Ib. 39. Eliz. c. 4. 17 the riding in Armes to commit a Felony f 25. Ed. 3. c. 2. the breaking or cutting of the bankes in Marshland g 2. and 3. Phil. and Mar. c. 19. 14. And like unto these seem those Felonies which spring from breaking of Prisons as where one is imprisoned for Felony or for suspition of Felony and breaks â—orth as also where a Gaoler lets such a person forth freely which we call a voluntary escape Or lastly the assistance and help in a third person which we call Rescous h Lamb. l. 2. c. 7. p. 224. 226. Dier fo 90. n. 60. fo 165. n. 60. the making bringing into the Kingdome or selling that kinde of Mony which our Ancestors called Galley Halfe-pence Suâ—kins Dotkins and Blanks i 3. H. 5. c. 1. the Imbecilling of a Record k 8. H. 6. c. 12. the violent oppressing the Subject by the Kings Purveiours or others l 4. E. 3. c. 3. 5. E. 3. c. 2 25. 4. 3. c. 15. 36. E. 3. c. 2. and 4. 5. R. 2. c. 8 the compelling of any Prisoner by the Goaler by duress of Imprisonment and pain to become an Appellor against his will m 14. E. 3. c. 10. and thus much of the first sort of Felonies 15. Felonies which do primarily and chiefly concern private persons are such as reflect to the hurt and prejudice of the Body only or the Body and Goods or the Goods only n Lamb. l. 2. c. 7. fo 218. Those which hurt the Body are such which either take away life or bring some other enormous injury upon it though not mortall those which take away life are comprehended under the generall name of Homicide o Flet. l. 1. c. 23. but this hath diverse appellations and causes from the diverse Intents of the parties offending For that which is committed through malice prepensed is called murder p Plow 474. Glan l. 11. c. 3. â—rac l. 3. tr 2. c. 4 n. 2. Dier 〈◊〉 69. n. 28. â—9 fo 186. n. 3 and is punished with death And we are to take notice here of the ancient custome which our Ancestors used that he who committed Murder was hanged up alive by his whole Body upon a Gibber and was not upon any condition to be let down untill he died through Hunger but I read nothing of this and if there were any such custome it is long time changed For at this day they as other Felons are strangled with a Halter and in this only they differ from other
Felons that their Bodyes are hanged up on high in some publick Roade neer the place where the fact was committed as an obiect to those which passe by and are not to be removed until they be consumed Now there are others who shew more at large how and by what wayes murder may be committed q Stan. Pleas Crow l. 1. c. 10. Lamb. l. 2. c. 7. fo 230. 16. And it is murder also where any one kills himselfe For such a person is called Felo de se In which case Christian Buriall is forbidden and all the parties Go ds and Chattells are forfeited to the supream power to be disposed of to pious uses r Brac. l. 3. tr 1 c. 31. Pâ—ow fo 253. yet some there are who distinguish whether the party laid violent hands upon himself through fear of Judgment or being weary of his life or through the violence of some disease For in the first case as other Felons he looseth both his Land and Chattels in the second his Chattells only and in the third he forfeiteth nothing s Flet. l. 1. c. 36 17. That which is committed through sudden passion Anger is called simple t Glan l. 14. c. 3. Homicide or man-slaughter and it is punishable with death also yet such is the commiseration of humane weaknesse with us or the pious instigation to learning that he who is convict of this Crime the first time if he can read perfectly and distinctly as a Clarke ought to do is freed from death and his lands and goods being forfeited is only burnt in the hand by which means he may be known if he commit the like crime again and committing it the second time he is to dy without mercy u 18. Eliz â— 7 but so great hath been the bloody wickednesse of these times that this Law hath been somewhat more exasperated For now by an Act of Parliament in K. James his time it is decreed that he who stabs another who hath never a Weapon drawn or who doth not provoke him by stricking first shall loose the benefit of Clergy although there do no precedent malice appear if the party dy within six Months unlesse it be done in his own defence or for the necessary conservation of the publick place w 1. Ja. c. 8. now this favour of Clergy is not only granted to these but even to all other Felons unlesse where it is denied by some particuler Act of Parliament x 23. H. 8. c. 1. 25. H. 8. c 3 26 H. 8. c. 12. the other kindes of Homicide are not accounted Felony y Lamb. l. 2. c. 7. fo 248. 18. For every Homicide which is without malice is either necessary or casuall z West Simbol part 2. fo 48 49 that which is necessary is likewise double one which cannot be declined without prejudice to publick Justice the other which cannot be avoyded without the death of the innocent an example of the first sort may be given in the case of killing a Robber or Theife who cannot otherwise be apprehended and of the later in case where one kills another in his own defence the former is free from all manner of punishment a Stanf l 1 c 5 the later not simply for it is materiall that the party who is slain set upon the party that kills him in his own House or neer the Ordinary high-way with a malicious intention to kill or rob him or in case that he be moved with sudden passion and pursues the party defending himself with an intention to fight with him so far untill he can fly no further for in the one case he kills him without incurring any punishment at all b 11 E 1 1 Mar c 12 Stan l 1 c 6 7 but in the other case he loseth his Goods c 6 E 1 c 9 nor is he received and taken into grace without the expresse pleasure and Indulgency of the supream power which notwithstanding is granted and obtained of course 19. Casuall Homicide is double likewise one which is meerly through mis-fortune the other which is mixed also with some fault in the party who kills the other That often happens in the Lawfull prosecution of a lawfull Act and often from a bruit or an inanimate thing Of the first kinde is where any one is killed with the fall of an Arme or Lopp of a Tree or a Tile from a House after warning given by the parties who are either lopping or tiling d West Simbol part 2 Sec 50 tit Indictments to which also may be added that which may happen in Justs and Tournements in regard the parties who are there in Action are supposed to be making trialls of their strength in the way of freindship And therefore K. Henry the second ordained that those should be pardoned thereby giving them to understand how much they were obliged to perform for the Kings sake when required e Spec Justic l 1 c Del Office del Coroner Of the second fort is where any are suddenly drowned in falling from a Ship Boat or Bridge or slain with a Cart Mill or the like In whch Cases we have before related what our Law determines f Fleta l. 1. c. 25. 20. Homicide which is mixt with some fault of the party who kills the other and yet is casuall or accidentall is where one that is lopping of a Tree or tiling of an house happens to kill another with a Lop or Tile not having given any warning g Stanf. Pleas Crown l. 1. c. 8. of which kind others draw many examples h Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17. 21. Felonies which are committed upon the Body and yet deprive it not of life is where any one out of malice cuts out the tongue either of a man or beast or puls out the eyes of any Subject i 25 H. 8. c. 6. 5 Eliz. c. 17. or commits the horrible and abominable sin of Sodomy with a man k Fleta l. 1. c. 37. but those who commited any kind of Sodomy were used to be buried alive in the Earth l 3 H. 7. c. 2. Lamb. l. 2. c. 7. or having stoln away a Widow Wife or Virgin who hath an Estate in Lands or Tenements or who hath goods or Chattells or who is Heir apparent to her Ancestor and marries her being so stollen away against her will or commits a Rape upon her or he who assists m Lamb. ib. 18 Eliz. c. 7. any one in the committing of such crime He also where any one hath the caâ—nall knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without n 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan l. 14 c. 6. or lastly where any one commits a Rape upon any woman whatsoever to these we may also adde him who marries a second Wife in the life time