of Wight is parcel of Hamp-shire and Wales and Ireland are parcel of the Realm for Writs of Errour lie c. And I think it is very true Hollinshead description of Britain fol. 16. b. that the Isle of Man was then no parcel of the Realm for the first mention thereof in any Chronicles is the same year that England was Conquered by the Normans for when Harold had at Stainford-Bridge Conquered another Harold that was King of Norway one Gordard the King's Son of Ireland fled to the Isle of Man in time Conquered it and made himself Lord and Landlord of all the Isle So as to this day there is not a Free-holder in that Island but all are Tenants to the King of that Country It is about thirty miles long and fifteen miles broad it is not governed by any written Laws or Courts of Record but all their Controversies are ended by Arbitrators whom they call Deemsters When King John Conquered Ireland he sent Forces into Man and wasted it all but seated no Government there 1240. One Harold of the Norway Line was received and was invested in the Kingdom of Man by the King of Norway and yet afterwards he was made Knight by the King of England 1250. Or thereabouts in King Ed. 1. time Alexander King of Scots having Conquered all the Islands either by Strength or for Money amongst the rest brought the Isle of Man under his Dominion the old King's Daughter sued to Edw. 1. as to the Supream Head of Scotland the Answer Sequatur coram Justiciariis de Banco Regis ut Justicia Edw. 2. granted it to Piers Gaveston but in Anno 1393. William of Mountacute by strength won it from the Scots as Thomas of Walsingham saith and sold it to William Scroop he was attainted and so it came to Hen. 4. The King of England he granted it to Henry Peircy to hold it by carrying before the King Lancaster's Sword but presently he was attainted and the King granted it to Sir John Stanley and so it came to the Earl of Derby Seman's Case 5. Reports A Man's House is his Castle and his Castle is his House Points upon the first Case 1. IF Tenant for years may attorn before Entry 21 H. 7. One makes a Lease for years and before the Lessee enter the Lessor releases to him the release is void One bargains and sells his Land to another and before the Deed is inrolled he attorns to the grant of the reversion and after the Deed is inrolled and the Bargainee enters 21 H. 7.28 H. 8. Dyer Debt for Rent lies before entry of the Lessee Litt. Lord and Tenant the Tenant makes a Lease for life the Lord grants the Seigniory to the Tenant for life in Fee the Tenant ought to attorn yet he shall not hold of the Tenant for life during his life 28 H. 8. Brook Tenant for twenty years makes a Lease for ten years Tenant for ten years attorns it is good 20 H. 6 7. A Seigniory is granted by Deed to one for life the remainder in Fee Tenant for life dies before attornment c. contrary if it were by Fine 11 H. 4.18 One who hath nothing in the Land must attorn as Tenant in Dower who hath assigned her Estate 2. The reversion of Tenant in tail is granted he commits Treason and attorns and is attainted 12 E. 4.3 Tenant in tail shall not be compelled to attorn but 15 E. 4.13 if he attorn voluntarily it is good Nor Tenant in tail after possibility c. 46. E. 3.13 39 E. 3.20 3 H. 6.12 5 H. 5. Attornment 17. One makes a gift in tail rendring Rent the Donor by Fine grants the Rent the Tenant in tail must attorn 8 H. 5.10 Tenant for life grants his Estate upon condition the Lessor grants the reversion Tenant for life attorns and after performs the condition yet the Attornment is void But all the question is upon the relation of the Office and this shall not vacate the Attornment for it shall not relate for the mean profits of the Land Sir VVilliam Fleetwood's Case Cook lib. 8. by the same reason if Rent were reserved it were well paid and well received and sufficient to invest the reversion in the Grantee 3. Adventurer to the East-Indies is within the Statute 4. Gardian of a Ship is within the Statute The Chancellor hath authority to award a Commission but not to grant Supers And therefore death of the King or a new Commission leaving out the old Commission may be but no Supers If the King present to a Benefice above 20 l. the Chancellor cannot make a revocation but as well in our Case as in that Case by Warrant under the Signet Privy Seal or Seal Manual the Chancellor may award Supers 6. Denizen of Ireland Points upon the Third Case 1. TEnant for life the remainder to the right Heir of I. S. makes a Feoffment in Fee upon condition and enters for the condition broken who shall enter for the forfeiture The Feoffer shall not enter for all is out of him by the Feoffment and he hath nothing but a possibility The right Heir of I. S. shall not enter for his remainder is destroyed The first Question is upon the Statute of W. 2. cap. 25. Whether if Lessee for years make a Feoffment by Livery within the view the Feoffer or Feoffee or both of them or neither be Disseisors 2. Upon Baron and Feme whether a Feoffment without Deed to the Baron and Feme and Livery only to the Feme invests any thing in the Husband 3. Upon the matter admit they are both Disseisors whether the release made to the Husband shall exclude the Wife it shall but in this Case where Tenant for years enfeoffes two and the Lessor releases to one he shall not hold out his Companion 4. Baron and Feme are Joynt-Tenants of a term and the Baron is made King what is become of the term and so of Freehold Whether the King shall have all or the Queen all or they remain Joynt-Tenants or Tenants in Common they are Tenants in Common 5. A Feme commits a Disseisin to the use of her and her Husband and the Husband is made King and the Disseisee releases to the King what is wrought if he can agree to the Disseisin being King 6. A Feme Covert Alien purchaseth the Husband is made King and Office is found 7. A Feme Covert purchaseth the Husband is made King if he can waive Points upon the Statute 1. IF one born in the Isle of Man is within the Statute 2. If Adventuring to Virginia is Merchandizing 3. If an Inn-keeper be within the Statute 4. If going to the Isle of Man be a Departing 5. If keeping of a Castle be a keeping of his House The Second Division Who shall be said a Subject born of this Realm or of any of the late Queens Dominions or Denizen 1. A. and B. Disseise C. who in consideration that A. at his request hath
but a Term passed then in whom was it till I. S. was made King in right of the Woman and that it shall remain no otherwise than a Man that hath a Term in the right of his Wife and is made King she shall have all her Inheritance and all her Terms no otherwise than if he were Dead 3 H. 7.14 The Queen and her Sisters were vouched as Heirs to E. the 4. A Baron and Feme Alien a Feoffment is made to the Feme the Baron is made King if upon Office found the King shall have the Land He shall not have it For the Baron being made King she is made a Denizen by relation to the Marriage which was to prevent the relation of the Office no otherwise than H. 7. being made K. it had such relation that it drowned all former Offences Forfeitures and Attainders whatsoever 7 E. 4.31 The King grants a Farm to the Baily and Commonalty of S. they are made Farmers and a Corporation 2 H. 7. A Lord infeoffes his Villain he hath the Land and his Freedom Grondon's Case Commentaries the King grants Land to a Corporation this is a Grant and a Licence in Mortmain Coke lib. 5.15 Tenant for Life grants a Rent charge to him in the reversion and his Heirs who grants it to one and his Heirs this is a grant and a confirmation A Disseisor makes a Lease for Life the remainder to the Disseisee the Disseisee grants this remainder over this is a grant and a confirmation A Parson makes a Lease to the Patron who grants it over this is an Assignment and a Confirmation A Feoffment is made to Baron and Feme the Baron is made King if the Feme can waive 1. Whether she can waive or not as a Feme may after death of her Husband 2. In whom it shall vest 3. How the release should work then 4. Whether a Feme Convert Disseisor can waive She may no otherwise than if the Baron were Dead for she shall have all her own Land and all her own Leases but not her Goods And it is not of necessity that she expect his Death for if a Feoffment be made to Baron and Feme and they are Divorced the Feme may waive In whom it shall vest Whether in the King or not because in a sort here was a partition But the question will be upon the release whether that shall relate to extinguish all the right of the Disseisee in all the Land as if the Case were Disseisor makes a Feoffment to Baron and Feme and I. S. the Baron and I. S. make partition the Disseisee releases to I. S. this inures only upon his possession for the half the Baron dies and the Feme waives I. S. hath all by Survivour yet shall not the release go to all Also by the waiver it cannot go to the King for that were to make him a Disseisor by the waiver it cannot return to the Lessee contrary to his Livery nor to the Lessor then will not this amount to an occupancy But in this Case the Queen cannot waive but still in regard of the Lessor she remains a Disseisor for if a Feme Covert be a Disseisor and her Husband die she shall not waive the possession for so for years and days she might take the profits and yet in the end pay nothing which were unjust 41 E. 3. An Infant may be a Disseisor and cannot waive a descent It may be probably alledged that she might waive for being a Feme Covert she may alledge ignorance of the matter of fact that is whether her Feoffer had but an Estate for years or was seised in Fee-simple and we find in our Books that great wrongs have been excused by the ignorance of a Man in what wrong he did and waiving the thing wrongfully taken As 22. Ass 85. vid. lib. faux imprison Heire son frere prise per Scots 7 H. 6.27 One brought an Action of Trespass for taking his Swans the Defendant pleaded that he was Lord of such a Mannor and that in a River within his Mannor he found the Swans and took them for strays but after he had notice whose they were he waived the possession of them and let them go this was a good excuse both of the Trespass and Damage 21 H. 6.14 One brings Trespass Quare filium suum rapuit c. He answered you married my Sister and had by her this Son and you being out of the Country it was reported you were Dead whereupon I as next kin to your Son seized him but when I heard you were alive I sent him home again to his Nurse Thus rightly did he waive and avoid his wrong for want of true intelligence which in Law we call Notice But in all those Cases these wrongs were with intents to do right and the parties were of opinion they were in the right but our case is of a Disseisor which is always intended a wrong-doer But you will say this Woman is no Disseisor at Common Law her entry was not malum per se but malum prohibitum a Statute Disseisor and she being a Feme Covert is not bound by Statute But I say she is bound by the Statute for in all Statutes where a Feme Covert is not expresly excepted she is bound as the Statute of 13 H. 6. Disseisin 1. per Martin Baron and Feme may both be Disseisors 35. Ass 5. Baron and Feme Disseisors Assise against the Baron sole abated 15 E. 4.15 Disseisin is made to anothers use the Disseisor is Tenant untill agreement 21 E. 4.53 Tenant is issuing out of Land of the Wife the Husband and Wife make a Rescous they are both Disseisors That as I have argued the Lessor enters his entry is congeable for a Moiety that is the Queen's part Tenant in tail makes a Feoffment to a Feme Covert without Licence the Husband dies the Feme waives Points upon the Statute AN Adventurer into Virginia is not within the Statute for although from time to time we send Trifles thither to exchange with the Savages yet the main drift and cause of our Traffick thither is for Plantation and Discovery and not for Merchandizing I hold the same of Greenland but not of Muscovia 2. He that is an Inn-keeper is within the Statute for he buys and sells again retail Ireland's Case in Smithfield 3. He was born in the Isle of Man the Statute is born within her Majesties Dominions or Denizen and I should have made small question but that one born within the Isle of Man is born in her Majesties Dominions if it were not for the Book of 11. H. 8. Kell fol. 202. It was found by an Office that the Earl of Derby dyed seised of the Isle of Man the Countess came and prayed to be endowed to whom Brudnell ex assensu Brook Fitz. Herbert and all the Kings Counsel said That the Office was void because the Isle of Man is not parcel of the Realm but the Isle
Commissioners and Sale the Vendee shall avoid a Lease which Tenant in tail a Bankrupt might have avoided 1. If one may release to the use of another or if an use can be raised upon a release and it may for three reasons A Release may be upon condition for there the case was put in Libro and consequently to an use But by 43 Ass 12. the condition and the release ought to be both in one Deed. 17 Ass 2. 31 Ass 32. 2. Secondly it is a good proof that a release to a Disseisor may be to an use when a Disselsm may be to an use as 34 Ass 12. 37 Ass 8. 1 H. 5.4 15 E. 4.15 All is in the Disseisor until agreement And 2 H. 7.16 If one disseise another to the use of a third the first is Tenant until agreement but after all is in him to whose use although not to be punished for the force 3. My third Argument is taken out of the Book of 17 E. 3.5 where it is said That if the Disseisee take homage of the Disseisor he shall never have an Assise for now they be Lord and Tenant when at first the Disseisor was in the post and destroyed the Disseisees Estate and held of the Lord Paramount So I hold that if before the Statute of Quia Emptores Terrarum the Disseisee had released to the Disseisor the Disseisor must have held of him although it is true that since that Statute a release of all his right in the Land releases his Seigniory as 34 Ass But Temp. E. 1. Ass 423. In a Writ of Entry in the Post of Disseisin made by A. to the Demandants Grandfather which A. infeoffed the Grandfather of the Tenant the Tenant answered after A. infeoffed my Grandfather your Grandfather confirmed and released to my Grandfather reserving homage and my Grandfather did homage to yours and my Father to your Father c. But he relied upon the Deed a Tenure was reserved upon the confirmation in which Case a release makes a degree See my Moot Book fol. 121. Then if an use may be raised out of the possession of a Disseisor if a condition out of a release and a tenure out of a confirmation by the same reasons an use may be raised or declared by release 2. Two Disseisors and they intermarry it may seem they are mutually and respectively in by title for if the Husband make a Feoffment of his moiety yet he hath title to be Tenant by the Courtesie of her part and she hath title of Dower to his part after the Feoffment which is in severance of the Joynture Kelloway's Case Incerti Temp. fol. 129. This Case is well debated which was A. Feme sole and A. Joynt-Tenants she marries B. A. releases to B. whether this shall inure to the Husband only or to the Wife Keble saith That it shall inure to the Baron sole for before marriage he might have infeoffed the Baron and it is no reason that he should be hindred to convey the Land to none but the Feme by release and by the release he shall be Tenant in Common with himself in right of his Wife But by others the Law is contrary for he might have infeoffed others as well as have released to the Baron also a release to one shall be in many cases to the benefit of another as a Release to Tenant for Life c. 9 Eliz. Dyer 263. This Case seems to make against me Baron and Feme and I. S. were Joynt-Purchasers I. S. released to the Baron nothing went to the Wife but I say that cannot be for the Baron and Feme being seised by intireties the release could not make them hold the Land by several moieties 16 H. 9. Fitz. Herb. Release 45. Nor do I agree that Case for there the Case was that a Woman was Tenant for life and she takes Husband the Lessor releaseth to the Husband and his heirs by Paston he had the reversion for the Free-hold of the Husband was in right of his Wife and the release to him conjoyns that right but I agree well that the Fee-simple shall be in the Husband c. 19 H. 6.35 One makes a Feoffment upon condition that he shall make a Feoffment over if he doth it not the Feoffer may enter but if one makes a Feoffment in Fee upon condition that the Feoffee shall make a gift in tail and he doth it the Feoffee and not the Feoffor shall have the reversion So here 3. If marriage of a poor Maid be a good consideration to raise an use it is good to carry the Fee-simple to the Husband and the intail to the Wife Before the Statute of Quia Emptores Terrarum one might have created a Tenure in performance of a charitable use as to make or repair a Bridge or to keep a Castle 34 H. 8. Brook p. 51. 6 E. 3.13 One holds by three pence to aid the Sheriff and good and another by four pence of the Wapentake Fine and good because for to discharge the publick contribution 12 H. 7.18 Keeping of a Beacon whereby the Country may be warned when the Enemies come 11 H. 7.12 The same for finding a Chaplain chanting in such a place And by the same reason that a Tenure may be created an use may and the same consideration For before Qui Emptores Terrarum If one had made a Feoffment in Fee without declaring an use it was to the use of the Feoffee for the Law created a Tenure which was a sufficient consideration but after no use to the Feoffee but to the Feoffor if neither Tenure created nor use declared and for that a lease for life or for years or in tail is to the use of the Lessee or Donee for the Law will create a Tenure of him in reversion So here is a good consideration to raise the use of the Fee to the Husband and the Estate tail to the Wife is good without other consideration than that Tenant in tail must hold of him in reversion 24 H. 8. Brook 4. Lands are given to a Feme and her Heirs Females and she hath Issue a Son and a Daughter and dies if the Husband shall be a Tenant by the Courtesie He shall Cook lib. 8. Pains Case is reported as if before that Case the Law had been doubtful whether the Husband should be Tenant by the Courtesie when the Wife Tenant in tail had Issue which dyed and so she dyed without Issue For the Estate was determined and this was the reason that Leases for life or years are not good against the Lessor for Cessante Statu primitivo c. yet one may be Tenant in Dower without Issue and therefore the Estate tail will continue to some purposes 21 Edw. 3. Dower after a Dying seised without Issue 21 H. 3. Dower 198. Tenant by the Courtesie may be although the Issue dye before the Wife 16 E. 3. Aid 129. One may be Tenant by the Courtesie of the moiety of
the Lord and a stranger the Lord disagrees the stranger shall have all 20 E. 4. Fitz. Nuper obiit 14. If the Defendant in a Nuper obiit disclaim in the Blood the other Coparcener shall have all by descent and a Mordancester of all 22 H. 6.44 A Precipe against two if one disclaim all vests in the other So here in as much as the use passed by the contract if one of them will waive that contract and take himself to another bargain then the first contract will stand good for all to the other and the Inrollment for all shall relate to the use of the other and shall be paramount to the fine and destroy the Conveyance by the fine as it is in Pophams Case 5 Eliz. 2. But then comes in the next question this fine was but of part of the thing bargained and sold and therefore it will not destroy the contract for all but only for part that is for a Moiety of the services I take it that this contract being entire being destroyed in part is void for all Qui partem individui facit nihil facit I will example it with other Cases 34 H. 6.21 It is a good plea in an action of debt for rent that the Lessor entered before the day of payment for the contract was entire and therefore the rent not apportionable 22 Ass 53. Lease for life rendring rent for Land part in Franchises and part in Guildable in an Assise brought at Common Law for the rent Conizance shall not be granted for the rent is entire and the Kings Court shall be preferred contrary to Thorp as it is in 46 E. 3.8 But if the Land is in question conizance shall be granted for so much as lies in Franchises 9 E. 4.1 One is to lease a Chamber and find the Lessee his board for 6 s. a Week in an Action of Debt for the Money non demisit cameram is a good Plea for destroy the contract in part it is destroyed in all for it is entire 30 H. 8 Litle Broke I sell my Horse and another man 's for 20 l. to be paid at a day to come and before the day the other man recovers his Horse against the Vendee yet the Vendor shall have an action for all the money So here the Consideration of the money raises the use that 's an entire Sum and if you will have that the Demeasnes shall pass by the contract for the use and the services or part of the services shall pass by the grant what a confusion would that be and how much of the Consideration went for the one and what for the other I might that way maintain my conclusion that the whole Mannor passes to D. 9 E. 4. Choke A Mannor consists of Demeasnes and Services sever them and the Mannor is destroyed and in Sr. Rol. Heiwards Case none shall take by fraction of Estates 3. The third question being that the Husband purchases Lands by Bargain and Sale to him and his Wife and before the Deed is inrolled the Husband takes a Fine or a Feoffment of the Land to him and his heirs and then the Deed is inrolled what shall the Wife have and I say as I said she shall have nothing 3 H. 7.9 It is plain that if Lands be conveyed to a Feme Covert if her Husband disagree the Feofment made to her is made void and it shall return to the Feoffer But if a Feofment be made to I. S. and a Feme Covert and her Husband disagrees all vests in I. S. Rutland's Case li. 5. Cook is that the Husband by Indenture limits Lands to the use of his Wife but before the fine levyed by other Indentures he limited the same to other uses so in that case before the assurance is perfected the Husband by whose means and bargain making this use was to rise to the Wife before this Assurance finished makes a new bargain for himself and the Wife if he disagree can take nothing Kenn's C. Cook lib. 7. It is the Husband hath the power to contract for the use although it be of the Wives Lands 4. The next matter that I intend a question upon the Statute of Inrollments is supposing this Land is held in Capite Lands held in Capite are bargained and sold to a man and before the deed is inrolled the Bargainee dies his heir within age whether here be such a dying seised and a descent as his Son shall be in ward and I think it is There be divers Cases where the heir shall be in ward and yet the Ancestour dyed not seised 48 E. 3.8 If there be Lord and Tenant and the Tenant is disseised and dies his heirs within age the Lord may seise c. 20 H. 6. Tenant in tail aliens and dies his heir within age his heir shall be in Ward to the Donor 33 H. 6.5 Tenant for life the remainder in fee he in remainder dies his heir shall not be in ward for the remainder but if the Tenant for life die then by matter ex post facto he shall be 11 H. 4.61 By Hank and Norton If the heir recover in a writ of ayel on Cocinage he shall be in Ward If the Father lose by error or false verdict If the Son reverse the Judgment by error or attaint he shall be in ward If the Father recover and dies before entry or execution and the Son sue execution he shall be in guard Points upon the Statute Swinburn Fol. 175. I will that my villain be manumitted when my Son comes to age my Son dies before the age the villain shall be at Liberty when the Son would have been of age D. Enters and manumits a villain The Question is a man hath a Mannor to which be villains regardant he becomes a Bankrupt manumits the the villain Commission is agarded if the Commissioners may sell the villain and I have concluded they cannot For the villain being once at liberty in this case is infranchised for ever I grant that in divers cases a villain may be infranchised pro tempore and yet be a villain again 13 E. 4.2 As if Tenant in tail will enfeof his villain of the Mannor the issue shall have a Formedon and reduce both the Mannor and the villain 33 H. 6.13 Enfranchment by Tenant for years or for life is good but for their time And it is much controverted whether if a nieff marry a Freeman she be not for ever enfranchised Old Nat. Brevi fol. 6. If her Husband die she shall be a nieff again 33 E. 3. Statham Vil. She shall be neiff again even to her own Son when her Lord and Husband dies But as the Law saith there is nothing more respected than life and liberty So I am of opinion and I have authority for it that if she be once married either to her Lord or another Freeman she is at liberty for ever 31 E. 1. Fitz. vill 46. It is first questioned and some there are of
attainted of Treason and suffers a common Recovery Office is found I. N. becomes a Bankrupt Tenant in tail dies without issue I. N. waives the remainder The Commissioners may sell the Moiety of this remainder 10. One grants an Advowson to a Feme Covert sole Merchant the Church becomes void the Husband in consideration that I. S. doth enter into Bond to preach twice a Week presents him to the Benefice the Feme becomes a Bankrupt the Husband dies the Feme waives the Grant the Commissioners within the six months sell the Presentation and the Advowson This is a good Sale of the Advowson but the King shall present 5. Division What Copyhold Lands of a Bankrupt the Commissioners may sell and in what case Composition shall be made with the Lord and in what not 1. A Tenant by Copy of Wh. Acre surrenders to the use of B. for years upon condition that he will not do waste and after he surrenders the reversion into the hands of two Tenants to the use of C. a Merchant in Fee the Lord makes a Feoffment of the Acre to D. C. departs the Realm and after is non solvent a Privy-Seal is awarded against him the Tenants present the surrender to the Court of the Lord C. will not return the Commissioners sell the Reversion to E. B. makes waste E. tenders Composition to D. who refuseth it and E. enters for the Condition broken The Sale is good and the entry of E. congeable but no Composition is due Points in the Case at Common Law 1. TEnant by Copy surrenders into the hands of two Tenants and the Lord separates the Freehold from the Mannor if the surrender is void 2. Tenant by Copy surrenders to one for years and after to the use of another in Fee if good without Attornement 3. If the Tenants are bound to Present the surrender at the Lords Court after he had separated the free hold from the Mannor That is whether the Presentment shall not interest the party to whose use c. by relation from the surrender 4. If Tenant by Copy surrender to the use of one for years upon condition and after he surrenders the reversion to the use of another in fee and after the condition is broken if the Grantee in reversion shall enter for the forfeiture by the Statute of 32 H. 8. Cap. 34. 5. If a Copy-holder Lessee for years by surrender commits waste if this is a forfeiture to the Lord or onely to him in reversion or of the reversion Points upon the Statute 1. IF a Merchant who departs by license and upon a privy Seal will not return but is non solvent shall be a Bankrupt 2. One had onely the free-hold of a sole Copy-holder if such Copy-hold may be transferred by sale of the Commissioners 3. A Copy-hold is surrendred to the use of a Husband who will not be admitted if the Commissioners can sell 4. Whether one fine 2. fines or no fine be due to the Lord 5. Admitting a fine were due and the Lord after tender refuseth it what remedy the Vendee hath for the Land or the Lord for the fine 1. When there is a Lord of a Mannor and Copy-holder of Inheritance surrenders into two Tenants hands and then the Lord makes a Feofment of the Copy-hold I take it that this severance of the Free hold and of the Copy-hold from the Mannor shall not destroy the surrender For when the Copy-holder hath once surrendred he hath dismissed himself of all his interest and the right is in the party to whose use the surrender was made Bunting Ca. Coke li. 4. The death of the surrenderer the death of the Tenants nor the death of the party to whose use the surrender was made shall not alter the Case But the party to whose use such a surrender is made hath such an interest as shall descend to his heir for his heir shall be admitted and by the same reason his interest shall remain notwithstanding the Lord sell the Free hold as it is said in Morrels case the custom hath so established and fixt the estate of the Copy-holders that the Lords severing it from the Mannor cannot alter it It was adjudged that the custome of a Mannor being that if Tenant for life by Copy die his Wife shall have her Widdowes estate the Lord dissolved his Mannor the Copy holders Wife died he took a new Wife and then he died the Second Wife had her Widdowes estate and yet there was no Court whether she could come to have the death of her Husband found and presented and where she might be admitted c. But admit that the Surrender had been made into the Lords hands out of the Court as by Melwich his Case it may or admit it had been made in Court and the party to whose use it was made had tendered the Lord his due fine and the Lord would demand more and so defer the admittance In these Cases the Law is plain that the party may enter and no Action lies by the Lord against him And what if the Lord dissolve the Mannor shall that alter the case No no more than if a Copy-holder of inheritance die and the Lord severs the Freehold from the Copy before the Heir be admitted this shall not destroy the Heirs estate but he may lawfully enter and hold it for ever without admittance 2. But here notwithstanding this severance of the Free hold from the Mannor the two Tenants present the Surrender the next Court held by the Lord for the Mannor The Question is first whether the Tenants were bound to do it or no And the next what is wrought by it And I take it they ought to present it For notwithstanding the Copy-hold be severed from the Mannor yet they are not severed they be Tenants still and they must do their duties and the rather because it is not altogether severed for Tenant for years of the Copy-hold remaines still Tenant to the Lord and his rents and duties are to be done to the first Lord and not to the Copy-holder in reversion But to what use is this presentment of theirs I take it to this use It shall have relation to the Surrender and interest of the party to whose use it was made from the time of the Surrender Like as an Office found 10. years after an escheat will intitle the King to all the mean profits from the death of the party Or as a Deed acknowledged to be Inrolled shall be Inrolled notwithstanding the death of any of the parties and shall have relation from the date of the Deed to intitle the Bargainee to the profits Or as a Legacy is given by Will cannot be sued for till the Will be proved and then the Probate makes the Legacy due by relation ever since the death of the Testator Even so the Presentment hath relation to intitle the party to whose use the Surrender was made from the time of the Surrender And this appears plainly by Rowswels Case
die after the sale of the Lands and distribution what remedy hath the Bankrupt for the rest against the Executors of the Commissioners or against the Survivor of them After the Sale and before distribution all the Commissioners die but two what shall be done A new Commission shall be awarded to other Commissioners not to them and they shall be called before the new Commissioners as they who have the Estate of the Bankrupt in their hands 15. What shall be said a concealment of the Estate of a Bankrupt or of his Person or a fraudulent claim or demand or detaining of his Estate and what remedy for the Forfeiture or Fine 16. What damage is it to be out of the Kings Protection by this Statute 17. Who shall be said a Creditor within this Statute A sole Creditor if he can sue the Commission A Mortgage of Lands or Goods if they can sell them Conusee of a Statute-Merchant or Recognizance The Plaintiff who hath the Body of the Defendant in Execution upon a Judgment at the Common Law He who hath the Bankrupt in Execution upon a Statute-Merchant A Merchant is taken in Execution and after becomes indebted to A. and remains six Months in Execution and so is a Bankrupt if A. shall be a Creditor that is if he be a Bankrupt from the beginning of his Imprisonment by relation or only after the six Months A Merchant is imprisoned for Debt the Gaoler Credits him for Victuals for a Year if he shall be a Creditor for part for all or for none A Bankrupt is Convicted for keeping of Inmates or erecting Cottages the Statute gives an Action of Debt to the Lord of the Leet he is no Creditor 18. What Conveyance the Commissioners may make after the Death of the Bankrupt A Feme Covert sole Merchant within Age the Baron and Feme levy a Fine of the Land of the Feme a Commission is awarded the Fine is reversed for Non-age of the Feme with a Cessation of Execution during the Life of the Baron they have Issue the Feme dies the Commissioners sell the Issue enters The First Division Who shall be said to be a Merchant or other Person using or exercising the Trade of Merchandizes by way of Bargaining Exchange Bartry Chevisance or otherwise in gross or by Retail or seek his or their Trade of Living by Buying and Selling. 1. A Makes a Lease for Years to B. and grants the reversion to C. in Tail B. attorn and enters A. grants the reversion of C. to D. being a Denizen of Ireland C. commits Treason and attorns D. becomes an Adventurer to the East Indies C. is attainted D. is Non solvent and having no House keeps himself on Ship-board C. Dies without Issue a Commission is awarded and after supers the Commissioners sells the Land by Deed Inrolled in the Mayor's Court in London D. is a Bankrupt within the Statute and the Sale by the Commissioners is good 2. Tenant for Years of an Inn makes a Feoffment in Fee to Baron and Feme an Alien makes livery within the view to the Feme who enters the Baron is made King the Lessor being an Adventurer of Virginia Releases to the King by Deed Inrolled an Office is found the Queen waives the Lessor enters and keeps the Inn and being Non-solvent is made Keeper of a Castle in the Isle of Man where he was Born and there remains The Lessor is a Bankrupt within this Division of the Statute and the Commissioners may sell the Land 3. A Disseisor makes a Lease for Life to a Feme sole the remainder to the right Heirs of I. S. she makes a Feoffment in Fee upon condition and enters for the condition broken and grants a Rend charge to A. a Goldsmith of London Naturalized by Parliament the Disseisee Releases to the Feme she Marries A. the Disseisor enters and makes a Feoffment to a Stranger I. S. dies the Feme hath Issue and dies A. enters and being Non-solvent surrenders to the Issue and departeth the Realm to Merchandize the Commissioners sell the Rent the right Heir of I. S. enters A. is a Bankrupt within this Division of the Statute and the Vendee may presently Distrain for the Rent 4. R. Tenant in tail makes a Gift in tail to M. hath Issue and dies M. makes a Feoffment to C. and dies without Issue his Wife the Issue of R. enters a Son is Born who enters the Feoffee enters and being a Grasier buyes lean Cattel and feeds them upon the Land and Sells them when they are fat and sells his own House and after being Non-solvent keeps his Neighbours House C. is no Bankrupt within this Statute and the Issue of R. recovers the Land by Formedon and the Son Born hath no right 5. A Man hath Issue A. and B. two Daughters they Disseise I. S. and infeoff their Father A. Marries C. and by his leave becomes a Sempster in the Exchange London the Father dies I. S. releases to the Husband B. brings a Neuper Obiit against A. and C. C. makes default after default A. is received and being indebted to divers Creditors disclaims in the Blood the Husband keeps the House The Husband is a Bankrupt within this Statute and the Moiety of the Land is liable to the sale of the Commissioners during the Coverture 6. One makes a Lease for Years to A. the remainder to B. for the Life of A. the remainder to the right Heirs of A. B. dies A. having Issue a Daughter his Wife with Child with a Son devises the Land to I. S. for the Life of M. for payment of his Debts and makes I. S. his Executor and dies I. S. enters the Daughter being a Feme Covert sole Merchant in London enters M. dies the Daughter is Non solvent and elopes the Son born enters The Daughter is a Bankrupt within this Statute and the Commissioners may sell the Land 7. One devises his Land to A. B. and C. baeredibus A. paying 10 li. they enter and A. being an Exchanger enters into Religion B. releases to C. the Bills of A. are protested C. dies the Creditors of A. brings Action against his Executors and before Judgment A. is deraigned the Commissioners sell all the Land A. is a Bankrupt within this Statute but the sale is good only for a third part 8. M. and F. joyn Tenants of a Horse Mortgage him to E. a Feme sole who intermarries with M. F. being a Horsecourser performs the condition and takes the Horse E. by commandment 〈◊〉 her Husband Steals the Horse M. and E. are Divorced causa praecontractus M. dies E. is indicted for Felony the Horsecourser becomes a Bankrupt the Commissioners sell the Horse F. is a Bankrupt within the Statute and the sale is good 9. The King makes a Lease for Years rendring Rent of the Pre-emption of Tynn in Cornwall to I. S. one of the Grooms of the Privy Chamber who becomes indebted to divers Persons for Tynn bought of
or Coroner be granted to one it cannot be granted over for such an Officer ought immediately to attend on the King without any mean for the office of a Sheriff as Sir John Davies saith well c. for life and I am of opinion that if this grant had been made before primo of E. 3. it had been a Tenure by grand Serjanty for then the Tenant could not alien without license upon pain of forfeiture But now it is otherwise so as I am of opinion that this grant being now made and in fee it was a tenure by grand Serjeancy for life in the first Patentee and his Patent was his Commission But when he doth alien or die it will be a soccage in Capite And yet if it should turn to be a Tenure by Knights service in Capite yet I shall maintain the case at latter end that the Commissioners may sell the land notwithstanding that the heir of the Bankrupt is within age and in Ward 2. A Bargain and Sale to Baron and Feme and a stranger and before inrollment they are divorced the Question is how they shall take as three several Jointenants or each shall have a third part or whether the husband and wife shall be jointenants for either of them a quarter part and the stranger a jointenant with them for a half part 35 Ass 15. It is plain that if one make a feofment to the husband and wife and a third person the Husband and Wife as one person take the one Moiety and th' other person the other Moiety vide Librum 7 H. 4. fol. 17. That they that be divorced the divorce will change and alter their estates as if Lands be given in tayl speciall to an Husband and Wife and then they are divorced the estate tayl is turned to a freehold and they are made jointenants by dividable Moieties whereas before they held by intireties and yet if they marry afterwards again they are Tenants in tayl again 3. 39 H. 6.43 The difference is taken between a feoffment before coverture and after for if it be before and then they intermarry if the Husband alien all and die the Feme shall have a Cui in vita but for a Moiety contrary if it be after marriage Copledikes Case 3. rep Baron and Feme jointenants the Baron suffers a recovery of all and dies it shall be good for nothing against the Wife But there have been many Questions raised how they shall take when a Conveyance is commenced before coverture and finished after or as our Case is when the Conveyance is commenced during coverture and finished after Divorce as if a reversion be granted to a man and Feme sole and they intermarry and the tenant attorns they shall take by entireties because by the Book of 48 E. 3. The Attornment shall not relate and yet if a Feoffment of a Mannor be made to a man Feme sole and they intermarry and then the Tenants attorn they shall be in of the whole Mannor by Moieties because in that case the Attornment will relate as it is proved by Longes Case which was Pa. 31 Eliz. Rot. 20 24. One made a Feoffment of a Mannor to which an Advowson was appendent the Church became void and the Tenants attorned it was adjudged that in this case the Attornment should relate and that the Feoffee not the Feoffer should present But in our Case here be two relations together the Relation of the Divorce and Relation of the Inrollment I have shewed that the Relation of the Divorce shall change their Estates and the Relation of the Inrollment will give it them as they were to take at the time of the ensealing of the Indent 6 E. 6. Bro. 6 E. 6. two Jointenants and one Bargains and sells all the Land and before Inrollment the other dies yet no more shall pass than the Party had at the time of the ensealing of the Deed. Surely the Deed relates to make them in by Intireties and the Divorce to make them Jointenants but shall this Relation of the Divorce change or alter the Estate of the third person And I take it this nothing at all concerns the Stranger nor shall it alter his Estate but it shall be as a matter of estopel binding the Baron and Feme but not to be respected of estrangers and this is proved by the writ of Cui ante divorcium for there the Feoffment of the Husband stood as a discontinuance till it was defeated Lex non oberit tertio extraneo prodesse alteri nemo tenetur sed obesse vetatur 48 E. 3.38 Tenant for Life the remainder for Life the remainder in Fee the first Tenant for life makes waste he in remainder in fee releases to him in remainder for life this shall not make him who was the first Tenant for life to be punishable in waste 43 E. 3.17 An appeal is brought against two as Principals and an exigent is awarded now the King is interested in their Goods they appear the Plantiff declares against one of them as principal and against the other as accessary the second desires to have restitution of his Goods he shall not for alteration of the plaint by and between the Plantiff and Defendant shall not by relation of any matter ex post facto prejudice the King or a third parties interest But before this Divorce A. grants the services to I. S. a Tenant to B. the Husband here ariseth three Questions at once 1. If one bargain to two and afterwards levies a Fine or Feoffment to one of them whether it be not such a disagreement to the former Contract as by that bargain the other shall have all and the Feoffee nothing and I think the other shall have all and the Feoffee or Conizee nothing 2. Whether if one bargain for a Mannor and before Inrollment the Bargainor grants by Fine or Feoffment parcel of the Mannor to the Vendee whether this destroys not the bargain for all It doth 3. There is Husband and wife and the Husband purchases by bargain and sale to him and his Wife and their Heirs and before Inrollment the Husband takes a Fine or a Feoffment of all and then the Deed is inrolled what shall the Wife have I think she shall have nothing For the first and for all these questions we must agree upon this ground which is set down in Hinds Ca. Coke li. 4. That if a man buy Lands by bargain and sale and before Inrollment he accepts of a Fine or a Feoffment he is in by the fine and the Inrollment is of no force The next rule is That if Lands be conveyed to two and the one will disagree in Court of Record or disclaim in the tenancy all vests in the other 17 E. 3. fo 6. a Placito 18. A gift in tail was made to the Husband and Wife and they had issue and the Baron died the Wife disagreed all descended to the issue 10 E. 4. fol. 13. The Tenant infeoffs
have but the use and profits of them under the King so it is said all Gaoles are the Kings Prisons and none others of the Land for life and member belongs to him only and the Lords have only the regard and that is the reason that in all Corporations in their Charters they always have a Grant and liberty to have a Prison Auditors by the Statute of W. 2. cap. 11. may send the Baily found in Arrearages to Prison by the Book it must be to the next Gaol though it be in another County otherwise an Action of false Imprisonment lies So our Commissioners must be careful to pursue their Commission but because the Statute saith they may dispose of his body at their discretions therefore to stay him in his own House or in one of theirs till he be further examined I think it not amiss although I have heard that some Commissioners have been blamed for not sending him to the Gaol 1. A. makes a Feoffment in Fee to B. by livery within the view B. Covenants with C. to stand seised to the use of D. his Son A. enters and makes a Feoffment to B. D. enters and makes a Lease for years to E. a Merchant upon condition to have in Fee E. is a Bankrupt C. disagrees to the Contract E. becomes a Recusant Convict and hath not Lands sufficient to pay 20 l. a Month the Commissioners sell the Land the King seizes the Term the condition is performed The Vendee shall have the fee-simple Points 1. IF livery within the view may be countermanded by livery in fact 2. If the Feoffee to whom livery is made within view before entry Covenants to stand seized to another use and after enters if the Covenant good that is if by his entry he by relation is in from the time of the Livery 3. If a covenants with B. to stand seised to the use of C. and C. enters and B. disagrees to the Covenant if the Land shall revert to A. 4. If a Bankrupt hath a Lease for years upon condition to have fee if the Commissioners may sell the Land with the possibility 5. A Bankrupt hath a Term and is a Recusant convict if the King or the Creditors shall have the Term 2. The King Lord Mesn and Tenant of Borough English Land the Tenant by License of the King to create Tenures devises the Land to A. in fee to hold of his Heirs by Knights service A. is attainted of Felony and devises the Land to his eldest Son a Merchant Bankrupt the Mesn enters the younger Son reverses the Attainder the eldest waives the Devise The Commissioners may sell all the Land Points 1. IF the King may grant to the Tenant of another to create new Tenures in prejudice of the Mesn as to Escheats 2. If Tenure in Borough English which is always Soccage may be altered into Tenure in Knights service 3. If it may be altered as to the Custom to descend to the youngest 4. If it may be altered as to the Tenure but not as to the Custom if the youngest Son shall be in Ward 5. Upon the Statute of Wills 32 H. 8. Lord and Tenant the Tenant is attainted and Devises his Land and dies the Heir reverses the Attainder before entry of the Lord if the Devise is good 6. One Devises Land to a Merchant and he becomes a Bankrupt and waives the Devise if the Commissioners may sell the Land 3. A Merchant makes a Lease for Life to an Infant the remainder to the King for Life of A. B. enters and dies seised the Deed is Inrolled A. dies the Infant enters the Lessor in consideration of marriage covenants to stand seised to the use of himself and his Wife and their Heirs the Infant at full age makes a Feoffment the Heir of the Disseisor enters the Lessor is a Bankrupt the Commissioners sell Lessor dies the Feme waives This is a good Sale of all the Land in Possession and Reversion Points 1. WHether the Inrollment doth not relate to avoid the descent 2. Whether the Entry of the Infant reduce the reversion 3. Whether the Sale not being good against the Wife is made good by her waiver Vide ante the Principal Case 5. One grants a Rent Charge to a Physician and his Heirs pro Consilio impenso impendendo the Physician is his own Apothecary and becomes non solvent for Drugs and Simples which he used in his Art a Commission is awarded the Physician keeps his House for fear of Arrests the Physician brings a Writ of Annuity and recovers by erroneous Judgement the Commissioners sell the Rent the Recoveree reverseth the Judgment the Physician dies This Sale of the Commissioners was good for this Rent but not to take effect during the Life of the Physician Points 1. IF an Annuity in Fee be granted pro Consilio may be sold 2. Whether he have any Election after he is Bankrupt 3. Whether the bringing of this Annuity which is reversed be an Election 6. One makes a Gift in Tail rendring Rent and dies the Rent is arrear a Disseisor enters and levies a Fine five years past the Heir of the Donor is a Bankrupt The Commissioners shall sell the Rent and the Arrearages Three Points upon the Statute 1. UPon the Statute of Fines the Second and Third upon the Statutes of Limitations and Bankrupts 1. Upon the Statute of Fines that is if Fines of the Land shall be a Bar for the Rent 2. And 3. Upon the Statute of Limitations If Commissioners may sell when the Party was concluded by the Statute of Limitations 6 Jacobi Banco Regis Executors notwithstanding no Seisin in their Testator by fifty years shall destrain by the the Statute of 32 H. 8. 7. A. and B. Tenants in Common of the Mannor of D. and Jointenants of the Mannor of S. They by Deed Poll bargain and sell Common of Pasture within the Mannors for a Cow to C. and his Wife and to the Heirs of their two bodies begotten C. the Husband grants the Common to E. in Fee the Wife dies without issue E. is a Bankrupt E. had Common for a Cow but it is neither Land Tenement nor Hereditament which may be sold by the Commissioners 8. The King grants to I. S. that he only for his life shall have the Importation of Steel he assigns his Patent to I. N. a Merchant I. N. becomes non solvent and after acknowledges himself to be a Villain regardent to the Honour of Hampton-Court a Commission is awarded I. N. Is a Bankrupt and the Commissioners may sell all his Lands and Goods but not the Monopoly 9. A. and B. Jointenants Covenant for natural affection to stand seised to the use of C. for life C. enters and B. dies C. dies the Heir of B. makes a Gift in Mortmain the Lord before entry bargains and sells the Seigniory to I. S. who enters and makes a Gift in Tail the remainder to I. N. a Merchant Tenant in Tail is
Commissioners may sell then there is their Authority the Vendee shall compound that is a second action which must be done if it may be done Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London that the Mayor should have the search c. of all Handicrafts and should punish them but granted no Court where the same should be punished this was good for to search and to discover but void for him to punish but it must be punished as it may be otherwise The Statute of 5 Eliz. cap. 13. of Highways saith Who comes not at the common days shall forfeit and orders that the offence shall be presented at the next Sessions c. Upon pain of Forty Shillings no Certificate is made yet the offence shall be punished 3. But now we are upon the point of Fines a question rises in this Case whether two Fines or but one or no Fine be due to the Lord and I think a Fine is due Plainly two Fines should have been paid one to the Lord of the Mannor upon the surrender of A. to C. and another upon the sale by the Commissioners as it is in the 4th Report fo 22. the heir surrenders before admittance the Lord shall have two Fines But in Hubbard and Hammond's Case it is said no Fine is due to the Lord before admittance for the admittance is the cause of the Fine and if after admittance it be denied it is a forfeiture But I take it in this case the Lord shall have no Fines for the Statute must have a reasonable construction and indeed for all parties according to equity and in all Statutes where the ordering of things is referred to mens discretions equity and good Conscience ought to respected and therefore it is said 3 E. 3. An accompt ought to be amended by the Auditors according to equity and good faith But what remedy hath the Lord for it 4. But here a Fine is tendered and refused now the question is double 1. What remedy generally 2. Whether it be lost for ever or not For the first if it had been in a case that the Lord could have admitted him he should have had the ordinary remedy as all Lords have for their Fines that is upon presentment of a Surrender or of the death of a Tenant or of sale by Commissioners the order is to call the Party that should be admitted and if he come not in time to seize his Land But here can be no Calling for here 's no Court Surely I think as the Vendee may enter without admittance so the Lord may enter again upon him and seize the Land till his Fines be paid but these Fines have been tendred and refused We see that tender and refusal in many cases is peremptory as Littleton in case of Mortgage 27 E. 3.88 Un distr pur dam. fesant si avoyde the Tenant pleaded that before the taking at the taking and after the taking he tendered sufficient amends and the Avowant refused he hath lost his damages and shall pay damages c. 22 Hen. 6.44 A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other who tenders a release the other refuses in Action of Debt sur le ob tender and refusal is a good plea sans dira uncor Prist But yet in the same case it is put That if Money had been awarded and tendered and refused the Bond had been saved but the duty had remained 45 E. 3.9 The Lord destrains the Tenant tenders the Lord refuses yet the Rent is not lost but at another time the Lord may distrain Brian If the Tenant tender his homage and the Lord refuse he cannot destrain but upon a request if the Tenant refuse he may destrain So here the Tenant tenders his Fine the Lord refuses I take it the Fine is not lost but after a new request the Lord may seize 5. The last point upon my Statute is a Bankrupt purchases a Copyhold and the Tenant surrenders into two Tenants hands to the use of the Bankrupt and now he will not be admitted whether the Commissioners shall sell the Copyhold And I think they shall by the very words of the Statute which are That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust or to his secret use If then they may sell Lands wherein he hath secret use much more Lands wherein he hath an express use And in this Case if his negligence to pray to be admitted or his absence beyond Sea shall hinder the present Sale and he die his heir may be admitted after his decease And then a greater Question will rise Whether the Land may be sold or not 2. A Copyholder of Inheritance where the Custom is that the Wife shall be indowed surrenders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee and dies the Wife marries with I. S. a Merchant the Mayor and Commonalty are admitted the Heir of the Copyholder enters I. S. and his Wife affirm a Plaint in the Lords Court in nature of a Writ of Dower and recover against the Heir the Mayor and Commonalty enter I. S. and his Wife sue a Precept in nature of a Scire facias against the Mayor and Commonalty for to have a a Writ De Dote assignanda and damages I. S. becomes a Bankrupt the Commissioners sell the Copyhold and assign the damages which shall be recovered the Vendee compounds with the Lord. This is a good sale for a third part of the Copy-hold during the Coverture and a good Composition but the Assignment of the Damages is void 3. A. Is Tenant in Tail of a Mannor where the Custom is that the Wife of a Copyholder shall have a Widow's Estate A. grants white Acre to B. by Copy for life and after he makes a Lease of white Acre for life to F. the Wife of B. dies A. makes a Feoffment of the Mannor to G. and all the Tenants attorn A. dies B. takes a second Wife and dies the Issue in Tail enters into the Mannor the second Wife takes M. to Husband who becomes a Bankrupt the Commissioners sell white Acre the Vendee compounds with the Issue in Tail and enters F. dies The Sale is good during Coverture and the Composition is good 4. Baron and Feme have issue A. a Daughter the Baron dies the Mannor of Sale is given to the Feme for life the remainder to the Heirs of the Baron and Feme A Copyholder surrenders to the use of himself in Tail the remainder to A. in Fee the Feme takes a second Husband and hath issue B. another Daughter and dies A. enters the Copyholder suffers a customary recovery and dies without issue his Heir being a Merchant and Bankrupt B. enters the Commissioners sell the Copyhold the Vendee compounds with B. The Sale is good but the Composition
is good but for a fourth part 1. A. Shall have a Moiety as Heir of the Husband and the Moiety of the other Moiety as Heir of the Feme and B. the residue 2. If Tenant by Copy by Recovery may bar the Remainder 3. If when the Lord is in Remainder it be not so annexed to the Fee that it cannot be pulled out by a Recovery 5. The Mannor of D. is holden of the Mannor of S. by Copy and I. S. holds a House and Land Common for ten Cows of the Mannor of D. by Copy in Fee The Lord of D. surrenders his Mannor to the use of I. S. for life who is admitted accordingly I. S. grants the Common by Copy to A. a Merchant A. is admitted and is a Bankrupt I. S. dies the Lord of D. enters the Commissioners sell the Common the Vendee compounds with the Executors of I. S. The Common cannot be sold and if it might the Composition shall be with the Lord of D. 6. Tenant by Copy is disseised and the Disseisor is admitted Tenant by the Lord the Lord bargains and sells the Mannor to I. S. in Fee by Deed inroll'd the Disseisee becomes a Bankrupt the Commissioners sell the Copyhold the Vendee compounds with the Bargainer This is a good Sale and a good Composition 1. If Tenant by Copy may be disseised or ousted and this shall be no disseisin to the Lord 2. If the Lord by the admittance of the Disseisor hath dispensed with the disseisin in part and so he may apportion his own wrong 7. A. disseises B. of the Mannor of S. and dies seized C. the Son of A. enters a Copyhold escheats D. enters and disseises C. and Leases the Mannor for years to E. who grants the Copy to F. in Fee F. dies his Heir is sworn of the Homage and becomes a Bankrupt D. dies B. enters the Commissioners sell the Copyhold the Vendee compounds with B. and is admitted the Heir of D. recovers in a Mortdauncester C. recovers in Entry sur disseisin and B. recovers against him in a Writ of Right The Sale is good and the Composition good 8. A. and B. joynt-Tenants in Fee of a Mannor they grant white Acre to I. S. for life by Copy A. enters into Religion at Roan B. makes a Lease for years of the Acre to C. to whom I. S. surrenders B. dies A. is deraigned C. surrenders to A. I. S. becomes a Bankrupt the Commissioners sell the Copyhold the Vendee compounds with A. the Heir of B. enters This is a good Sale and a good Composition for a Moiety 9. Six Copyholds escheat the Lord grants them to A. a Merchant indebted and after the Lord makes a Feoffment of the Freehold of the Copy-hold to B. C. and D. the Merchant gives over Trading B. disseises C. and D. the Merchant continues his debt by Interest seven years pass C. and D. recover against B. and have judgment to hold in severalty C. and D. make partition the Merchant renues his Bonds with the Creditors and keeps his House the Commissioners sell the Copy-holds the Vendee compounds with B. C. and D. severally admitted The Sale is not good because the Merchant is no Bankrupt but if it were good the Composition was good and B. C. and D. have three Customary Mannors The Sixth Division What Fees Annuities Officers Goods Chattels Wares Merchandizes and Debts of a Bankrupt may be sold by the Commissioners 1. BEfore Quia Emptores one makes a Feoffment in Fee rendring Rent to be holden by Foreign service and a Tenant dies and his Heir dies before entry and a Stranger abates the Lord becomes a Bankrupt the Heir recovers in Mortdauncester the Commissioners sell all the Debts of the Lord. The Vendee shall have two actions of Debt for two several Reliefs 1. If the Heir shall pay Relief when his Ancestor had but a Possession in Law he shall Kelloway 173 6 H. 8. 2. If Debt lies against the Heir for relief due after the death of his Grandfather 13 E. 3. Relief 6. A distress lies 3. If Fee-farm made before Quia Emptores shall pay Relief 45 E. 3. fol. 15. now it shall not 4. If Tenant in Knights Service shall pay Relief Kelloway 5. If the Heir shall pay relief for Land which he had by recovery 6. Debt lies for relief by the Lord himself 23 H. 8. Brook It lies for his Executors 7. If relief is such a debt or duty which the Commissioners may sell 2. A. Tenant of two Acres herriotable covenants to stand seized to the use of himself for life the remainder to his Son in Fee with clause of revocation and for money paid he bargains one Acre to B. B. dies the Lord seizes a Herriot the Heir of B. re-enfeoffs A. A. revokes the first Deed the Lord is a Bankrupt A. dies the Commissioners sell all the Lords Goods to C. C. takes relief of the Heir of A. C. Shall have detinue for two Herriots against the Executors of A. 1. If two Herriots or but one are due notwithstanding the repurchase 34 E. 3. Herriot 1.2 They are due 2. If the power of revocation be not gone notwithstanding the repurchase 3. If acceptance of relief of the heir may be pleaded by the Executors in an action against them for the Herriot 26 E. 1. H. 6. Quaere 4. If detinue lies for a Herriot-Custom 6 E. 3.29 R. 2. Herriot 4. and 5. the Lord may seize it in all the goods 5. If the property of the Herriot is so vested in the Lord before seizure that the Commissioners may sell it 3. The King grants the Office of Aulnage of London to a Merchant stranger for years with a Fee of 20. l. per annum who assigns it to a Merchant Denizen indebted who discontinues his Trade of Merchandize and lives by his Office and enters into Recognizances for his debts and makes I. S. dis deputy and is made Steward of the Tower of London the Recognizances are forfeited and he keeps himself in the Tower Office is found The Commissioners shall neither sell the Office nor the Fee 1. If the Lease be good because no Office of trust or confidence 2. If discontinuance of Merchandize is an exemption from the Statute when the Creditors have taken new assurances 3. If the Steward of the Tower is not sole Judge there by Prescription 4. A Feme sole Alien grants to A. a Scottish Merchant the Office to be the master of her horse with a Fee of 20. l. per annum for his life she takes a Husband who is made King of England who by his Letters Patents grants the Mastership of the Queens Horse to I. S. with a Pension out of the Exchequer the Scot becomes a Bankrupt The Commissioners shall not sell his Office but they may sell his Fee and the Vendee shall have an Annuity for it against the Queen 5. A Resiant is injoyned in the Leet to reform a publique nusans by him made before such
in Chancery Feme Tenant for life of a Copy-hold the Lord grants the Reversion to three the Baron Surrenders to one of them who first dies there the Lord would have kept the Land as occupant during the Husbands life 9 Eliz. Dyer 267. But it was decreed that if the Husband and Wife would surrender to the Surviving Lessees in reversion the Lord must admit them or else avoid the possession So if the Lord will not admit the party to whose use the party shall have the Lands if a man surrender to the use of his last Will and Testament the Lord shall not have the Land but the Tenant during his life 3. But before I go any further let us consider of this Lease it is by a Surrender upon Condition and he in reversion surrenders to anothers use and the Condition is broken My Question is whether he in reversion shall enter for the Condition by the Common Law he cannot then may he enter by the Statute of 32 H. 8. Cap. 34. of Conditions there be divers Statutes which reach Copy-holds though they be not named Heydons Case lib. 3. Copy-holders are Lessees within the Statute 32 H. 8. of Monasteries The Statute of Cui in vita Receipt quod ei defortiat Coke li. 4. Kite per Wray Copy-hold estate is within the Statute of Champertie and Maintenance 32 H. 8. Cap. 9. Dean and Chapter of Worcesters Case Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons Lands usually let c. Lillingstones Case adjudged 27. Eliz. That if the Lord infeoff the Copy-holder to anothers use that the Copy-hold is saved by the Proviso in the Statute of 27. H. 8. Margaret Podgers Case A Copy-holder is bound by Fine and 5. years The general rule is layed down in Heydons Case That all Statutes that may be for the good of the Copy-holder shall extend to them therefore I am of opinion that such a Grantee shall enter for non-payment of rent or for doing of waste as the words of the Statute are For it is for the good of the Copy-holders that their Farmers be bound to pay their Rents keep their Tenements in repair I should make small question of this if the Lease were made by license for then it is a plain lease at Common Law and an Ejectione firme will lie But here the Lessee comes in by the Lords admittance but that is answered by my Lord Cook when he is once admitted he is in immediately from the Surrender and in the Per. 4. But this Condition is for waste and it is broken whether is there a forfeiture to him in reversion or a forfeiture to the Lord of the estate in fee simple It is to the Lessor not to the Lord wherein I fall again upon the difference when it is by License and when by Surrender for I take him to be as if he had a particular estate with a remainder over In Podgers Case fo 107. Si cop pour vie sit semble al case del Duke of Norff. Points upon the Statute A Merchant being a sufficient man departs the Realm and beyond the Seas becomes non solvent and so refuses to return although he be served with a privy Seal to return Here be two Questions First whether he be a Bankrupt for not returning For he is not within the Compass of the Statute of departing the Realm The next Question is admitting him to be a Bankrupt Whether the King shall have his Goods as the goods of a Fugitive or else whether they shall go to satisfy the Creditors For the first I think he is a Bankrupt and although he be not within the compass of these words depart the Realm yet it is plain he is within these words absents himself for although his departure was no offence either to the King or his Creditors For Merchants both by the Common Law and notwithstanding the Statutes of 5 R. 2. Cap. 2. or the Statutes of 13 Eliz. might depart the Realm without license except the King as it is in Natura Brevium fol. 85. had made proclamation to the Contrary Yet the King not only by the Statute but by the Common Law as he may forbid a man to depart so he may send for him at his pleasure to return And that is proved by the express Book of 2 3 Phil. and Mary Dyer fol. 128. Where it is said That if he be commanded to return either by the privy Seal or the great Seal and refuse his Lands and his Chattels shall be siesed into the Kings hands and for that a President was found in the Exchequer where in Anno 19 E. 2. It was William de Brittains case although it is true as I said the first departure is no offence according to the Book of 13 Eliz. D. fol. 296. But then admitting he is a Bankrupt and admitting that by his refusal to return he hath forfeited all his Goods and Lands to the King The Question is whether the King or the Creditors shall be preferred And I take it the Creditors shall be preferred Yet He agree the rule is that when a title falls to the King and a Common person both at once the King shall be preferred Dame Hales Villain and Ideot Priority and Posteriority 5 E. 3. But I rely upon a Case which was ruled upon a Trial by my Lord Cok. 12. Jac. in t Newman and Martin ou Martin fuit adjudge Bankrupt because he was beyond the Seas c. 2. Points upon the Statute One hath the freehold and another hath the Copy-hold of one onely acre severed from the Mannor this is plain as it is in my Lord Cokes 4. reports in Case This Copy-hold by no means can be transferred from one to another But now our question is Whether this Copy may be sold by Commissioners I say Parliamentum potest omnia By Act of Parliament it may be sold And here the very words of the Parliament are That the Commissioners may sell his Copy-hold estate The Law was taken before Corbets case was first argued That it was impossible to cut off perpetuities yet there were divers before that were cut off by Act of Parliament and they all that argued for the perpetuites agreed that by Act of Parliament it might be done By the Common Law a thing in action cannot be transferred as a debt upon an Obligation Yet by the Statute of Bankrupt Jacobi primo we see it is done every day But it will be objected that the Statute goes on and saith That the Vendee shall compound with the Lord for the Fine and be admitted Now if there can be no admittance then no sale and it shall be intended such Copy-hold whereof admittance may be And in Dr. Bonhams case divers cases are put where divers Acts of Parliament are void and divers others construed directly contrary to the words But out of that Case I will prove this to be good for first this Act saith The