because of such alienation but is put to his Writ If a man seized in the right of his Wife or if a Tenant in Tayle made a Feoffment and died the Wife might not enter nor the Issue in Tayle nor he in Reversion but are put to the Waction Now the wife may enter by the Statute 3 2. H. 8. and a recovery suffered by the Tenant by curtesie or by the Tenant after possibility of issue extinct or for terme of life is now made no discontinuance Such things that pass by way of a grant by deed without livery and seizin cannot be discontinued as a reversion or Rent-charge Common c. A Release or Confirmation without Warranty maketh no discontinuance CHPP. XVI DISCENTS DIscents which take away entries is where a man disseizeth another and dieth and his heire entreth or maketh a Feoffment to another in Fee or in tayle and he dieth and his heire entreth these discents put a man from his entrie A discent during minority marriage non sanae mentis imprisonment or being out of the Realm do not take away an entry Discents of Rents in gross the Lord notwithstanding may distrain A dying seized of a terme for life or of a Remainder or Reversion doth not take away an Entrie he must die seized in Fee and Frank-Tenement A diseizin cannot be to one joynt-Tenant or Parcener alone if it be not to the other If a condition be broken after a discent the Donor Feoffor or his heires may enter A wrongfull diseizin is no discent unless the diseisor have quiet possession five years without entrie or claime 32. H. 8. CHAP. XVII CONTINUALL CLAIME COntinual Claime is a demand made by another of the propertie or possession of a thing which he hath not in possession but is withholden from him wrongfully defeateth a discent hapning within a year and a day after it is made and now by the statute within five years CHAP. XVIII REMITTER REmitter is when by a new title the Frank-Tenement is cast upon a man whose entrie was taken away by a discent or discontinuance he shall be in by the elder title as if Tenant in tayle discontinue the tayle and after diseizeth his continuance and dieth thereof seized and the land discend to his Issue in that case he is said to be in his Remitter viz. seized his Ancient Estate tayle When the entrie of a man is lawful and he taketh an estate to himself when he is of full age if it be not by Deed indented or matter of Record which shall estop him it shall be to him a good Remitrer A Remitter to the Tenant shall be a Remitter to him in the remainder and reversion CHAP. XIX TENURES ALL lands are holden of the King immediately or of some other person and therefore when any that hath Fee dyeth without heire the lands shall escheate to the Lord. And they are holden for the most part either by Knights service or in Soccage Knights Service draweth to it Ward Marriage and Relief viz. Of Ward Marriage and Relief THe heire male unmarried shall be in Ward untill 21 years of age If he be married in the life of his Anceâ—tors yet the Lord shall have the profit of the â—â—nd till his full age None shall be in Ward during the life of â—he Father If the heire refuse a convenient marriage he shall pay to the Lord the value when he cometh to full age If the Ward marrie against the will of the Guardian he shall pay him the double value of his Marriage but if the heire be of the full age aforesaid he shall pay a relief A relief for a whole Knights Fee is 5 l for half a Knights Fee 50s. for a quarter 25 for more more for less less accordingly A Relief is no service but is incident to a Service the Guardian must not commit Waste viz. Chattels Tenure in Soccage TEnure in Soccage is where the Tenant holdeth of his Lord by fealty suit oâ— Court and certain Rent for all manner of Service The Lord shall not have the Wardship but a relief presently after the death of his Tenant A Relief for Soccoge land is a years renâ— and is to be paid presently upon a discent oâ— purchase As if the Land were held by Fealty and 10s. Rent per annum â—0s. shall be paiâ—… for Relief The next of the kin to whom the inheritance may not discend shall have the Wardship of the Land and of the heire untill his age of 14. years to the use of the heire at which age the heire may call him to account If the Guardian die the heire cannot have an Action of account against the Executor of the Guardian The Executor of the Guardian may not have the Wardship but some other of the next of kin the Husband may not alien the interest of the Wife in the Guardianship nor hold it if she die it may not be sold If another man occupie the Lands of the heire as warden in Soccage the heire may call him to account as Guardian If the Guardian hold the Lands after the heire is 14. the heire shall call him to account as his Bailiff Gavill-kinde THe next of kin shall have the Guardianship of the body and lands untill the heire be 15. years of age Diversities of ages A man hath but two ages The full age of Male and Female is one and twenty A Woman hath six ages THe Lord her father may distrain for ayd for her marriage when she is seven She is double at nine She is able to assent to Matrimony at twelve She shal not be in Warde if she be fourteen She shall go out of Ward at sixteen She may sell or give her lands at 21. No man may be sworn in any Jury before he be 21. before which age all gifts grants or deeds as do not effect by delivery of his own hands are void and all others voidable except for necessary meat drink and apparrel c. An infant may do any thing for his own advantage as to be Executor or such like an Infant shall sue by his next friend and answer by his Guardian Gavill-kind The heire may give or sell at fifteen years of age 1. The land must discend not be given him by Will 2. He must have full recompence 3. It must be by Feoffment and livery of seizin with his own hands not by warrant of Attorney nor any other conveyance BY the Civil Law an Infant may be Executor at 17. years of age An Infant may make a Will of his goods at 14. years of age and a Maid at 12. CHAP. XXI RENTS There are three manners of Rents Rent-Service Rent-Charge Rent-Seck REnt-Service is where a man holdeth his lands of his Lord by certain Rent and so forth Rent-Charge is granted or reserved out of certain Lands by Deed with a clause of distress Rent-Seck is a Rent granted without a distress or Rent-service severed from other service becometh a Rent-seck The Reversion of a Rent
to their intent and not in so precise a form as Grants or pleadings but as verdicts yet the substance of the matter ought to appear either by express words or by words equivalent or by those that do amount thereunto But it were good that Awards were drawn up by some that is skilful for the avoiding of Controversies which otherwise may arise about the same Agreement AN agreement is made between the parties themselvs there must be a satisfaction made to either party presently or remedy for the recompence or else it is but an indeavour to agree Tender of money without payment or agreement to pay money at a day to come is not any satisfaction before the day be come and the money be paid it cannot be pleaded in Bar in an action of Trespass For that as the other partie hath no meanes to compell the other to pay the money So he may refuse it at the day if he will otherwise in an Arbitrament but money paid at a day before the Action brought is a good plea. FINIS A TREATISE OF PARTICULAR ESTATES Written By Sir JOHN DODDRIDGE KNIGHT LONDON Printed Anno. Dom. 1651. A TREATISE OF PARTICULAR ESTATES Particular ESTATES A Particular Estate is such as is derived from a general Estate by separation of one from the other As if a man seised in Fee simple of Lands or Tenements doth thereof cheat by gift or grant an â—state Tayle or by demise a Lease for life or â—…y estate for years these are in the Donee or â—easee Particular Estates in possession derived â—nd separated from the Fee simple in the Deâ—…nor or Leasor in Reversion Also if Lands be demised to A. for life the remainder to B. and the Heires of his body the remainder to C. and his heires the Estate for life limited to A. the Estate Tayle limited to B. are particular Estates derived ut supra and separated in Interest from the Fee simple the remainder given to C. albeit the same remainder doth depend upon those Particular Estates And of Particular Estates some are created by agreement between the Parties and the particular Estates before specified And some by act of Law as the state in Tayle apres possibility de issue extinct Estates by the courtesie of England Dower and Wardship for albeit an estate in Dower be not compleat untill it be assigned which oftentime is done by assent and agreement between parties yet because the partie that so assigneth the same is compellable so to do by coursâ— of Law that Estate is also said to be create by Law also an Estate at will is a kinde of particular Estate but yet not such as maketâ— any Division of the Estate of the Lessor is seised for notwithstanding such an Estate the Lessor is seized of the Land in this Demeâ—…sure as for Fee in possession and not in Reversion Also an Estate at will is not such particular Estate whereupon a Remainder may depend But of all the Estates before mentioned many fruitfull rules and observations are both generally and particularly so lively set forth by the said Mr. Littleton in the 1 2 3 4 5 6 7 and 8. Chapters of his first Book which is extant as wel in English as in French whereunto I referr you Possession IT is further to be observed that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the Principall there are two degrees of the first and chiefest possession in fait poss in Law or Deed is such as is before spoken of And that is most proper to an Estate which is present and immediate but yet such possession of the immediate Estate if it be not greater then a tearm doth operate and enure to make the like possession of the Free-hold or Reversion when a man is said to have a Tearm it is to be intended for years when it is said a man to have the Fee of Lands it is also to be intended a Fee simple Possession is that possession which the Law it self casteth upon a man before any Entry or Pernancy of the profits As if there be Father and Son and the Father dieth seised of Lands in Fee and the same do descend to the Sonne as his next Heire in this case before any entry the same hath a possession in Law so it is also of a Reversion exportant or a Remainder dependant upon particular Estate or life in which case if Tenant for life die he in Reversion or Remainder before his Entry hath only possession in Law All manner of possessions that are not possessions in fait are only possessions in Law and it is to be observed then if a man have a greater Estate in Lands then for years the proper phrase of speech is that he is thereof seised but if it be for years only then he is thereof possessed But yet nevertheless the Substantive possession is proper as well to the one as to the other Reversion A Reversion is properly an Estate which the Law reserveth to the Donor Grantor or Lessor or such like which he doth dispose parcel of his Estate when he doth dispose less Estate in Law then that whereof he was seised at the time of such disposition as if a man seised of Lands in Fee doth give the same to another and the Heires of his body or if he doth dismiss the same for life or years in these cases the same reserveth the reversion thereof in Fee to the Donor or Lessor and his Heires because he departed not with his whole Estate but onely with a particular Estate which is less then his Estate in Fee and such Reversion is said to be expectance upon the particular Estate Also if he that is but Tenant for life for Land and doth by Deed or paroll give the same S. in Tayle or for tearm of his life which is a greater Estate then he may lawfully dispose In this case the Law reserveth a Reversion in Fee in such Donor though he were formerly but Tenant for life and the reason thereof is for that by such unlawfull disposition which by deed or word cannot be without livery and seisin he doth by wrong pluck out the rightfull state in Fee from him that was thereof formerly seised in Reversion or Remainder and thereof by a priority of time gained in an instance he was seised of a Fee simple at the time of the executon thereof But if a man seised of Lands in Fee simple giveth the same to A. and his heirs until B. do die without heire of his body in this case the Law reserveth no Reversion in the Donor because the state is disposed to A. is a Fee simple determinable is in nature so great as the state which the Donor had at the time of such gift and consequently he departed thereby with al his state and therby an apparent difference is between a gift made to A. and the heires of his own body and a gift made
to him and his heires until B. die without heire of his body for in the one case the Donor hath but an Estate Tayle and in the other a Fee simple determinable hath a possibility of Revertor for if B. die without heire of his body then whether A. be living or dead shall revert to the Donor but such possibility of Reversion for he that hath but such a possibility hath no Estate nor hath he power to give his possibility but in the other case the Donor hath Estate in Fee and therefore he hath power to dispose thereof at his pleasure Remainder A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates whereupon it doth depend as if S. seised of lands in Fee demiseth the same to B. for life the remainder to C. and the heirs of his body the remainder to D. and his heirs In this case I. S. hath a particular Estate of the Lessor is then also disposed to C. and D. ut supra whereby B. hath an Estate for life C. a Remainder in Tail and D. a Remainder in Fee depending in order upon the particular Estate in possession and in every Remainder five things are requisite First That it depend upon some particular Estate Secondly That it pass out of the Grantor Donor or Lessor at the time of the creation of the particular Estate whereon it must depend Thirdly That it veste during the particular Estate or at the instant time of the determination thereof Fourthly That when the particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Fifthly That the person or body to whom the Remainder is limitted be either capable at the time of limitation thereof or else in potentia propinqua to be thereof capable during the particular Estate If Lands be given to I. S. and his Heirs the Remainder for default of such Heir to I. D. and his Heirs that Remainder is void because it doth not depend upon any particular Estate But if Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good for it is not limited to depend upon a Fee-simple but upon a particular Estate which is onely called an Estate for life of I. B. descendable if Lands be given to B. for 11. years if C. do so long live the Remainder after the death of C. to D. in Fee this Remainder is void for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years but if a Lease be made to B. for life the Remainder to the Heires of C. who is then living this Remainder is good upon a contingency that if C. dye in the life of B. for that Remainder may well pass out of the Leassor presently without be yaunce without any inconveniency because onely the inheritance separated from the Free-hold is in abeyance if Lands be given for life with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void because it died not vest or settled either during the particular Estate or at the time of the determination thereof for until I. S. die no person is thereof capable by the name of the Heir But if Lands be given to I. S. for terme of his life the Remainder to his right Heir in the singular number and the Heirs of his body and after I. S. hath issue a Son and dyeth that is a good Remainder and the Son hath thereby an Estate Tail for although it were unpossible that such Remainder should vest during the particular Estate because during his life none could be his Heir yet it might be and did vest at the instant of his death which was at the time of his determination of the particular Estate Concerning the fourth thing if a man seised of Lands in Fee granteth out of the same a Rent or Common to Pasture or such like things which before the grant had no being to I. S. for terme of life the Remainder to I. D. in Fee this Remainder is void because of this thing Granted there was no Remnant in the grant to dispose And because some heretofore have been of opinion that albeit the same cannot take no effect as another Grant of a new Rent or Common Vtres magis valeat quam operat This is a rule in Law that a thing enjoyed in a superior degree shall not pass under the name of a thing in any inferior degree and therefore if Lands be given unto two persons and unto the Heirs of one of them unto the Husband and Wife and Heir of the Husband and he that hath the Estate of Inheritance granteth the Version of the same Land to another in Fee such Grant is void because the Grantor was thereof seised in a superiour degree viz. in Possession and not in Reversion as appeareth 22. Ed. 4. fol. 2 13. Ed. 3. Brook title of Grants 137. And concerning the first and last thing if a Lease be made of Land for term of life the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein being this Remainder is meerly void albeit the Kings Majesty by his Letters Pattents do create such Corporations during the particular Estate for at the time of such grant the Remainder was void because then there was no such body corporate thereof capable or potentia propinqua to be created and made capable thereof during the particular Estate but the possibility thereof was then forraign and probably intended The like law is if a remainder be limited to I. the Son of T. S. who had then no Son and afterwards during the particular Estate a Son is born who is named John yet this Remainder is void for at the time of such a Grant as was not to be probably in tender that T. S. should have any Son of that name Also before the dissolution of Abbies if a Lease of Land were made to I. S. for life the Remainder to one that then was a Monk such Remainder was void for the cause before alledged albeit we were deraigned during the particular Estate But if such Remainder had been limited to the first begotten Son of I. S. it had been good and should accordingly have vested in such a Son afterwards born during the particular Estate Rights A Right in Land is either cloathed or naked a Right cloathed is when it is wrapped in a possession Reversion or Remainder a naked Right which is also most commonly called a Right is when the same is separated from the possession or Remainder by dissessin discontinuance or the devesting and separating of the possession as for example if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee in this case I. S. hath a Right cloathed with a Remainder
Of general Statutes the Judges will take notice if they be not pleaded but not of special or particular All Acts of Parliaments as well private as general shall be taken by reasonable construction be collected out of the words of the Act only according to the true intention and meaning of the maker Foure lessons to be observed where contrary Laws come in question 1. The inferiour Law must give place to the superiour 2. The law General must yeild to the Law special 3. Mans laws to Gods Laws 4. An old law to a new law And oftentimes all these laws must be joyned together to help a man to his right as if a man disseized and the disseizor made a Feoffment to defrand the plaintiff in this case it appears that the said unlawfull entrie is prohibited by the law of Reason But the Plaintiff shall recover double dammage and that is by the Statute of 8 Hen. 6. And that the dammage shall be sessed by 12. men that is by the custome of the Realm and so in some case these three laws do maintain the Plaintiff's right And these laws concern either mens possessions or the punishment of offences And so much shall be sufficient to be said touching common Law Customes and Statutes CONCERNING POSSESSIONS The difference between Possession and Seizin is Lease for years is possessed and yet the Lessor is still seized and therefore the termes of the Law are that of Chattels a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized CHAP. III. Of possession of Frank-Tenement TEnant in Fee-simple is he which hath Lands or Tenements to hold to him and his heires for ever It is the best Inheritance a man may have He may sell or grant or make his Will of those Lands And if a man die they do discend to his heire of the whole blood CHAP. IV. FEE-TAYLE Fee-Tayle is of what body he shall come that shall inherit Tenant in Tayle is said to be in two manners Tenant in Tayle General and Tenant in Tayle Special GEneral Tayle is where Lands or Tenements be given to a man and his wife and to the Heires of their two bodies or to his heires males or to his heires females Tenant in Tayle is not punishable for waste Tenant in Tayle cannot Will his Lands nor bargain sell or grant but for terme of his life without a Fine or Recovery If a man will purchase lands in Fee it behoveth him to have these words Heires in his purchase If a man would grant Lands in Tayle it behoveth him to appoint what body they shall come of Yet a devise of lands to a man and his heires males is a good Intayle and of lands to a man for ever a good Free-Simple How Lands shall discend Inheritance is an estate which doth discend it may not lineally ascend from the son which purchaseth in Fee and dyeth to his Father but discendeth to his Uncle or Brother and to his heires which is the next of the whole blood for the half blood shall not inherit But the most worthy of Blood as of the blood of the Father before the Mother of the elder Brother before the other and borne within espousall A discent shall be intended to the heire of him which was last actually seized That the Sister of the whole blood where the elder Brother did enter after the death of his Father and not his Brother of the halfe blood nor any other collaterall Cosen shall inherit yet notwithstanding such a one is heire to a common Ancester in which Rule every word is to be observed and so in every Maxim if the Land Rent Advowson or such like do discend to the elder Son and he die before any entry or receit of the rent or presentment to the Church the younger son shall have and inherit and the reason is because that in all inheritances in possession he which claimeth title there unto as heire ought to make himself heire to him that was last actually seized Here the possession of the Lessee for years or of the Guardian shall invest the actual possession and Frank-Tenement in the elder brother But he dying seized of a Reversion or a Remainder or an estate for life or in tayle There he which claimeth the Reversion or Remainder as heire ought to make himself heire to him that had the Gift or made the purchase Feodo excludeth an estate tayle where the second son shall inherit before the daughter And if the Lands be once settled in the blood of the father the heire of the mother shall never have them because they are not of the blood of him that was last seized And to the heire of the blood of the first Purchaser As if the Father purchase Lands and it discendeth to the son who entreth and dieth without heires of the Fathers part then the Lands shall discend to the heires of the mother or father of the father and not to the heires of the mother of the son although they are more neer of blood to him that was last seized yet they are not of the blood of the first Purchaser If the heires be females in equal distance as Daughters Sisters Aunts and so forth they shall inherit together and are but one heire and are called Parceners Gavill-kinde Doth discend to all the sons and if no sons to all the daughters And may be given by Will by the Custome CHAP. V. PARCENERS Parceners are of two sorts Women and their heires by the Common law Men by the Custom THey may have a Writ of Partition and the Sheriff may go to the Lands and by the oath of 12 men make Partition between them and the eldest shall have the Capitall Messuage by the Common Law and the youngest by the Custome Where the parties will not shew to the Jewry the certaintie there they shall be discharged in conscience if they make Partition of so much as is presumed and known by presumptions and likelyhoods Parceners may by agreement make partition by Deed or by Word and the eldest first choose unless their agreement be to the contrary Every part at the time of the partition must be of an even yearly value without incumbrance Rent may be reserved for equality or Partition and may be distrained for without a Deed. Parceners by divers discents before partition being disseized shall have one assize A Parcener before partition may charge or demised her part The entrie or Act of one Copartner or joynt-Tenant shall be the Act of both when it is for their good If a Parcener after Partition be entred she may enter upon her Sisters part and hold it with her in Parcenary and have a new Partition if she hold none of her part before she was outed viz. in exchange CHAP. VI. JOYNT-TENANTS IOynt-Tenants be such as have joynt estates in goods or lands where he that surviveth shal have all without incumbrance if the Tenements abide in the same plight as they
for years and if he die within the term that it shall remain to M. A. and it is good for the first hath but the occupation and the other after him shall have the property But if a chattell be given to one for life the remainder to another the remainder is voyd For a Grant or Devise of a Chattel for an houre is good for ever and the Devisee may dispose of it but if he do not the other shall have it A man may Devise his Lands he holdeth in Lease but not his Lease under this condition Provided that if the Devisee die within the term then he shall have it If a man Will his goods to his wife and that after her decease his Son and Heir shall have the House wherein they are she shall have the house for term of her life yet it is not devised unto her by express words But it doth appear that his intent was so by the words If a man willeth his Lands to his wife til his Son commeth to the age of 21 yeers and the woman taketh another husband and dyeth the husband shall have the Interest By a Devise a man may have the Fee-simple without express words of Heirs as if Lands be willed to a man for ever or to have and to hold to him and to his assignes c. By Will Lands may be intailed without the word Body as if Lands be given to a man and to his heirs male it doth make an estate tail If a man Will that his Executors shall sell his Lands the inheritance doth descend to the Heir yet the Executors may enter and enfeoffe the Vendee But if Lands be given to the Executor to sell and they receive the profits thereof to their own use and do not sell the same in reasonable time the Heir may enter An Executor may sell if the other will not If Lands be recover'd against Tenant for life or for years by an action of Waste or former title he may not give his Corn. If the Cognizee have sown the Lands and the Cognizor bring a scire he may give the Corn sown If a man Devise omnia bona Cattalla Hawks nor Hounds do not pass nor the Deer in the Park nor the Fish in the Ponds CHAP. XLVII EXECUTORS AN Executor is he that is named and appointed by the Testator to be his successor in his stead to enter and to have his goods and chattels to use Actions against his Debtors and Legacies so far as his goods and chattels will extend Where two Executors are made and one doth prove the Will and the other doth refuse notwithstanding he that refuseth may administer at his pleasure and the other must name him in every action for every duty due to the Testator and his release shall be a good barr If he do survive he may administer and not the Executor of him that died but otherwise if all had refused If one prove the Will in the name of both he that doth not administer shall not be charged If the Executor do once any action that is proper to an Executor as to receive the Testators debts or to give acquittance for the same c. he may not refuse But other acts of charity or humanity he may do as to dispose of the Testators goods about the Funerall to feed his cattell least they perish or to keep his goods least they be stoln these things may every one do without danger When Executors do bring an action it shal be in all their names aswell of them that do refuse as of other But an action must be brought against him that doth administer only and he which first cometh shall first answer An Executor of an Executor is Executor to the first Testator And shall have an action of debt accompt c. or trespass as of the goods of the first Testator carried away and execution of Statutes and Recognizances c. St. 25. Ed. 5. The title and interest of an Executor is by the Testament and not by the Probate but without shewing it they may release the Probate The Justices wil not allow them tosue actions The Executor shall have the wardship of the Body and Lands of the Ward in Knights service but not in Soccage and Leases for years and rent charges for years Statutes Recognizances Bonds Lands in Executions Corn upon the ground Gold Silver Plate Jewels Money Debts Cattell and all other goods and Chattells of the Testator if they be not devised and may devise them But if he do will omnia bona Cattallasua the goods of the Testator pass not neither shall they be forfeited by the Executor An Executor is chargeable for all duties of the Testator that are certain but not for Trespass nor for receipt of rents nor for occupation of Lands as Bailiffe or Guardian in Soccage c. For this is not any duty certain so farr as he shall have Assets If the Executor do waste the goods of the Testator he shall pay them of his own An Executor shall not be charged but with such goods as come to his hands but if a stranger take them out of his possession they are assets in his hands If an Executor take goods of another mans amongst the goods of the Testator he shall be excused of the taking in Trespass Duties by matter of record shal be satisfied before duties by specialty and duties by specialty before charges and Legacies before other duties An Executor may pay a debt or credit of some kind depending the writ before notice of the action but not after notice or issue joyned An Executor may pay debts with his own money and retain so much of the Testators goods but not Lands appointed to be sold Any of these words debere solvere recipere borrowed or any word that will prove a man a debtor or to have the money If it be by Bill will charge the Executor or Administrator but not the Heir if he be not named CHAP. XLVIII ADNINISTRATORS AN Administrator is he to whom the Ordinary of the place where the intestate dwelt committeth the Testators goods Chattel credits and rights For wheresoever a man dieth intestate either for that he was so negligent he made no Testament or made such an Executor as refused to prove it or otherwise is of no force the Ordinary may commit the administration of his goods to the Widow or next of kin or to both which he pleaseth making request and revoke it again at his pleasure The Ordinary may assigne also a Tutor to the intestates children to his sonnes untill twelve year But so that it be not a prejudice to him that is the Guardian and after those years he or she may respectively choose their own Curators and the Guardian may confirm them if there be not good order taken by their fathers Will. As if such a Tutor die the Infant cannot have an Action of account against his Executor The power and charge of an Administrator
A TREATISE OF THE PRINCIPAL GROUNDS AND MAXIMES OF THE LAWES Of this Nation Very usefull and commodious for all Students and such others as desire the knowledg and understanding of the Laws Lex plus laudatur quando Ratione probatur Written by that most Excellent and Learned Expositor of the Law W. N. of Lincolns-Inn Esquire The second Edition with Additions LONDON Printed by T. N. for W. Lee D. Pakeman R. Best and G. Bedell and are to be sold at their shops in Fleetstreet and Grays-Inn gate 1651. An Analysis of the Laws of England by the honorable and most learned William Noy Esq Atturney Gen and of the Privy Councel to the late King Justice is a constant perpetuall will to render every man his own right It is Naturall According to law whereare considered Law Divine Law of Reason Law Humane Forreign English Common where is treated I. Of law where is considered The law it self which is By Tradition which is General and belongs to * Written Statute Injuries forbiden by that Law Private against The person and goods Publique against the King Commonwealth 2. Of the manner of delivering that Law Civill Ecclesiastical Temporal In peace the Admiral In warr the Marshal * The Person where is considered the Quality as Name the King the subject who is of Baptism Creation Natural who is Politick Free who is Villain In his own Power where is considered Not in his own Power Intention Action there Cause Time Place Efficient Material Formal Final by Nature Action of the person by common law or the Kings Charter The Thing which is universal which is Of natural Right Out of divers causes Particular in which dominion may be gained Where are considered Peculiar which belongs to the King to the Subject according to his prerogative Legal ordinary Regal absolute According to peculiar Custom of place prescription of persons 1. Things or goods themselves which are Real Personal Primary Secondary Simple Compound Of the land Upon it Corporate Incorporate 2. To have ownership which is by Estate and Propriety by Right By his own Right Right of another Single Joint by Possession Possibility Of franktenement Chattels Hereditary Frank-tenement alone in Fee in Tail absolute conditional qualified general special by Law by Gift as Dower curtesy of Engl. for Life or Life of another Real Personal Term of years at Will Animate Inanimate Remote Near reversion remainder Parceners joint tenants Tenants in common Interest and Propriety Use Authority of Action of Entry 3. The manner of acquiring ownership by Law by Purchase Discent or Forfeiture absolute With consideration by Writing by Word by Devise by Record by Deed Fine Recovery Executed Executory with Voucher without Single Double Feoffment Grant with atturny Barg sale inrol'd by Grant Ratification Release Confirmation Render Election Concord Assignment by Common-law by Statute 4. The manner of admitting ownership by operation of Law by act of the party Extinguishment Suspension Discent which takes away Entry Commission Omission Discontinuance Warranty Estoppell Forfeiture II. The manner of delivering the law is By Law By act of the party Immediate Mediate by actions in Courts where are considered Claim Entry 1. The diverse Actions in which Right is given Writs Plaints Original Judicial Real Personal Mixt For the Right The possession For the Person The Goods Of Right of law Of the Kings grace Of Course Magistral Pleas of the Crown Common Pleas 2. The divers Courts where remedy is had here are considered The Courts themselvs Their jurisdictions there Temporal Of the King The subject Superior Inferior Of Record Of Barony The persons Pleas Of the Courts In them Judges Ministers Demand ' Tenant Real Personal Plaintiff Defend ' Of the Crown Common 3. The manner of prosecution in Courts Direct Collaterall By Processe By Pleading with that Pleas Tryall Judgment Execution by the Court-Adjornment by persons in the Court as-Essoin 4. The manner of defeating the Process by Prohibition assignation of Errors 5. The manner of taking away the punishment Flight Pardon CHAP. I. The Laws of England are threefold Common Laws Customes and Statutes THE COMMON LAW THE Common Law is grounded on the Rules of reason and therefore we use to say in Argument That reason will that such a thing be done or that reason will not that such a thing be done The rules of reason are of two sorts some taken from Learning as well Divine as Humane and some proper to itself onely OF THEOLOGIE 1. Summa ratio est quae pro Religione facit ATenure to finde a Preacher if the Lord purchase parcell of the Land yet the whole service remaineth because it is for the advancement of RELIGION 2. Dies Dominicus non est Juridicus Sale on a Sunday shall not be said Sale in a Market to alter the property of the Goods OF GRAMMBR OF Grammer the rules are infinite in the Etymologie of a Word and in the construction thereof what is nature is single 3. Ad proxium antecedens fiat relatio nisi impediatur Sententia As an inditement against I. S. servant to I. D. in the County of Middlesex Butcher c. is not good for servant is no Addition and Butcher shall be referred to I. D. which is the next Antecedent OF LOGICK 4. Cessante causa cessat effectus THe Executor nor the husband after the death of a woman Guardian in soccage shall not have the Wardship because viz. the natural affection is removed which was the cause thereof Some things shall be construed according to the original cause thereof 5. The Executor may release before the probate of the Will because his title and interest is by the Will and not by the probate To make a man swear to bring me money upon pain of killing and he bringeth it accordingly it is felony Outlawry in Trespass is no forfeiture of Land as outlawry in felony is for although the non-appearance is the cause of the Outlawry in both yet the force of the Outlawry shall be esteemed according to the heynousness of the offence which is the principal cause of the Process 6. According to the beginning thereof As if a Servant which is out of his Masters service kill his Master through the malice which he bare him when he was his servant this is petty Treason 7. According to the end thereof As if a man warned to answer a matter in a Writ there he shall not answer to any other matter then is contained in the Writ for that â—as the end of his coming 8. Derivativa potestas non potest esse majus primitiva A Servant shall be stopped to say the Frank-Tenement is belonging to his Master by a recovery against his Master although the servant be a stranger to the Recovery for he shall not be in better case then he is in whose Right he claimeth or justifieth 9. Quod ab initio non valet in tractu temporis non convalescit If an Infant or a married woman
joynt-Tenants But if goods be given to her and to another her husband and the other are Tenants in common The Husband may release an Obligation or trespass for goods taken when his wife was sole and it shall be good against the woman if he die but if he die without making any such Release the woman shall have the Action not the Executor of her husband The woman surviving shall have all things in Action or her Executors if she die The Husband shall be charged with the debts of his wife but during her life 32 The will of the Wife is subject to the will of her husband Note a Feoffment made to the wife she shall have nothing if her husband do not thereunto agree MORALL RULES 33. THe Law favoureth works of Charitie right and truth and abhorreth fraud coven and incertainties which obscure the truth contrarieties delayes unnecessary circumstances and such like 34. Dolus fraus una in parte sanari debet No man shall take benefit of his own wrong if a man be bound to appear at a day and before the day the Obligee casts him in prison the bond is void A Grant of all his woods in B. Acre which may be reasonably spared is a void Grant if it be not reserved to a third person to appoint what may be spared A Feoffment made in Fee of two Acres to two men Habend one acre to one and the other acre to the other this Habend is void 35. Lex neminem cogit ad impossibilia c. The Law compelleth no man to shew that which by intendment he doth not know as if a servant be bound to serve his Master in all his commandements lawfull it is a good Plea to say he served him lawfully A Covenant to make a new Lease upon the Surrender of the old Lease and after the Covenanter doth make a Lease by Fine for more years to estrange the Covenant is broken although the Lessee did not surrender the which by the words ought to be the first Act for that the other had disabled to take or to make LAW CONSTRUCTIONS THe Law expoundeth things with equity and moderation to moderate the strictness it is no Trespass to beat his Apprentice with a reasonable correction or to go with a woman to a Justice of Peace to have the peace of her husband against the will of her husband which equity doth restrain the generality if there be any mischief or inconvenience in it As if a man make a feoffment of his lands in and with Common in all his Lands in C. the Common shall be intended within his Lands in C. and not in his other Lands he shall have else-where 36. Every Act shall be taken most strictly against him that made it As if two Tenats in Common grant a Rent of 10. shillings this is several and the Grantees shall have 20. shillings but if they make a Lease and reserve 10. shillings they shall have onely 10. shillings between them So an obligation to pay 10. shillings at the feast of our Lord God it is no Plea to say that he did pay it but he must show at what time or else it will be taken he paid it after the feast 37. He that cannot have the effect of a thing shall have the thing it self Vtres magis valeat quam pereat As if a Termor grant his Terme Habendum immediat è post mortem suam the Grantee shall have it presently 38. When many joyn in one Act the Law saith it is the Act of him that could best do it and that thing should be done by those of best skill As the Disseizee and the heir of the Disseizor who is in by discent joyn in a Feoffment This shall be the Feoffment of the heire onely and the confirmation of the Disseizee And the Merchant shall weigh the Wares and not the Collectors 39 When two titles concur the elder shall be preferred 40 By an acquittance for the last payment all other Arrerages are discharged 41 One thing shall enure for another If the Leasor enfeoff the Lessee for life it shall be taken for a confirmation 42. In one thing all things following shall be concluded in granting demanding or prohibiting If one except a Close or a Wood the Law will give him a way to it 43. A man cannot qualifie his own Act. As to release an Obligation untill such a time 44. The construction of the Law may be altered by the special agreement of the parties If a house be blown down by the wind the Lessee is excused in waste but if he have covenanted to repair it there an Action of Covenant doth lie by the agreement of the parties 45. The Law regardeth the intent of the parties and will imply their words thereunto and that which is taken by common intendment shall be taken to the intent of the parties and common intendment is not such an intendment as doth stand indifferent but such an intent as hath the most vehement presumption All incertaintie may be known by circumstances every deed being done to some purpose reason would that it should be construed to some purpose and variance shall be taken most beneficial for him to whom it is made and at election 46. An intendment of the parties shall be ordered according to the Law If a man make a Lease to a man and to his heires for ten years intending his heires shall have it if he die notwithstanding the intent the Executors shall have it 47. Qui per alium facit per seipsum facere videtur A promise made to the Wife in consideration of a thing to be performed by her Husband if he agree and perform the Consideration in an Action of the case he shall declare the assumption was made to him And if my servant sell my goods to another in deqt I shall suppose he bought them of me CUSTOMES Consuetude est altera lex CUstomes are of two sorts General Customes in use throughout the whole Realme called Maximes and particular Customes used in some certain County Citie Towne or Lordship whereof some have been specified before and some follow here and where occasion is offered GENERAL CUSTOMES THe Kings Excellencie is so high in the Law that no Freehold may be given to him nor derived from him but by matter of Record Every Maxim is a sufficient authority to itself and which is a Maxime and which is not shall alwayes be determined by the Judges because they are known to none but to the learned A Maxime shall be taken strict A particular Custom except the same be a Record in some Court shall be pleaded and tryed by 12. men CHAP. II. Statutes THe last ground of the Laws of England standeth in divers Statutes made by our Soveraigne Lord the King and his Progenitors and by the Lords Spiritual and Temporal and the Commons in divers Parliaments in such cases where the former Laws seemed not sufficient to punish evill men and to reward the good
were granted Joynt-Tenants may have several estates A Joynt-Tenant cannot grant a Rent-charge but for terme of his own life A Joynt-Tenant may make a Lease for life or for years of his part or Release and the Lessee for years may enter although the Lessor die before the Lease begin and his heire shall have the Rent but the Survivor the Reversion A Joynt-Tenant may have a Writ of Partition by the Statute of the 31. of H. 8. cap. 32. A Partition made by Joynt-Tenants or Tenants in Common of Estates of Inheritance must be by Indenture by Word 't is void CHAP. VII TENANTS in COMMON Tenants in Common are those that hold Lands and Tenements by several titles They may joyne in action personal but they must have several actions Real They may have a Writ of Partition by the Stat. of 31. H. 8. cap. 32. IF one Parcener Joynt-Tenant or Tenant in Common take all the other have no Remedie but by Ejectione firme or such like or Waste Gavil-kinde-Lands Tenant by the curtesie of Kent whether he have Issue or no untill he marry and so forth he may not commit Waste CHAP. VIII TENANT in DOWER A Woman shall be indowed of all sorts of inheritance of her husband where the Issue that she had by him may inherit as heire to his father by meetes and bounds of a third part She shall have house-roome and meat and drink in common for forty dayes But she may not kill a Bullock within those 40. days after the death of her husband in which time her Dower ought to be assigned her The Assignement by him that had the Frank-Tenement is good but by him that is Guardian in Soccage or Tenant by Elegit verte Elegit or Statutes or Lessee for years is not She is to demand her Dower on the Land She shall recover dammages when her husband dyed seized from the death of her husband if the heire be not ready at the first day to assigne her Dower She shall have all her Chattels real againe execept her husband sell them he may not charge them or give them by his Will and likewise her bonds if the money were due in the life of her husband and all convenient apparel but if she have more then is fit for her degree it will be assets A woman shall be barred of her Dower so long as she detaineth the bodie of the heire being Ward or the Writing of the sons Land A woman shall not be endowed of any lands that her husband joyntly holdeth with another at the time of his death Dower of Gavil-kind Lands If the woman shall be endowed of one half so long as she is unmarried and chaste and it may be held with the heire in Common It is of Lands and Tenements and not of a Faire or such like where the Heire loseth not his inheritance there she loseth not her Dower Joynture IF a woman have a Joynture be fore marriage she may claim no Dower 27. Hen. 8. If it be made during marriage she may enter into her Joynture presently If she enter or accept of it she shall not be endowed If she shall be expulsed of any part of her Joynture she shall be endowed of the residue of her husbands Lands CHAP IX Tenant for terme of Life TEnant for terme of life is he that hath Lands or Tenements for terme of his life or another mans life and none of lesser estate may have a Free-hold If a Tenant for life sowe the Lands and die before the corn be reaped his Executor shall have it but not the Grasse nor other fruit If a Tenant for life be impannelled upon an Inquest and forfeit Issues and die they shall be levied upon him in the Reversion and so likewise if the Husband on the Lands of the Wife CHAP. X. Tenant for Terme of yeares Tenant for terme of years is where a man letteth lands or tenements to another for certain yeares HE may enter when he will the death of the Lessor is no let and may grant away his terme before it begin but before he enter he cannot Surrender nor have any action of trespasse nor take a release He is bound to repaire the Tenements The Lessor may enter to see what Reparations or Waste there is and he may distraine for his rent or have an action of debt If Tenant for life or years granteth a greater estate then he hath himselfe he doth forfeit his terme CHAP. XI Tenant at Will Tenant at Will is hee that holdeth lands or tenements at the Will of another THe Lessor may reserve a yearely rent and may distraine for it or have an Action of debt the Lessee is not bound to repaire the Tenements The Will is determined by the death of the Lessor or of a woman Lessee by her marriage or when the Lessee will take upon him to doe that which none but the Lessor may doe lawfully it determineth the Will and Possession and the Lessor may have an action of Trespasse for it The Lessee shall have reasonable time to have away his goods and his corne But he shall lose his Fallow and his dung carried forth CHAP. XII REMAINDER A Remainder is the residue of an estate at the same time appointed over and must be grounded upon some particular estate given before granted for years or for like and so forth And ought to begin in possession when the particular estate endeth there may bee no mean time between either by Grant or Will No remainder can be of a Chattel personal a Remainder cannot depend on a matter ex post facto as upon Estate tayle upon condition That if the Tenant in Tayle sell then the Land to remain to another is a void Remainder CHAP. XIII REVERSION A Reversion is the residue of an estate that is left after some particular estate granted out in the Grantor as if a man grant Lands for life without further granting the Reversion of the Fee-simple is in the Lessor CHAP. XIV WASTE WASTE lieth against a Tenant by the curtesie for life for years or in Dower and they shall lose the place wasted and treble dammages Waste lieth not against a Tenant by Elegit Statute-Merchant or Staple but account after the debt or dammage levied Waste or account will lie against a Tenant in Mortgage because he had Fee conditionall Waste is not given to the heire for Waste in the life of his Father Waste is given against the Assigne of the Tenant for life or of anothers life but not against the Assignee of a Tenant in Dower or of the curtesie it is to be brought against themselves It is Waste to pull up the formes benches doors windowes walls Filbert-Trees or Willows planted CHAP. XV. DISCONTINUANCE DIscontinuance is where a man that hath the present possession by makeing a larger estate then he may divesteth the inheritance of the Lands or Tenements out of another and dieth and the other hath right to have them but he may not enter
person When any thing is granted that is not certain as one of my horses then the choice is in the Grantee When several things are granted then it is in the choice of him that is to do the first Act. A man cannot grant nor charge that which he never had A man may charge a Reversion A Parson may grant his tythes or the Wool of his Sheep for years A thing in action a cause of a suite right of entrie or a Title for a condition broken or such like may not be given or granted to a Stranger But only to the Tenant of the ground or to him that hath the Reversion or Remainder A thing that cannot begin without a Deed may not be granted without a Deed as a Rent-Charge Fayer c. Every thing that is not given by delivery of hands must be passed by Deed the right of a thing reall or personall may not be given in not released by Word a Rent of condition or a re-entrie may not be reserved to one that is not partie to the Deed. All things that are incident to others pass by the grant of them that they are incident unto A man by his Grant cannot prejudice him that hath an elder title If no estate be expressed in the Grant and Livery and seizin be made then the Grantee hath but estate or life But if there be such Words in the Grant which will manifest the Will of the Granter so his will be not against the law the estate shall be taken according to his intent and will All Grants shall have a reasonable construction and all Grants are made to some purpose and therefore reason would they should be construed to some purpose All Grants shall be taken most strong against him that made it and most beneficiall to him to whom it is made To Grants of Reversion or of Rents c. there must be Attornment otherwise nothing passeth if it be not by matter of Record ATtornment is the agreement of the Tenant to the Grant by writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorne unto you or I do become your Tenant or I do deliver unto the Grantee a peny by way of seizin of a Rent or pay or do but one service onely in the name of the whole it is good for all It must be done in the life-time of the Grantor Without Attornment a Signiory a Rent-charge a Remainder or a Reversion will not pass but by matter of Record Without Attornment services pass not by the sale of the Manor nor from the Manor but by bargain and sale inrolled Attornment must be made by the Tenant of the Free-hold when a Rent-charge is granted By the Attornment of the Termor to the Grantee of a Reversion with Liverie and the Rent also though no mention be made thereof before attornment a man may not distrain nor have an action of waste By fine the Lord may have the Wardship of the body and Lands before the attornment of his Tenant The end of attornment is to perfect Grant and therefore may not be made upon condition or for a time A Tenant that is to perfect a Grant by Attornment cannot consent for a time nor upon a Condition nor for part of a thing granted But it shall enure the whole absolutely If the Tenant have true notice of all the Grant then such Attornment is void Attornment necessary upon a Devise CHAP. XXXIV LEASES A Lease for years must be for a time certaine and ought to express the terme and when it should begin and when it should end certainly And therefore a Lease for a year and so from year to year during the life of I. S. but for two years it may be made by Word or Writing If I Lease to I. N. to hold untill a hundred pounds be paid and make no livery of seizin he hath estate only at Will A Lease from year to year so long as both the parties please after entrie in any year it is a Lease for that year c. till warning be given to depart 14. H. 8. 16. A Lease beginning from henceforth shal be accounted from the day of the delivery from the making shall be taken inclusive from the day of the making or of the date exclusive If Lands discend to the heires before his entrie he may make a Lease thereof A man lets a house cum pertinent no lands pass but if a man let a house cum omnibus terris eidem pertinent there the lands thereunto used pass If a man lets Lands wherein is Coale-mines quarries and such like if they have bin used the Tenant may use them if they be not open if the Tenant for them imploy them not on the Land it is waste likewise marle the land is the place where the Rent is to be paid and demanded if no other place between the parties be limited Trespass is not given for paying of the Rent to the Lessor howsoever it be payable there And if a man let lands without impeachment of Waste and a Stranger cut down the trees and the Lessee doth bring an action of Trespass he shall not recover for the value of the Trees but for the Crop and bursting of his close and the heire of the Lessor shal have such trees and not the Executor of the Lessee unless they be cut by the Lessee and enjoyed by the Grantee without Waste Lessee for years or for life Tenant in Dower or by the curtesie or Tenant in tayle after possibility c. have onely a special interest or property in the trees being upon the ground growing as a thing annexed unto the Land so long as they are annexed thereunto But if the Lessee or any other sever them from the Land the property and interest of the Lessee in them is determined and the Lessor may take them as things that are parcell of his Inheritance the Interest of the Lessee being determined To accept the rent of a void Lease will not make the Lease good But avoidable it will If the Husband and Wife do purchase Lands to them and the heires of the Husband and he make a Lease and die his Wife may enter and avoid the Lease for her life but if she die leaving the husband who afterward dies before the terme ends the Lease is good to the Lessee against the heire Where it is Covenanted and granted to S. I. that he shall have five Acres of land in D. for years this is a good Lease for consessit is of such force as dimisit If a man make a Lease for 10 years and afterwards maketh another lease for 21 years the latter shall be a good Lease for eleven years when the first is expired If the Lessee at his cost do put glass in the Windowes he may not take the same away again but he shall be punished for Waste and so of Wainscot and seeling if it be
not fixed with Screwes Tenant in tayle may make a lease for such lands or inheritance as have been commonly letten to farm if the old lease be expired surrendered or ended within one year after the making of the new But not without impeachment of Waste nor above 21 years or three lives from the day of the making reserving the old Rent or more 32. H. 8. By Indenture of Lease by Tenant in tayle for 21 years made according to the forme of the Statute rendring the ancient or more Rent If the Tenant in tayle die it is a good lease against â—his Issue But if a Tenant in tayle die without Issue the Doner may avoid this Lease by entrie 32. H. 8. 28. And if he in the Remainder do accept the Rent it shall not tie him for that the Tayle is determined the Lease is determined and void Ed. â— 19. The Husband may make such a Lease of his wifes lands by Indenture in the name of the husband and wife and she to seale thereunto and the rent must be reserved to the husband and his wife and to the heires of the wife according to her estate of Inheritance A Lease made by the husband alone of the Lands of his wife is void after his death But the Lessee shall have his Corne. By the husband and wife voidable if it be not made as aforesaid If a man do let Lands for years or for life reserving a Rent and do enter into any part thereof and take the profit thereof the whole Rent is extinguished and shall be suspended during his holding thereof The aceptation of a re-demise to begin presently is suspension of the Rent before any entrie otherwise of a re-demise to begin in suturo Reservations and Exceptions THere are divers words by which a man may reserve a Rent and such like which he had not before or to keep that which he had as Tenendum reservandum solvendum saciendum it must be out of a Messuage and where a distresse may be taken and not out of a Rent and it must be comprehended within the purport of the same Word Exceptions of part ought always to be oâ— such things which the Grantor had in possesion at the time of the Grant The heire shall not have that which is reserved if it be not reserved to him by special words If a man make a Feoffment of Lands and reserve any part of the profits thereof as the grass or the Wood that reservation is void because it is repugnant to the feoffment A man by a Feoffment Release Confirmation or Fine may grant all his right in the Land saving unto him his Rent-charge c. Things that are given only by taking and useing As pasture for four Bullocks or two loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his life and no longer without speciall Words Exceptions of things as Wood Myne Quarrie Marle or such like if they be used it is implied by the Law that they shall be used and the things without which they cannot be had is implied to be excepted although no c. But otherwise if they be not used then the way and such like must be excepted An Assignee may be made of Lands given in Fee or for life or for years or of a Rent-charge although no mention be made of the Assignee in the Grant But otherwise it is of a promise Covenant or Grant or Warranty If a Lessee do assigne over his terme the Lessor may charge the Lessee or assigne at is pleasure But if the Lessor accept of the Rent of the Assignee knowing of the assignement he hath determined his acception and shall not have an action of debt against the Lessee for Rent due after the assignement If after the assignement of the Lessee the Lessor do grant away his Reversion the Grantee may not have an action of debt against the Lessee If a Lessee do assigne over his interest and die his Executor shall not be charged for rent due after his death If the Executor of a Lessee do assigne over his interest an action of debt doth not lie against him for rent due after the assignement If the Lessor enter for a condition broken or the Lessee do surrender or the terme end the Lessor may have an action of debt for the arrearages A Lease for years vending rent with a condition that if the Lessee assigneth his terme the Lessor may re-enter The Lessee assigneth the Lessor receiveth the Rent of the hands of the assignee not knowing of the assignement it shall not exclude the Lessor of his entrie A thing in a Condition may be assigned over for good cause as just debt as whereas a man is indebted unto me 20. pounds and another do owe him 20. pounds he may assigne over his Obligation unto me in satisfaction of my debt and I may justifie the suing for the same in the name of the other at my own proper costs and charges Also where one hath brought an action of debt against I. N. which promiseth me that if I will aide him against I. N. I shal be paid out of the sum in demand I may aid him An assignee of Lands if he be not named in the condition yet he may pay the money to save his Land But he shall receive none if he be not named the tender shall be to the Executor of the Feoffees Assignee shall alwayes be intended he that hath the whole estate of the assignor that is assignable a Condition is not assignable and not of an Executor or Administrator if there be such an assignee the law will not allow an assignee in the law if there be an assignee indeed so long as any part of the estate remaineth to the assignor the tender ought to be made to him or his heires it serveth yet a colourable payment to the heire shall not veste the estate out of the assignee as a true payment will viz. Covenant CHAP. XXXVI SURRENDERS A Surrender is an Instrument testifying with apt words that the particular Tenant of Lands or Tenements for life or years doth sufficiently consent that he which hath the next immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeildeth or giveth the same to him for ever Surrender ought forthwith to give a present possession of the thing Surrendred unto him which hath such an estate where it may be drowned A Joynt-Tenant cannot surrender to his fellow Estating of things that may not be granted without a Deed may be determined by the Surrender of the Deed to the Tenant of the Land Lease for years cannot surrender before his Term begin he may grant he cannot surrender part of his Lease Surrenders are in two manners In Deed. In Law A Surrender in Law is when the Lessee for years doth take a new Lease for more years A Surrender
in Deed must have sufficient words to prove the assent and will of the Surrenderer to Surrender and that the other do also thereunto agree The husband may Surrender his Wifes Dower for his life and her Lease for ever By Deed Indented a man may Surrender upon condition CHAP. XXXVII RELEASES A Release is the giving or discharging of a Right or Action which a man hath or claimeth against another or out of or in his lands A Release or Confirmation made by him that at the time of the making thereof had no right is void if a right come to him afterwards unless it be with warranty and then it shall barr him of all right that shall come to him after the warranty made Release or confirmation made to him that at the time of the Release or Confirmation made had nothing in the Lands is void it behoveth him to have a Free-hold or a possession and privitie A Release made to a Lessee for years before his entrie is void A man may not release upon a Condition nor for a time nor for part But either the Condition is void and the time is void and the Release shall enure to the partie to whom it is made for ever for the whole by way of extinguishment But a man may deliver a Release to another as an Escrowe to deliver to I. S. as his Act and Deed if I. S. do perform such a thing or Release upon a condition by Deed indented may be good A Joynt-tenant or a Rent-charge may release yet all the Rent is not extinct nor yet if he purchase the lands his fellow shall have the Rent still If the grantee release parcell of a Rent-charge to the Grantor yet all the Rent is not extinct A Release to charge an estate ought to have these words Heires or words to shew what estate he shall have A release made to him that hath a Reversion or a remainder in Deed shall serve and help him that hath the Frank-tenement So shall a Release made to a Tenane for life or a Tenant in Tayle inure to him in the Reversion or Remainder if they may shew it and so to Trespassors and Feoffees but not to Disseisors A Release of all manner of Actions doth not take away an entrie nor the taking of ones Goods againe nor is any Plea against an Executor A Release of all demands extinguisheth all Actions Reall and Personall appeales Executions Rent-charge Common of Pasture Rent-Service and all right and Seizure and all right in Lands and propertie in Chattels But not a possibility or future duty as a Rent payable after my death and such like CHAP. XXXVIII CONFIRMATION Confirmation is when one ratifieth the possession as by Deed to make his passession perfect or to discharge his estate that may be defeated by another entrie AS if a Tenant for life will grant a Rent-charge in Fee then he in the Reversion may confirme the same Grant Whereas a man by his entrie may defeat an estate there by his Deed of Confirmation he may make the estate good A Confirmation cannot charge an estate that is determined by express Condition or limitation To confirm an estate for an houre if it be for Tenant for life it is good for life if to Tenant in Fee for ever A lease for years may be confirmed for a time or upon condition or for a piece of the Land But if a Frank-tenement be it shall enure to the whole absolutely A Confirmation to charge an estate must have words to shew what Estate he shall have To confirm the Estate of Tenant for life to his heires cannot be but by Habendum the Land to him and his heires And therefore it is good to have such a Habendum in all confirmations In a Confirmation new service may not be reserved old may be abridged A Confirmation made to one Disseizor shall be voidable to the other so shal not a Release CHAP. XXXIX CONDITION There are two manner of Conditions one expressed by Words another implyed by the Law the one called a Condition in deed the other a Condition in Law ESTATE made and the condition against the law the Estate 's good the Condition's void If the Estate beginneth by the Condition then both are void Bonds with Conditions expresly against the Law are void Conditions repugnant the estate good the Condition void Conditions impossible are void the Estate good it shall not enlarge any estate By pleading a man may not defeat an Estate of Frank-Tenement by force of a condition in Deed without he shew the Condition of Record or in writing sealed yet the Jurie may help a man where the Judges will take their Verdict at large of Chatttels he may Promise doth make a Condition but when it doth depend upon another sentence or hath reference to another part of the deed it maketh no condition but a qualification or limitation of the sentence or of that part of the Deed as provided that the person of the Grantee shall not be charged He which hath interest in a Condition may fulfill the same for safeguard of himself Between the parties it is not requisite the Condition be performed in every thing if the other do agree but to a stranger it must If the Obligee be partie to any Act. by which the Condition cannot be performed then the Obligor shall be discharged So he shall be by the Act of the Condition Where the first Act in the Condition is to be performed by the Obligee and he will not do it there the Obligation is not forfeited Where no time is set if the Condition be for the good of a stranger or of the Obligee then it is to be performed within convenient time if for the good of the Obligor at any time during their lives Immediately shall not have such a strict construction but that it shall suffice if it be done in convenient time If a man be bound to pay money or farm Rent he must seek the parties But if he be bound to perform all payments if he render his farm on the land it sufficeth If the Feoffee or Feoffor die before the day of payment the tender shall be to the Executor although the heire of the Feoffee do enter if the heire be not named vide Assignee in assignement The money must be tendred so long before Sun-set that the receiver may see to tell it To pay part of a Sum at the day cannot be satisfaction for the whole sum as a horse or a robe is But before the day or at another place at the day of the request and acceptance of the Obligee is full satisfaction An Acquittance is a good barr if nothing be paid In all cases of Conditions a payment of a certain sum in gross touching Lands or Tenements if lawfull tender be once refused he which made the tender is discharged forever And the manner of the tender and payment shall be directed by him that made it and not by him that
rather beat him then suffer him to take or carry them away CHAP. XLIV How far other mens Contracts and misdemeanours do binde us A MAN shall be bound by many Trespasses of his wife but not to sustain corporal punishment for it For Murder Fellony Battery Trespass borrowing or receiving of money in his Masters name by a Servant the Master shall not be charged unless it be done by his command or came to his use by his assent If I command one to do a Trespass I shall be a Trespassor or otherwise if I do but consent There is no accessary in Trespass We shall be charged if any of our family lay or cast any thing into the high way to the noisance of his Majesties Liege People Every man is bound to make recompence for such hurt as his beasts shall doe in the corne or grass of his neighbour though he knew not that they were there and for his Dogs Beares c. if they hurt the goods or Chattell of any other for that he is to govern them A man shall not be charged by the contract of his wife or his servant if the thing come to his use having no notice of it But if he command them to buy he shal be charged though they come not to his use or had notice therof If a Wife or Servant use to buy or sell if he sell his Masters Horse and exchange his Oxe for wheat that cometh to his Masters use his Master may not have an action of Trespass for it but he shall be charged for the corn and the other need not to shew that he had warrant to buy for him If a man-servant that keepeth his shop or that useth to sell for him shall give away his goods he shall have Trespass against the Donee But if I deliver my Goods to another to keep to my use and he do give them away I shall not for the Donee had notice whose goods they were as in the case of the servant If a man make another his general receiver which receiveth money and maketh an acquittance and payeth not his Master yet that payment dischargeth the debtor If a servant keep his Masters fire negligently an action lieth against the Master Otherwise if he bear it negligently in the street If I command my servant to distrain and he doth ride on the distress he shall be punished not I. If a man command his servant to sell a thing that is defective generally to whom he can sell it deceit lieth not against him Otherwise if he bid him sell it to such a man it doth A Contract or a promise made to the wife is good when the husband doth agree so it is to a servant and it shall be said to be made to the husband and Master himself If a man taketh a wife that is in debt he shall be charged with her debts during her life if she die he shall be discharged CHAP. XLV Wills and Testaments Having hitherto treated of such contracts as de take effect in the life time of the parties with their differences it is now to deale with Instruments which take effect after their Deaths that those things which they have preserved with care and gotten with paines in their life might be left to their posterity in peace and quietnesse after their Death of which sort are last Wils and Testaments There are two sorts of Wils Written and Nuncupative ANuncupative Testament is when the Testator doth by Word onely without writing declare his Will before a sufficient number of Witnesses of his Chattels onely for Lands passe not but by writing It may for the better continuance after the making be put in writing and proved But it is still a Testament Nuncupative A written Testament is that which at the very time of the making thereof is put in writing by which kind of Testament in writing only Lands and Testaments pass and not by word of mouth only Two things are required to the perfection of a Will by which Lands pass viz. First writing which is the beginning Secondly the death of the Devisor which is the finishing In a Will of Goods there must be an Executor named otherwise of Lands A man may make one Executor or more simply or conditionally for a time or for parcel of his Chattels If no Executor be named then it still retaineth the name of last a Will and shall be annexed to the Letters of Administration in regard of the Gift Gavil kinde Lands may be devised by custome Lands bolden In Socage tenure all is devisable Knights Service 2 parts 3 in writing FEAR fraud and flattery three unfit accidents to be at the making of a Will A woman may make a Will of the goods of her husband by his consent and license by Word is sufficient and of the goods she hath as Executor without his consent but she cannot give them unto him A boy after his age of fourteen and a Maid after her age of twelve may make a Will of their goods and Chattels by the Civil Law The will of the Donor shall be alwayes observed if it be not impossible or greatly contrary to the Law A Devisor is intended Inops consilii and the Law shall be his Counsell and according to his intent appearing in his Will shall supply the defect of his words A Prerogative Will is five pound in another Diocess A man may not traverse the Probate of a Testament or Letters of Administration directly but he may say against the Testament that the Testator never made the party his Executor CHAP. XLVI DEVISES A Devise ought to be good and effectual at the time of the death of the Devisor The Devisee may not enter into the terme or take a Chattell but by the delivery of the Executor But he may sue for it in Court Christian Into Frank-tenement or inheritance he may enter Devisees are Purchasees as if a Lease for years be Willed to a man and his Heires the Heire shall have it for Heire is a name of purchase here A Reversion of Lands or Tenements will pass by the name of Lands and Tenements in a Devise If a man devise all his Lands and Tenements a Lease for years doth not pass where he hath Lands in Fee and also a Lease there otherwise it will If a man devise all his goods a Rent-charge which he had for years will pass and all other his personall Chattells And if a man give all his moveables to one he shall have all his Horses Cattell pans and personall chattells and all his immoveables to another he shall have all his Corn growing and fruit on his Trees and the chattells reall A man may devise Lands or goods to an Infant in the mothers belly or goods to the Church-wardens of D. There is great diversity where the property is devised and when the occupation is devised A man may devise that a man shall have the occupation of his Plate or other chattells during his life or