in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS
Discender if it be out of the words yet it shall be taken by equity although it be penal to some man for here it restrains the Liberty of Tenant in Tail because it was for to redress false Covin for to advance right and justice and benificial to the weal-publick As W. 2. cap. 3. gives a cui in vita upon a recovery by default which was a wrong to the Wife and therefore gave Cui ante Divortium by equity So Marlebridge cap. 6. De primogenith and of Feoffment yet if the first Son dies and he infeoffees the second Son or Levy a Fine it shall be taken by equity because it redresses Covin which the Law abhors So 1. H. 7. cap. 1. gives a Formedon in Remainder against Pernors of Profits and 14. H. 7.31 and after 178. scire facias for to execute a Remainder against the taker of the Profits shall be maintainable by equity No judgement was ever given in this case for this default viz. because he had not shewed certainly how he was Heir and in special for that it was issuable and Title given is certain Note that all the Justices held the case here within the words of the Statute of 11. H. 7. And if it were not within the words that yet it was within the equity of the Statute And they held also that the Heir may enter immediately that is to say in the life of Tenant in Tail but no judgement was given Dive against Maningham ONe was in prison in execution upon a Recognisance of Debt M. 4 E. 6 In the Common Pleas in debt taken according to the Statute of 23. H. 8. cap. 6. and the Defendant being a stranger made an Obligation to the Sheriff indorced with Condition That the prisoner should save him from dammage against the King and the Conusee and also that he should be alwaies at his commandment as a true prisoner to appear before the justices and the King at Westminster or elsewhere within this Realm And it was adjudged a void Obligation by the Statute of 23. H. 6. c. 10. 1. For that the prisoner was not bailable but excepted by the Statute which in this point is not but an affirmance of the Common Law 2. For that That the third branch of the Statute which maketh all Obligations vold taken for any the causes abovesaid against the form there expressed extends as well to the second branch in which the exception is as to the first for the generalty abovesaid and also by the intent of the Statute to suppress the extortion of Sheriffs in this behalf 3. Although it shall not be so yet he taketh the Obligation colore officii as Sheriff of his prisoner and so within the Statute 4. No day or place of appearance is limited in the Condition so the form appointed by the Stat. is not observed 5. Other things are mixt in the Condition with the apparance as that he shall save harmless and this shall be intended there for all things and at all times 6. He had but one surety and the Statute speaks of surety of sufficient persons in the plural number by Montaigue fol. 63. 7. The Obligation here is void by course of the Common Law for that the Condition is against the Law for the party is not bailable 2. H. 4.9 The Extent ought to precede the Liberate here are both in one Writ yet in nature they are several but the Writ remains good for the extent and the other is surplusage 7. H. 4. 44. for Toll not paid the Writ was Tolloneum asportavit illud solvere recusavit asportavit is void because surplusage and it abates not because he refused to pay for that is sufficient and be the Writ good or bad in Law it shall stand in force until it be Reversed by Error because an ancient Record 37. H. 6. 1. the Sheriff took a single Obligation for to let one to Mainprise which is not Mainpernable it was void because he took colore efficii which is taken alwaies in ill part and implies that the thing is done by pretence of Office but not yet duely and their office is but a vail and shadow to falsity Virtute officii or Ratione officii taken in good part because it is alwaies where the Office is just which causeth the thing it is pursuant to the office Obligation is void where the condition is contrary to Law as to be saved harmless if he kils a man or doth commit trespass so here the Obligation is void by the Common Law because it was to save the Sheriff harmless for wrong done against the Law as is the letting the Prisoner at freedom he being one which is not Bailable So 2. H. 4. 9. A Baily by withernam takes the Beasts of the Defendant and afterwards re-delivers them to the Defendant upon Obligation given to him by the Defendant for the saving of him harmless wherefore holden void because it was to aid the Baily for this wrong in the re-delivery of the beasts to the party for he ought to have detained them untill c. And afterward Mollineux Hales and Brown Justices argued to the same purpose Montague Cheif Justice It is likely to me that the Plaintiff shall be barred for an Act which is general in particularity or particular in a generality which is all one as in 13. E. 4. 8. That all Corporations and Licences made by H. 6. shall be void So that all Bishops or Justices shall do such an Act shall be pleaded but a general Act which extends to every man not but the Justices ought to take Conusance thereof but if this Act hath several branches concerning several matters yet contained in one Chapter there he needs not recite all but this onely which concerns him and maketh for his purpose for every branch is a several Act by it self But a Record shall not be pleaded inter alia for it is intire upon one Originall and one Judgement upon it but ought to plead certainly all the Record when it is pleaded in Bar because the Record is the matter of substance and the effect of the Bar which ought to be plain and perfect when the Record is but conveyance and induction to the Bar or Action it is sufficient to reciteithis which is the cause of the Action as 34. H. 6. 48. A Tenant by Elegit makes avow in â—…eplegiare for that he had execution as Tenant by Elegit and made a Lease reserving Rent for which being arear he avowed he needed not shew the Record because the Lease onely is traversable and is the effect of the Avowry and the execution by Elegit is the Record from which it issues which is nothing but conveyance to the effect and therefore it sufficeth to begin at the Execution upon Damages recovered without pleading how lie brought his first Action and what answer the Defendant made or such like So in the 19. H. 6. 29. a Bill of Deceit against an Attorncy for
to some purpose and not to be void because it is made to some purpose as 21. H. 6.8 one may plead a Lease for years and a release as a Feoffment So 7 H. 6.7 and 22. H. 6.42 The Feoffment of a Joynt-Tenant as a confirmation So 9. H. 7.2 The King by Parliament confirms the estate of the Patentee dat conceditur he may use it as a Grant or confirmation So in 21. H. 7.23 Obligor may plead a Grant That it shall not be sued before M. in Bar or have a Covenant for it So here the party uses this as a Demise of the Land and not as a Grant of the Reversion for the Reyersion of the Land compriseth the Land as Litl fol. 106. after fol. 161. a release of all the land to him in Reversion is good So 5. H. 5.8 A Lease for years and after a grant of the rent this changes the reversion So Litl fol. 150. recovery of the land against Tenant for life will divest the reversion So 19. E 4.9 Writ of Covenant and the Concord is of the land to pass the reversion So Quid jur is clamat recites That the land was granted before the reversion was So before fol. 149. Formed on shall say de uno messuagio where the Reversion was granted in Tail So a Reversion in Fee Granted to a Termor he hath the intire Term presently in Possession for the reversion of the land comprises the land in substance one word will pass the thing by another word having the same sence yet varying in name because one same thing and intent of the party as 2. H. 6.4 before fol. 134. and afterwards f. 170. reverter for remainder So 3. H. 6.6 makes a Testament and commits Administration is an Executor So 20. H. 7.11 Retorn for revert by the Grant by Grant of the Church Advowson passes 14. E. 4.2 by Grant of the name of a Clerk a presentment passeth So before fol. 151. by Stagnum molendinum the Soil passes and the thing contained in the premises named in the Habendum by another name containing the same in substance is good So a Grant of the nomination of an advowson Habendum the advowson good So Manerium Habendum the services So mannor by Fine Habendum one acre of this in Fee he shall have the acre in Fee and the Mannor for life because it wanteth limitation of the estate in the residue of the Mannor So a Gift of a Mannor Habendum the reversion in Fee of one acre which is in Lease for life good Fee for the acre and for life in the Mannor because no estate is expressed in it So Litl fol. 120. confirms the estate of Lessee for life Habendum the land in Fee good because in the estate land was contained So a joint-Joint-Tenant confirms to another Habendum the land to him and his Heirs the Fee will pass the Habendum may limit the estate to a stranger not named before in the premisses as 13. H. 7.17 a Devise to I. Habendum to him in Fee after the death of the Wife of the Devisor not named before hath an estate by implication of the intent of the party So 5. E. 3.17 a man gives land Habendum in Franck marriage with a Daughter So a Lease to A. Habendum to him for 20. years the remainder to B. in Fee good because the intent of the parties therefore a fortiori here the Habendum may explain the intent of the parties in the premisses Dieâ— Serjeant for the Plaintiff A reversion is Jus sine possessio revertendi nomen verbale quasi terra revertens after the particular estate ended proved by W. 2. of Advowsons of Churches and prayer to recite the reversion if he shall overlive the Tenant for life and bringeth wast good 14. E. 2. Fines saith remanera and not revertera where a reversion was granted before fol. 157. a reversion granted in Tail Formedon in remainder lyeth because the entire estate is not given Fitzh nat br 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass 33. H. 8. cap. ultima the not making of Leases in reversion is expounded That they shall not make Leases beginning after the first ends ad firmum dimiserunt imply that the parties intend that it shall enure as a Lease of the Demeasne for properly a man may not be Farmor of a reversion not have an Ejectione firma of a reversion No Attornment needs upon a Lease for years because it is a Contract interpretationem apportet esse benignam ut res valeat as 30. E. 2. Discendera pro Remanera 6. E. 2. recipe pro re-entry So a gift to one for life post ejus decessum to 1. in Fee good remainder for the manifest intent an Habendum giveth an estate which was not given before and to a stranger not named before and alters the estate given in the premisses as a Confirmation to Husband and Wife or to Tenant for life remainder in Fee to another good Litl 129. So Habendum by moity Litl 66. makes Tenants in common 8. E. 3.427 by the better oppinion a gift to two Habendum to one for life and after his decease to another in Fee the one shall have the entire for life onely notwithstanding the Joyncture in the premisses Otherwise fol. 153. if it be comprised within the Grant good in the Habendum as a Grant De dispositione Ecclesiae habendum advocationem grants de Soil the Wood habendum the Wood defundo domus habendum domum Manerium habendum the advowson appendant good but a Grant of Common out of the land habendum the land or herbage of a Park habendum the Park and such like are not good because not comprised in the premisses Stamford Justice rules of Exposition First deeds shall be taken most beneficially for the Grantee Secondly they shall not be void where the words may be applyed to any intent Thirdly words shall be applyed viz. expounded to the intent of the parties and not otherwise The intent directs gifts rather then the words as 41. E. 3.6 16. H. 7.10 by Fineux Grantee of annuity pro consilio hath divers faculties yet the Councel shall be given in such a faculty as was intended 9. E. 4.22 one bound to pay Recepta recipienda shall not pay what he received not but that which he hath received because the intent is taken more forcibly then the words 7. E. 3.7 Lessee of of a house which may for his profit make houses there within may not pull down or make waste for the intent was not so Sanders Justice to the same intent with the Plaintiff Exposition of Deeds shall be reasonable without wrong to the Grantor as a Grant of Corrody Estovers and Common for all Beasts he shall not have with Goats and with the largest advantage to the Grantee as a Disseisor releases all his right to the Termor he hath for his life
which ought to pay it 13. E. 4.6 The Title of the King appeareth yet he is not party the Court of Office shall adjudge for him Stamford cap. 29. fol. 96. Fitzh nat br 38. E. 31. 6. H. 7.12 and 11. H. 4.71 by customes the custom of London to retain a pledge cujuscunque fuerit until he pays binds not the King 35. H. 6.35 nonsale in market overt 35. H. 6.28 and Doctor and Student 40. nor Wreck Waise nor Stray binds not the King 35. H. 6.26 27. Custom that all distresses taken within his Mannor shall be impounded there binds not the King 21. E. 3 4. by Statutes which binds not the King where he is not named yet he shall take advantage of them As of the Stat of Waste of 9. R. 2. c. 3. of Error and attaint by him in reversion upon a recovery against Tenant for life And of W. 2. c. 7. fol. 140. If the King as Heir to his mother brings asur cui in vita the Plea shall not be delayed by the Nonage of the Heir the King not named is not restrained by Magna Charta cap. 10. upon which the Ne injuste vexes is founded for to avoid incroachment That if the King incroach more then he ought he hath no other remedy then by Petition The King bringeth a Quare impedit in the Common Pleas good notwithstanding Magna Charta quod communia placita c. 31. E. 3.18 E. 3.22 before fol. 240. Plenarty no Plea against the King 43. E. 3.14 Non obstante W. 2. cap. 5.32 H. 8. cap. 2. Of Limitations binds not the King The King may not suffer a Common Recovery for to Dock the Tail as a common person may because no precipe or Covenant lieth against him 12. H 7.12 by Constable So the King shall be in a worse condition then a subject or common person to bar the issue Anthony Brown Justice The name of King drowns the Sir-name of the King and includes it and his proper name also and this word of substance by it self may not be omitted in purchases Pattents or Writs Land given to Henry the seventh omitting King giveth nothing to him omitting his name of Baptism So a gift by him by these words in the Pattent Rex concessit That the name Politick of the King includes his natural name and when this name is conjoyned to his natural person it altereth the quality and degree of the person natural in the estimation of the Law So if that he be within age he shall be adjudged of full age and his attainder frustrate when he is King that the greater removes the Imperfection of the Lesser before fol. 138. the body politick hath the preheminence of the natural body as Land given to the King by the name of Baptism and of King also as to Henry the King and to his Heirs this shall go in succession as the Crown and if he dieth without issue the Heir of the part of his mother which hath the Crown shall have the Land also because this name King being the greater shall have the greater preheminence in the purchase and shall draw the land with him So that his brother of the half bloud being King shall have it yet here the King shall take in such body and in such estate and condition as the Donor limits and not otherwise So if a Gift had been made before the Statute to the King and the Heirs of his Body he had taken Fee Conditional as another Common person That if he dies without issue the Donor should enter without Office And if the King before the Stat. giveth to one and his Heirs of his body there the King shall not have the Reversion more then a Common person should have and there his Donee might alien after issue because the person of the King shall not rule the estate of the land but on the contrary for to make Remitter right and possession ought to discend to one person simul and semel 19. H. 6.59.58 and 45. before the Statute after Issue the Donee might do all acts of a full Fee because then he had full Fee and inheritance and not before 5 6 7 and 8. E. 3. And the words in the Statute hath given prius facia non extenditur intends not the Donees made by the Donors before the Statute but of alienations made by the Donees before the Statute and lawfully and after issue as a Lease for life and release of Tenant in Tail before the Statute good and barred the issue in Formedon after the Statute because it was not voidable neither before nor after the Act if it was according to the power that the Common Law permitted to them 44. E. 3. But the Statute extends as to Alienations after the Statute where the Gift was before So as to the Alienation before the Statute if it were not lawfull as a woman Tenant in Tail taketh Husband having issue they alien before the Statute the issue shall have a Formedon after the Statute that is a discontinuance to the wife because Covert and when she dies a right discends to the issue but if they have aliened by Fine it is good and bars the issue because there it is duly made in respect that she is examined 4. E. 2.12 H. 4.7 before the Statute the King might not Alien before issue had as a Common person might not because the King could not do wrong and his Prerogative could not alter his estate yet the person of the King might alter the course of the thing as purchase of the King shall discend to the eldest daughter onely but if land discend to the King another or Gavel kind to him and his brother the King shall have but the Moity but this Moity shall discend to his eldest Son onely because the quality of the person may alter the discent not the estate be it Fee or Tail So that the estate shall be in the King as in another before fol. 234. and before issue had the Donee could not alien after issue he might and this mischief and other Acts of the Donee the Common Law permitted to Bar issues and the Donor until remedied by the Statute So the Common Law permits other wrongs as Lessee to make waste So if one Joynt-Tenant takes all the profits of the land the other is without remedy at the Common Law Doctor and Student fol. 32. So if the King kill a man So disinheriting of another as here post prolem is a wrong suffered by the Common Law which otherwise the issue should have had and if the issue had not issue then the Donor before the Statute the Donor had not a Reversion yet the land reverted to him as land escheated to the Lord neither had he a Reversion after the Statute of W. 2. c. 1. Yet no word in the Act divides the Statute but the Construction of the Statute ex consequenti divides the estate for to execute the will of the Donor by the intent of
Title to his body accrued in respect of his signiory which is more ancient then the Apprentice 49. E. 3.3 the Kings Tenant in London Devises to his wife for life and dies without Heirs the devise is good as it seems by the Book and yet taketh not effect until after the death of the Kings Tenant and preferred before an Escheat to the King yet both their Titles comes at one instant but the Title of the Wife adjudged the elder because some part of it Commences in the life of the Devisor albeit it taketh effect after his death an Obligee is a Felo de se the Survivor shall have the Obligation by the better opinion 8. E. 4.4 Walsh Chomley Benlos and Carus for the Defendant A Dead man cannot have property for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his otherwise the Forfeiture shall be to the prejudice of others which after his death ought to have the goods and the law hath respect to the Commencement of the Act as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound he forfeits nothing and it is not Felony if then he kils another yet is of Sane memory when he died of the wound So 33. Ass 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant adjudged Treason Felonies done by others may be punished in their life time in person Goods Chattels and Lands A Felon of himself hath prevented the death by Execution and forfeiture of his Land which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance and the only means to make him forfeit that which he may forteit viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life because he took away the means of the Judgement which should have been given against him in his life as he should have if he had killed another and when Judgement by the Law cannot be given the Law supplies it otherwise as 3. E. 3. a Felon flies out of the Sanctuary and will not render himself but is killed he forfeits his Goods and the King hath the year day and waste and so an Inquest there shall be equivalent to the Judgement because he himself is the cause that it cannot be given against him by carus my horse strikes A. I sell him to another A. dies he shall be forfeit So the King shall have the Goods of a Villain which gives himself a mortal wound yet the Lord hath seised them after the wound and before the death of the Villain So the Attainder of the Husband in his life shall be a Forfeiture of the Term of his wife So this Act here and if once Title be given to the King Nullum tempus occurit Regi as in 50. E. 3. the Husband Joynt-Lessor for years with the wife receives money of one Attainted which by the Attainder belongeth to the King the Husband dies the wife her self holdeth it this found after the King hath the Term in Execution for his money as he should have had in the life of her Husband if it had been found then and now found by office shall relate to the life of the Husband Curia this is Murther here and not Homicide because upon malice prepenced and is an offence against nature the Law of God and King to kill a Subject and deprive him of one of his Mystical Members as Brooks terms it whereof he is the head and by the breaking of his peace and for the ill example given to others and therefore Felo de se Forfeits to the King all his Goods Debts and Chattels 8. E. 2.3 E. 3.301 362.22 E. 3. before f. 259. Stamford fol. 188. I. and Stamford Prerogative fol. 46. 8. H. 4.2 by Tillesâ—…y and ex consequenti cannot make Executors nor have Administors neither shall the Bishop have them because out of the Church is no cause of Forfeiture 19. H. 6.63 by Paston 8. E. 4.4 by Needham and Litl and 27. H. 8.9 by Montague and if he repents he is reconciled and hath the rights of the Church before his death yet he shall Forfeit those to the King for this offence But a Felo de se Forfeits not Lands his wives Dower nor Corrupts his bloud 3. E. 3. 22. E. 3. before fol. 259. because those cannot be without attainder in Deed. Appellee in Battail is killed he forfeits his land by Benlos and Brown because this killing is equivalent to Judgement and Execution but Weston held the contrary without express attainder by Judgement for to favor the inheritance and by Dier because the three Writs of Escheat for attainder are Register the 16. pro quo suspensus est utlagatus or abjuravit if the Appellor vanquish the Appellee in battail there his land shall Escheat because there Judgement shall be given after that he shall be hanged 8. E. 3. the husband adheres to the enemies of the King in Scotland and dies there 8. E. 3. fol. 388. or is killed in levying War against the King here he forfeits his Lands the Dower of his Wife and his bloud is corrupted for this is an attainder in Law 7. H. 4.46 by Markham and Stamford fol. 198. a. this which causeth the death ought to be said Feloniously done He that refuseth the trial of the Law forfeits Goods and Chattels as 3. E. 3. 13. H. 4.13 4. H. 7.18 Stamford fol. 183. C. he which flies for Felony Stamford Prerogativae fol. 46. A. he that challengeth without cause above 35.40 E. 3.42 20. E. 4.5 Stamford fol. 185. he that taketh Clergie if he be found guilty of Felonies which refuse the Judgement of Law 14. E. 4.17 he that stands mute of malice for those are the Acts of refusal of the Law And from the time of those which appear of Record the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger not for to be Felony because in the mean between the wound and death he suffers himself voluntarily to escape for if the escape should be Felony then that escape had been Felony at the time of the escape by Brown A. and B. Joynte-Tenants for years A. Grants to C. That if he paies 10. l. before Michaelmas then he shall have his Term yet he shall not have the Term because the condition precedes the Grant as 14. H. 8.22 by Brudnel until the 10. l. paid the Joyncture continues and it is not but a Communication but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor for there the Title is granted in deed in the estate in his life So here this Act in his life gives Title to the King and the office by relation executes the Title then and the Survivor
shall not have it from him because once attached in him as the Kings Villain and his wife are joynt-Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
Land to him for fifty foure yeares rendring Rent hath issue and dyes before any Proclamation made and after the Proclamations passe and after the Husband and Wife dyes Adjudged that the Lease is good against the issue of N. in tayle by reason of the Rent otherwise it were if the Rent had not been reserved First The Lease had not been voyd against N. T. the Father himselfe if he had survived the Husband and Wife if it were by words notwithstanding it be a present contract because it depends upon an estate for life which is uncertaine when it shall determine otherwise it is if the first had been a Lease for yeares which containe certainty there the second Lease shall be voyd for the first terme except that it be by Deed poll with Attournment in which case it shall enure by way of a grant of the Reversion if the party will use it so or by Indenture or Fine which are matters of Estoppell Secondly The Lease is but voidable against the issue because of the Rent which is a recompence otherwise it is of a charge for it shall be voyd by the Remitter and inasmuch as this contingent Lease is not avoided but continues during the Proclamations the Statute of 32. H. 8. maketh this a barr against the issue during the terme Thirdly A Lease by word made by the Husband and Wife is the Lease of the Husband onely and not of the Wife possession without title is sufficient to make an Advowry for dammage feasant protection pleaded for part and Inter alia good by the Rule of the Court A Fine pleaded by way De finalie Concordia facta fuil and not that he levied a Fine and also pleaded that it was acknowledged in the Kings Court without saying in the Common pleas is good and 22. H. 6.13 A Fine is a Record although it be not ingrossed and shall be executed Fourthly How and in what degree this Lease passe at the beginning by the Fine The estate of N. not altered by the Fine of a stranger which had not any right or Estate in the Land but is Estopped for his life to say otherwise but that he receives fee simple by the Fine Leases by word by Deed Poll by Indenture are to be considered how they shall enure As if a Lease be made by words without Deed of Lands by one that hath see simple for one and twenty years to commence presently rendring a rent and after the same day maketh a new Lease by Paroll to another for the same terme or for a lessor terme the second Lease is void although that the first Lessee surrenders or forfeits because at the time of the first Lease he hath not but a Reversion and no interest in him to contract for the possession And he that will by contract make another possessor of the thing ought to be proprietor of the same himself As if one sells a Horse upon condition that the Vendee shall pay him forty shillings at Easter and after he sells the Horse to a stranger and after the first Vendee payes not the forty shillings at Easter and the Vendor reseiseth the Horse the second Vendee shall not have the Horse because the Vendor had him not at the time of the sale the Condition only inables him not to contract for the property and possession which he then had not but if the Lessee for one and twenty years be and the Lessor the same day grant the Reversion by Deed for twenty one years to commence presently it is good with Attournment and he shall have the Reversion during the first Lease and the Rent as incident thereunto because it is another thing then the possession So a Lease by word for years to commence after the first year is good because it is of another thing then the first Lessee had because the second Lessee is to have the possession after the first possession and interest expired A man leases for one and twenty years in possession and presently maks a Lease of it for one and thirty years by word this is good for the last ten years and Executory for it for a Lease for years is Executory and severall for every yeare and day and is as to execution as severall contracts And therefore such contract may be good in part and void in part So if he Leases for 21. years to commence 10. years after and he maketh a Lease for 31. years to commence presently it is good for the first 10. years and void for the last 21. years for that he had contracted before and was certain although that the first Lease were forfeited or surrendred otherwise it is if the first Lease had bin incertain as a Lease for life there the second Lease had bin good after the Tenants life not during his life although he surrendred or forfeited unlesse it had bin by Fine or Indenture because Estoppels if the second Lease for the same years be by Deed Poll there the reversion with the rent pass by Attornment by the demise of the land by the name of Land if the possession cannot as a Reversion upon an Estate for life passeth by bargaine and sale of the land by Deed inrolled and the Grantee may use his Deed as he pleaseth and therefore may use it as a Grant of a Reversion with attornment otherwise it is if it be by word because the Reversion for years cannot be granted by word But if Lessee for years will use a Leas Poll as a present Leas where he hath not attornment the Leas is void although the first surrendred or forfeited as it is if it were by word because a contract by Deed Poll passeth not that which another then injoyes But if the second Lease were by Fine or Indenture and the first surrendred or forfeited it is good for if one leases land to me which he hath not at the time by Fine or Indenture and after purchase it or it desends to him I may enter and occupy by Estoppell and I shall be compelled by Estoppell to pay the Rent because every one is concluded to say but that the land passeth in possession for fourty five yeares by Estoppell and shall be good in estate to have the other yeares because they are not incurred in the life time of the Tenants for life for if the Lease for fourtie five yeares had been by word and the particular Tenant for life had died the Lessee should have it against the Lessor If the estate given by the Fine is defeated the Fine shall be void although the Proclamations passe after for the Fine is the Principall and the Proclamations but accessary to the Fine as Tenants in taile disseised levies a Fine to the disseisor Sur conusans de droit or sur release and dies there the issue if he enters before all the Proclamations are passed is remitted and is not harred for that 32. H. 8. which saith that Fines after Proclamations bars tayle intends of Fines remaining
not because he had no recompence So in 17. E. 4.1 In Trespass for the taking of wheat the Defendant pleads That the Plaintiff sold it if he liked it upon view he should have it paying 40. d. and afterwards he saw it liked it and took it this is no good justification because he doth not alleadge payment so here So contracts conditional are good when they are performed but before performance they are onely communications Brook Recorder of London for the Defendant Where matters are to be tryed in the Civil Law there ought to be two witnesses here not necessary For where tryal is by twelve men because the Inquest may give a precise Verdict where there is no Testimony or Verdict or Evidence or Evidence be contrary to the Witnesses as in 14. H. 7.2 the Inquest acquit one indicted of murther he is arrained and acquit the Jury shall say who killed him although they have no witnesses and so witnesses are not necessary but where the matter is to be tryed by witnesses onely for if the witnesses were so necessary then it would ensue That the Jurors should not give their Verdict contrary to the witnesses where the Law is meerly contrary for when witnesses for tryal of the Fact joyn with the Jury if they cannot agree with the Jurors the Verdict of the 12. shall be taken and the witnesses rejected wherefore this point is clear enough And as to this which hath been said by Bradshaw That the deposition of Da. will make against us for that he saith That S. shewed to him that the entry was not made for more then 2000 Kintals Sir this saying is nothing to the purpose for if he cannot say something to prove the issue in which he cometh to depose then it is neither with us nor against us but it is of the same effect in Law as if he had said nothing or that he knew not of the matter and so this point is also clear enough And as to that which hath been moved also by Mr. Attorney That he ought to shew what rate in certain Sir this needs not here because it is expressed in the Statute 12. d. of every 20. s. and of general Statutes every one shall take notice And he argued and said That the agreement here shall be good and is within the intent of the Statute for in many Cases Gifts and Grants made will not be certain at the beginning and yet shall be good for that there is a mean to reduce them afterwards to certainty and yet the nature of Gifts and Grants is to be executed presently and every Gift is an agreement between the parties and so is every Grant and then if Gifts and Grants which are also agreements and the nature of which is to be executed properly at the time of the making of them it shall be good notwithstanding they are incertain at the beginning à fortiori Agreements Executory of things shall be good where they are incertain at the first and to prove that such Gifts and Grants shall be good notwithstanding their incertainty at the first there are many Cases and therefore if the King at this day grant over certain Lands which have come to his hands before and Grant over to the Grantee such Liberties Priviledges and Jurisdictions howbeit that the King knoweth not the certainty of the Liberties c. yet the Grant is good So in 9. H. 6.27 The King grants to the Dutches of York an Island with all Issues and Amerciaments c. there it is holden that the grant is good yet the King knew not what Issues or what Americiaments shall be afterwards forfeited but for that that when they shall be forfeit they will be certainly known and so hath a means to know the certainty of them this is the cause that the Grant shall be good And so in 5. E. 4. the King Granted to one called Garter the Office of the King of Heralds cum seodis prosicuis ah antiquo c. There this Grant purports a certainty of the Fees and Profits belonging to it and therefore good And so in 30. H. 6. The King Grants all such Lands as came to him by Attainder c. it is good although it comprehends no certainty And so if the King will pardon all Riots Pardon is good howbeit it comprehends no certainty 21. H. 6.43 A Parson grants to me his Tythe-wooll the next year or perquisites of his Court the Grants are good So Perkins 17. Feoffment of two Acres to hold the one for life the other in Fee without saying he shall have Fee if he lose both by default he may have Quod ei deforceat for the one and Writ of right for the other So if one grant a rent charge to another the Grantee may avow or have a Writ of annuity So in 9. E. 4.36 per. Litt. Grant 20. s. or a garment good because certain by the will of the Grantor So a Lease for so many years as I. S. shall name is good So Perkins Fol. 17. If I have a black and white Horses and I give one of them to I. S. this gift is good notwithstanding the incertainty by the election of the Donee And although it is not concluded who shall weigh and when yet it is good because there is an Officer in every Port which keeps a Beam and ought to weigh And although the Statute do speak of an agreement certain yet Law the reason aswaies exempts something out of the prohibition of the words of Statutes as 15. H. 7.2 by Keble a Prisoner which breaketh Prison by the words of the Statute is a Felon but if he break it when it is on fire not So 14. H. 7.29 Stamford 25. cap. 5. Jurors severed by a great Tempest shall not be Amerced and their Verdict good So W. 2. cap. 3. Gives not to a Fem Covert Receipt but where the wife is ready to answer yet the wife received by prayer in aid 20. H. 6.48 and there she is received where she is not ready to answer because otherwise she shall loose the recompence by warrantie So W. 2. cap. 1. say That Dones shall not alien yet 5. E. 2. is intended of their Issues so here for to avoid mischiefs c. Harris the Kings Serjeant to the contrary And he argued as the Kings Attorney did that is to say That the evidence which proves the agreement upon condition warrants not the issue which shall be intended a general agreement as if the Derendant in Trespass plead not guilty and give a licence in evidence or in formedon in discendre upon a gift in free marriage if the gift is traversed and a Deed is shewed of the gift in free Marriage the Remainder over in Fee or upon traverse of a Lease for years alleadged without Deed and the Deed is shewed in evidence this evidence warrants not the issue So here an agreement conditional maintains not the general agreement intended in issue the Collector could
this shall remain is a limitation of time when this shall vest and not a condition by Hinde and Montague 6. Admitting that it be a condition yet a remainder may depend upon a condition By Hales Hinde and Montague and adjudged accordingly 7. The Plaintiff hath not conveyed to himself Title to have benefit of the breach of the condition if it be broken By Montague Pollard Serjeant for the Plaintiff Except that the Form of the Plea is sufficient 1 Because he doth not aver his continual residence after the Remainder happened but after his entry which may happen to be long time after and so although that he hath performed the words of the condition which hath not satisfied the intent thereof yet he hath not performed the condition because the intent was That he should have all the Mannor So 21. H. 6.10 A man is bound that his Feoffees of the Mannor of D. should grant a Rent of 40. s. to the Plaintiff He had three Feoffees and two of them grant the said Rent to him and there all the Justices said That it shall be intended all the Feoffees so that alwaies the intent of the condition ought to be as well performed as the words of the condition and here the intent of the condition appears to be That Hospitality shall be kept upon the Grange continually from the beginning to the end of the Term which is the death of the Husband and the Wife and here he hath not shewed that he entred within as short time as he conveniently could after the death of the Husband and Wife and therefore because he hath not shewed and averred this he hath not shewed the performance of the condition and therefore his plea is not good For in all cases where the time is issuable he ought also to shew it certainly and therefore in 32. H. 6. it is held That if a man plead a Lease for years made to him that he ought to shew what day the Lease was made because it is issuable So in 33. H. 6.44 In debt by an Executor the Defendant saith That the Testator made the Plaintiff and one R. his Executors at L. the which R. is alive and not named judgement of the Writ and the Plaintiff confessing it saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff his sole Executor in Middlesex and the Defendant saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff and R. his Executors after this time and the Plea of the Defendant was not held good for that the day on which the Plaintiff and R. were made Executors is uncertain So 3. H. 6.33 In Trespass the Defendant pleads in Bar the day of the retaining of the Plaintiff who traverseth the Bar and the Defendant enforced to shew the day certain Matter in Law As to the matter in Law it seemeth to him that the Remainder is void because it ought alwaies to be limited to take its effect after the partricular estate ended and not during the particular estate for if it be limited and appointed to take its effect during the particular estate then it shall be utterly void As if A. Leases to B. for life the Remainder for life and if B. dies that it shall remain over to a stranger in Fee this Remainder is void for that it is appointed to take effect immediately after the first estate for life ended for if the Remainder in Fee should commence then it shall avoid the Remainder for life so if a Lease be made to two the Remainder over in Fee after the death of the first of them this Remainder is void because the Survivor shall have the Land So in the principal case it is given to the Baron and Fem for their lives the Remainder to the eldest son for life upon conditon That if the eldest die living husband and wife that then it shall remain to the Defendant for life which cannot be for the first estate at this time continues and if the Remainder shall be good it drowns the estate of husband and wife and therefore the Remainder void and also for that it is limited to commence upon condition which enures alwaies in privity therefore if a lease for life be made rendring rent and upon condition That if the Rent be arear that then it shall remain to a stranger in Fee if the Rent be arear and not paid the remainder is void for the Remainder which commence upon condition is not good otherwise it is if an estate be made for life upon condition That if the Tenant for Life dies it shall remain over this Remainder is good because that it commenceth upon the Determination of the I state the which is certain and therefore no condition because conditions are alwaies incertain and may be performed or broken and as our Law is for to know the time certain when the things pass from one to another and namely Free-hold because the Law hath it in greater estimation then other things and so to prevent contention hath ordained Ceremonies to be used as in every Feoffment Livery and in every Grant Reversion or Rents c. That Attornment shall be made the which are points certain containing time and by them Estates pass Rules to know when Remainders are good The Law hath appointed that every Remainder shall have three things by the matters aforesaid as Notes and Rules certain for to discern when good The first is an Estate precedent made at the same time that the remainder Commences and that the particular Estate continue when the Remainder vests and that the remainder be from the Donor at the time of Livery and if any of the said three things fail the Remainder is void And therefore for the first point if the Lessor confirm the state of his Tenant for years the Remainder in Fee this Remainder is vold for that the Estate for years was made before the Remainder So if a Lessor disseise his Tenant for Life and after makes a new Lease to him for Life the remainder in Fee this Remainder is void because it is a Remitter to his Estate So an Estate precedent was not made at the time of the remainder and therefore the Remainder is void So the Heir endows his Mother Remainder in Fee by reason of Relation and so the precedent Estates are made before the Remainder appointed Secondly That the particular Estate continue when the remainder vests as 21. H. 7.12 per Frowick Lease for Life upon Condition That if he doth not such an Act that his Estate shall cease and that then the Remainder over is void because the Estate precedent is determined before the Remainder appointed and the Remainder must vest during the particular Estate Thirdly because the Remainder passes from the Lessor at the time of the delivery as Hales Hinde and Montague say and as it is proved by the Cases before cited So Perkins 12. and 19.
Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
day of the entry for a Bar good to a Common intent is not good because parcel of the Substance is left out and because Durante termino is for all the Term for that the time which is parcel of the Substance of the Bar ought to be shewed as the Obligee infeoffees fee another before M. he must shew in certain what day he did infeoff him So 3. H. 7.3 the Lord which Leaseth within the year entred for Mortmain for otherwise it shall not be intended for to enter within the year if he doth not set it forth but the Bar is good where such things are limited because that by special and not by general intendment they are omitted as a Feoffment in Bar is good to a Common intent yet it may be That the Feoffor was within age or in prison but such special things shall not be intended by the Law but shall be shewed As to the matter there are principally two things upon which Arguments may be made viz. Maxims and Reasons the Mother of all Laws and the Maxims are the Foundations of the Law and Conclusions of Reason and therefore are holden as firm Principles and Authorities of themselves One is a Remainder shal not be limitted except it be to a person capable at the time as to a Monk profest which afterwards is deraigned after this the Tenant for life dies the Lessee for life shal not have the remainder because he was not a person able at the time of the remainder limited to take it so a remainder to him That the particular Tenants shall name and after he nameth one yet the Remainder is void for the cause aforesaid But 32. H. 6. if the remainder is limited to the right Heirs of Jo. S. who is living and he die before the particular Tenant is good because I. S. shall be intended then dead also because by all presumption and intendment of Law I. S. may have an Heir which the Law will appoint in despight and so will be certain and therefore the Remainder good but shall not be good where it stands indifferent if he to whom the Remainder is limited will be a person able or not Another Maxim is That a Remainder may pass out of the Lessor at the time of the Livery for that Richel saith in Litl 162. the Remainder is void for this cause amongst others so here it passeth not by the first Livery because a Condition precedes the Commencement of the Remainder viz. if W. die living the Husband and Wife then the remainder to the Defendant and so passeth not at the first Livery and therefore void Brook Serjeant to the contrary As to the uncertainty of the time of the Entry the Bar shall be intended the better for the Defendant which is That he entred immediately and the Bar sufficeth which is good to a Common intent And therefore about 20. E. 3. it is holden That if one plead in Bar That one I. S. died seised and R. S. entred as Son and Heir to him whose Estate he hath this shall make the Bar good and yet it may be that he was not Heir for it is not expresly said That he is Son and Heir but that he Entred as Son and Heir and yet in as much as it is pleaded by way of Bar the best shall be intended for the Defendant so here And he argued besides much in effect as Cook did Sanders Serjeant for the Defendant The Bar is good to a Common intent and the best shall be intended for him which pleads it for a Plea in Bar is alwaies made for two causes The one to enforce the Plaintiff to make his replication The other is to compel him to joyn Issue which cannot be joyned upon the replication as it may upon the Bar and then the certainty shall be in it and not of necessity in the Bar and therefore the Bar good if it be good to a Common intent As in Assise the Tenant pleads in Bar a discent to the Plaintiff and to two others and that he hath the state of one and it is a good Plea because it is intended lawfully yet he may have it by Disseisen and then he is a Disseisor to the Plaintiff also for he cannot be a Disseisor to one except he be so to the other So 27. ass 31. in an Assise by the Heir the Tenant saith That the Father of the Plaintiff being Tenant by the courtesie and now in life Leased his Estate to his Father which died and he is in as Son and Heir Judgement if Assise and held a good Bar yet he doth not say That he was the first which entred and yet good So 21. H. 6. 17. here fol. 26. as to the Remainder it shall be good because it is a principle that it shall be taken most strongly against him which made it and therefore in 31. H. 8. If a man gives to a man and to Heirs without his it is Fee yet he giveth not Fee expresly So 18. E. 3. 28. after 170. A good Remainder by word That after the Decease of Tenant for Life the Lands shall return to A. and B. in Fee So a Remainder to the right Heirs of I. S. in Life passeth presently and shall be in abeyance rather than void and that if shall be to the benefit of the Lessee against his own Livery and limitation as alwaies the Law interprets words strongest against the Speakers as in 40. E. 3. 5. 49. E. 3. 1. A Termor counts that he left this as good as he found it and the Wind blew down the House it is not waste but Covenant lies for the special Agreement alters the Law and maketh his words to be taken more strongly against him So the Law taketh the Acts aforesaid strongly against the Makers And therefore if I. give to B. Land upon Condition That if he Marry my Daughter he shall have Fee if he Marries her he shall have Fee for by the Livery it taketh Commencement and by the performance of the Condition it taketh perfection and in the mean time it is ambiguous So a Lease for years upon Condition That one moneth after he shall have Fee he shall have it after the moneth accordingly for the thing passes according to the Covenant most strong against the Donor So a Lease to two upon Condition That if the one die within seven years that then after the death of the other it shall remain to a stranger good and Privies and strangers are all one 24. and 32. he differs because he hath an Estate first given to which the Condition may be annexed and Livery and by imitation shall be taken strongest against him which makes it Three things one shall have by Remainder First he shall have a Remainder to vest Secondly a Possession in Law and Thirdly a Possession in Deed if he be capable at the time of the Possession in Law cast upon him it sufficeth 28. against it as 17. E. 3. 29. and
18. E. 3. 15. a gift to one and his first begotten Son and he hath no Son then but afterwards he hath is a good Remainder to his Son So 39. Assise Pla. 20. a gift to Husband and Wife and to one Heir of his body is a good Remainder yet no Heir to the gift if he be in being when the Possession in Law is cast upon him but a Remainder limited upon contrariety is not good fol. 24. according but the other cause that Litl assigns for that it vests not at the time of the Livery is no cause as is proved by the cases aforesaid because after the Alienation and gift it may not remain to another And the other cause that Litl alleadgeth is because it vests not at the time of Livery which is no cause So a gift to A. and his Heirs so long as B. shall have heirs of his body Remainder to C. in Fee is void for the contrariety because a Remainder cannot depend upon a Fee determinable So a Lease for life to A. upon Condition That if B. pay 20. l. to the Lessor that then immediately it shall remain to B. is void for the contrariety because A. ought to have it during his life But if it were to remain after the death of A. to B. then it were good because no contrariety there and here if W. dies living the Husband and Wife that then it shall remain to to the Defendant is not intendable immediately in their lives but that it should remain as it ought to remain viz. after their deaths and so there is no contrariety and therefore good As to the Condition which is subsequent if he would dwell there c. because it hath two intendments the one that he should inhabite there all the Term and the other to some time during his life shall be taken strictly and the more strongly against the Lessor viz. That he inhabites there at some times during his life which sufficeth as the Feoffee upon Condition for to pay 10. l. to the Feoffor and no time is limited he hath during his life So to serve him in such an Office and saith not how long he hath during his life Harris Serjeant to the same purpose And as to the Exceptions he said That a Condition subsequent and which goeth in the Defeasance of the Estate as here he that claims the Estate shall not shew it but the other which will defeat the Estate But where the Condition precedes the state he shall shew who shall have it because enabled thereunto as if I grant a Rent Charge upon Condition That he shall do such an Act there the Grantee shall avow for the rent without shewing the thing done because it is a condition subsequent and defeats his Estate But if I grant That if he doth such a thing that then he shall have the rent he shall not avow without performance shewed because he is enabled by this to the rent 14. H. 8. Wheeler Grants his Term to one upon Condition That he shall obtain the good will of the Lessor and then shall have it he shall not have it until he hath shewed the performance of the Condition and he affirms the remainder upon Condition to be good Hales Justice If he would c. is a Condition and that the Plea is insufficient because the Defendant hath not averred his continual residence after the Remainder happened for during the Term shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term 27. H. 8. 19. by Audley so the Feoffees shall be intended all the Feoffees and if he hath a reasonable excuse he ought to shew it fo 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife and entred so soon as he had notice which he shall shew in certain that the Justice may trie it as 22. E. 4. 27. Tenant for Life Leases for years and dies The Lessor bringeth Trespass against the Lessee who saith That in as short time as he could after that he had notice of the death of the Tenant for Life he chased his beasts forth of the land and said also that the Trespass was between the death of the Tenant for Life and the chasing out of the beasts and held no plea for by the death of Tenant for Life the Lease for years was determined and no man bound to give him notice and there it is holden that he ought to say That such a day he chased out the beasts and might shew that the Lessor died in another County and so he could not have so soon notice and this shall be tried by the Justice if the avoidance was in reasonable time So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth common intent is that which hath more vehement presumption and intendment then any other intent hath as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death good yet might have goods were not the Testators which are assets after the Debts paid but the most common intendment is That he had no other goods except those which were the Testators but intendment indifferent the more strong intendment the one way or the other and therefore ought to be pleaded in Bar as 13. H. 8. 15. by Willoughby the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not So if he pleads a release made after the Obligation it is not good if he shews it not by express words that it was delivered after it shall be intended that it was delivered when it bears Date But on the other part it shall be intended also That the other would not bring an Action if it were delivered after and therefore shall be shewed which intendment stands indifferent so here A Demurrer all times after the Remainder happens or not is incertain and therefore because he hath not shewed this the Plea is nought As to the matter in Law it seemeth to him that the remainder is good for a man may pass the thing in question when where and how he will if it be not against Law nor repugnant as here the limitation if the remainder is not against Law for the remainder need not pass forth of the Lessor so 29. for upon the Agreement first had by Act made afterwards Franck-Tenement or remainder may be transferred and devested from one vested in another as a Lease for life remainder for life upon condition That it shall be void if he doth not such an act the remainder before the Condition broken is in him when broken it commeth to the Lessor So a rent or Reversion passeth by Attornment not by the Grant presently So 1 H. 7.31 by Brian a remainder to the K. when the Deed is inrolled then it shall pass and relate
to the Livery So in the case of Plessington 6. R. 2. where the Condition was That if the Lessor die within the Term the Lessee shall have for life and there holden that his estate shall be enlarged if the Lessor die So Disseisen to the use of I. passeth not a Free hold of I. to I. without his agreement so here A remainder passeth when W. died not before by force of the words annexed to the Livery So by Litl a confirmation to the Husband and Wife Tenants for life passes the remainder to the Husband yet it passeth not at the time of the first Estate and the diversity where Fee upon Condition is appointed to privy and whereto a stranger is but a conceit which is worth nothing 29. according 24. to the contrary and is privity because it reserveth out of both so it shall bind him in remainder and also he in remainder shall have waste and so is privy to the particular Estate and the Lessor also and the words then which shall remain shall not be intended presently to destroy the particular Estate but shall remain as a remainder ought to divest then and is to be executed after their deaths as if Donee in Tail doth such an Act then to remain to his right heirs which vests when the Act is done and after the Tail ended shall be executed and not presently upon the Act done to avoid the Tail so here There is not any repugnancie or prejudice to any but a thing when it is done made in prejudice of another shall be void as a remainder that he shall have the land in the life of the particular Tenant So 21. E. 4.44 The King discharges an Abbot That he shall not be a Collector when any Titles should be granted by the Clergy of England and Canterbury Grants Tythes provided that the Collector returned by the Bishop shall not be discharged by the King and the Bishop returns the Abbot Collector there holden that the Grant by the Clergie in this point viz. to charge persons exempt is void because it is in prejudice of others And so the remainder here shall be void rather then a shranger shall have prejudice by it but for defaults in the pleading the Plaintiff ought to recover Hinde Justice to the 3. exception the death of the particular Tenant shall not be shewed which is onely conveyance of the execution of the remainder and is not Traversable nor Issuable To the first and Second exceptions he needs not shew his continual residence after the Remainder is fallen nor the day of his entry because it is a Condition subsequent and goes in defease of his Estate and he which hath benefit by it ought to shew it as 29. H. 6.22 the Grantee of an annuity pro concilio impendendo shall have the Annuity without shewing that he hath given Councel for that the shewing of it is not beneficial to him and the denial of Councel defeats the Annuity so he agrees to the diversity in case of Annuity 15. H. 7.1 bont fol. 25 by Pollard when one shall be promoted and therefore the shewing hereof that which is surplusage and the imperfectness of it shall not make the Bar vitious and the Remainder here by him commenceth not upon Condition but it is a limitation and explanation from the time that it first begun for nothing or words makes a Condition but such which restrains the thing given as If I. Lease for life upon Condition That if the Lessee die or maketh waste and I. recover the place wasted or any parcel of it That I. shall enter into all for it is a Condition for that part in which no waste is done because it restrains and defeats that part And if it be a Condition here yet the Remainder thereupon is good if it commenced and vested at any time during the particular Estates 24 29. 32 34. for when he hath Fee-Simple he may Condition with it as he pleaseth if it be not against Law as if I. Lease for life upon Condition That I. S. paies to me 20. l. that I. shall enter then the Remainder is void because the entry avoids the first estate and then no particular estate continues upon which a Remainder may depend Brown Justice to the same purpose The entry of the Defendant shall be intended immediately for this is the most common intent and a Bar good to a common intent shall be intended that he entred presently after his Title accrued and to the matter in Law hold that the remainder shall be good upon Condition Montague Chief Justice to the same intent The entry of the Defendant shall be intended presently for this is the most common intent and a Bar good to a common intent is good as 21. E. 4.83 in Assize the Tenant pleads a discent to him as Son and Heir and he entred and it was held good yet the Father of the Plaintiff might have abated and died seised and then the Plaintiff is in as Son and Heir in which case the Tenant might not enter But this is not intendable but the most common intent is That the Tenant entred immediatly after the death of of his Father So 9. E. 4.12 in Debt against five Executors at the Distress 3. makes Default 2. appears and pleads Recovery against them two of 300. and that more they had not in their hands Exception taken That because by intent there should be five Executors two might have abated the first suit and so the Recovery not duly had but holden good because it may be that then they two onely administred and then they did lie against them two onely and the most common intent is that it might be so rather than at first to lose advantage to have abated the Writ and therefore the Plea in Bar was held good and Execution duly had and if it were otherwise the Plaintiff ought to have shewed it So 21. E. 4.8.1 In formidon in discender The Tenant pleads the release of the Demandant without Warranty in Bar yet might be made by him in the life time of the father and then it is no Bar but it shall be intended to be made after the death of the Father if the Demandant replies not to the contrary but if he which pleads in Bar is bound at a time certain he ought to shew the day of his Act certainly 24 26 27. as the day of entry for Mortmain so that it may appear to be within the year So if one justifies for Common between Lammas and Candlemas So if one justifies by Warrant by Licence by Authority he alwaies ought to shew the time certain of his justification so that pleading in abatement of the Writ or a plea after the last continuance ought to plead certainly and these are observed as principles in our Law but he which pleads in the Negative ought not to plead certainly If he would dwell c. It is like that it is not a Condition here because it is not
a Recovery as a Fine is without Attornment for the habere facias seisinam recites cum A recuperavit seisinam suam c. because the Husband raised the use First it is his purchase and so within the words of the Statute and if not yet it shall be within the equity and nevertheless it is penal Sanders for the Defendant The Statute here is penal because it goeth in avoidance of Estates and abridges power and therefore not equitable And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty because he vouches an Infant and yet it is adjudged 18. E. 4.16 If he maketh a Feoffment over this Feoffee shall vouch because penall against one shall not extend to another So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before for five years shall not take away the Entry of the disseisee yet if one Abator die seised within five years this discent shall take away the Entry And so if Tenant for life be disseised and the disseisor die within five years and the Tenant for Life dieth he in Reversion or Remainder may not Enter because he was no Disseisor to them and to the discent they had no Title to Enter but the Tenant for Life and taken strictly because it abridgeth the Liberty given by the Common-Law By inheritance is understood Land by dicent as it is proved by a case in 7. H. 4.5 and a cui in vita abated because it was quam clamat esse jus Hereditatem suam whereas it was his own purchase And by 4. H. 5. cap. 3. which speaketh of Lands by purchase or by discent and the disjunctive prove the difference between the words Purchase intends Land by gift or purchase which is by Title Disseisen is not purchase because without Title Now because the Plaintiff hath in the Replication said That the Grandfather of the Defendant was seised in Fee for to prove the Defendant to be within the first Branch the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession for the manner of coming to the Land is Issuable because it may be by Discent Purchase or Disseisen And a Joincture made by a Disseisor to his wife is out of the Statute Recovery without Execution is not a discontinuance Harris Serjeant argues to the same intent And he taketh also that Covin cannot be where the Title is good except that wrong be done by him which hath the Title and this ought to be shewed for here in respect that the Title is confessed to be good in this That it is not traversed nor confessed and avoided this Recovery may not be averred to be by Covin for this avernment is repugnant in it self and it cannot stand together to say that she did right by Covin And as to the Statute he taketh the case here to be out of the words of the Statute And note thou that he argued to all the other points moved to the same purpose that they were arguod before Molineux Justice It is a vain thing to aver this specially which is apparant as the Covin and therefore when the Tenant infeoffes his Son within age by Collusion the Lord shall seise him for a Ward without shewing this Collusion specially So if the Husband will confess an Action the Wife shall have Dower by the Common Law proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant but it was doubted if the Recovery had been by Default but here the Action had been tryed by the Verdict of 12. men the cause of the Covin ought to have been shewed because the Law giveth credence to it As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted because the Law presumes the Verdict to be true untill the Reversal be tryed upon Error in Deed or Record so that the Law hath an indifferent judgement of it viz. to be true or false And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict Also Covin upon a good Title is prohibited because the Statute of 11. H. 7. is generall And so Covin generally averred here without falsifying of the Title is good as 4. H. 7. cap. 20. saith That if a Recovery be pleaded in Bar of a popular Action the Plaintiff may aver it was by Covin generally by the Warrant of the Statute As to the second exception the Stat. expounds it self to be intended of a Recovery without execution Every Fee-simple is an inheritance and then she had an use in the inheritance of her Husband and held that the Wife held the inheritance of her Husband that is to say his Land in use joyntly with her Husband and so within the words of the Statute and if not it shall be within the equity and intent of the Statute and he took without question that the Heir in Tail might enter presently and our the Wife which is Defendant and so held the Plaintiff should recover Hales Justice to the same intent And first to the Covin the Replication is good without shewing cause of it And the Statute is for frail inconstant women and will not make them Judges if the Title of Action be good or not 18. R. 2. cap. 17. gives receipt to him in Reversion where the Tenant for Life is impleaded by Covin of the demandants that the Tenements shall be recoverred and he in Reversion because it speaks generally of Covin 2. H. 6.14 and 11. H. 4.3 For this cause there it sufficeth to say That Tenant for Life pleaded faintly and pray to be received without shewing cause otherwise it is of Covin at the Common Law and 11. H. 7. would have limited the pain to fained recoveries expresly if it had intended so much And the Statute prohibits the Covin onely be the Title good or faint for faint Recoverie by Covin the issue in Tail may falsifie before Warranty made 20. years after the Disseisen yet it commenceth by Disseisen by the intent As if the Father Disseiseth the Son to the intent to make a Feoffment with Warranty to Bar his Wife Recovers against one which outs the Tenant by Covin yet she had not good Title of Dower is a Disseiseress and Covin is apparent here because he never took view voucher essoin or other delays which he might The Statute saith That the Recovery shall be void whereby it is not intended that it shall be executed and shall not be intended to be by Disseisen without shewing The words of 11. H. 7. explain the intent That such Wives who have Lands in use or use in Lands are within the Statute Recovery against Tenant in Tail was good onely for his life before this Stat. and therefore comprises use here because the Stat. shall not be made in vain for Tail in use may do as great prejudice as Tail in possession and so the
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.
be a general because the not referring to the science of the Judges as he doth if he saith generally contra formam Stat. c. a Statute hath no words in vain Whiddon for the Plaintiff A general Statute shall not be recited as 27. H. 8. of Conveyance of the possession to the Use So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line So an Executor of an Executor shall have account without recital of the Statute of 25 E. 3. cap. 5. So 5. H. 7.17 Information for Liveries good without reciting of the Statute Misrecital of the surplusage shall not make the mattor bad as 21. H. 6.1 by Newton one as an Executor shall not bring an action of Debt upon a Contract made with himself he shall not shew the Testament for that the naming of him Executor is surplusage So 33. H. 6.19 by Danby in Detinue against two as Executors They shall not plead that another is Executor with them because they are not charged as Executors But Detinue is cause of Action and the naming of them Executors is surplusage A man shall not aver that which by the Statute is made apparent as the Lord shew that he entred into the Land within the year because his Tenant aliened to the Dean and Chapter he shall not aver that it is Mortmain because it appeareth now nor here that it is a pretenced right because he counts that the Defendant nor his Ancestors c. were not in possession the space of a year before the Lease and then is pretenced Conveyance to the Action as the Lease is here shall not be pleaded So certainty is the substance it self as appeareth 34. H. 6.4 by Prisot in decies lantum If the Plaintiff sheweth such part of the Record as conveys him to his Action it is sufficient without shewing all But a Writ judicial ought to recite the Record certainly out of which it issueth because the Record is the substance and effect there and not only the Conveyance a stranger to the Deed or thing as the Plaintiff here is to the Lease that he pleads shall not shew the certainty of it as 35. H. 6.8 after fol. 148.13 H. 7.19 By Fineux au ancient Major in Trespass justifie the taking of goods because the Plantiff was out-lawed without shewing Pattent because he is now as a stranger to them for it belongeth to the successor and not to him So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1 by Strange Lessee in Debt against him for Rent reserved may say That the Estate of his Lessor was upon Condition for which broken such a one had entred before the Rent arear Judgement if Action without shewing what condition Sanders to the same intent The Statute here although penall yet because it is beneficial for the Common Wealth viz. for to avoid maintenance subordination of witnesses c. Things taken out of the Works thereof taken by equity and the words obscurely expounded most strong for the Common wealth and words are but the image of the Statute and the life thereof in the minds of the makers and Expositors of it and which approach nearest to their minds are the true Expositors and words should be inclinable to the mind So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus viz. as to right to be bound but as to the possession is a discontinuance before fol. 57. and after fol. 137. So the heir may demand the heritage of his Mother aliened by his Father if he onely Levied the Fine Yet Gloucester cap. 3. saith Whereof no Fine is Levied intends lawfull Fines by the Father and Mother before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee Yet 21. E. 3.21 shall be delivered to the extendors because prised too high it shall he delivered to the praisors for the price after f. 172. So if the Plaintiff be nonsuit in a second deliverance the Defendant shall recover Dammages by the equity of 7. H. 8.4 Return irreplevisable shall be awarded and so by this means the Plaintiff is barred and so the intent of the makers directs the words and equity of Statutes Lessee for years hath a right Estate and Title to Enter right because by Bracton he hath jus utendi fruendi in alieno libero Tenemento an Estate because a Remainder in Fee is good upon a Lease for years and a Remainder is not good without an estate precedent Title because 7. H. 7.11 a Termor may falsifie a faint Recovery against his Lessor by the Common Law So 9. H. 6.64 by Strange I grant to B. That if my Tenant for life dies living my self that he shall have for 10. years B. may maintain because he hath colour yet he hath nothing and is in doubt if he shall have it for 10. years or not Then if the Leffee for years hath such interest that by the Common Law he may maintain there is no need of a remedy for all other the Statutes before avoid maintenance the suit depending for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after Account shall not abate for default of form if it hath substance 36. E. 3. cap. ultimo After fol. 190. If one be found guilty of an offence which is pardoned by Parliament Judges ought not to proceed to judgement yet it is not pleaded because they are bound to take notice of it for it appeareth to them by judicial knowledge 26. H. 8 7. by Fitz. H. But if A. kill B. in the presence of the Justices and C. is found guilty of it 7. H. 4.41 by Tirwit and Gascoin the Justice ought to respite judgement because he knoweth the contrary but not to acquit C. because he cannot judge of his own knowledge 22. E. 4.47 where it was granted by Parliament That A. should have a Writ with Proclamation out of the Chancery against one G. to answer divers trespasses which were contained in the Act of Patliament and the Writ was abated by award because it did not mention those Trespasses in certainty because a private Act and there not recitall or misrecital shall hurt And as to the cerainty of the Term he shall not shew it because he is a stranger to it As the Defendant shall plead Joyntenancie of the Plaintiff without shewing of whose gift All the Court say That Declarations ought to have certainty So that the Defendant may know to what thing he ought to answer after fol. 193. and 3. H. 7.12 So 3. E. 4.21 In Debt for a sallary against a Successor declares That he was retained with his Predecessor and shews not who retained him because a stranger may retain him the County shall abate by the better opinion for the incertainty good by Brook Laborers 39. and the truth is That
one shall be the words of all in the operation of the Law Catline To the same purpose because words equivalent to a Reservation for the Law takes words of substance and not usual equivalent and words of substance is usuall and the Law regards the effect and substance more then form the words and substance will supply the form rather then the intent of the parties shall be void as Lessor and Lessee for life makes a Feoffment it shall be the Feoffment of the Lessee and confirmation of the Lessor yet no word of Confirmation before fol. 59. And so if a Tenant for years and the Lessor make a Feoffment in Fee this shall be taken the Livery and Feoffment of the Lessor and surrender of the Lessee and yet there is nor any word of surrender of the Lessee but shall be so taken by the judgemen of Law So a rent granted by Tenants in common is severall because estates several yet words joynt after fol. 161.171 and Perkins fol. 22. so renuntiavit communiam 9 H. 6.35 after fol. 162. it is a a Lease because where words are equivalent in substance the Law will appoint how they shall enure and in Contracts it is not materiall who speaks the words if the other agree for the Law respects it and the words which prove the assent and have substance sufficient And therefore 21. H. 6. if the words of the Obligee make a Condition viz. the Obligee vult concedit if the Obligor steterit arbitrio yet usually they are the words of the Obligor for Condition Brooks cond fol. 58. abridge this contrary So an annuity pro consilio or a rent for Composition of Tythes 9. E. 4.16 enure as words Conditionall and a Covenant that the Farmor shall not be impeached for waste amounts 21. H. 6.47 to hold without impeachment of wast 17. E. 3.9 award assigns land of greater value then the Dower to the Widow and the second Husband who granted a rent by the same Deed to him with distress for the overplus and the Deed recites this the Wife Lessee after the death of her husband because the Grant to pay the rent for the overplus of the land a good reservation for otherwise he shall not be bound contrary before of a Grant for reasonable Dower and no mention made that the land was more worth then the Dower because without consideration there and is a Collateral thing and so words shall enure upon Acts between the parties concerning the principal matter and Collateral matter differ also the summ is certainly recited and the rent shall be this summ for the sentence stands good without words rent or farm where those words shall be adjudged void rather then the certainty expressed to be void as 4. E. 4.29 I. is obligee to B. Solvendum to I. yet good and the Count shall be to be paid to B. for the intent of the parties makes this good So a Grant of Remainder by the name of Reversion of the land a good Grant notwithstanding the mis-terming of the thing because the certainty of the land appeareth but by a Grant of all Reversions a Remainder doth not pass because the grant is in generalty and so certainty by special Terms and by general differs So where he saith if all rents shall be arear and where the said rent of 37. l. 3. s. 4 d. in certain So words containing generalty and incertainty and specialty and incertainty differ to pay 10 s. at Michaelmas 1599 and at the same Feast of S. Michaelmas next ensuing other 10. s. there the summ is taken the like for that it cannot be the same if it come after so one word taken for another supplies the intent of the parties 2. That the Covenant and Grant for not payment that the Lease shall be void is not a Condition by Ramsey fol. 133. because it is not spoken by him which gives the estate as if two Joynt-Tenants make a Lease upon Condition and that then one Lessee enters he shall not enter but into one moytie for that he gave no more and the words of one because the Law saith he speaketh only for his moytie shall not make this Condition to another which speaks not And also the Condition is subsequent in time of the Statute which was executed before for the Demise and habendum maketh the Lease contrary by Stamford and Walsh fol. 135. for that the parties are so agreed by Indenture and the one party and the other assents and therefore all one as if he had reserved the Conditional payment which is called Rent and is a Condition annexed for to avoid the Estate Litl fol. 70. So here because the summ certainly named be it a Rent or summ in gross for it is not requisite that the Lessor should speak but if the words of the Indenture had intendment to avoid the estate it sufficeth and the words shall be taken agreement of every party and not spoken by one party more then another as provisoes are or si contingal and all the words of a Deed shall take effect at one instant because the delivery is at one instant and it hath not several times proved by 10. ass 15. where several Deeds delivered at one and the same time the one being a Lease for years the other a Charter upon Condition to have Fee if disturbed before fol. 34. So 9. H. 6.35 Lease without Impeachment of Waste provided That he makes not voluntary waste in houses is Conditional and waste lieth because all made by one Deed if by two Covenants yet it is not spoken by the Lessor more then the Lessee but shall be taken as an agreement of both the parties Gawdie Justice to the contrary fol. 137. Defeasance of a thing Executory as an Obligation Recognisance or Warranty 43. Ass fol. 44. good of a thing executed not As 43. E. 3. Defeasance of a release unless delivered at one instant nor of a Lease executed by Morgan it is Conditional fol. 138. For Covenant lyeth not here because that Covenant lyeth of a thing to come and to be done by the person of some one and not of a thing to be executed in it self and therefore if the words enure not to the effect to determine the first Lease here they shall be void because it may not enure to another effect It is not a Condition by Brooks because it is not restrictive and compulsarie as are Ita quod non if the Lessee doth such an Act or if it happens or proviso but a proviso alwaies maketh not a Condition as in Dockwraies case 27. H. 8.15 because voluntary for Leessee without words compulsary of the Lessor Covenants and Grants That he will remove c. by Catlyn fol. 142. is a condition because it implies the intent of the parties to be Conditional yet it hath not the usual words as a Feoffment to pay 20. s. or instruct his Son in such an Art For it is a Condition because the parties purport such
intent So proviso That the Lessee make such a thing So here it shall enure as a Condition in whatsoever manner it be called it shall enure as a Determination of the Leasee because it was made at the time when the Lease began If the second Lease admit it be a Condition shall be good before re-entry or not Ramsey fol. 133. It is not good because after the Condition broken untill he enters he hath but a Title because he may not grant and the Lease continues and the possession also And therefore 22. E. 4.37 Lesser shall not have Trespass untill entry 14.3 Ass 11. Distress estop his entry because it affirms the continuance of his Term. Where a man may enter he ought to enter or not have the thing and where he cannot enter he ought to make claim before he shall have it As a Reversion granted upon Condition which is broken the Rent is extinct without Claim for that he may not have it by Claim by Stamford and Walsh it is good fol. 136. for that the first Lease for years commenced by words without entry it may be determined by words without entry Lease for life not 2. Mar. fol. 142. because Livery and Seisen which gave the State and Entry which ought to be avoided by entry upon Condition broken it is expressed here how the Lease shall be avoided viz. by entry and there if he enters not or doth an Act which excludes him to Enter as the making of an acquittance or distraining there the Lease is good But the words here are utterly extinct dissolving the Lease without Entry and no Act after shall make it good and the words of the entry here are surplusage and take away the effect of the first words As to 22. E. 4. The Lessor cannot punish him because the entry was first with his assent and when the Lease ended he was Tenant at sufferance but he may make a Lease to another and it determines his will by Gawdy it is not good Void here shall be expounded void by Entry as W. 2. cap. 1. before fol. 82. Finis ipsojure sit nullus viz. to the right yet it is a discontinuance So by 8. H. 6. cap. 10 Outlary shall be void in Indictment or Appeal if no Capias in the County where he dwelleth Common Law 19. H. 6.2 expounds it shall be void by Writ of Error he that hath a possession in Law may Lease before entry after fol. 142. after a stranger hath abated not because another hath possession in Deed. So a Lease by the Husband for years shall not be void of the Wives land after his death before entry of the Wife for possession ought to be defeated by possession and possession ought to be gained by entry Catline fol. 142. b. By the not payment the first Lease is determined without entry because it may be made by word without other circumstance otherwise of Free-hold and therefore may make a Lease but cannot have Trespass without entry as Heir before fol. 137. he may make a Lease before entry but cannot have Trespess before entry 11. H. 7.22 So a Lessee may grant his Term before it commence 22. E. 4.37 yet he shall not have Trespass before entry 37. H. 6.18 To shew two matters where both are effectual and answerable makes a double plea as 3. H. 6.32 Feoffment up-Condition to infeoff the Heir and averment of the Collusion in Wardship of the body So 20. H. 6.7 Seisen in his Ancestor and himself by avowing So 22. H. 6.37 Two continuall claims viz. by the predecessor and the Plaintiff for to avoid a discent So 19. E. 4.4 by Vavisor and Brian Two discents in Fee bars not two discents is not double in Tail because one answer viz. he gave not makes an end of all for if he cannot shew one thing without the other it is not double nor if the one is pursuant to the other as fully administred and so nothing in his hands for the last is but a conclusion of the former But the other Justices held the aforesaid two exceptions effectual for the causes aforesaid and that the Rejoynder was vicious wherefore they said That it was in vain to argue them and therefore in consideration of them onely without respect to the other matters rising upon the Rejoynder and before debate they awarded for the plaintiff Throgmorton against Tracie M. Mar in the Common Plaes second deliverance A Man makes a Lease for life and after Grants the Reversion of the Land habendum the land at Michaelmas after the determination of the first Lease for life for one and twenty years and adjudged a good Lease for years of the Reversion and of the Land Reverting and that the Habendum stood well with the premises because that the land is the degree and state of the Grantor was included in the premises by the word Reversion and the degree and estate excluded by the Habendum and the other part onely granted viz. The land Reverting and so was the intent of both the parties Reversion is compounded of the remnant of the estate which is left in the Lessor and of the land Reverting and carties with him the land to be afterwards happening in possession and the land is the substance of both and by the grant of this both pass So the Mannor which is compounded of Demeasnes and Services and of stegno aqua priscarie 4. E. 3. or gurgite which consists of water and land The Habendum which is not pursuant to the premises is void as a grant of a Mannor Habendum a Rent parcell of the Mannor because in the grant it was Rent service and in the Habendum it is Rent Seck So a Grant of Services Homage Fealty and rent Habendum the rent to the Grantee in Fee this habendum is void because in the grant the rent was contained as a rent Service but here it is rent Seck Grant of it after the death of I. S. void for the nature of a Grant is that the thing Granted ought to pass presently after fol. 155. for it is a thing in possession and is granted as a Reversion where no Reversion was of it If one maketh a Lease of land for years and after maketh a feoffment of the same without livery it passeth not the Reversion by Attornment Quere because the Grant of a thing which includes all interests in it shall make the Reversion to pass but the Reversion granted shall not make the possession to pass 38. H. 6.34 and after fol. 399. The King Grants a Mannor to which an Advowson is appendant for life the Advowson passeth not nor if he grant the Reversion Habondum cum advocatione it passeth not because in gross because it was not mentioned in the first Grant but the Reversion of an Advowson may be parcel or appendant of or to a Mannor in possession not possession of or to the Reversion of a Mannor the Habendum passes not a thing not parcel nor appendant
Litl fol. 108. before fol. 140. two Tenants in Common grant 20. s. it shall enure as several Grants 34. ass fol. 11. Grants totum piscariam salvo stagno molendini sui yet the piscarie passes not for the stagno shall be excepted and not the piscarie because he hath a Reversion in the Propriety of the land and possession of the Ter-Tenancy The nature of an habendum is to give in large or qualifie Malitiosa juris interpretatio herere in verbis c. the words are but witnesses to the contract reversion includes land by all Brown Justice To the same intent of the Abbot and Covent and of Smith and his wife was to have the land pass as a Lease after the paticular estate ended and not otherwise and from that hour that their intent was to have the word reversion enure that way it seemed to him That the Law would warrant it for the land is included in the reversion for if it was not a man by Granting of a reversion could not have the Land in possession after the particular estate ended And a Feoffment of a Carue habendum the Mannor of D. is good if the Carue maketh the Mannor And if land is parcel of an Office it shall pass by the Grant of the office Much more he said tending to the effect to make the Lease good and so the Plaintiff shall recover Brook Chief Justice to the contrary Estate in lands includes land it self land is a generall word and contains Grantor and reversion particular words containing a Decree where one estate onely intent shall be inclined and ruled by the Law and not otherwise and intent nevertheless in certainty of words as 9. H. 6.35 Renuntiavit communium and not to whom void before fol. 122. 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage Fealty and Castle gard the Lord grants all Services Castle gard passeth not because he granted not the Castle But in Testaments the intent shall be onely observed and rule the Law because the Teastator had not time by presumption to ordain all things according to the Law In conclusion he agreed that Judgement should be given for the Plaintiff Hill against Grange A Man maketh a Lease for years of a Messuage and an hundred acres of land appertaining to it 3. Mar in Common Pleas in Trespass c. by Deed indented the 6. of August rendring rent yearly payable at our Lady day and Michaelmas or 10 days after with clause of re-entry and after Grants the reversion and the Grantee the last instant of the 10. day after Michaelmas demands the rent and enters for not payment and it was adjudged that the entry was good for these reasons 1. Land may not appertain to a Messuage because both are things corporate simply otherwise of Advowsons waies c. which are things incorporate but things Corporate or Incorporate may pertain or be parcel of a thing compounded as a Mannor Castle Knights Fees Honors Forrests Monasterie Rectorie fol. 170. a. But here the land passes as appurtenant but by the intent and phrase of the parties as they have said usually occupied or let c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual notwithstanding the other feast be first named 10. E. 3. the Abbot of Osneys case 3. The demand of the rent the last instant is good 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition or Covenant fol. 173. a. and shall not be intended of the Pattentee of the King 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words Things of distinct and several natures the one is not parcel of or appendant to the other as 8. H. 7.1 by Keeble a Warren cannot be pertaining to a Leet nor a Leet to a Hundred nor one Office to another nor land to other land to a thing Compounded they may as a Mannor Knights Fee Honor Monastery Castle and a Village or to words general as are Oxgang a yard land a hide of land which contains land meadow pasture wood c. Messuage is a single word consisting of a thing special and not Compound nor a general word for that 27. H. 6.2 Land not parcel or appendant to a house and by demand of a Messuage in precipe land shall not be recovered and therefore pass not by the Grant of a House by the Serjeants on the part of the Plaintiff 23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances Land passes not a Mannor and things made appertaining to it are made by usage and continuance So 2. H. 7.28 land belonging to a Forrest and Warden of the Fleet and the house of the Master of the Rolls and divers farms to the Guardians of the Castle of Colchester and one Office to another as the custos brevium giveth one of the Offices of prothonatories and use and continuance is cause of it A man Leases a Messuage and land rendring rent be ought to demand the rent at the Messuage because most worthy Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant Norwood against Read Action upon the case upon assumpsit made by the Testator 5. Mar â—…n K. Bench. lieth against the Executors adjudged For that the Testator could not gage his Law otherwise it is where he might gage his Law for the ignorance that the Law imputes of it to Executors and therefore there they ought to Demur but if they plead in Bar which is found against them they have lost the benefit of the Law and take Conusance of it whereof otherwise their ignorance shall excuse them 39. H. 6.19 12. H. 8.11 27. H. 8.23 Woodward against the Lord Darcie IF the Debtor make the Debtee his Executor and leaves him assets to satisfie the debt 5. Mar. Reso by the Judges of both Courts and dies the Debtee may pay himself by way of retainer by the Court 12. H. 4 21. according And in such case the Action is not utterly exstinct by the Administration for that the Law intends that he is satisfied by retainer before and so a thing in Action altered to a thing in possession by Act in Law for satisfaction of the party which hath no other remedy but if he hath not sufficient assets for to satisfie the debt the administration there extinguishes not the Action because that he cannot retain for parcel and have his Action against the Heir for the residue but ought to do the one for the other at his peril Wrotesly against Adams A Lease for 80. years of a Farm Tr i El. in Com. Pleas. Ej. firme the Lessor granted the Reversion of the Farm to a stranger to have and to hold the Farm for 60. years after the
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
others is exclusive of those comprised in the first saving and the exception And because he is heir and so within the first saving he is excluded out of the second saving by the word other by Walsh and others if a Tenant for the life of another the Remainder to B for his life the Remainder to A. in Fee is Disseised the Disseisor levies a Fine and five years pass after proclamations if he for whose life and the Remainder for life dies he shall have new five years because it is another estate and the first remains to him but by Weston and Catline otherwise because not another person also this right which first Discends to Stowell here is not such a right as the Statute intends to give new five years by the second saving for a new right for it was once right in the Ancestor and given to him before And the word first is of great purpose put into the act and this word joyn as it ought to every of the words subsequent viz. Accrue Remain Discend or Come excludes Stowel of the benefit of the second saving and 1. R. 2. cap 7. touching Fines hath all the words of 4. H. 7. touching the purview and body of the Act but the word First which is added to 4. H. 7. as a thing thought very necessary and so he that wil take benefit of the second saving ought to prove four things 1. That he is another person Secondly That the right first came to him Thirdly and that it came after the Fine ingrossed and Proclamations made Fourthly That his right is before the Fine levyed as where right or Title shall first accrue And therefore if the elder brother be professed when the Father died seised and the youngest is Disseised at the levying of the Fine with Proclamations and five years pass and after is deraigned he shall be aided by the second saving for the cause aforesaid So if the Dissesor of a Mortgagee levies a Fine with Proclamations five years pass after the Mortgagor pay or tender the Money he shall have years after his payment or tender because his Title first accrued after the Proclamations by the payment or tender by matter before viz. the condition Plowden sâ—ems that he is at large and not bound to five years because at the time of the Fine levied no wrong was done to him nor to the estate which he claims So a husband levies a Fine with Proclamations and after the five years past dies and from thence by this second saving his wife shall have five years to sue out her Writ of Doweâ— for her Title accrued by the death of her husband upon cause before the Fine viz. their inter-marriage and seisin of her husband by Plowden she is at large and not bound to five years because it was a real wrong done to her at the time of the Fine or before because her Title accrued after the Fine viz. by the death of her husband So Tenant cess one year before the Fine and another year after the Proclamations the Lord is at large to have his cessavit 20. years after for it is not within the purview of the Act because he had not Title at the time of the levying of the Fine but it accrued afterwards viz. to the end of the two years where first it should remain as to the Donee to his heirs Females of his body Remainder to his Son in Fee Levy a Fine with Proclamations and die then the Son shall have five years So Tenant for life Remainder in Fee Levies a Fine with Proclamations and dies then the Son shall have five years So Tenant for life Remainder in Fee is Desseised the Disseisor Levies a Fine and five years pass and Tenant for life dies he in Remainder shall have new five years Tenant for life and Feoffee Levies a Fine five years pass entry for Forfeiture is gone but there by Walsh he shall have a Formedon after the death of the Tenant for life if he sues it within five years by Catline otherwise because his right accrues not first or Remain after the death of the Tenant for life because he might have entred before and therefore is excluded from the benefit of the second saving Tenant for years by Statute or Elegit is ousted and a Fine with Proclamations levied and five years pass now none may enter nor he in Reversion nor particular Tenant and shall not be aided by the second saving for both might have entred before the Proclamations pass because they all are comprised in the first saving and therefore he in Reversion shall not have years after the Term ended as he shall have where the particular estate was Free-hold and a Termor is bound by this Statute of 4. H. 7. by the word Interest in the saving which word may comprehend Term First it shall Discend as by Dier Discontinuance of Tenant in Tail Levy a Fine with Proclamations and five years pass Tenant in Tail dies the issue in Tail shall have five new years but by him and Catline if the Disseisor of Tenant in Tail Levy a Fine c. the issue is bound there for ever because the right was present to the Tenant in Tail when the Fine was Levied and he and the heirs in Tail comprised within the first saving and therefore barred because they pursued their right within five years according to the first saving by Southcot but Weston contrary and by them every issue in Tail shall have a new five years but by the said Chief Justice the word first added as it ought to be to it shall discend will not admit every discent to have five years the Remainder or Reversion in Tail upon an estate for life discends to his issue there the issue shall have five years by the second saving after the death of Tenant for life by Weston and Dier if the Son purchase and dies the Daughter enters and is Disseised the Disseisor Levies a Fine five years pass the Son born after shall have new five years by the second saving because it is he to whom the right first Discended after the Fine and Proclamations So if the Feoffee of Non sane memory Levies a Fine and dies from thence his Heir shall have five years for the reason aforesaid First shall come as Tenant in Tail Levy a Fine five years pass and then dies without issue from thence the Donor shall have five years for to bring his formâ—don in Revertor because aided by the second saving because it is him to whom the right first cometh after the Fine and Proclamations and in all those cases there is a new right or Title accrued Discended remains or comes after the Proclamations which was not in any other before upon cause made before the fine And disseisen here is no such cause which shall make Stowel to have such right which was not in any other but first in himself and so it is not here because the right was first
in his grand father which is saved in him and his heirs by the first saving and therefore shall not be saved by the second And ths makers of the Act intended not to aide them by the second saving which were aided by the first nor on the contrary But to comprehend by the one saving those which were out of the other saving and therefore Stowell is not saved by the second saving because he entred not by his own right nor the right Discended Discended is such not such matter before the Fine that the makers of the Act intended and he shall not be aided by equity for no equity here because universality is more regarded then particularity one hath two defects as to present right or when future right happeneth all ought to be removed from him before the five years commence and if it happeneth within a moneth after in any of the defects again and so continue all the five years or to the end of the first moneth of the five years his heir dying within age before the five years Commence they do proceed and the not claim within the five years shall bind the party and his Heirs as well as if they had been void of all defects during all the five years if they had no defect when the Fine was Levyed but had before the last Proclamation and so continued when all the Proclamations incurred he shal not be bound to five years next after the last Proclamation but shall have new five years after all defects removed by Plowden Successors shall not be bound by 4. H. 7. by Fine or negligence of their predecessor as Bendlos would have it Sir Henry Nevils Case THe Arch Bishop of Canterbury Grants the Office of the keeping of a Park â— 2 Elia Exch upon a Petition with a Rent charge of three pounds per annum for the exercising of it to Sir Edward Nevil the Father and Sir Henry the Son and after Sir Edward the Father was attainted of Treason and the Park and the Mannor out of which the rent was Granted cometh to the King and Sir Henry being Survivor exhibits his Petition to the Exchequer for the Arrearages of the Rent incurred before and to be paid the Rent from this time forward and had Judgement according to his Petition in the Exchequer without suing to the person of the Queen 1. If an Office of skill and confidence which requires diligence and attendance be granted to one for life as the Custodie of a Park Stewardship Bailywick c. he may not Grant this over 21. E. 4.20 nor forfeit this to the King for Felony nor Treason otherwise it is if it be granted to one and his Heirs in Fee 1 H. 7.28 there he may grant this over because it is so intended by the generalty of the estate but where it is granted for life onely there no other is comprehended in the Grant but the Grantee himself so that he cannot make a Deputy without words and therefore much less may he Grant this over but if such Grantee for life be attainted of Felony or Treason or imprisoned or go over the Sea or becomes of Non compos mentis c. so that the Grantor hath prejudice by his absence or default of attendance this is a Forfeiture to the Grantor for the not doing or misdoing notwithstanding that he be pardoned after or the other defects removed but if the Grantor hath not any prejudice by his absence or default of attendance the Grantee shall have the Office again after his Pardon amp c. but otherwise it is of the Kings Grantee in such case for the Office Cesse and the person of the Officer was once discharged by the attainder and the King may grant the Office to another and he being the first Grantor shall not be kept out by his Officer by such Grant but otherwise it is in the case of a common person for the Queen shall be unknown of her Officer by such Grant of the Kings and then the confidence and other causes of the first Grant shall be broken by it which would be inconvenient 2. If one Office of skill and confidence be Granted to two for their lives and the one is Attainted of Treason this is not a Forfeiture of the Office but that the other shall keep it presently and the Fee also But admitting that the King shall have it during his life which is Convicted of Treason yet after his death the Survivor shall have it Adjudged but if the King Grant such Office to two and the one committeth Felony or Treason there the King shall have the entire Office by Forfeiture for that it shall be extinct in him and goes by way of discharge and is a thing entire but in the other case it is but a Transmutation from one to the other and the one shall not prejudice the other for his Free-hold 3. The King shall have an Office of service of an estate of inheritance by Forfeiture for that he may Grant this over although that he himself cannot use it but otherwise it is of an estate for life 1. H. 7.28 The Fee here shall not be Forfeited for that the Office shall not be Forfeit to him to whom it is appropriated for the Office is appropriate to the peeson and the Fee to the Office and so the Office and Fee are Concommitant as Estovers to be burned in such a house or Common granted in such a place to one for his Cattle Levant and Couchant in his farm of D. are made appurtenant and Estovers cannot be severed from the house 5. H. 7.7 Nor the Common from the Farm except by extinguishment 26. H. 8.4 Annuity pro consilio impendendo because it is a thing by reason of the person Annuity granted by reason of an Office is Determinable with the Office and continues with the Office as an incident and inseparable yet the estate in the Annuity is one and the other in the Office 7. E. 4.22 before fol. 161. if an Annuitty pro concilio c. be Granted to two and the one of them be attainted the other shall have the Annuity because it cannot be Forfeited Empsons Case if the King Grants the Office of Sheriff to two and one of them is Attainted the entire Office is Forfeited and the Survivor shall not have any thing because the Patent and the Office are entire and may not be severed and the King shall make it to extinct the Patent and to make a new Officer for he cannot be an Officer adjudged Breretons case The Earl of Leicesters Case THE Earl of Leicester was indicted before eight Tr. 1â— El. in K.B. Tr. against Haydon upon a Commission awarded to 15. and after a new Commission was awarded to the Major of London and others to send for the indictment taken before the 15. whereas in truth it was taken before 8. of those onely and thereupon arraign the said Earl and moreover the second Commission recites That he
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
it ought to touch this blood alwayes But then Heires of the Wife of the Father purchasor shall have it if others fail because Wives by the marriage after the purchase are of Aliance to the blood and not of the blood of the Purchasor otherwise it is of marriage which precedes the Purchase And so no marriage is to be regarded but that of the Father and Mother of the Purchasor and no marriage after shall make a man inheritable to this Land By the Court Wast assigned in digging of Gravell suffering Houses to bee uncovered whereby the Timber rotted and permitting a wall of stone to fall to ruine and a Meadow to lie continually overflowne and covered with water Sir Thomas Wrothes Case KIng Henry the eight granted and Annuitie of 20 l. to Sir Thomas Wroth for his life Tr. 15. El. in the Excheq Petition to be Usher of the Privy Chamber to the Prince Edward his Sonne without the words Pro nobis heredibus successoribus nostris And dies and after E. 6. dies The question was if the Annuity should be determined by it or if notwithstanding it the Annuity shall have his continuance And it was adjudged that the Annuity continues during his owne life and he shall have the arrerages 1. If the King reciting a thing executed which is not materiall as for the good service which he hath done grants an Annuity c. there the party in pleading shall not take averment of it by 21. E. 4.48 and 26. H. 8.1 But otherwise it is if the thing be materiall and executory as that he hath released there he ought to averre that he hath released it which is in benefit of the King 2. The not doing of the service here to the Prince shall cesse the Annuity as well as if the service had bin appointed to the grantor himself as an Annuity granted by the King to a Physician or Schoolmaster for to give Physick or teach a Stranger shall determine by not doing of it which is the cause of the grant and executory as the Annuitie it self is 3. The discent of the Crowne and State Royall to the Prince makes him King and alters the degree of his Person because another Majestie there and requires Officers of greater Honour to doe service to his politicke body And therefore by this Act of God the Law discharges Sir Thomas Wroth from his service and therefore without averment that he had served King Edward all his life time is not to purpose otherwise if the service be feaseable to his naturall body onely as Physick Surgery Musick Grammer c. for the naturall body alters not by assumption of the Royall estate from its infirmities 4. That the death of the King E. the 6. hath not determined the Annuity although that the service be discharged by the death of the Person to whom it is to be done For this discharge cometh by the Act of God otherwise it were if by the Act of the Party as if he had withdrawn himself from the Princes service when he was Prince So of an Annuity granted for life pro consilio impendendo to the Grantee which dyeth yet the Annuity remains but shall cesse by refusall of the Grantee for to give when he is required because his default and the Grantor hath not means by Law to compell him to give counsell 5. The Grantee of the Annuity is good although that it wanteth these words his Heirs and Successours for that it is granted in the body Politick and charges this body which never dies but alwayes hath continuance as a Grant of an Annuitie or Obligation made by the Abbot and Covent is good without successor because the Corporation charged which alwayes continues otherwise it is of a naturall body for there the Heire shall not be charged if he is not named and hath asserts as by Obligatton of his Father grant of Annuity or warranty because as the body naturall which grants is taken away by death so shall his charge be if the King without words heires and successors grant to one licence to Alien and die the Grantee cannot Alien in the time of another King 2. E. 3. and 3. E. 3.29 For that it is a licence onely otherwise of a licence which implies an interest as to an Abbot of a Purchasor in Mortmaine for there the King gives his Signiory upon the matter as it seemeth 2. H. 7.6 Inheritance of the King or a thing in which he is intituled of Common right as Lands Conusans of Pleas out of the Kings Courts or account by a Sheriffe shall not passe against the Heires and Successors of the King without speciall words Heires and Successors as the grant of a County Absque compoto nobis reddendo yet he shall account to the Successor because it is Executory of Common right to the Crowne otherwise of a thing newly created or a grant which is executed presently in the party yet the perception is Executory as a grant of a Faire Market Warren c. without words Heires and successors good Pension or Annuity granted by the King untill he be promoted by us are spoken in the politick body by which the Heire may promote and then the Pension is extinct by Sanders cheif Baron who said as Plowden reported was resolved by the Sages of the Law 1. Mar. that Patents without words pro nobis hered successoribus nostris granted for the corporall exercise of an Office or service are ordered to be good Eiston against Studd A Woman Tenant in fee P. 16. El. in the Common Pleas Eiect firme taketh Husband and the Husband and Wife levies a Fine Sur Conusans de droit come ceo the Conusee grants and renders the Land to the Husband and Wife and the heires of their bodies the remainder in fee to the right heires of the Wife the Husband hath issue by the Wife and dyes the Wife taketh a second Husband and they leavy a Fine to their owne uses for the terme of their lives without impeachment of wast the remainder to the Husband and his heires for sixty yeares Remainder in tayle to their issue the remainder in fee to the right heires of the Wife and the issue of the first Husband enters for the forfeiture made by this second Fine by the Statute of 11. H. 7. Cap. 20. And adjudged no forfeiture and yet is directly within the words but not within the intent for that the Joincture and advancement came not originally from the Husband or any of his Ancestors to the Wife but on the contrary from the Wife to the Husband yet the Land shall be chargable to Statutes and Recognisances which the Conusee had acknowledged before and to the dower of the Wife of the Conusee which grants and renders it But yet is not within the intent of the Statute because the advancement cometh not from the Husband nor his Ancestors and therefore to restraine Women to dispose of their inheritance after the death of
and the Defendant shew a matter in Law which upon the Law discussed proves the said matter alledged by Plaintiste true or false there he ought not to take a traverse for then the Jury shall try this matter in Law which properly belongeth to the Court to discusse Per Curiam 1. Appropriation of an Advowson ought alwayes to be made to a body Politicke or Corporation Spirituall being Patron of the said Advowson and such Parson onely is capable of an Appropriation and no other and by the Law such Parson in Parsonee may not grant over his Incumbency no more then an Incumbent of a Parsonage presentable at this day nor any other shall have it because it is appropriate to his Parson 3. E. 3.1 The Case of the Templers that by their dissolution the Appropriation was dissolved And yet was first ordained when such Parsons by incroachment and sufferance were made Parsons in Parsonees which could not say Service nor Administer the Sacraments as Deane and Chapter Nuns Abottesles c. which was a thing horrible by the Lord Dyer 2. Every Appropriation shall be made by the King for the losse which he may have otherwise as King by reason of the Tenure and by the or dinary Supreame or Inferiour for the interest that they ought to have in seeing the Cure served by the Patron to whom the Appropriation shall be made and those three are Actors in the Play as Dyer said But here the Appropriation made by the King which is also Supreame ordinary by the Statute of 25. Hen. 8. which transfers to him the Authority of the Pope is good As the Deane of Wells Assigne to the King good by the Court because he is Supreame ordinary by the Statute of 25. Hen. 8. in Sir John Pollards Case against Waldron and here the King doth three things First he grants the Advowson Secondly he maketh the Appropriation as Supreame Ordinary Thirdly he giveth his consent as King fol. 501. if time of Lapps be devolved to the King hee shall present as Supreame Patron in respect that the Advowson is holden of him mediately or immediately If the Appropriation be made without License of the King be the Advowson holden of him or of a common Parson the King shall seise the Advowson and shall have the Presentments untill hee be satisfied of the Fine by his Prerogative and as in the name of a distresse 21. E. 3.5 And there it is said That the Appropriation is not Mortmaine because it is not any transmutation of the possession nor Substraction of Services but the Tenure remaineth as it was before 3. The Appropriation may be made by words future when the Church is full although that the Incumbent hath the Fee and Inheritance of the Church and none shall medle with it which is his in his life but otherwise it is of present words and the proper time to appropriate it is when the Church is void because then it may be executed presently But the Patron cannot present when it is full by future words scilicet that he shall be incumbent when the Church shall be void For that he hath not Title to Present before the avoydance If the King presents to an Advowson and appropriate the Church to a Deane and Chapter which maketh a Lease for yeares in the life of the Incumbent this is a voide Lease after the death of the Incumbent by Plowden for that at the time of the making of it they had nothing in the Rectory and the Appropriation was not executed untill after the avoydance 4. An Usurpation may not be upon a Parson in Parsonee for that he is perpetuall Incumbent and two Incumbents cannot be in one Church 38. H. 14.39 H. 6.21 and 27. and there cannot be ousted by wrong nor have right of Advowson for he is not out of Possession and if one presents to such an Advowson Appropriate and the Clerk is admitted Instituted and Inducted by six moneths yet the Church is not become Presentative nor by any other Act except onely where the Parson in Parsonee himselfe presents for there volemi non sit injuria by Manwood and Dyer the dissolution of the Corporation to which the Advowson is Appropriate is a disappropriation of the Advowson and the Lord of whom it is holden may Present If a Deane and Chapter seised of a Mannor to which an Advowson is Appendent and the Church is Appropriate to them and after they make a Feoffement of the Mannor with the Appurtenances this disappropriates the Advowson for by some it passeth Appendent by the common Law because the Appropriation destroyes not the Appendency But now by the Statute which maketh lay Persons capable of Parsonages Appropriate they are severed from Mannors by the intent of the Act and by the grant of the Parsonage Appropriate which now may be granted to a common Parson and the Advowson shall passe Foure answers to the foure exceptions of the Plea First The first exception is because the Patent is not pleaded with a Non obstante of the Statute of Mortmaine and therefore not good by Dyer But Plowden held the contrary for that the Grant is good untill Office found and then hee may well pleade a licence for that time also the Patent is Excerta scientia which countervailes the clause of Non obstante for that implies that the King was knowing of the Law for ignorance indeed may be allowed in the King ignorance in Law not So if the King grant Lands to his Villain the Land passeth untill Office but it is no infranchisement because if he was his Villain or not is a forrain matter and not apparent to the King And the Kings Grant shall not enure to two intents where one is forraine matter The clause of Non obstante is requisite in a Patent to be Sheriffe for life 2. H. 7. because the Statute saith by precise words That he shall not be Sheriffe above one yeare So a Patent to a Murtherer for pardon and that he shall not finde sureties for his good behaviour ought to have a Non obstante 10. E. 3. because this Statute avoided the Patent by precise words without such surety But the Statute of Mortmaine doth not so here but giveth entry or seisure for a paine admitting the Grant to be good The second exception was that the Patent made not them Parson by expresse words by Dyer The second exception was answered by Plowden who said because the words amounted to as much and for that the Kings appeared to be so that it should not be void because Ex gratia mero motu The third exception made by Dyer was that they did not plead that they entred But Plowden answered that because the Patent granted them power to retaine c. And also they pleaded that they were seised which implies an entrie and in the Common Pleas use upon possession executory shall say seised onely without saying that he entred and was seised The fourth exception that was made
by Dyer was for that they pleaded that they were seised of the Rectory of the Parsonage of the Deane in the right of their Cathedrall Church of Worcester whereas it should be in the right of the Church of the Deane Plowden answered the fourth exception thus That they plead the seisen of all the intire thing otherwise if it were of parcell of it or things pertaining to it for there they should plead that they were seised of it in the right of the Church of the Deane But Judgement was given for the Bishop Eare against Snow and others TEnant in taile and his Wise which had nothing in the Land suffer a common Recovery in 23. Hen. 8. to his owne use in Fee H. 20. El. in the Kings Beuch Fiect firme the Husband by his Will in writing deviseth the Land to J. S. and after the Statute of 27. H. 8. is made and after that he publisheth his Testament of new and dies the issue in taile enters J. S. dies his heire within age the issue in taile dies the heire of J. S. enters upon the Son of the issue in taile And adjudged lawfull And no Remitter but that the estate taile shall be barred by the Recovery notwithstanding the overliving of the Wife for the Wife was named onely to be barred of her dower and forasmuch as she had not any estate nor no losse she shall not recover any estate nor any recompence and besides the estate recovered is an estate taile as the estate lost was to which the Wife was a stranger and although she shall have the recompence in value yet the issue in taile might enter and out her because the losse is his and not to the Wise and he shall not be estopped by conclusion of his Ancestors by joining his Wife in the Voucher and besides it is uncertaine what estate the Wife shall have in the recompence Welkden against Elkington LEssee for yeares devise that his Wife shall have and occupie the terme for so many yeares as she shall live H. 20. El. in the Common Pleas. Trespas and after her death he gave and bequeathed the residue of the said yeares of the said Lease then not expired to his Son and his assignes and made his said Wife his sole Executrix and dyed the Wife entred agreeing to the Legacie and after aliened the terme and the alienee granted it againe to the Wife and the Wife died within the terme And adjudged that the Son or his Administrator shall have the residue of the terme Assent to the particular estate shall reach to the Remainder also but an assent to the devise of a rent shall not extend to the devise of the terme and the devise is made of a rent or common out of the terme and after of the Land it selse payment of the rent by the Executor or his sufferance for the Devisee to use the common is not execution of the terme because the terme is one thing and the profit out of it is another but where soure yeares of a terme is devised to one and the remainder to another there otherwise it is because all is of one same thing fol. 621.524 so the same fol. 541. First The devise to the Wife for her life is not an absolute devise of the intire terme but conditionally or upon limitation if she lives so long for if she dies her Interest is determined by the limitation and devise to him for his life by implication because the residue of the terme is devised to the Son after the death of the Wife in which is implied that the Wife shall have it for her life and also determinable by the limitation as above said and the devise to the Son shall be expounded to precede the devise of the Wife and so both shall stand fol. 522.523 624. Secondly The devise to the Wife and Son is of one same thing setlicet Of the Land it selfe and the Wife shall have the Collaterall occupation onely of the Land by the devise but the very Interest and terme of the Land she shall have conditionally and so two parties of one terme the one to the Wife and the other to the Son and then the execution of the devise in the Wife shall be execution of the Legacie to the Son Thirdly The Alienation of the Wife hath not devested the interest of the Son which is accrued to him by the Condition or limitation nor extinct the Condition or limitation which shall transferr the interest to him Executor being legatory of a terme by the devise of the Testator enters generally he is possessed as Executor because it is his first title untill he maketh election to agree to the devise A Termor grants his terme to one for life the Grantee shall have the intire terme by Popham because for life which is a greater time then for yeares But Quere if he dies if the Grant be determined As Lessee for yeares grants a rent to one for his life he shall have the rent during all the yeares if he shall so long live which time of life includes all the years which is a lessor terme yet if he dies the rent shall be determined by Plowden fol. 525. and the Grantee hath but a Chattell in the rent for he may not have freehold out of a Chattell Lessee for yeares grants all his terme which shall be arreare after his death this is voide for the uncertainty for by the reservation of the terme for his life he hath reserved all the terme and therefore the Grant which is but one sentence without any Habendum is voide 7. E. 6. by devise good otherwise if he had granted his terme habendum after his death there the Grant is good and passeth the terme presently and the habendum is void for the Repugnancy But fol. 156. it is void 9. H. 58. A man maketh a Lease for ten years after maketh another Lease for six to commence the same day the second is void and he shall not maintaine an action of debt against his Lessee although the Lessee for ten yeares upon render because during the ten yeares he may not contract with another for a Lease to take effect during this time Implication in a devise giveth an estate for life to the Wife 13. H. 7.17 profit to be taken out of the Land is a distinct thing from the interest of the estate Execution of an occupation of a thing not of property it selfe as in a devise of a Book to use as 37. H. 6.30 Condition or possibility goes in privity and cannot be limitted to a stranger Circum locution in a devise or Lease is equivalent to a direct Grant as to have from day to day during life is all one Intent shall be observed in the Exposition of Wills as if one devise his Land by the premises to one and after deviseth the rent to another out of the same Land by the sayd Will this is a good devise of the Rent
first and after of the Land in sense and so by exposition the words shall be altered and so marshaled that the intent may take effect So a termor deviseth all his terme to his Son neverthelesse his Will is that his Wife shall have it for her life holden a good devise to both by conversion of the words So a Remainder to the Church of Saint Andrew in Holborne good by devise 21. R. 2. although the Devisee is not capable because the Testator intended that the Parson shall have it Cestuy que use at this day devise that his Feoffees shall be seised to the use of one A. in fee this is a good devise of the Land Adjudged in the Case of Lingen yet after 27. H. 8. he cannot have Feoffees to his use because the intent was that he should have the Land So the Executor shall not sell the Land according to the devise but take the profits for two years to his owne use the heire may enter because the intent of the Testator maketh this a Condition 38. Ass 31. Incertainty in Contracts reduceable to certainty by contingent standeth good As if I lease to one habendum from the death of J. untill such a Feast which shall be in the year 1620. good if J. dye before that otherwise it is void Two properties of a terme as where Lessee for yeares which grants over his terme enters for not payment of Rent and retaineth untill he be paid his Arrerages thereof So of a Conusee of a Statute which hath the Land extended so upon a Lease for yeares of a Mill except the Profits to the Lessor for his life and adjudged a good Exception And if the Lessor enters he hath a property incertain and the Lessee another 39. H. 6.37.8 So it is of Sheepe letten for to compester or a Chain of Gold pledged 5. H. 71. they have one Property and the owner another Cestuy que use devise the Profits and Issues of his Lands fol. 509. b Cestui que use before the Statute of 27. H. 8. Devise his Land and after the Statute publishes his Testament of new the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute Cestuy que use devises that his Feoffees shall stand seized to the use of himselfe for life with remainder over this is a good Declaration of the use during his life yet the Will cannot take effect untill his death Quere of this Case fol. 508. b. Bransbie against Grantham AN Executor having a Terme P. 20. El. in the Kings Bench E. firme as Executor devises the Terme to a stranger and maketh his Sonne Executor and dies the stranger enters into the Land by the Assent and Consent of the Executor And after the Executor enters And adjudged that his Entry was lawfull and the devise voide And by consequence the assent given to a voide thing shall be also void and shall not enure as a new grant but onely and assent to the thing devised 1. Because that the Executor cannot devise any thing which he hath as Executor 2. For that the Executor hath the Terme here to the use of the Testator and no man can make a devise of any thing except that he hath it to his owne use And therefore the Husband cannot devise the Terme of his Wife And then when the Executor dies his Executor hath it by Title before the devise as Executor of the first Testator and the property that the Devisor had as Executor is determined hy the determination of his Office of Executorship which is ended by his death and the last Executor hath it by Relation as immediate Executor of the first Testator So an Executor cannot devise the goods of his Testator and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator because the last Executor hath them as immediate Executor to the first Testator and to his use as if they never had been in the last Testator by Relation Hare against Bickley A Prebendary after Admission and Institution and before Induction and Installation grants an Annuity for him and his Successors The Bishop confirmes it and after the Prebendary is Installed and on the same day of the Installation the Dean and Chapter conconfirmes also and after the Prebendary dieth and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend and Adjudged that it lyeth not because the Grant before Induction was voide Induction giveth to the Probendary the possession Temporall and Freehold and the Confirmation is nothing without the Possession And therefore without Induction a man shall not have a Writ of Right nor Spoliation Trespasse nor Assise otherwise it is of a Quare Impedit For in the first he alledges Esplees but not in the last 26. H. 8.3 But by the Admission and Institution he hath care of Soules and is inabled to administer the Sacraments c. And the Arch-Deacon shall make Induction to the Parson and Vicar but shall not make Installation to a Prebendary but the Deane and Chapter shall doe it No Plenarty against the King before Induction for that it is corporall seisen and possession 38. E. 3.10 So the King confirmes to the Collatee of a Bishop before he is inducted the Confirmation is voide 11. H. 4.7.1 H. 5.1 He which hath the Nomination is Patron and he that presents is his servant Induction is triable by the Countrey So if Parson or not and it shall be tried where the Church is 21. E. 4.7 and 33. A woman recovers in Dower she cannot enter but ought to have seisen delivered to her by the Sheriffe as a Copyholder ought to be admitted by the Lord of the Mannor if it discends to him before he shall have seisen in judgement of Law So a Prebendary Parson or Vicar before he is Inducted or Installed hath not seisen nor is full Incumbent for to charge the Possessions of the Prebond Parsonage or Vicaridge Crosse against Howell THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London and in the 21. H. 8. they bargain and sell certain Land by the name of A B C and D. Master and Wardens of the Craft or Mystery of the Cookes of London to R. D. for money without naming his Heires and the Barganee enters and levies a Fine with Proclamations and five yeares passe And adjudged that the Corporation shall be bound by the Fine and Nonclaime and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed by him which had their Letter of Attorney so to doe is meerly void 1. The bargain and sale was made for the variance of the Indenture from their name of Corporation for they were
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of