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
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
the patol Demur in cui in vita per nonage of the second vouchee because he was not heir to the husband and so because penal here in savor of him it is restrained to the heir of the husband onely So by W. 2. cap. 11. an accomptant found in arrearages shall be imprisoned by Auditors and saith not when in 27. H. 6 8. In debt for arrearages of accompt it is adjudged That if the Auditors do not commit the accomptant to prison presently after the accompt and therefore the generality of time is restrained to a particularity by the rule of the Common Law in construction of Statutes and also by the intent of the makers for if the scope and end of the matter is satisfied all the matter and intent of the matter is accomplished and the scope of the Statute here was That the King shall have the Subsidie and the agreement here sufficeth for that because it authorizeth the King to weigh Woad by the Collector when he pleaseth and then the King hath Title of Action and so the surety of the King thereby is referred to will Also such agreement hath been allowed upon the same words of former Statutes for Subsidies Also if the Statute had expressed the agreement in certain yet agreement uncertain should have been good here and out of the penalty because the infringing of the words of the Law without the infringing of the intent of the Law for upon some accidents the law priviledges some things done against the words of the Law of the nature of the Law of this Realm and of other Realms and the Law of God viz. First for to avoid greater inconveniencies Secondly for necessity Thirdly by compulsion Fourthly by involuntary ignorance First for the avoiding of greater inconveniencies as 22. ass pl. 6. where a man of non sane memory and in his rage did great hurt and another man and his parents took him bound him and beat him with rods and here it is holden that they might justifie this in avoidance of greater damage being of non sane memory and yet the Law of nature and of the Realm prohibites battery but this particular case for the avoiding of greater mischief hath one exception and special priviledge So 1. H. 6.9 The Lord contrary to the Statute of Marlebridge may lead the Distress from the Land into another County where the Mannor is for it should be prejudicial to the Lord if he should not carry the distress to his Manor Amongst the Romans they had a Law That every one which should scale the walls in the night should be condemned to death and one in the night did scale the walls in the time of War to discry enemies to the Romans and he by the judgement of the Senate was not onely discharged but had a reward therefore so such interpreting of Laws is a tempering of the rigor of the Law Secondly necessitas non habet legem and therefore it is a good excuse in every Law as 38. H. 6.11 Increasing of water excuseth a default in a precipe quod reddat because he could not appear without danger of death yet the Law abhors every default because it is in contempt of the Court So David did eat bread for necessity although prohibited by the Law of God Thirdly compulsion excuses in Law as the avoiding of an obligation made by dares So if the arm of any man is drawn by compulsion and a weapon in his hand kill another this shall not be Felony nor he damnified because he did it by compulsion Fourthly involuntary ignorance doth excuse as 3. H. 7.1 Kell fol. 268. An infant killeth another it is not Felony because he hath not discretion and it shall be imputed to his ignorance which is involuntary by compulsion of nature so no default in him So Fitz. Nat. br 202. b. if one of non sane memory kill another because his ignorance by compulsion viz. the hand of God and such other things done by ignorance because not to be resisted and this involuntary ignorance is cause of the Act and therefore he which kills another by involuntary ignorance As by thâ— fall of a hatchet out of his hand shall have Sanctuary Deut. 19. But ignorance voluntary is not priviledged as if a man killeth another because this ignorance cometh by his own act and folly which he might have resisted and therefore shall not be priviledged because he himself was the cause of such ignorance if any were à fortiori in all the cases together before mentioned shall excuse for the Law is not offended for the said four causes the incertainty of the agreement here and therefore in as much as the Statute saith The Collectors not agreed with and so gives him authority to agree with the Collector and the Defendant hath made a special agreement with him which is an agreement and so within the words of the Statute if seemeth that by the rules of the Common Law used in construction of Statutes is by the intent of the makers and by all reason and equity shall be adjudged a sufficient agreement and warranted by the Statute and therefore demanded judgement against the King and so it was adjudged But all the Judges were of opinion against the King onely Hales and Montague and afterwards the King sent his Privy-Seal Colthirst against Bejushin 23. Trâ—… E. 6 in the Common Pleas. En Trespass the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret residens esset in and upon the aforesaid Grange and Farm and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life if he also would inhabite there during the Term aforesaid and saith That W. did dye in the life of H. and E. and after H. and E. dyed also and the said B. now Defendant entred without shewing in certain when and took averment that he had inhabited there alwaies after his entry and upon this Plea the Plaintiff Demurs and it was adjudged against him for the Defendant 1. For that the averment of his continual residence is surplusage and therefore the incertainty thereof nil refert by Harris Hinde and Montague 2. It is not a condition compulsary but a thing elegible at the discretion of the Defendant by Montague and then his entry is not material but at his pleasure 3. Admitting that it be a condition yet it is subsequent and in defeasance of his Estate and therefore ought not to be shewed by him which shall have benefit thereby the contrary is of a condition precedent 4. For that it is pleaded by way of Bar and being certain to a common intent it sufficeth and it shall be intended that he entred immediately after the Remainder happened but by Hales Justice this common intent ought to be of a vehement presumption and not indifferent 5. That this word if W. dye then
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.
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
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-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
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
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
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
woad that he may do his pleasure then the King shall have an action upon the agreement and if he doth not weigh it is the folly of the Collector Griffith the Kings Sollicitor Agreement or concord executed with satisfaction in deed or with accord or means for recovery of recompence is a good bar in Trespass Executory is not howbeit it is the mutual assent of the parties because it giveth neither recompence action nor remedy whereby to obtain recompence and therefore it is not but a void communication and nudum pactum as in 20. H. 6. In Trespass the Defendant pleads concord between them That he shall pay 20. s. to the Plantiff at a day to come it is not a bar because it is not satisfaction nor recompence for it because he shall not have debt after the day so 9. E. 4.19 in Trepsass upon 5. R. 2. Defendant pleads accord That the Plantiff should re-enter and have the land and that the Defendant deliver to the Plantiff all the Evidences concerning the land and said that the Plantiff had entred and that he had delivered all the evidences unto him It is no bar for it intends the proper evidences of the Plantiff and so no satisfaction of the wrong but if it conveys to him Title to the evidence then it is a good bar so in 15. H. 6. in Trespass against him by the Plantiff he pleads That they agree that if the Defendant doth his endeavor for to agree them for a Trespass by the Plantiff to S. That then c. and saith That he did his endeavor so that they are accorded it is no plea because no satisfaction but if he saith That he hath accorded them at his own costs it is a good bar Gawdy the elder for the Defendant Arbitrement which is Executory 9. E. 4.51 Fitz. H. 4. Br. 3. accord is a good bar in Trespass because he may have debt at the day appointed for the payment of the summ agreed to be paid in recompence and so the Trespass is converted into another thing viz. Debt by the Arbitrators which are judges of it and so accord countervails satisfaction in facto otherwise it is of a concord executory 6. H. 7.11 because the pleading of the concord confesseth a wrong and it is not reason that the Plantiff in an action thereupon should be barred without satisfaction And so shall the King be satisfied here Also in concord the wrong to be recompenced precede the agreement but here the agreement precedes the wrong supposed and cometh not after the wrong as in concord and therefore this case may not be resembled to the case before of accord Incertaintie at the beginning which may be reduced to certaintie by matter ex post facto countervaileth certaintie ab initio as a man leaseth all his Acres in D. paying for every one 12. d. it is a good reservation because when the Acres are measured the Rent shall be certain so a gift of two Acres of the one for Life and of the other in Fee by the Feoffment of the one he shall have Fee in this ab initio so Lessee of white-acre and Black-acre for life the remainder of the one in Fee to a stranger and the Lessor licences him for to cut Trees in White-acre now he shall be adjudged to have the remainder of this Acre ab initio so the thing which at the commencement was incertain is made certain So in Wheelers case 14. H. 8.17 So a Lease for so many years as I. S. shall name is good when he shall name the years So 17. E. 4.1 A. bargains that B. shall have his wheat when he hath viewed it if he please paying 4. s. the Acre good contract if he paies when he carrieth it away yet the quantity and summ incertain at the first so here when the Collector hath weighed the woad And therefore this conditional agreement doth countervail an agreement certain at the beginning And where acts ought to be performed strictly yet in divers cases the performance of the intent and not the words good for it countervaileth the performance of the words So here But performance of the words and not of the intent is not good as Lit. fol. 182. of conditions upon a Feoffment for to give again to I. S. and his wife in special Tail and they die and the Feoffees make an estate to their issue and the heirs of his father and mother good because the intent of the condition is performed So 17. E. 4.3 Obligation upon condition to infeoff I. S. and he Lease for years and Release in Fee it is a good performance and a good Feoffment and yet the words of a condition shall be performed as strictly as a Statute Bradshaw the Kings Attorney The mutual assent of the parties upon a thing incertain is in Law but a vain communication before the certainty known as in 37. H. 6.8 A man promises in marriage with his daughter so much as I. S. shall arbitrate The party which shall marry his daughter shall not have it if he marry her until I. S. hath made his award and appointed it for before that it is reduced into certainty it is but a vain communication So in 20. H. 6. A man Leases to A. for so many years as B. shall name he cannot enter into the land before that B. hath named the number of years And the witness of the Defendant which saith That he found suerties and hath not shewed who or what as he ought is wanting both in the name and ability of the sureties which the Court ought to adjudge of as in 22. E. 4.40 A man that was bound to shew a sufficient discharge of an annuity pleaded that he had offered to shew it to him and he refused to see it and held no good plea. Agreement according to the Statute in issue shall be intended general viz. certain and special viz. incertain in evidence proves not the issue neither is it pursuant to the issue as in 31. H. 6. Upon non est factum pleaded in debt witnesses say That it was delivered at another place then it did bear date whereupon the Defendant demurred and the Plantiff was barred because this proved not it to be his Deed for the delivery shall be intended where it was dated and the witnesses prove the contrary and so the evidence warrants not the issue so in 18. H. 6.16 One deed of Lease for life without Livery given in evidence shall not maintain upon Free-hold pleaded the issue so in 14. E. 3. Upon traverse of a gift in Tail the witnesses prove that another made the gift and awarded that the Plaintiff should be barred so if he had pleaded the general agreement in bar and special in the rejoinder it is a departure as in 6. H. 7.8 In Trespass the Defendant pleaded a descent to him and the Plaintiff said That after the Defendant infeoffed him and the Denfendant said That it was upon condition and for breach
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
by default against her and her husband had not any other remedy then a Writ of Right before the Statute of W. 2. cap. 3. which gives a Cui in vita and before W. 2. cap. 3. a faint Recovery against Tenant for life bound him in Remainder Litl Release 112. because the Law presumes the Title and case true So a Recovery upon a faint Title by a man of Religion was out of the penalty of the Statute of Religiosis untill W. 2. cap. 23. made a Recovery without Title in such plight as a Feoffment in Mortmain was for the truth supposed by the Law to be therein So here the Recovety is intended to be true and therefore the Plaintiff ought to shew matter if there be any to prove the contrary As in 11. H. 4.19 if the Tenant in a precipe vouch one of the Demandants he ought to shew cause because otherwise the Law will presume that he hath not cause against right So 15. E. 4.4 Contrary entry by Title general averment of Covin by the Plaintiff in Dower was not held good Matter in Law As to the matter in Law it seemeth here that the case is clear out of the words and penalty of the Statute of 11. H. 7. cap. 30. For although 27. H. 8. hath executed the Possession to the use yet this case remains here so as if 27. H. 8. had never been made and the Wife had continued Tenant in Tail in use and out of the words of the first branch because he hath an Estate Tail in the use in the land but hath not an Estate in the land in the use and the Statute speaks of an Estate in the Land and this Hereditament or use which is the matter and substance and the use it self which is the confidence of the thing differ But one may not have the state in Land and use also because suspended yet two may to the use of one of them as Husband and Wife to the use of the Wife and so it shall be intended here Also the first branch speaks of lands c. of Inheritance or purchase of the Husband but here the use is a new thing which Commenceth now and was not in being before and so is not the inheritance or purchase of the Husband and therefore out of the Statute as a Rent granted to one out of lands to the use of the Wife of the Grantor or if the Husband gives a signiory in Tail to the Wife for her Joyncture and the Tenancie Escheat and the Wife suffer a faint Recovery this is forth of the Statute So the Husband makes a Feoffment upon Condition to re-enfeoffee him and his Wife in Tail the Wife suffers a faint Recovery this is out of the Statute because the Feoffment of the Land from the Possession of the Husband and was her purchase and not the purchase of the Husband or his Inheritance for the Condition which is the cause of the gift is a new thing is not within the second branch because the Wife had nothing here of the gift of any of the Ancestors of the husband Nor the third branch because the wife had not possession by the Statute nor by the Feoffees to the use of him in Reversion but he in Reversion hath the present Title and so the Statute shall be intended and therefore he may enter presently If Tenant for Life suffer a faint Recovery but 11. H. 7. saith Enjoy according to their Title intends that he shall not Enter until after the death of his Ancestor because he hath no Title in the life of his Ancestor And therefore when the Wife assents to the Ravisher 6. R. 2. gives title of entry saying habeat titulum intrandi c. intends that he shall not have it in the life of the Ancestor And if the makers of the Statute of 11. H. 7. had intended that the issue in Tail should have entred presently they would have given to him Title by such like words as the Statute of 6. R. 2. hath but the end of the clause which saith That they shall enjoy according to their Title expresses that they intented not so For which causes it is probable that the Defendant is out of the penalty of the Statute and that the Plaintiff might not enter and so shall be Barred Whiddon Serjeant for the Plaintiff Because the Defendant hath said whose Heir he is he shall be taken that he is Heir special for a Plea which hath two intendments shall be taken most strongly against him which pleads it as 3. H. 7.2 in Trespass Release generally is no Plea because it may be taken to be delivered before the Trespass or after So 3. H. 7.8 and 9. and 26. H. 8. Entry to avoid Warranty Collaterall pleaded in Bar is no Plea because it may be intended after the discent for he may enter in the life of the Ancestor or after Also the Plaintiff need not shew how he is Heir because he was once seised by entry But if he had brought a formedon upon the Estate Tail he should because by way of Demand as 6. E. 4.1 Executor brought Trespass for a thing taken out of his Possession he shall not shew his Testament but if he Demands a thing whereof he had not ever possession he shall It is not needfull to shew Covin certainly which is a secret thing and the Law doth not enforce one to shew a thing when by intendment of Law it lieth not in his Conusance as 20. H. 7.7 A woman shall have Dower of a Rent Charge without shewing the Deed of the Grant because it belongeth not to her So the Lord shall have Covin generally for the Ward where his Tenant aliens and re-taketh for life the Remainder to his Heir being it lieth secretly in the breast as suspicion lieth for that he may justisie imprisonment for suspicion of Felony without shewing of the cause of his suspicion So 33. H. 6.5 In Trespass a man buys in a Market Overt the Plaintiff said That the said buying was by fraud between the Defendant and a stranger generally without shewing any thing speciall of the Covin and the Plea the e admitted good So in a Precipe against the Lord of ancient Demeasne and Tenant the Lord shall shew that he is Lord and this Action is brought against him by Covin generally So 9. E. 6.41 He which alleadges Covin ought to shew cause of the Covin and the cause is for that the Recovery or Title was tryed by Verdict because to say that it was by Covin shall not be intended true against a Verdict But Covin generally may be averred against a Recovery not gainsaying or default because this is cause of the Judgement and no Triall Wherefore in this case a man shall aver that this was by Covin generally And as to that which hath been said That execution ought to be shewed of the Recovery that needs not For the Statute speaketh only of the Recovery and without Execution it shall be
intent shall aid the obscurity of the words in Construction of words but if it be not within the words yet it shall be taken by equity because it restrains Liberty that the Common Law gave to the prejudice of another as here of Tenant in Tail to bind their issues by recovery or Warranty So Marlebridge cap. 6. speaks of a Lease for years for to defraud the Lord of Ward yet if it were for Life or in Tail taken by equity So W. 2. cap. 1. speaks of 3. gifts in Tail yet 4. H. 5.6 and 19. H. 6.74 comprise by equity all manner of intails because it restrains liberty of breaking the intention of the Donor suffer by the Common Law So W. 2. cap. 3. gives receipt to the Reversioner by equity to the Remainder for the Common Law which may not suffer him to be received suffers a wrong and this Statute remedies it So 13. R. 2. cap. 17. gives receipt for faint pleading by equity receipt by equity shall be for faint defending So an Administrator shall have account by equity of the Statute where it is given to Executors onely So 1. H. 7.3 gives an Action of Forgery of false Deeds by which the Title and Possession of another are disturbed in the Copulative by equity if the Title onely be disturbed and therefore the disseisee which hath not but onely a right shall have an Action in 4. H. 6.26 because where the Law defective suffers a thing which is a wrong to another and a Statute redresseth it there things in the like mischief shall be taken by equity in the like purview So here because it is made in avoidance of Covin therefore it is beneficial to the Common-wealth Brown Justice argued to the contrary for 2. causes in the Pleading The one was for that the cause of the Covin was not shewed for howbeit that the Statute speaks generally of Covin yet it refers the pleading of this to the Common Law and therefore because the cause of Covin was not shewed the replication was nought The other cause was for that the Plaintiffs have not shewed how the Wife Plaintiff was Heir and therefore may not be seised in Tail as it was pleaded And as to the execution he held that it was not necessary to be shewed And as to the matter in Law he held the case here within the words of the Statute and if it were not yet he held them within the equity for that the Statute was made in avoidance of Covin which is to be abhorred and therefore the Statute is benificial to the Common-wealth But for the said defaults in the replication he held that the Plaintiffs should not recover Montague Chief Justice Title amends not Covin for it may be upon a good Title and therefore the books are If a Wife recover Dower against A. who by Covin enters and outs the Tenant as in 15. E. 4.4 yet she is a Disseisoress and by 8. H. 4.6 where the issue in Tail recovers against A. who by Covin Disseise the Discontinuee yet 18. H. 8.5 is not remitted although his Title good but is a Disseisor by reason of the Covin The Title of a man shall not be tryed between strangers where he which hath the Title is not party nor shew Covin because it is a thing secretly determined to the prejudice of another as Joyntenancie on part of the Plaintiff the Defendant which pleads this shall not shew of whose Feoffment for that that he may have knowledge of it by presumption of Law on his own part here H. 21. E. 4.78 and 19. H. 6.32 So 19. H. 79. he which pleads a Deed which belongeth not to him shall not be enforced to shew it a man may aver Covin generally where averment is given by Statute or Common Law as the Statute of 13. R. 2. giveth receipt for faint pleader and may alleadge it generally when he prays to be received So a Termor for years by the Statute of Gloucestor shall be received and aver Covin generally and faint pleading and Covin is all one So 8. H. 6.7 In Assise the Tenant makes default one shall answer for him as Baily he appears and disallows him and saith That he will make default the Bailiffs comes and Demands Conusance of this default made by Covin for to take away their Conusance generally and holden good So 10. H. 6.15 In Formedon one Demandant agrees with the Tenant in Challenge which he made to a Juror the other Demandant avers the Challenge to be made by Covin generally and good So if one pleads imprisonment in excuse of his default or sale in a Market overt the other avers That it is by Covin generally or if he pleads a Feoffment the other avers That it was by Champerty generally and so may aver Covin given by the Statute or Common Law generally where the cause of it may not be special if it may be special otherwise it is 7. H. 4.15 in scire facias the Wife received pleads a recovery by a stranger upon a not denial and execution against him it is but the acknowledgement of the Tenant and his own Act and so Covenous Faint recovery against Tenant in Tail which dies before execution the issue is remitted and the Recovery not executory against him and so is defeasable yet the Covin in the Recovery which is as a Condition is cause of the forfeiture of the State as a Feoffment upon Condition not to infeoffee I. albeit that he within age infeoffees I. and so the State is defeasable yet he hath broken the Condition And as to the other exception taken for that it was not shewed certainly how he was Heir Montague held the Replication nought for Replications Titles Pleas in abatement of Writs and Estopples ought to comprehend certainty the Replication forceth the party to issue and therefore shall be certain because the Court nor the Jury may not be inveigled or troubled for the incertainty of the Replication which maketh the issue ordained and provided that they should be certain But a Bar which is certain to a common intent is good for a man shall plead in Bar an Estate without shewing how it is not good as it is holden 2. E. 4.26 and every Replication ought to shew contrary matter to the Bar and then ought to take Traverse or confesse and avoid the Bar. And here the Bar is good and the Replication contains a misbehavior of the Wife of the Defendant by which here Estate is void and then the Plaintiff ought to make him able for to take benefit of the misbehavior of the Defendant and here the Heir pleads this ability certainly the Bar which is plainly confessed is not plainly avoided for it appeareth not here how the Plaintiff is cosen to G. T. pretoxtu quorum premissoy refers to him which is said before onely as it is expounded 7. H. 6.51 in a Bill of Debt against the Warden of the Fleet. 4. H. 7.13 where one binds himselfe That he
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
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
or appurtenant unless it be comprised in the premises The Office of the Habendum is for to limit the estate as a grant a Rent and stay there is for life Habendum for a year is for one year 7. E. 3.10 by Trew 7. Ass 1. Perkins fol. 22. The Habendum repugnant to the premises void and the estate before the Habendum shall stand 14. H. 8.13 by Pollard Perkins fol. 34. Contrary 13. H. 7.23 by Fineux a Grant to one and his Heirs Habendum for Life So to two Habendum to the one of them two for life the Remainder to the other for life because it severs the joyncture in the estate So a grant of two acres to two Habendum the one acre to one and the other to the other because it includes the interest of every one in one acre A Lease of land reserving the profits or two acres except one void because parcel of the thing granted Doctor and Student fol. 98. Reversion is a Tenement and ought to vest presently as a Reversion and not at a day to come otherwise it is of land Reverting without estate and agreed of land by the Serjeants for the Defendant Every Deed shall be construed most strongly against the Grantor and if it may be taken to any effect by any reasonable intendment it shall be and the intent of the parties shall be observed as here of using this word Reversion not in its proper signification for then it first ought to vest as in Reversion presently by Attornment and not at a day to come but as a demonstration certain of the land viz. all the land that they have in Reversion and that they will not have the land to pass in the degree of a Reversion but in degree of Demeasne And the Law will That when the intent appeareth incline the words not apt of their proper and common signification to the intent and one word shall have the sense of another as Litl fol. 121. Dedi concessi by the Disseisee shall enure as a confirmation So 17. E. 3.8 Mannor pass by the name of Fee de Chivalry So 10. E. 44. 5. H. 7.1 plead Demise by words of licence to occupie where one word includes in it one thing as here Reversion includes the land the thing included shall pass by the word as 11. R. 2. Piscary pass per a quam and 40. E. 3.45 Soil by Piscary and by Turbary 7. E. 3.342 So Soil and Wear by Gorss for 14. E. 3. Formedon lyeth de gurgite So 6 E. 3.183 By the name of one acre cornubiensi for Cornish acres contain so many A man Grants his Remainder of one acre to have and to hold the same Reversion of that acre good because the Law respects the intent of the matter and applies the words to it So a Gift in Tail reserving the first three daies a Rose and after 10. s. good because one rent in substance A man seised of two acres Leases one for years and after maketh a Feoffment of both Livery in this wherein he hath possession by Attornment the Reversion of the other passeth 7. E. 4.21 So 30. E. 1. Totum Molendinum suum the Reversion of the third of the Mill which was in Dower pass but Tenant for life ought to Attorn upon the Grant Brook grants f. 30. the Habendum explains and corrects the words of the premisses as here the words Reversion of the land to the land it self being the same substance So 7. E. 3.308 A Rent Granted out of a Man nor to take off one acre of the same Mannor nothing shall be charged but this acre in performance of the intent of the parties by the Serjeants for the Plaintiff Anthony Brown Serjeant for the Plaintiff Tenement compriseth a Reversion as 33. E. 3. the King licences to purchase Tenements in Mortmain he purchases a Reversion good Fitzh grants 402. and Cook Alienation fol. 55. is Advowson yet the word Tenement here agrees not with the premisses First because that in the mean time after the first Lease finished at Michaelmas the land is in possession and then it is not a Reversion because no particular estate and therefore may not yest as a reversion as 21. H. 7.11 before fol. 25. Remainder may not vest but during the particular estate and not at the ending of the first estate up on Condition broken So 10. E. 3. dower of a rent reserved upon an estate Tail good so long as the estate continues otherwise it is if the Tail be altered in Tail after possibility or Tenancy by the Courtesie for that the inheritance is determined and the rent is now in another degree 12. E. 3. and 10. H. 7.13 by Keeble if a rent be granted with a cessing during the nonage of the Heir the Wife shall have Dower and Execution shall be staid otherwise the Wife of the Son dying within age for that during the Cesser she had not possession Secondly because the Reversion cannot be granted at a day to come for then he shall have the particular estate in the mean time and shall be Lessor to himself and 38. H 6.38 a man cannot reserve the lesser estate giving the greater without alteration of the Lesser as in 8. H. 7.3 by Vavisor before fol. 152. A. hath rent in Fee and grants this to B. after the death of I.S. void because the Fee passeth presenly if ever and then he should have Franck-tenement of his own grant until I.S. dies And the Estate shall not be so devided without alteration of the whole Estate for a thing in esse cannot be granted to be in esse one time and to be insuspended or differ from the other but a new rent may be granted to commence at a day to come for there he shall not have the particular estate in the mean time because not in esse before after fol. 197. Time material shall void the thing in all viz. both the premisses and Habendum not e converso if it may not pass according to the limitation thereof because time parcel of the parties intent and if it may not pass as to the intent all is void As a man hath a Rent or Term and Grant it if he stay there good if he saies besides Habendum after the death of I. S all is void after fol. 250. So the Remainder void if the Termor enter without Livery Litl 12. But if the Term was to Commence at a day to come the Remainder over there it is void notwithstanding Livery because there is no estate present to which the Livery may be annexed so that the time of Commencement is materiall and Livery before its Commencement is void and Livery shall not destroy the time but the time the Livery and grant every act shall be taken strongest against the makers and most beneficial to him to whom it is made and he hath liberty in another sence to his advantage then the words purport prima facie for every Deed shall be construed
the Statute And when the Statute appoints place order and form of suits and before what person it shall not be altered As by W. 2. cap 11. an Accomptant found in Arrearages shall be imprisoned in the next Goal although it be in another County 27. H. 8. before fol. 17. So by Westminster 2. cap. 3. Second deliverance shall be sued out of the same Court where the first Replevin was granted and not elsewhere So 31. E. 3. c. 12. Error in the Exchequer shall be corrected before the Chancellor and Treasurer and therefore not before others So an Affirmative because general implies a Negative exclusively so all Actions shall be sâ—ed in Wales and not elsewhere is implied here as by W. 2. cap. 4. he shall vouch in Quo die deforceat as if he were Tenant and included and not otherwise and therefore shall not vouch in scire facias where it is the first Writ because he cannot vouch there before fo 113 So the issue in Tail shall not be remitted because he hath the use as a purchaser by 27. H. 8. for the Statute of 27. executes the possession in the same manner as he had the use which implies and not in any other Mannors before fol. 114. So by 31. H. 8. Leases made by Abbots after this Stat. adjudged void when Abbies came after to the King by dissolution because the Statute saith That the King shall have it as it was then which implies a Negative and therefore the King shall not have them now in Reversion by making of such Leases or before he hath them in possession On the part of the Plaintiff it was argued to the contrary And they agreed to the cases of voucher in a Quod ei deforceat of the Execution of the use and of the committing of an accomptant to the next Gaol for where an Act maketh a new thing Affirmative and gives to them Authority to do that which they could not before there they shall be in the order limited by the Statute and not otherwise and at the Common Law there was not any voucher by the demandant nor any coming to the land by the use nor any power given to Auditors to commit an Accomptant to prison and therefore there that which is limited by such Stat. ought to be pursued accordingly but where the Action which was before at the Common Law is given by any Statute in any case where it did not lie before there this Action is suable in all Courts therefore used by the Common Law before if there are not express words to restrain it for where one Act affirms a former before there the last Affirmative destroies not the first nor takes any thing from the Jurisdiction of the first but declares That they have power So 34. and 35. H. 8. hereby the Affirmative takes not away the Jurisdiction of other Courts given to them by 27. H. 8. for uniting Wales and England Sanders against Freeman THe Conusee of a Fine brings a Quidjuris clamat against Husband and Wife M. 3. and 4. Eliz. in the C. P. Quid juris clamat Tenants for life in the right of the Wife and pleads that they were seized in Tail in the right of the Wife and shew how and thereupon are at issue the Jury finds a private Verdict for the Defendant and after in open Court contradicts it and found for the Plaintiff for they were charged openly in Court and ought to give their Verdict there openly and the other was but matter of courtesie to ease the Jurors and not of necessity for the Plaintiff could not have been nonsuited upon it otherwise upon a verdict given in Court and by this Plea the estate for life was at the will of the Plaintiff A Verdict secretly given to the Justice out of Court is not a Verdict because taken of courtesie when Jurors agree for their ease until aptly pronounced in Court for at every verdict the Plaintiff is demandable and then may be nonsuited but there he is not and therefore the last open Verdict shall stand Also the Inquest may change their Verdict given in Court if mistaken or not plain in Law or for other reasonable cause immediatly perceived as to find not guilty and immediatly guilty because they may be mistaken this was received in the Kings Bench. So 4 H. 4.2 In Conspiracie acquit one and found another guilty because it was contrary in it self they may find both guilty and good Dutchie of Lancaster HENRY 8. 4. Eliz at Serj. Innâ— makes a Lease for one and twentie years under the great Seal of the Dutchie and dyeth after E. 6. being within age maketh a new Lease to a stranger under the same Seal for 21. years after the Determination Surrender c. of the first Lease and dies and by all the Justices Queen Elizabeth could not avoid this second Lease for the nonage of the King E 6. howbeit he was seized of the Dutchie in his natural body because he hath the imbecillity of infancie yet this is invested and adorned with the dignity of the body politique of the King which is utterly void of such imperfections A Lease by the King within age of Dutchie land is good although he was seized of the Dutchie in his natural body which hath the imbecillity of infancy because he hath the natural body invested and adorned with the estate and dignity Royal by conjunction of the body politique to it which is utterly void of such imperfections and so when both bodies remain in one person all the bodies shall have the properties qualities and degrees of the body politique which is the most worthy and no Act of the King made as King shall be defeasable by any disability in his body natural and therefore the letters pattents of the King within age good So a gift of the King by Thorp 36. ass pl. 54. So 6. E. 3.291 the King shall have right of seisen of his ancestor within age So the King hath by purchase or discent in capacity of his natural body when he is King or before that he was King and being given this within age good and shall pass by the Letters Pattents onely and without Livery because he may not make Livery in his natural body disjoined from the politike body which are in one and the same body and indivisible and it is contrary to the dignity Royal for a King to make livery in proper person and Livery is matter in fact and the King must have his Acts recorded So the King need not demand rent reserved upon his land by a common ancestor but shall not enter if the Condition be broken until it be found by Office if he purchases and sels before he is King and within age if King also then otherwise it is yet after he is King he shall avoid it by his nonage before but shall not enter without Office because his person which had right of entry before hath now the estate Royall united which
cannot do any thing without Record And so Acts that the King doth touching things which he hath in his body naturall require the same circumstances and order as things which he hath in his politique body by the union thereof for the thing possessed changeth not from the person of the King but the person nor doth the possession change the cause of a thing possessed Henry the 4. which was Duke of Lancaster held his Dutchie annexed to the Crown as parcel of it by the assumption of the Crown and because his Title to the Crown was defeasable and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land and of the Government of it viz. for the manner of Conveyance as it was before in the hands of the Duke as by Livery and Attornment but not severed from the Crown for the prerogatives of his person as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue and a procedendo with a Clause of not going to judgement Rege inconsulto So the person of the King for Dutchie land taken to be higher then a Duke because he shall not have aid untill after issue of the Duke for that he is a Common person and shall make a Lease by the name of KING because it drowns the name of DUKE in his Realm therefore Officers finding that he held of the King as of the Dutchie and not as of the Duke of and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal or should be void to the end that all possessions of it should be distinct used and known from the possessions of the Crown for the policie aforesaid because he was the Lineal heir to the Dutchie and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown annexed the Dutchie of Lancaster and made it to be forfeit to the Crown and so he altered the course of inheritance of it out of the natural body into the politick body of the King and his Successors but not in the manner of Government name c. but separates it from other possessions of the Crown in conveyance of it by another Seal and other means viz. by Livery and Attornment which are used for the possessions thereof as 21. E. 4.60 Land of the Dutchie in the County Palatine passe by Pattent out of it by Livery because there he hath it as Duke and by the Statute of 1. H. 7. the Dutchie was severed from the Crown and made inheritable to the natural capacity of the King as it was in H. 5. because H. 7. discended of the House of Lancaster so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine to be holden in Capite the Feoffee shall hold in Capite of the Crown and not as of the Dutchie for that the King is not Duke within his Realm but may be when he is out of the Realm Willion against the Lord Berkly A Fine was levied to two and to the Heirs of one 4. Eliz. in C.P. in an Ej. firme with Grant and Render to the Conusor in Tail the Remainder to King Henry the seventh and to the Heirs Males of his body ingendred remainder to the right Heirs of the Conusor the Conusor dies without issue and after H. 7. entred and died seised and H. 8. gave the land to the Queen his Wife for her life and died E. 6. Granted the reversion to one and his Heirs and dyed without issue the right Heir of the Conusor entred and his entry adjudged lawfull So the King shall be in a worse condition then a common person for a common person may bind the inheritance by a common Recovery suffered by him otherwise of the King by W. 2. cap. 1. after fol. 244. a. 1. That the Writ of Ejectione firme that wanteth words bona Cattalla ibidem inventa cepit asportavit is good if the truth of the matter be so and proces of utlarie lieth in this writ by the Common Law fol. 228. 2. The Entry of King Henry the seventh is lawfull without office for that the Law casts the Freehold upon him otherwise it is where he taketh an estate by Office as Ward Perquisites of villains c. and the right Heir may enter without Office or Ouster le main by the same reason fol. 229. a. 3. Where the parties agree upon the matter in deed and conclude upon the matter in Law thereupon Nilrefert but the Court shall adjudge according to the Law fol. 230. 4 Recitall of one part of a generall Statute is good enough otherwise it is of a particular Seatute fol. 232. a. 5. Omission of the date or place of Letters Patents is not materiall in pleading not Averment fol. 231. 6. A feoffment pleaded without entry of the Feoffee is good because it is included in the liverry fol. 232. b 7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue fol. 233 a. 8. The pleading that H. 7. had issue and died without issue is repugnant of his own shewing otherwise it is where it cometh on the part of the defendant fol. 233. 9. The pleading that one enter untill that the Lessor entred upon him and made the Lease is not good there without saying that he custed him and made the Lease The King shall be bound by the Statute of W. 2. of gifts conditional for that it is in preservation of an inheritance in benefit of the publike good and restitution of the intent of the donor and the exposition that the donee might alien after issue before the Statute of Gifts conditional hath been a common error As to the matter in Law it was said by the Sergeants of Counsel with the defendant that the capacity that the King hath in his naturall body after that he is King Remains and the State Royall confounds not this capacity as 45. ass pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle who exchanged it by a deed for another Mannor and died without issue and warranty and assets discended upon Edward the first his heir he is barred and therefore the assignee of the party to the exchange had restitution out of the hands E. 3. who had seised it and so by this warranty and assets which discended upon the naturall body of the King was a Bar to the reversion that he demanded in his body politike And as a King may take as heir by discent in his
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
shall not have it from him because once attached in him as the Kings Villain and his wife are 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
and the Son and within his Charge So Litl fol. 4. the Donor shall pay Rent untill four degrees past upon a gift in Free-marriage upon another gift not because the Daughter advanced and the husband from thence forth undertakes to find his wife all necessaries I promise 20. l. to one if he marries my Daughter he shall have Debt for it in our Law because the Daughter is advanced and so consideration proceeding from Nature is a sufficient Consideration in our Law 22. E. 3. ass pl. 70. Fitz. nat br fol. 44. a. and 120. r. Doctor and Student 105. And so the Consideration here of A.B. for provision for his issues males good is a good Consideration to change the use of the land Second Consideration For the continuance of the Land in the name of the Baintons good to raise an Use and Males continue their Sir names and Females change them by marriage and the Male is most Soveraign 40. E. 3.37 2. H. 4.1 27 H. 6.8 and the Female and all inheritance is subject to the will of another 17. E. 4.5 I promise 10. l. to a laborer for to repair a high way or to a Surgeon for to cure such a man he shall have an action of Debt because it is Charity Doctor and Student 105. Third Consideration The good will and fraternal love wich he hath to his bloud and his brothers which is the nearest degree of bloud after Parents and issues good considerations here and so it seems by the better opinion in 20. H. 7.10 but is not there adjudged and they that joyn in bloud by nature joyn in love and therefore if the youngest enter after the death of the Father the elder shall have no action against him conrrary to 21. H 6.15 by Portington because the Law intends that he entred as a friend to preserve the inheritance in his absence because so near in bloud the Law intends as near in love So Littl f. 93. and 40. E. 3.24 no discent of the Puisne or any of his issues shall take away the entry of the eldest for the cause aforesaid So Litl f. 160. Warranty Collateral Bars without assets because the Law presumes that he will advance him as much as he hath prejudiced him by the Warranty So no battail between Brothers or Cosens in a Writ of right But a Nuper obiit lieth against Brothers and Sisters in Gavel-kind where their ancestor died seized or a Wriâ— De rationabili part against him which enters into all which Writs are to try bloud onely So a Juror is Brother or Cosen to one party a good challeng in every action for the affection which the Law presumes the one hath towards the other 21. E. 4.33 And Bromley said That 11. H. 4.12 by Tirwit and Cascoigne by the ancient usage all the bloud of him which was Murthered should draw the Felon found guilty in an appeal of Murther by a long corde to execution for the loss which all the bloud had by the Murther of one of them and for the revengement of his death and love that they had to him that was killed Fourth Consideration Consideration was the Marrige had between Edward Bainton and Agnes his wife Remainder upon Natural Consideration shall preserve the particular estate made without Consideration which precedes it but not on the contrary if the estate upon natural Consideration precede the other estate as A. Convenants with B. in Consideration that B. will marrie his Daughter to stand seized at the time of the Marriage to the use of himself for life after to the use of I. in Tail afterwards to the use of B. and his wife the Daughter of A. is a good use to I. without consideration for the Marriage is private and several Considerations for the estate of B. and his Wife because the Remainder to I. precedes the estate to B. and his Wife but if the Remainder to I. had been after the estate of B. and his wives the estate there had been void to I. but money might have been given in Consideration of all the estates In Mordants case 21. H. 7.19 No use was raised there because the Covenant was in the future Tense and also incertain and therefore was put to his Writ of Covenant there Good and sufficient Consideration raiseth an Use without Deed so a Deed raises Uses if there be any Consideration for it is made to some effect or otherwise should be void because you shall not have an action of Covenant here because an action of Covenant lieth upon a Covenant only in the preter or future Tense and not in the present Tense 1. Contract or Agreement for Lands or Chattels is by the Law First by Writing Secondly by Words First An agreement by writing without Consideration is not Nudum because a man hath great consideration and deliberation in passing things by Deed and the writing his sealing and delivery of it signifies fully his will is sufficient consideration that Land shall pass as his will is and shall bind the party without thinking what cause he hath to do it Secondly an Agreement by word without consideration is Nudum and binds not because words passes from a man suddenly and without advisement many times as 17 E. 4.4 I promise to give you 20. l. for to make your sale of new it is Nudum pactum if it be by Deed you may have Action of Debt upon this Deed and the Consideration there is not examinable and the cause of the Deed is not inquirable for every Deed imports in it self a Consideration without the will of the party which makes the Deed. So 11 H. 4.33 A Carpenter by word without writing undertakes to make a new house and no consideration for the making of it is Nude if it be by writing it is good So 45. E. 3.24 for that the Plaintiff demanded a Debt upon a contract for marriage money by Deed an action lies at the Common Law because there it becometh a Lay Contract by the Deed in Court Christian if it had been without Deed because the marriage which is the consideration is a thing Spiritual 14. E. 4.6 15. E. 4.32 which books are against the opinion of Thorp in the said case in 22. ass before fol. 35. Nudum pactum est ubi nulla subest causa praeter conventionem sed ubi subest causa fit obligatio parit actionem Information for Mines THe King shall have all the Mines of Gold and Silver in the Lands of his Subjects H. 10. El. in the Excheq by the Prerogative of his Crown and not by the proprieity of the Soil although it be not recited in the Treatise of Prerogative and albeit the Oar thereof in anothers land toucheth others Free-holds and inheritance which is proved by three reasons First for the excellency of the matter which being more excellent is appropriated by the Law to the person most excellent viz. the King So the King hath by the Common Law Whales and
the Devise shall be void So of an infant which maketh his will publisheth it and dieth at ful age it is not of any effect because death without good Commencement giveth not effect And so the Commencement and the intent of it is to be considered in every act So the Disseisee of two acres in Dale releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed the Disseisor before the first of May disseises him of another acre and the release is delivered the 10. of May the right as to the 3. acre shall not pass because the first livery was void to this intent so the consummation of it which is the second livery So I have a Reversion of two acres that I. S. holdeth for life after I purchase the Reversion of another acre which I. S. holdeth for life after I. S. Attourns to B. for all three the third acre passeth not for Attornment passeth not more then was contained in the intent of the first Grant And so here That which is not in the intent at the begining Commencement of the grant shal not be in the intent at the consummation of the same but if he had published his will after he had purchased the new Land there it may be all might pass for by the new publication his intent shall be taken That all that which the words contain at the time of the publication will pass and by him if a man Devise a thing by a name certain as the Mannor of D. or white acre and after purchase the same it shall pass for it shall be taken that he intended to purchase it or otherwise the Will shall be void to all intents 39. H. 6 18. But here when he hath 10. acres and Devises all his Lands they are satisfied in passing of the 10. acres and there is no meaning by the words for the land purchased after the Will because the thing is not named certainly as the Mannor of Dale or White-acre Also he may not Devise the 12. acres because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will because it speaks of having Lands which he may Devise and here he hath not those at the time of the Devise Quaere of the case where he Devises by special name and after purchases it because of the word having Second point if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor Manwood for the Defendant Because it is more consonant to the will of the Devisor and reason That the effect shall take place and the form perish rather then both should perish together as Devisee for life the Remainder over dies in the life time of the Devisor it is a good Remainder and shall have the immediate possession which is the effect yet the form was for to have by Remainder So if a Dean die or a woman Covert taketh another husband before their Devisor dies yet they are especially named Land shall vest in the new Dean and his Successors and in the woman which is now the wise of another according to the intent because it cannot according to the words and if the intent of a man in Conditions shall be performed as 4. H. 7. by Joy he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori the intent in Wils shall be observed where the words cannot and the effect here is that the Heir shall have the Land and it is the form of the limitation that he shall have it by discent 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn good And Parson shall take because it was comprehended in the Devise although he was not named Lovelas and all the Justices besides Walsh to the contrary For by the death of the Devisee the Devise is countermanded for that the Devisee is not in rerum natura when the Devise took effect and in all gifts be they by Devise or otherwise there ought to be a Donee in esse capable when the thing ought to vest or otherwise the gift is void and the word Heirs limits the estate and not the persons which shall take and enables the Devisee as well to alien as to permit it of Discent for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee and a thing at his pleasure And things of sequel which ensue if the estate had been vested first as are Discent Dower Escheat are not good causes to make things vest in others then those to whom limited And therefore the heir shall not have the land here no more then the woman shall have dower or Lord Escheat if he had died without heir which should be so if it had vested in the Devisee And therefore if a man Devise a Lease or goods to I. S. which dies and afterwards the Devisor dies the Executor of I. S. shall not have them The speaking to the Son of the Devisee That he shall be his heir c. is void for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing and those are sufficient in themselves for to make the thing devised pass and not regard words without writing by all the Justices but if he had published the Testament of new the Devisee should have the 12. acres in this case for that it had been as it were a new Testament but not his heirs Delamer against Barnard A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail Remainder to the husband in general Tail 10 El in K B â—…r Remainder in Fee to the brother of the husband and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother being in Remainder in Fee 2. E. 6. The brother infeoffs the Defendant the Husband dies the heir of the first Feoffee enters to revive the use to the Wife and adjudged lawfull 1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use is drawn out of him and setled in the second Feoffee and by consequence all the uses which were created out of the first Fee-simple are discontinued and shall not be revived untill a re-entry of the Feoffee after the death of the husband and that he may enter then notwithstanding the Feoffment of the Brother 2. The Feoffment of the Brother in Remainder is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession nor in esse but only a right which he could not grant neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of
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
their Husbands is contrary to the intent of the Statute and the intent ought to be thought on because the Purviewe extends not further then the intent of the makers of the Statute as the Wife infeoffs the Father of him with whom she intends to marry for to regive the Land to them after their intermarriage for lives or remainder in tayle to the Wife the Father doth so they have issue the Wife after the death of the Husband levies a Fine to other uses their issue may not enter yet it is with in the words of the Act of 11. H. 7. because the Father gave it to them But this cometh from the Wife her selfe by circumstance And the Father was but as an Instrument of it and therefore out of the intent of 11. H. 7. which restraineth the generalty of the letter of the Statute and maketh the Cases within the words out of the penalty of the Statute by the intent of the Makers As Infants and mad Men are excepted out of the Cases of Fellonies made by any Statute so neither those nor a Fem covert shall be concluded in the intent of the Statute which maketh them accessary which shall give them Meat Drink or other ayde to them which shall commit such an Act. So if a bargaine for Land be made before a Writ brought against him and the suite depending Livery and Seisen is made It is not Champarty 19. R. 2. because he ought to performe the bargaine made upon just consideration notwithstanding W. 2. Cap. 49. and Articul super Chart. Cap. 11. So a barr fee is within the letter but not the intent of the Statute of 32. H. 6. cap. 10. because appointed to the Sheriffe in the beginning by the order and discretion of the Court for his labour and attendance when the Prisoners are brought to their delivery 21. H. 7.16 So Wreck if a Man Dog or Car escapes alive shall be kept that the party may have his goods if he claimes within the yeare by W. 1. cap. 4. is intended of such things which will endure so long and not perish in the meane time as are Lemans Oringes c. So a rent granted by tenant in tayle for a release of right in other Lands is good 44. E. 3.21 because for the benefit of the estate tayle And W. 2. De donis c. intends not to restraine that which amends the estate tayle So Parsonages and Vicarages are within the words but out of the sense and intent of 1. E. 6. cap. 14. which inlargeth the words of the Statute and maketh that Cases within the like mischeife shall be within the Purview by equity as by the Book of entrys fol. 406. a man shall recover double damages for costs sustained with force by equity of 4. H. 4. cap. 8. which gives this for disseisen of the Land So that Executor which cometh first by distresse shall answer by equity of 9. E. 3. cap. 5. which speaketh of Executors by equity of Gloucester the Lessor shall have wast against the Lessee for half a yeare or for twenty weeks which pleads yeares So 1. E. 6. cap. 12. which takes away Clergy for stealing Horses takes it away also for one Horse because included in the Plurall Number and therefore Plowden disallows 2. E. 6. cap. 33. which taketh away Clergy for the stealing of one Horse as a superfluous Statute and was made in vaine And so 1. E. 6 cannot of Law but morall vertue which reforme the Law and the other equity is Quasi equality because in the like reason in the like Law Sobye against Molins TIthes shall be payd for the Boughs of Hornebeame H. 17. El. in the Kings Bench. Attachment upon prohibition Hasell Sallows Maple and such Trees which are not fit for building and so of the Trees themselves although that the Trees and Boughs are above the age of one and twenty yeares for they are not great Trees which are exempted and priviledged of Tithes by the Statute of 45. E. 3. cap. 3. or rather by the Common Law in affirmance of which this Statute was made as appeareth 50. E. 3.10 But Tithes shall not be payd for Ashes Oaks and Elmes Beech and such like Trees which are fit for building and of the age of twenty yeares nor for the Branches of them which are of the age of twenty yeares Quere if the Branches are within such age as the Timber trees which use to be lopped and lopt if Tithe shal be payd for them and it seemeth Tithes shall be payd of them by the Book The use at this day is upon suggestion to have a prohibition that the party shall be bound by Obligation or Recognisans to the King to preferr a Bill of attachment against the party which sues in the spirituall Court if he requires it and upon it to declare and joine issue or demurr upon the right of Tithes and award consultation which Plowden held vicious First for that the Defendant is not Actor and therefore may not have consultation upon such proceedings Secondly For that the Judgement upon the Attachment ought to be to acquit or attaint the party of the Contempt and not proceed upon the right of Tithes Thirdly For that the Plaintiffe cometh into the Court voluntarily Scilicet by his Recognisans to exhibit his Attachment where he ought to be brought in voluntarily by Process Fourthly Because the suggestion of the Attachment is false Fifthly For that if the Plaintiffe will not proceed the Defendant hath no remedy but a Recognisance forfeited to the King But Plowden held it to be the best course after the prohibition that the Defendant sues out a Scire facias against the Plaintiffe Quare consultatio concedi non debeat And upon this the Plaintiffe may declare and the matter shall be tryed and the Defendant may have consultation and then he will be an Actor Sanders and Archers Case ARcher gave Poison to Sanders to Poison his Wife H. 18. El. the Report of the opinions of Dyer Cheife Justice and Barham Justices of Assises in Warw. and Sanders gives this to his Wife in a roasted Apple which did eate part of it and gave the residue to their daughter being an Infant and after the Wife recovers and the Infant dyes and it was adjudged Murder in Sanders for which he was hanged but not in Archer for he was acquit to be no accessary to this Murder First For that Sanders had an evill intent of Murder at the beginning of his Act to kill his Wife and therefore the consequent of his Act by which the Daughter dyes shall be adjudged according to the commencement So if a man shoots at one and kills another or lyeth in waite to kill one and kills another otherwise it is where he hath no ill intent of killing any as to lay poyson to kill Rats and one eates of it and dyeth Secondly The consent of Archer to kill the Woman may not bee conjectured further then he gave it
away from another by wrong Title is where a man hath cause to have the thing which another hath and hath not Action Condition is a possibilitie to have Title Action is a suite given by the Law Interest is part of the Estate of the Land as a Lease for yeares or execution by Statute fol. 484. 6. The answer to the third Objection The Lessee ought not to shew in pleading that he is not excepted in the Statute for that he gains not any new thing but will retain the old and also because the Statute is to his disadvantage but that he shall take benefit of a Statute shewing it 7. For answer to the fourth Objection it was said that admitting that the Fee here shall be forfeited to the King without Office yet the Condition shall draw it out of him without Petition or Monstrans de droit by some but Quere thereof for otherwise it shall not vest at the time of the death of the Lord Lovell it shall not vest at all for it is appointed to him as if the Lessee here had entered into Religion and the Lessor without being attainted had died without issue after the Lessee is deraigned he shall not have the Fee because it may not vest in him at the time of the Condition performed So if he was disseised at that time And so here for to avoid the inconveniency by the operation of the Law or former agreement a thing shall be devested out of tho King at the instant of the Condition performed without any such circumstance As Tenant in Taile discontinues the Discontinuee infeoffs the King by Deed inrolled the King Leases to the Tenant in Taile for life with the Remainder to his Issue for life the Lessee dies the Issue is remitted by the remainder falling to him and the Fee devests out of the King without any circumstance And so a Remitter shall defeat the Estate of the King and an Office of the King shall defeat the Remitter fol. 488. as 3. E. 4.25 in the Earle of Northumberlands Case by relation or if the Disseisee enters after the Attainder of his Disseisor Possession of the King by Office shall not be removed without Petition but if he enter before his Disseisor be attainted he shall be removed without Petition because the Title of the King there is more antient and the Office shall have relation to the Attainder onely for the profits although it relate to the time of the Treason for to avoid mean Acts and Incumbrances So Tenant in Capite maketh a Lease for life rendring Rent with clause of Re-entry for not payment and dies his Heire within age enters for the Rent arere An Office is found the entry of the Heire for the Condition broken is avoyded by Lovelace for the possession of the Heire by force of which he entered is utterly defeated by Relation which intitles the King to the Grant And so the entry of the Heire for a thing not due to him shall be adjudged Tortius by relation So if Trespasse 19. E. 4.2 where for things coming of the Land as Grasse c. Office avoids the punishment against those which doe the wrongs and takes it away by relation of the Office which Intitles the King because of the Escheat before the Trespasse an Action once good But for the entry into the Land or breaking his Fences which ariseth not from the Revenue of the Land the Action is not gone by the Office If an Office virtute Commissionis be pleaded he ought to shew the authority given by it and the execution thereof accordingly because persons appointed by Commission have not any other then what is appointed to them by the Commission otherwise it is of an Inquisition taken virtute Officii before the Escheator Sheriffe Steward of a Leete c. for that their authority appeareth to the Court judicially because it is known by the Law for that they are Officers of the Common Law A Remainder ought to vest when it is appointed otherwise it shall never vest The Kings Pardon shall not excuse any man for the repairing of a Bridge which ought to do it because it shall not take away the Interest that the Subjects take therein So a man pledgeth a Jewell for ten pound and after is attainted the King shall have it without paying of the ten pound So 13. R. 2. the Earle of Kent had return of certain Cattell in Replegiari and the Proprietor of them is attainted the Earle shall keep them against the King untill he be satisfied of the thing because the Prerogative will not give any prejudice to another Ludford against Gretton A Warrant to make Letters Patents M. 18. 19. El. in the Kings Bench Trespas was directed by H. 8. to the Chancellor which entered not the day of the Receit of the Watrant in the Record according to the Purview of the Statute of 18. H. 6. cap. 1. And yet the Letters Patents made thereupon were adjudged good For that the Purviewe of the Statute maketh Letters Patents void onely for the variance between the date of the Patent and the day of the entery of the Warrant And the Court held three manner of Patents good upon the Statute 1. If no Warrant be made at all it is good by the Common Law and not void by the Statute because there is not any variance 2. If there be a Warrant and the day of the delivery of the Warrant be not entered as in the Principall Case 3. If the day of the delivery of the Warrant be entered and the Patent dated after the day of the delivery for this variance is out of the mischief of the Purview which was in antedating of Patents before the delivery of the Warrant and not after dating and yet is within the words but out of the intent of the Act. Records shall have Relation to their date and cannot be averred contrary to the date not to vary from it because it tends to the discredit of an Officer of Record Deeds relates to the Livery and date in Deeds concludes not any to aver the contrary Grendon against the Bishop of Lincolne HENRY the eighth being seised of an Advowson in the right of his Crown P. 19. El. in the Common Pleas. Quare Impedit presents J. S. and dies E. 6. by his Letters Patents grants the advowson to the Dean and Chapter of L. and their Successors in Fee and also grants to them License and Liberty virtute authoritatis sue Regiae supremae Ecclesiae qua fungimur that they shall retain the said Advowson and all the Profits thereof for ever to their proper uses whensoever the said Church shall become void And after the death of the said Incombent the said King E. 6. present his Clerk to the said Church which was Admitted Instituted and Inducted and adjudged no usurpation which shall put the Dean and Chapter out of possession If the Plaintiffe alledge matter effectuall as discent c.
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