commend Achilles for his great valor in killing Hector the stoutest of the Troians and for his good fortune in killing Cygnus who being inuulnerable did barre all the Gretians from comming downe the wall and because beeing young and not bound by any othe or leageance he fought so valiantly for the Gretians These two later of the proper adiuncts I call externall as not flowing from the essence of a thing but befalling externally to it when it is in esse Of this kinde there are two in the Analysis the seconde and fourth The Analysis of Littletons Chapiter of Fee taile Fee taile may be diuers waies considered By the first originall Tenant in fee taile is by force of the statute W. 2. cap. 1. for at the common Law before the said statute all inheritances were fee simple A By the definition Inuented Feodum taliatum est haereditas in quadam certitudine limitata Expounded after ij sorts 1 If tenant in taile die without issue the donor or his heires shall inherite as in their reuersion for in euery gift in the taile the reuersion of the fee simple is in the donor 2 If a man giue lands or tenements to an other to haue and to hold to him and to his heires males or females he to whom such gift is made hath fee simple for that it is not limitted by the gift of what bodie the issue male or female shall be By the diuerse kindes thereof In respect of the nature of the entaile Taile general which is to be considered by the Definition Inuented Taile general is where landes be giuen to one and to the heires of his bodie begotten Expounded Therefore it is called generall taile because whatsouer woman the tenant taketh to wife if he haue many wiues by each of thē haue issue yet any of these issues by possibility may inherite the tenements by force of the said gift because that euery such issue is of his body ingendred So if lands be giuen to a woman and to the heires of her body howbeit that she haue many husbands yet the issue that she hath by each husband may inherite By an example or speciall kinde thereof If tenements be giuen to a man and to his wife to the heires of the body of the man ingendred in this case the husband hath estate in the general taile the wife estate but for terme of life Taile speciall which is to be examined according to the Definition Inuented Tenant in taile special is where lands tenements be giuen to a man and his wife iointly or seuerally to the heires of their two bodies begotten Expoūded after two sorts 1 In such case none may enherite by force of such gift but those which be engendred betweene them two it is called special taile for that if the wife die and he take an other wife and hath issu the issue of the second wife shal neuer inherite by force of such gift nor also the issue of the second husband if the first die 2 In the same maner it is where lands tenements be giuen by a man vnto another with a wife which is the daughter or cousin to the giuer in frankmariage which gift hath inheritance by this word Frankma◠vnto it annexed howbeit they be not expressely said nor rehearsed in the gift that is to say that these donees shall haue these lands or tenements to them to their 〈◊〉 betweene them two ingengred this is called special tail because the issue of the second wife may not inherit the woman donee in frankma◠must be of kin to the donor they shal do no seruice but feal it till the 4. degree to be accompted from the donor be past Diuerse kindes thereof 1 If lands be giuen to the husband and to the wife and to the heires of the husband which he begetteth of the body of the wife in this case the husbād hath estate in special taile and the wife but for terme of life 2 If the gift be made to the husband and to the wife and to the heires of the wife of her body by the husband ingendred the wife hath estate in special taile the husband but for terme of life 3 If lands be giuen to the husband the wife and to the heires which the husband hath by his wife in this case both haue estate in taile special for that this word heires is not limited more to the one then to the other 4 If lands begiuen to a mau his heirs with he engēdreth on the body of his wife in this case the husbād hath estate in the tail special the wife nothing at al. In respect of the persons to whom the taile belongeth Taile to the heire male which is two fold 1. If landes be giuen to a man his heires males of his body ingendred in such case his heire male shall inherite but his issue female shal neuer inherite 2 If lands be giuen to a man to his heires males of his body engendred he hath issu ij sonnes deceaseth and the elder sonne entreth as heire male and hath issue a daughter and deceaseth his brother shall haue the land and not the daughter for that the brother is heire male Taile to the heire female with is to bee cōsidered by the definition Taile to the heire female is where lands be giuen to a man to his heires females of his body ingendred in this case his issue female shall inherite by force and forme of the said gift and not the issue male for that in such cases where the gift is who ought to inherite and who not the will of the donor shall be obserued By the properties 1 Whosoeuer shal inherite by force of a gift in the taile made vnto the heires males it behoueth him to cōuey his discent by the males with may be illustrated by 2. exāples 1 If lands be giuen to a man and to his heires males of his body ingendred and he hath issue a daughter who hath issue a sonne and deceaseth in this case the sonne of the daughter shall not inherite by force of the taile but in such case the donor shall enter 2 If lands be giuen to a man and his wife and to the heires males of their two bodies begotten and they haue issue after the like sort the like shall happen 2 The death of a man taketh not away the estate of those that be in the tail as if a man haue issue a sonne deceaseth and land is giuen to the sonne and to the heires of the body of his father ingendred this is a good tail and yet the father was dead at the time of the gift 3 The donees and their issue shall hold of the donor and his heires as he holdeth of the Lord Paramount Obseruations vpon the Analysis THis definition which Maister Littleton maketh of estate taile consisteth likewise of genus and of a difference The genus is haereditas
testament a man ob impedimenti necessitatem is inforced to write but now the vse of codicills or testaments are without any necessitie confounded which is contrary to lawe for a â—odicill ought to serue necessitie not a rash onset Cognatio kindred it is deuided into three parts 1. into parents 2. into childreÌ„ 3. into cosins Parents are they of whom we are begotten as father mother grandfather grandmother and these which are in degree aboue them Children are they which are begotten of our bodies as sonne daughter grandchild and such as he vnderneath them Et nati natorum et qui nascentur ab illis Cosins are they which haue neither begotten vs nor bin begotten of vs but haue a common roote and originall with vs as brother sister vncle aunt and such as do discend from them Colludere is in fraudem tertij conuenire Commenda the custodie of a Church committed and commended to some Commodare is to graunt the vse of some thing for a certain time there is difference betwixt commodare mutuo dare because coÌ„modare is to lend to haue the same againe as bookes apparel and such like but mutuo dare is to trust hoping to haue the like againe as money corne salt spices and such like Compromissum is the power that is giuen to the arbitrator so called because both the parties doe promise to obey the opinion of the Iudge therfore he is called compromissarius index to whom the matter is referred Communitas a comminalty is societas hominum communi lege viuentium Conditio when a thing dependeth super casum incertum which may tende eyther ad esse or ad non esse Confessio is double either iudicial or extraiudicial iudiciall is that which is done before the Iudge extraiudicial which is done in presence of good and honest men Consentire is to meete in one opinion Constitutiones Iudgements rules and awardes concerning seueral matters whereupon this verse hath bin made Quatuor ex verbis virtutem collige legis Permittit punit imperat atque vetat Controuersum ius is that which is on both sides doubtful certum ius is that which is certainly determined is called positiue Law Copulatiua the coniunction copulatiue is taken after two sorts either in a deuided sense or in a compounded sense in a deuided sense as when I say Sir Robert Booke and Sir Iames Dyer were Lord chiefe Iustices of the CoÌ„mon pleas for they were not chiefe Iustices together but at diuerse times in a compounded sense as when I say two three do make fiue D. Debito is he of whom we may against his wil exact money Decimae are of three sorts praediales personales and mixt praediales are they which arise of farmes or lands as corne hay and the fruits of trees personal which are due by personall labor as by some trade trafick or mistery mixt of which it may be doubted whether they be predial or personal as wool lambe milke c. Defensio is the auoiding of a surmised pretended offence Delegatus a delegate to whom a cause is coÌ„mitted to be determined and ordered De plano vel sine figura iudicij vel summarie Deprehendere is to take a man in ipso facto so that he can neuer flye nor denye the facte Discendere to discende or to spring of ones body hereupon they which are borne of vs are called by the name of discendents which with them that ascend make the right line and the ascendents and discendents cannot marry together wherefore if Adam were now liuing he could not marrie a wife Dicecesis the gouernment of a certaine prouince by the Bishop for as a territorie is so called quatenus iudex ius terrendi habet so a diocese as farre as a Bishop hath ius administrandi sacra Dispensatio a release of common right either ex causa vtilitatis necessitatis or ingentis praerogatiuae meritorum Diuersa such things whose subiect is not alike or whose definition is not alike Dominium is a right to dispose perfitly de re corporali Domus instructa a house furnished if a man deuise such a house the household stuffe passeth but not the wine that is within the house because by common intendement a house is not furnished by wine Dubia causa is that which is but semiplene probata E. Error an opinion whereby that is approoued and allowed to be true which is false and that to be false which is true and error may be two wayes eyther in iure constituto or els in iure quod quis in suo habet negotio the one is an error in lawe the other in facto Euanescit actio the action doth faile or abate euanescit actio by the power of the lawe or of the Iudges remittitur actio by the will of the plaintife Executor an executor which is after three sorts executor testamentarius executor legalis that is to say the ordinarie executor datiuus the administrator Election is the certainetie of our will it may be of persons or of thinges places or times Of things as if a man should pay a summe of money or els a horse or a hawke Or of persons as if he should pay it to I. S. or to I. N. Or of places as if he should pay it at London or at Lincolne Or of the time as the first day of April or the second day of May. F. Falsitas falshood is immutatio veritatis cum doto damno alterius the chaunge of truth with falsehoode to the deceiuing and endamaging of an other man Fama is a common report proceeding from suspition and published by the voices of men and it differeth from rumor because that is a diuerse whispering of men which is not so effectuall as Fame Fama constans is that which is dispersed abroade neither by men vnknowen nor of light credit nec ignotis nec improbis Fideâ—â—â—â—â— is he which bindeth himselfe for another quasi inssu alterius ponens fidem suam Fortuitus casus a meare chaunce which by mans counsaile care and diligence can neyther praeuideri or praecaueri be fore-seene or foreclosed G. Generalis lex a general law which comprehendeth all cases except such as be vnlawfull and vniust For there is nothing more absurde then to draw a iust Lawe to an vniust interpretation Germani fratres are they which are of the same Father Mother Consanguinei which haue the same Father but not the same Mother Vterini which haue the same Mother but not the same Father Gestores negotionuÌ„ factors or procurators be of three sorts voluntarij which gratis and of their owne accord do regard the busines of their friend Necessarij which by obligation of their office doe follow matters Quasi necessarij which haue some colour to deale in matters Graeca mercari fide i. pecunia numerata with money paied in hand I. Illegitimi bastardes whereof there be three sortes Incestuosi which be begotten of kinsmen and kinswomen within the
principall reason inseperable truth of euery thing which the vnderstanding straineth out of the secret and hidden causes of thinges for as in hearbes if we touch them outwardly we do not finde nor feele any moisture in them but rather take them to be vrie vntill by pressing or distilling of them we wring out a iuyce proper to their nature So the Law doth conceiue and conclude many things of ordinarie contingents which common sense can not perceiue but rather imagineth them to be clean contrary to the truth whereas they may to a good vnderstaÌ„ding easily appeare to be true by the certaintie necessary coordination of their causes and reasons That this may be made euident I mean to annexe some particulars for the explaning therof 1 It is cleere by Law that a terme and a freehold of the selfe same thing may be both in one man at one time yet if this be deliuered to a superficiall vnderstanding it will seeme a paradoxe Tenant for terme of yeres maketh his executors dyeth the executors purchaseth the reuersion in this case both the terme fee-simple are in the executor to seueral purposes for the terme shal be assets to the vse of the testator the fee simple free inheritance for the vse of the executor his heires And if a man be seised of land of an estate for life the remainder to his executors for yeres he may deuise this term or assigne it And if lessee for yeres grant his terme to the wife of him in the reuersion to a stranger the inheritance of the husband can not extinguish the moitie of the terme because he hath the inheritance in his owne right the terme in right of his wife A man seised of land in right of his wife is attainted of felony the king seiseth the land pro vita viri the king hath but a chattel the wife the freehold for if a stranger enter the husband dye the wife shall haue an Assise 2 Likewise it will seeme strange though in Law reason it be true that a man should be remitted to his land to some intent yet not to an other As if a recouerie be had vpon a false title against tenant in taile the tenant in taile dyeth the issue entreth he is in of his first right against all but onely the recoueror So if tenant in taile discontinue his sonne heir apparant disseiseth the discontinuee to the vse of the father the tenaÌ„t in taile dieth the sonne by M. Chookes opinion is in his remitter against all but onely the discontinuee the issue in taile which hath good cause of a Formedon in the discender is of couin that A. should disseise the discontinuee against whom he recouereth he shall not be remitted in respect of him but shal be accompted a disseisor but against all others it seemeth that he is remitted Tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth the issue is remitted against all persons but onely the woman A title may be executed to some intent and yet not executed to an other And therefore if there be tenant for terme of life the remainder in fee to a stranger against whom a recouerie is had pro loco tempore in a Warrantia chartae brought by a stranger of other land he in the remainder dyeth the recouerer is impleaded and voucheth the heire of him in the remainder and recouereth tenant for life dyeth execution shall be â—ued against the heire of the land whereof his auncestor had a remainder because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought but to all other intents it was executory for it was not executed that the wife might be endowed nor for him in the remainder to bring a writ of right But the remainder in such cases is to some intents executed for if he in the remainder had aliened his remainder in Mortmaine the lord might haue entred and vpon such a remainder the lord may haue a Cessauit but the heire shall not haue an Assise of Mortdauncester 4 A thing may be extinct or in suspence in one respect and in Esse in an other respect the father being tenant in taile alieneth the land with warrantie and hath a rent charge in fee issuing out of the land of his sonne and heire apparant which rent discendeth to the sonne this rent is a good assets for the value in respect of the discontinuee and yet it is extinct in respect of the issue A man seised of a rent seruice is bound in statute staple and after purchaseth the land out of which the rent is issuing after execution the rent is extinct as to the conusor but in Esse as to the conusee A corrodie is graunted to I. S. for life who graunteth it backe to the grauntor for terme of yeares rendring rent the corrodie is in Esse as to the payment of the rent but in suspence as to the taking of the corrodie And it was lately ruled in one Caires case in the Court of wardes that if a man held land of the Queene by a certaine rent and the Queene graunteth the rent to a stranger who graunteth it to the tenant the rent is extinct as to the payment but in Esse as to the tenure The King seised of a forrest graunted the office of the forrester to one rendring rent and he graunteth the forrest to an other the forrester forfayteth his office yet the grauntor shall haue the rent So that it must needes be that the office to the intendment of law is to that intent in Esse And if a man graunt to an other a rent out of his land in fee vpon condition that if the grauntee or any of his heires dye their heire being wythin age the rent shall cease during the minoritie if the grauntee dye hys heire wythin age his wyfe shall haue dower but cessabit executio during the nonage But in this case it seemeth that if the heyre dye during his nonage the wyfe of the heire shall not haue dower of the rent because it was neuer leuiable by the sonne as it was by the father A man seysed of two acres of lande hath issue two daughters and dyeth now the rent is in suspence as to one moitie and in Esse as to an other moitie 5 The intendement of the Law is as stronge in a matter of law as the trueth it selfe in a matter in facto And therfore if A. be disseised and hys brother maketh a release with warrantie to the disseisee and afterward entreth into religion this warrantie shall be a barre to A. although that hee be lyuing for A. may haue his land by discent and therefore it seemeth to be reason that the warrantie should discende
vpon him as his heyre Note here of what validitie the intendement of Law is touching a ciuill death The Wardein of the Fleete who hath the office in fee dyeth seised and the office discendeth to his sonne and heire being then in prison the Law doth presently discharge him of imprisonment because he is to be at large the better to looke to others that be in pryson A man maketh a lease to one for terme of life rendring the first seauen yeares a rose and if he will hold the land any longer then seauen yeares that then he shall pay foure Markes yerely liuerie is made the lessee surrendreth at the ende of the first seauen yeares his estate was adiudged to be but a terme ab initio and no freehold and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum If a man make a lease of land excepting the trees which grow vpon the land the trees are seuered in law for he hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition or sale of them for by the exception they were seuered from the terme but not from the inheritance but by the vendition they were seuered from the inheritance If the Baylife of the land doe demaunde a rent seruice and the tenant denyeth it and the Baylife sayth that hee will distraine for it and the tenant sayth that hee shall not distrayne wherefore the Baylife dare not proceede further to take a distresse for doubt of death thys is a disseystn of the rent in the eye of the Lawe And if a rent seruice be warranted to one and the land doth escheat the Law as M. Finchden thinketh transferreth the warrantie to the land 6. One thing in the vnderstanding of Law may be of seuerall natures in seueral respects and so one writ may be two seuerall writs to two seuerall intents In an action of debt the declaration was of x. li. vpon a sale and v. li. which he had deliuered to the defendaut to redeliuer and it was held good because the action was in the debet and detinet and the warrantie of atturney and the essoine in this case shall be in placito debiti Quaere If a man lease land to one for terme of yeares rendring rent and the lessor graunteth his rent to a stranger and the lessee surrendreth this doth not extinguish the rent for now it is a rent seck which doth not depend vpon the reuersion And so one man to the vnderstanding of Law may haue seuerall capacities or respects For if a man disseise a feme sole being an inheritrix of certaine land and after he taketh her to wife and they haue issue and the husband is disseised and the disseisor leuieth a fine wyth proclamations the husband dyeth fower yeres after the proclamations and before the fifth yere be passed the issue being of full age and after the wife dyeth and the fifth yere passeth now the issue is bound as heire to his father yet he may haue other fiue yeres as heire to his mother to be accompted from the death of his Father So if I. S. be tenant of land for terme of an other mans life the remainder to an other for life the remainder to the said I. S. for terme of his life or in fee and he is disseised and the disseisor leuieth a fine with Proclamations and the fiue yeares incurre now is I. S. bound for the present estate but if he in the mesne remainder for life die hee shall haue other fiue yeres for the other estate So if a man haue an estate in land for the life of A. the reuersion to himselfe for the life of B. the remainder to himselfe for the life of C. and is disseised and the disseisour leuieth a fine with Proclamations he shal haue fiue yeares seuerally after euerie seuerall estate determined I. S. giueth land to A. his daughter in taile and hath issue B. another daughter and dieth A. dieth hauing issue C. a Precipe is brought against C. who voucheth to warrantie her selfe and B. as heires to the donour of the reuersion to haue the warrantie paramount in this case is C. both the vouchor and the vouchee A terme is deuised to one who is made executor he entreth this is an administration and an execution of the terme vnto him and he is both deuisee and executor A. couenanteth by Indenture with B. that the sonne of A. shal marrie the daughter of B. and that therefore B. shall giue vnto A. an 100. li. if the marriage did not take effect before such a day that then A. and his heires should stand seised to the vse of B. and his heires vntill the hundred pound be payed by A. his heires or executours B. dyeth and after the marriage taketh not effect the vse and possession of the land vesteth in the heire of B. but Quaere saith Brooke whether he shall be in ward or no for he is an heire and yet he is a purchasor If I. S. be Deane of P. I may giue him land to him and his successours and to him and to his heires there hee taketh both as Deane and as a priuate man and is tenant in common with him selfe so if a rent charge be graunted in such manner he shal ioine with himselfe in an Auowry Likewise the Lawe may deny one a benefite as he is I. S. and yet allow it vnto him as he is executor to I. N. and therefore if an executour be Outlawed or Excommunicated which be disabilities in Law yet as an executour hee may maintaine an action because he sueth and is to recouer to the vse of an other person and so an executour may haue an action of trespasse in his owne name without nameing his companion in the executorshippe if goods be taken out of his possession For he is possessed of them as a priuate man but he is possessed of them to the vse of an other as executour And he need not in the case aforesaid name himselfe executour For if he do it may tend to the abatement of the writ according to M. Kebles opiniō who saith that the possession of one of the executors his meaning is as he is executor is the possession of both and herewith agreeth the opinion of Newton but by their fauors though the propertie of the executors in the goods of the testator be one and the same yet the possession may be seueral for he that hath the custody of goods may only be said to be in real and actual possession of the same which kinde of possession is onely heare meant for which cause a writ of Detinue that concerneth the possession of goods shall bee brought only against that executor who is possest of the goods 7 The Law may
that writ better then hee who in handling Logicall places doth illustrate them with many examples but with neuer a rule What manner of teaching is this to shewe vnto thee that others did thus but not to shewe why they did so which default is for want of rules in which the reason and knowledge of doing thinges aright is conteyned A man cannot make a shooe by a number of lastes but hee must haue instruction of one that is skilfull in the trade Some againe will haue euery thing confirmed by the authorities and testimonies of them that be learned thinking that onely to be the fit way of teaching But the certaine and necessarie reasons of the Mathematikes are not in all artes to be required Neyther is there an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or accurate kinde of handling things in all sciences alike to be vsed and obserued but in euery science things are so to be ordred and digested as the subiect or matter doth require where about it is employed and so farre forth as may be agreeable to the profession of the science For a Geometrician and a Carpenter doe diuersly handle and vse a right line the one as it may be profitable to his worke which he carueth the other searcheth what kinde of thing it is and of what nature and so other sciences must be ruled by the subiect which they contemplate least there be more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in them neyther is a cause or reason to be exacted in all things for of many it is sufficient to haue this knowledge quòd ita sunt though we cannot know propter quod ita sunt as of principles which are the first and highest rules in artes and sciences and therefore no reason can be yeelded because they are prima the very first in the discourse of reason and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for theÌ„selues to be beleeued Surely Methode is so conuenient a thing in the studie of the lawe that without it neither can the vnderstanding be well taught nor the memorie well directed It is not enough to haue a great heape of things that are to be read vnlesse the vse or order and manner of reading them â—e well vnderstoode and as in things that â—e fit for banquets thoâ—gh there be great varietie of sweete meates yet there is nothing more vnpleasant or vnholsome if they be mingled together so the Student must haue a care least the order of his reading be confounded least the last things be handled in the first place and these thinges which should be in the middest be put in the last place whiche whosoeuer doe they cannot onely not comprehende the thinges which they studie but vtterly debilitate and weaken the strength of the memorie therefore it is good for Students to vse an artificiall Analysis or resolution of things into their principles which may teach to deuide the whole into his partes and to subdeuide partes into parcells and in the end to make a consent and coherence of the entire thing and his partes for though the skilfull partition of things be profitable and pleasant for the memorie yet the Synthesis that is the apt composition coordination and mutuall dependance of them doth more satisfie the vnderstanding Therefore Polybius a iudicious aucthor saith well that they which thinke by the knowledge of particulars dispersed to attaine to the full and perfit knowledge of the entire thing doe no lesse erre then hee who viewing the partes of a handsome and comely body seuerally and apart doth therefore imagin that hee knoweth the whole feature and portraicture of the same man who if hee had beheld these parts ioyned together and compacted and moued by the spirit of life would haue iudged farre otherwise For though a man may haue a confused notion or conceite of the whole by viewing the seperate and disioyned partes yet it is not possible that hee should haue certaine knowledge of the same no more then a man by seeing perticular Mappes of Cities may certainely perceiue the figure situation and order of the whole world But he that can easily resolue things may easily compound for when he knoweth the particular sense and vse of the thinges resolued hee may easily gather a generall knowledge of the whole thing that is a generall knowledge of manye particulars whiche make one entire thing The forme of this Analysis following whiche is of Maister Littleton his two Chapiters of fee simple and fee taile I doe offer to the Student as a thing to be considered of because it is incident to this purpose which though it gaine not his good liking yet if it minister but occasion vnto him to aduenture vpon the conueyance of some other Analysis that may receiue the generall approbation and iust applause of the learned I shall thinke my labour herein well bestowed and woulde gladlye reape profit by other mens presidents The Analysis of Littletons Chapiter of Fee simple Tenure in fee simple may bee considered By the definition Inuented Fee simple is as much to say as a lawfull and pure inheritance Expounded He that will purchase lands in fee simple must haue these wordes in his purchase To haue and to hold to him and to his heires for these words his heires make the estate of inheritance and he that lacketh this word heires and hath to haue and to hold to him and to his assignes for euer hath estate but for terme of life By the tenant in fee simple who is after two sorts to be considered Generally Tenant in fee simple is he which hath landes or tenemeâ—â—s to hold to him and to his heires for euer Particularly By purchase as when a man both lands and tâ—â—ements by his deede or by his agreement to the possession of which he commeth not by title of discent from none of his auncestors or his â—osins but by his owne act By discent who may be thus described He that is tenant in fee simple must be of the whole bloud wâ—â— may bee proued by two examples 1 If a man haue issue two Sonnes by two venters and the elder purchaseth lands in fee simple and dieth without issue the yonger brother shall not haue the land but the vncle of the elder brother or some other his â—ye cosins shall haue it for that the yonger is but of the halfe bloud to the elder brother 2. If a man haue a Sonne and daughter by one venter a Sonne by an other venter and the sonne by the first venter purchaseth lands in fee simple and dieth without issue the sister shall haue the land by discent as heire vnto her brother for that the sister is of the whole bloud to the elder brother By the properties of fee simple 1 Inheritance in fee simple may lineallie discend but not lineally ascende which may be illustrated by sixe prerogatiues 1 By the vncles prerogatiue If the fathers sonne purchase land in fee simple the vncle shal haue the
land as heire vnto the sonne and not the father because it cannot lineally ascende 2 By the fathers prerogatiue which is threefold 1 If the foresaid vncle dye without issue the Father liuing the Father shall haue the land as heire vnto the vncle and not vnto the sonne for that he commeth to the land by collaterall discent and not by lineal ascention 2 If landes discend by the Fathers side the Fathers side shall inherite and none of the Mothers side 3 If the sonne die without issue and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side 3. By the mothers prerogatiue which is twofold 1 If the sonne hauing purchased lands in fee simple haue no heires on the fathers side then shall the land discend vnto the heire on the mothers side 2 If a man take a wife inheritrix in fee simple which hath issue a sonne and then dieth and the sonne entreth into the tenements as sonne and heire to his mother and after dieth without issue the heires of the mothers side ought to inherite the tenementes and not the heires of the fathers side 4 By the brothers prerogatiue which is after two sorts 1 If there be three brethren and the middle or yonger brother purchase land and dye without issue the elder brother shall haue the land by discent for that he is more worthie of bloud 2 If there be two brethren by diuers venters and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tenementes as heire to the vncle because hee is of the whole bloud to his vncle 5 By the Sisters prerogatiue If a man be seised of land in fee simple which hath issue a sonne and a daughter by one venter and a sonne by an other venter and dieth and the elder sonne entreth and dyeth without issue the daughter shall haue the land and not the yonger sonne but if the elder brother die before entrye be made then the yonger brother shall haue the land Qui a possessio fratris defeâ—do simplici facit sororem esse heredem 6 By the prerogatiue of the whole kindred If a man purchase land in fee simple and dye without issue euery one that is his next cousin collateral for default of issue may inherite 2 Of such thinges whereof a man may haue a manuall occupation possession or receite as of lands tenemeÌ„ts rents or such other a man shall say in his pleading in way of barre that one such was seised in his demesne as of fee but of such things that lye not in manual occupation as of an aduowson of a church or such maner of things there he shal say that he was seised as of fee and not in his demesne as of fee. 3 Fee simple is the largest greatest inheritance that a man can haue 4 For default of lawful heires the lord shal haue the land held in fee simple by eschete Obseruations vpon the Analysis THis definition which Maister Littleton vseth soundeth like a good Logicall definition as consisting of the true genus and the proper difference for this word inheritance is the genus which extendeth as well to fee simple as to fee taile and this word pure is a difference whereby it is distinguished from fee taile for fee simple is a pure inheritance that is without limitation or restreint but fee taile is a limitted or a restreigned inheritance This word lawfull in the definition is not idle but the meaning of it is that it is an inheritance according to the meaning of common lawe for if by lawfull should be meant rightfull then a fee simple by diseisin should be excluded which I thinke was not Maister Littletons intent And againe if this worde lawfull shoulde extend to all lawes inheritance should be heere taken according to the interpretation of other lawes also which cannot be Maister Littleton well beginneth with the definition for there are but foure things to be doubted of first whether a thing be in rerum natura secondly what it is and of what nature thirdly whether it be such and so qualified or no fourthly why it is such and so qualified and he that wel openeth these foure points shall in all learned discourses shewe hymselfe excellent and absolute The nature of fee simple may bee somewhat vnderstoode by applying it to the subiect to which it apperteineth for tenant in fee simple and tenure in fee simple beeing coniugata hee that well knoweth the one must of necessitie well vnderstand the other Maister Littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate and explaine the things whereof wee intreate they are of two sortes externall and internall Internall are they whiche flowe from the nature of the thing it selfe of such sorte are the first and third properties mentioned in the Analysis for in that fee simple may lineally discende and not lineally ascende the nature of the tenure is the onely cause for it beeyng to a man and so hys heyres the more worthie heire is he that is of the bodie the lesse worthie he that is of the bloud and not of the bodie but the father in regard of the sonne can be neither of these but in regard and by mediation of the vncle he may be heire to the sonne because he is of the vncles bloud so that in the direct line it is euident that the fee simple cannot ascend and it is a very essential propertie to fee simple to be the largest and greatest inheritance because it is to a man and his heires without limitation Externall properties are these which do so go before a thing or so follow it or so cleaue to it that notwithstanding there is no necessitie of any of these as for example before the killing of a man commonly there is some brawling and contention of words With the acte doth concurre the sighing or groaning of him that is slaine and the flight feare lurking trembling and vnconstant answere of him that did kill him do follow the acte howbeit some be slaine without the concurrence of these circumstances There be two sortes of adiunctes some belonging to the person some to the thing it selfe to the person as the kinred countrey seâ—e age education the habit of the bodie the fortune the estate the qualities of his minde the manner of his life The adiuncts of the thing are the causes the place the time the manner of doing a thing and such like Of these some be common and some be proper common as if one should commend Achilles because he was of good birth because he was a great captaine because he was in fight against the Troians for euery of whiche Diomedes is as much to be commended as Achilles Proper adiuncts be as if thou shouldest