The law of conveyances, shewing the natures, kinds, and effects, of all manner of assurances, with the manner of their several executions and operations. Also directions to sue out and prosecute all manner of writs, of extent, elegit, and judiciall writs upon statutes, recognizances, judgments, &c. A warrant to summon a court of survey: and the articles to be given in charge, and inquired of in that court. With an exposition of divers obscure words and termes of law, used in ancient records, &c. And also plaine decimall tables, whereby may be found the true values of lands, leases, and estates, in possession, or reversion. With a concordance of years, &c. / By John Herne Gent.

THE LAW OF CONVEIANCES OR , A perfect explanation of all the essentiall and accedentall parts of all sorts of instruments , for the conveying of all things , whether corporall or incorporall , and what words , actions , and circumstances are required by Law thereunto .

THe Office of the Premises of the Deed is to expresse the Grantor , Grantee , Premises . and the thing to be granted .

The Office of the Habendum is to limit the Estate and to explane the Premises . Habendum And his Office is to give , to enlarge and to be persuing to the Estate contained in the Premises of the Deed , but his Office is not to be repugnant , contrary , lesser , nor to exclude any of the interest before given in the Premisses , for if it so doth the estate precedent given shall stand , and the habendum shall be voide .

As if a Feoffment be made to one and his heires by the Premises of the deed , Habendum to him and his heires during the life of I. S. Or if a Feoffment be made to one and his heires by the Premises of the Deed , Habendum to the lessee for terme of his life , those words of limitation during the life of I. S. or during the life of Tenant for life , are void words , for that the Habendum is repugnant to the Premises , vide Lo. Cokes , 2. Reports , Baldwins Case Fol. twenty three , touching repugnancy between the Premises and the habendum .

Sometimes the habendum doth controll and qualifie the generall implication of the estate , which passeth by construction of Law , by the Premises of the Deed , as for example .

A Lease to two , habendum to one for life , the remainder to the other for life , this limitation doth alter the generall implication of the joyntenancy which would have been without the habendum , and therefore the habendum voide , in that the Premises doth make them joynttenants , & the habendum would sever the joynter , and make the one to have the whole during his life , and the other the whole after him , Plowden fo. 133. vide Sir Ed. Coke , 2. Par. fo. 55. Buchlers case , such a remainder is good .

And if two acres bee given to two habendum , the one acre to one , and the other to the other , that is a voide habendum , because it excludeth the interest of the one in the one acre , and of the other in the other acre , where the Premises of the deed hath made them joynt-tenants of every parcell .

Remainders Every remainder ought to have these severall properties and things following , as Notes and Rules to discerne and know when remainders are good .

But note that where a remainder is once well raised by the Livery and Seisin , though the perticular estate be afterwards avoided by condition in Law , as by a recovery in wast , or if a Feme Tenant for life disagree to the Livery after the death of her husband &c. Yet he to whom the remainder is limited shall be Tenant in taile in remainder , vi . 1. part . Shellies case , fol. 101. good cases upon this . An estate precedent made at the same time the remainder doth commence .

As if the lessor confirme the estate of his Lessee for yeares , the remainder in Fee , this remainder is void , because the estate for yeares was made before the remainder , and not at the time of the remainder .

If the lessor disseise his Tenant for life , and then makes a new Lease to him for life , the remainder in in Fee , that remainder is void , because the Tenant for life is remitted to the estate which was made long time before the remainder appointed , so the estate precedent was not made at the same time of the remainder , and therefore the remainder void .

So if the heire endow his mother , the remainder in Fee , this remainder is void though Livery and Sesin be made to the mother , because the dowre hath relation to the death of her husband , and so for that the estate precedent was not made when the remainder was appointed , the remainder is voide .

The perticular estate must continue when the remainder shall vest , and the remainder must commence in possession at the very time the perticular estate endeth as well in Wills as in the grants , for there may not a meane time between them .

As if one make a Lease for life , and that a day after the death of Tenant for life it shall remaine over , this remainder is void , because the first estate is determined before the appointment of the remainder .

So if one make a Leese for life upon condition , that if he doth not such an Act , that his estate shall cease , and that then it remain over in Fee , this remainder is void , because it doth not vest during the estate precedent .

The remainder must be out of the lessor , executed or executory at the time of the Livery and seasin made , and at the time of the possession taken by the perticular Tenant .

If a man hath issue a Son of nine yeares , and makes a Lease till his son shall come to his full age , & then the remainder to another in Fee , nothing vesteth forthwith to him in remainder , and the remainder is utterly void , and yet it may take effect , because the remainder ought to passe out of the lessor , forthwith executed or executory , either to him in remainder , or to be in abeyance or custodie of the Law , and a franktenement in such case cannot be an abeyance , and therefore the remainder void .

Lease for yeares , the remainder over in Fee , if the tenant enter before livery , his terme is good , but the remainder is void , because the remainder was not out of the lessor at the time of the possession taken by the particular tenant , but if I appoint the Lease to commence at Michaelmas next , the remainder over in Fee , there although the lessor make Livery to the Lessee , yet the Livery and Seisin and the remainder shall be void ; because there was no estate present , whereunto the Livery may be annexed , and whereunto it might unite in the meane time .

HEE to whom the remainder is appointed , must at that very time be a person able and of capacity to take the remainder , or else the remainder shall be void ; and it is a principle in Law , that in all gifts , be they by devise , or otherwise , it behooveth to have a Donee in esse , which hath power and capacity to take the thing given , at the very time when it ought to vest , for if there be not any such in rerum natura when the thing ought to vest , There is a diversity between a remainder limited by a particular name , for a remainder limited by a general name , may be good , though the person be not in esse at the time of the remainder limited , as in this case next following . This remainder to I S may be good , & yet he hath no heir at the time of the remainder limited , & so of a remainder limited Primogenito filio . But a remainder limited in particular by name of Baptisme and Sirname , is not good if the partie be not in esse , Coke 2. part . Fo. 51. Sir Hugh Cholmleis case . the gift shall be void , Plowden Fol. 345.

And therefore if a Lease be made to one for life , the remainder to the Mayor and Commonalty of Cirencester , which then have not capacity to purchase Lands , and after they have gained a capacity to purchase , and then the tenant for life dyeth , the Mayor and commonalty shall not take the remainder ; because he was not a person able at the time of the remainder appointed , to take it : so if the remainder were appointed to him whom tenant for life shall name .

If a Lease be made to one for life , the remainder to I. S. in Fee , who is a monke professed , and afterwards is derained , and then the Tenant for life dyeth , I. S. shall not have the remainder , because he was not a person able to take it at the time of the remainder appointed .

But if Land be given to one Et filio suo primogenito , and he hath no issue at the time of the gift , and afterwards he hath a son , that Son shall have the Land by way of remainder , and yet the remainder was not out of the lessor , neither did it vest at the time of the Livery , but the law shall conster the Livery and limitation most strong against the lessor . Plowden , 296.

Lessee for yeares , the remainder to the right heires of I. S. this remainder is utterly voide , and the Livery thereupon is voide , because there is no person capable to take the Franke tenement at the time , and Livery & Seisin may not be in suspence , where the frank-tenement may not be in obeysance , but Affees may , where the franck-Tenement is well disposed , and where there is a Tenant thereof to the Precipe .

THe thing whereof a Remainder shall be created , must be in esse before , and at the time of the appointment and creation thereof , or else the remainder is voide .

For if I grant a rent out of my Land , Vide fo. 38. the remainder in Fee , this remainder is void , because the rent was not in esse before . But at the beginning of a grant , a man may grant a rent in such manner as pleaseth him . And a man may grant a rent newly created to begin after the death of I. S. But when a rent is in esse , or a reversion , remainder , or other thing , a man may not make it to be in esse for a time , and to cease for another time , as to grant it to one after the death of another , or from a day to come , reserving to him an estate in the meane time .

NO remainder may commence upon any repugnancie or impossibility precedent , nor upon any condition that goeth to the destruction of the perticular estate , for conditions alwaies inure in a privity , so that none shall take advantage of conditions , but those which are privies , for none shall enter for a condition broken , but onely the Feoffor , donor , and Lessor and their heires . And as none shall avoide an estate formerly made by the breach of a condition , but onely the privies , see none shall take a new estate by the performance of a condition , but onely the privies .

If a Lease be made to two , the remainder over in Fee , after the death of the first of them , this remainder is voide , because the Servivor shall hold place after the death of the first , and therefore repugnant and void .

If a Lease be made for life , the remainder for life , and if the first tenant for life dy , then the remainder over to a stranger over in Fee , this remainder dependeth on a repugnancy precedent , and therefore voide .

If a Lease be made for yeares rendant rent , and upon condition of none payment ; the remainder to a stranger , and Livery is made accordingly , that is a void remainder which doth commence upon a repugnancy precedent , and which dependeth upon a condition which goeth to the destruction of the perticular estate , and especially where such a remainder is created by livery and sesin .

But by a limitation of a devise , or by limitation of use , such remainder is good , as a Feoffment to the use of I. S. for years and upon payment by him of twenty pounds , the remainder to I. D. for life , this is a good remainder . So it is where the remainder is created by the limitation of a last will , as if a man devise his Lands to his wife &c.

If a man make a Lease for life rendant rent , and upon condition that if the rent be behind , then the remainder to a stranger in Fee , after the first estate ended , that remainder is void because conditions inure alwaies in a privity &c ,

Lessee for life upon condition that if I.S. pay the lessor twenty pounds , that then the lessor shall enter upon Tenant for life , and then the remainder over to another , that remainder is void , because by the entry the first livery is made void , and there is no perticular estate continuing whereof a remainer may depend .

If a man devise his Lands to his wife for her life , upon condition that if she marrie , that then the Land shall remaine to F. M. in taile , this is a good remainder , for the construction of this demise is to make the same condition to be a limitation , and not a condition , and upon a limitation or determination of a perticular estate which is taken and not uncertaine , a remainder clearely may well depend .

As if a Lease be made for life upon condition , that if the Lessee die , the remainder to a stranger , that is a good remainder , because it commenceth upon the determination of an estate which is certaine and not uncertaine ; for every man must die , and every terme must end , and therefore it is no condition but a limitation , or appointment when the terme shall commence .

If I make a Lease for life upon condition , that if the Lessee doth such an act , he shall have fee , and he doth it accordingly , there he shall have Fee , because he is privie to the condition , and therefore shall take the benefit thereof .

A Lease made for yeares ( if the Lessee shall so long live ) which is a word conditionall , and doth precede the remainder , therefore the remainder which doth commence upon a condition is voide , Plowden fo. 25.

But if I make a Lease for life upon condition , that if the Lessee doth such an act , that then hee shall have Fee , and he doth it accordingly , there he shall have fee , because he is privie to the condition .

Lessee for five yeares upon condition , that if he pay me twenty pounds within two yeares he shall have fee , the Fee passeth forth of the lessor forthwith .

Lessee for yeares upon condition , that if I. S. marry my daughter , during the estate for life , that then it shall remaine unto him , this is a good remainder , and yet it doth commence upon condition , for there is an estate whereupon a remainder may be founded , and the condition doth not tr●nch to the destruction of the particular estate .

If I make a lease for yeares , the remainder for life , upon condition that if he in remainder doth not such an act , that the remainder shall be void : Now before the condition is broken , the remainder is good , and in him to whom it is appointed , but if the condition be broken then the remainder is out of him , and in the person of lessor again .

Lessee for life , the remainder to A his wife for her life ( if she live so long sole and unmarried ) the remainder to D. their Son for his life , the remainder to D. is good , though it commence upon a condition , because the particular estate continueth , and the condition goeth not to the destruction of the particular estate , and the first remainder doth vest during the particular estate , which maketh the latter to be good , though it commence upon the condition . But quaere whether the 2. remainder shall begin upon her marriage or death .

WHen a particular estate which doth support a remainder , may determine before the remainder may commence , there the remainder doth not vest forthwith but dependeth in contingency .

Contingent Remainders . Vid. fol. 29. As if one make a Lease to I S. for life , and after the death of I D. the remainder to another in Fee , this remainder dependeth in contingency , for if I S die before I D. the particular estate is determined before the remainder can commence . So if a Lease be made to A for life , and if B die before A , that then it shall remaine to C for life , this is a good remainder upon contingent ( if A survive B ) A Lease is made to one for life , the remainder to the right heires of I S. this remainder is good upon contingent , that is if lessee for life survive I. S. or else not .

A lease to A. for life , the remainder to B for life , & if B. dy before A. the remainder to C for life , this is a good remainder on contigent ( if A survive B ) Plowden Colethirst and Beiushin .

H. leased to I. for the life of I. & after the death of H. to I and his heires , this is a good remainder upon contingent , for if H. die living I. then the remainder is good , but if H. survive I. then the remainder is voide .

WHen a remainder is limited to take effect by doing of an act , which act shall be the determination of the particular estate , yet if the act depend upon a casualty and meere incertainty whether it shall happen or not , there the remainder vesteth not forthwith , but dependeth in contingency , Vide fo. 51. a good note . & if a man make a Feoffment to the use of B until C. shal come from Rome into England , & after from such coming , to remain over in fee , this remainder dependeth in contingency , for it is uncertain whether I. will ever come into England or not , and a remainder ought to commence in possession when the particular estate endeth , as well in Wils as in grants , for there may not be a mean time between them .

And every remainder contingent ought to vest either during the particular estate , or eo instante , Contingent remainder . that it determineth , for if the particular estate be ended or determined in deed or in Law before the contingency happen , then the remainder is void .

As for example Fr. Archarde was seised of lands in fee holden in Socage , and by his will in writing devised the Land to Ro. Archarde the father for his life , and after to the next heire male of Robert , and to the heires males of the body of such next heir male , Ro. hath issue Jo. Fr. dieth , Ro. enffeoffeth Ren. with warranty , upon whom J. entreth , and Ren , reenters , and then Ro. dyeth , the right heir male of Robort may not enter for the forfeiture in the life of Robert , for hee may not be heire as long as Robert liveth : Note that .

By the Feoffment of tenent for life , the remainder is destroyed , for by the Feofment of Ro. his estate for life was determined by condition in law therunto annexed , and that may not be revived , afterwards by any possibility , & therfore the contingent remainder destroyed .

So if Tenant for life , the remainder to the right heirs of I S be disseised , and the disseisor levies a fine at the common Law , the right heir of I S shall be bound .

But in the former case if the tenant for life had been disseised , and died , yet the remainder is good , for the particular estate remaineth in right , and might have been revested , but not in this case Archers case prima pars Lo. Coke .

Remanere definitio . Remanere dicitur quasi terra remanens . A remainder is that which passeth forth of the Lessor at the time of the perticular estate made .

Reversionis definitio . A reversion is that which is left in him that made the perticular estate , reversion is derived of this word revertor , so that reversio terrae is the returning of the Land , which is as much in sence as my Lord Dyer defineth it , as the Land returning , so that reversio terrae is terra revertens which is the Land in a certain degree , that is to say , when it is discharged of the perticular estate , and possession thereof is come thither where the revertion was , Plowden , 160 , 196.

Creation of Estates . The Creation of all manner of Estates by the Habendum of the Deed.

TO have and to hold to the said William Hum her his Executors Administrators and Assignes , from the ensealing and delivery of these presents unto the end and terme , Habendum and for , and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing , and fully to be compleated and ended ; ( if the said William Humber so long shall live ) and if it shall happen the said William to decease , before the end and determination of that said Terme ( living the said Margaret ) then to have and to hold the same messuage &c. from and immediately after the decease of the said William , unto the said Margaret , for and during the whole Terme of 100. yeares , from thenceforth then next , and immediately ensuing and fully to be compleated and ended : ( if the said Margaret so long shall live , and keep her selfe sole and unmarried ) and if it shall happen the said Margaret to decease before the end and determination of the said tearme , or not to keep her selfe sole and unmarried during the said tearme , then to have and to hold the said Premises unto Henry Humber .

Habendum To have and to hold to the said Edmund Clark and his Assignes , immediately from and after the death and decease of the said Maud Symmes unto the end and tearme , and for and during the whole time and tearme of 100 yeares , from thenceforth next , and immediately following fully to be compleated and ended , ( if the said E C. so long live ) and to have and to hold the said Messuage &c. to the said Jane C. and her Assignes immediately , from and after the decease of them t●e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth &c , Note that in such a Lease all those that shall take in remainder , Note . must be made parties to the Lease .

To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof &c , from hence forth from the ensealing and delivery of these presents unto the end and terme , and for & during the whole terme of his naturall life ; and from and immediatly after the death of him the said R. I. the said Messuage or Tenement , and all other the Premises with all and singular their and every of their appurtenances to remaine , and be unto the said I. I. and her assignes for and during the tearme of her naturall life . And after the death of the said R. and I. &c.

To have and to hold , unto the said R. I. his Executors and Assignes , for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended , ( if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife , or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid , shall so long live . )

To have and to hold , to the Lessee and his heires during the lives of A. B. C. and the longest liver of them , To prevent an Occupant . this limitation shall prevent the occupant , and yet the Lessee may assigne it to whom he will , or if he hath already an estate for another mans life , it were good to assigne his estate to diverse men , and their heires during the life of ceste que vie . For

If A. hath Land conveighed to him for the life of B , and A. dieth without making any estate of it , whosoever first entreth into the Lands after the death of A , shall have the Land during the life of B. For to the heire of A. it cannot goe , because it is no inheritance , nor to his Executors , because it is not a testimentary estate that should goe to the Executors , as goods and Chattels .

Limitations which do determine an estate without entrie or claime . vide plus . fo. 17. To have and to hold to the Lessee , quousque ( viz. ) untill I. S. come from Rome . A Lessee to a woman , quam diu casta vixerit , or to a Widdow for her life , si tam diu in pura viduitate vixerit , or to another , dummodo solverit talem redditum , or quamdiu , as the Lessee shall be dwelling on the Mannor , or quamdiu the Lessee se benegesserit donee : us quead : quousque tam diu , to have to the Lessee for 100. yeares , ( if the Lessee so long live ) all these are limitations which do determine the estate without any entry or claime .

A Lease is made to A. and his assignes , habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives , and the longest liver of them . Lo. Coke . 5. part . fo. 13.

A Lease to A. and B. for their lives , A. dieth B. shall have it during his life , it is an interest . But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined , for that is a limitation .

Habendum & reddendum . To have and to hold unto the said I. W. his Executors and Administrators , from and immediately after the time , that the estate tearme and interest which the said I G now hath , of , in , or to the Premises , shall happen to be ended , by the death , forfeiture , surrender , or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll , by Sir S. P. Knight deceased , to the said I G. and I W. and to one Do. White deceased for the tearme of their lives , and the longest liver of them successively , at the will of the Lord , according to the custome of the Mannor of R. aforesaid ; which said Copy of Court-roll beareth Date the fifth day of Aprill , in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years , from henceforth then next and immediately ensuing , and fully to bee compleated and ended : Reddendum . ( if the said I. W. A. W. and B. W. or either of them so long shall live ) yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited , at the Mannor house of the said Sir H. P. at Saparton aforesaid , the sum of thirteen shillings four pence of currant english money , at the feasts of St. Michaell the Arch-angell , and the Anuntiation of the blessed Virgin Mary , by equall portions , the first payment thereof to begin and to be made in manner aforesaid , at such of the said feast daies which shall next ensue the expiration , forfeiture , or surrender of the said estate and tearme formerly granted by the said Sir I.P. to the said I G. as aforesaid . And also yeilding and paying to the said Sir Henry P. his Heirs or Assignes at and upon the death and decease of every person dying tenant in possession of the Premises by vertue of this demise , and grant , his , her , and their best beast , for and in the name of a Herriot , or three shillings of currant &c. at the onely choice and election of the said H P. his Heires and Assignes .

And if it shall happen the said yearely Rent of &c. Contingat . to be behind unpaid in part or in al by the space of &c. after any the said Feasts or daies of payment wherat or wherin the said ought to be paid , or the said Herriots or Herriots money , not to be paid in form aforesaid when the same shal be due or ought to be paid , that then &c.

Habendum to one for life , and three yeares over to his heire , he is tenant for life , Habendum for life and 3. yeares over &c. Habendum for life , the remainder for yeares . and this tearme for years is a Chattel in the Lessee , which his heire shall not have but the Executor .

Habendum to I S. for life , the remainder for ten years & doth not speak to what person , that is a term for 10. years in the Lessee created by the Livery & Seisin , for the terme for yeares may be in the person of him that hath the frank-tenement , dependant after the estate for life , but not before or precedent to the state for life in the same person , because a tearme may not divest or suspend a frank-tenement .

A Lease to one for life , and for 2. yeares over to his Executors or Assignes , or to his Heires , all is in the Lessee because all is coupled and conjoyned in one gift . But otherwise it is where a Lease is made to one for life , the remainder to his Executor for 2. yeares or the remainder to his heire for 2. yeares , this remainder is in obeyance , untill after the death of the Lessee , and then it shall vest in the Executor or heir as a chattell by them purchased , for heir , or executor is a good name of purchase of it , and tenant for life may not give forfeit , or devise the same tearme .

The same Law is where a Feoffment is made to the use of I N. for life and after to the use of his assigne for twenty years , the lessor may nominate an assignee that shall have it , and it shall vest in him as a Chattle by him purchased , for he shall be said assignee in sence of an assignee to take it , and in the meane time it shall be in Abeyance , and note that assignee is 2. wayes , the one is the grantee of the estate which was in the grantor before , and the other is a person nominated or appointed to take any thing .

Lessee for life , the remainder to him for 21 , yeares , he hath both estates in him so distinctly , as he may grant away either of them , for a greater estate may uphold a lesser , but not e converso , for if a man make a Lease to one for 21. yeares , the remainder to him for tearme of his life , the lease for years is drowned .

Lessee for life , the remainder to his Executors for 21 yeares , the tearme for yeares shall vest in him , if an estate be made to A for life , the remainder to B in taile , the remainder to the right heires of A , the Fee vesteth in A. as if it had been limited to him and his heires .

Exclusive and inclusive . vi . fo. plus . 48. 23. If a Lease be made by indenture dated the 26. of May to have and to hold from the Date , or from the day of the Date from the day of the making , or from the day of the sealing and delivery , the Lease shall begin upon the twenty seaventh day of May , for these words are exclusive , and doe exclude the day of the date , and makes it to be no part of the demise .

Inclusive . But if the Lease beare date the twenty sixt of May , to have and to hold from the making , from henceforth , or from the ensealing and delivery hereof , then it shall begin on the day it was delivery , for the words of the Indenture are not of any effect till the delivery , for these words are inclusive , and make the day to be parcell of the Tearme .

Where the words of the statute of 27. H. S. Cap. 16. Inrolements . 27 H. 8. of Inrolements are ( within six Months , after the date of the same writings indented ) that if such writings have a Date , that the six monthes shall be accounted from the Date , and not from the delivery , but if it want date then from the delivery , Di●r . 5. Eliz. 218.

An Indenture of Bargaine and sale , bare date 4. vi . fo. 23 October 4. and 5. B. and M. and was inrold , 21. Martii prox . sequen . which was the last day of the six monthes accounting the day of the date exclusive , this Deed was well inroled within the said act , for the whole day of 4. Octo. shall be accounted in Law the date of the Indenture , unde sequitur , that from the Date and from the day of the date , are all of one sence , insomuch as in judgement of Law , the Date includeth all the day of the Date .

If the habendum be for the tearme of 21. yeares without mentioning when it shall begin , it shall begin from the delivery , for there the words take effect as aforesaid .

If an Indenture of Lease beare date , which is void or impossible , as the thirtieth day of February , or the fortieth day of March ; if in this case the terme be limited to begin from the date , it shall begin from the delivery , as if there had been no date at all .

And so it is if a man by Indenture of Lease either write a Lease which is not , or is void , or misrecite a Lease in point materiall which is in esse . To have and to hold from the ending of the former lease , this lease shall begin in course of time from the delivery therof , Coke . Lib. 5. fo. 1. 12. Eliz. Dier. 218.

Habendum to I. and to the heires of his body lawfully begotten . Taile generall .

Habendum , to I. and A. his wife and to the heires of their two bodies . Taile speciall .

Habendum , to I. and A. his wife and to the heires males of their two bodies .

Habendum , to I. and to the heires males of his body , or heires female .

Habendum to I. & A. uxor ejus and to the heires of I. which hee shall beget of the body of A. his wife .

Taile speciall in the husband & the wife for life only . Habendum to I and A his wife and to the heires of the body of I. engendred .

* Habendum to I. and A. his wife , and to the heires of A. of her body by I. to be begotten .

* * Tail generall in the husband & the wife for life only . Habendum to I. and A. his wife and to the heires which I. shall beget upon the body of A. his wife , both have estate taile , because these words ( heires ) is not limited more to one then to the other .

* * The wife hath taile generall & the husband frank tenement . Both have estate taile . Taile speciall in both . Habendum to I. and A. his wife , and to the heires of their two bodies , this is taile speciall as well in the husband as in the wife . But if I. give Lands to I. & A & to his heires which he shall beget of A. his wife , here A. hath but estate for life , and I. hath estate in taile speciall , but in this case if he had said to the heires , and not to his heires , then either of them should have had an estate in taile speciall , because these words ( heirs ) is referred as well to the one as to the other .

If Tenant in taile speciall , hath issue and die , the issue is forthwith remitted to the taile generall , and such issue and all his issue shall stand so seised for evermore .

Vses 27. H. 8. cap. 10. Creation of estates taile raised by way of limitation of uses .

The expression of divers and sundry uses . TO have to the said Feoffees , their heirs and assignes for ever , by the severall uses , intents , and purposes , and under and upon the conditions , provisoes and limitations hereafter , in and by these presents limited and declared , and to no other use , intent or purpose , that is to say , the aforesaid Mannors of Compton , &c. withall and singular their and every of their rights , members and appurtenances whatsoever , to the use and behoofe of the said H. P. for the terme of his life without impeachment of &c. For sale of Lands to pay debts and Legacies . and after his decease to the use and behoof of the abovenamed Feoffees and their heirs in trust and confidence , and to the intent & purpose that they the said Feoffees and the survivors or Survivor of them , shall and will by sale of such parts and parcels of the Premises , as they or the survivors or survivor of them or their heirs shall think fit to bee sold , and by the issues and profits of the residue pay and discharge all the Debts , Legacies , and Funeral expences of the said Sr. H. P. and after payment and discharge of the same debts , Legacies , and expences , shall and will conveigh and assure all the residue of the Premises limited to their use , For intailing of Lands to the tenth generation . and remaining unsold unto the said H. P. Esq sonne of the said Sir H P. and the heires of his body issuing , and for default of such heires to the use of the said La. F. P. La. S. and I. F. and the heires of their severall bodies issuing , and for default of such issue to the use of the right heires of the said Sir H. Poole for ever . To the use of the first son of the body of the said K. P. lawfully to be begotten , and of the heires males of the body of such first son issuing . Entaile first to the issue male , and then to the issue female , when they shall come to the age of 〈◊〉 .

And the said Mannors of S. P. C. &c. and all other the Premises , whereof and wherein there is not any use in and by these presents already specially lymited and declared , to the use and behoofe of the said Sir H. P. Knight , for the terme of his life without impeachment &c. And from and after his decease to the use and behoofe of the said H P. son of the said Sir H P. for the tearme of the life of the said H P. the son without impeachment &c and from and after his decease , to the use of the first son to be begotten of the said H. P. son of the said Sir H. P. and of the heires males of the body of the said first son issuing , and so on to the tenth son , and for default of such heires to the use of every other the sons to be begotten by the said H. son of the said Sir H P. as they shall be in seniority or age , and of the heirs males of the severall bodies issuing , that is to say , as for and concerning the Mannors of &c. with their and every of their severall rights members , and appurtenances to the use of him the said H. P. for and during the tearme of his naturall life without &c. and from and after his decease to the use of the first son of the body of the said H P lawfully to be begotten , A Fine was levied to the A. uses of and the heries males of his body untill hee , or the heirs males of his body . have done such an act , and after such a thing or act done , to the use of another in taile , & died without issue without anything done , and it was adjudged that the remainder was in contingency , & shall never fall Coke , 10. a part . fo. 85. Uses . Jointer for the Wife . Taile speciall . and of the heires males of the body of such first son issuing , and so to the tenth son . And for default of such issue , then to the use of every other the sons &c. and for default of such , issue to the use of B P. the now first begotten daughter of him the said H P. from and after such time as the shall accomplish the age of sixteen yeares , for and during the terme of her life , and after her decease to the use of the first Son of her body which shall be begotten , by such her husband which shall be of the sirname and blood of the Pooles , and of the heires males of the body of such her first son issuing , and so to the tenth son . Then entaile the lands in forme aforesaid to the first , 2. 3. 4. 5. and tenth daughter , and this limitation following , and to the use of the Executors of him the said H P. for and untill such time as the severall daughters which shall take any benefit , by vertue of these presents , shall accomplish their severall ages of 16. yeares respectively , and after the death of the said H P. without issue male or female qualified as aforesaid .

Then to the use of Dame F P wife of one Sir N P Knight , sister of the said H P for and during the terme of her naturall life , and after her decease to the use of H P. Esq the first son of the said sir N. P. and Dame F and of the heires males of the body of the said H issuing , and so to the tenth son . And for default of such issue , then to the use of the right heires of the said H P party to these presents , for ever .

And as for and concerning the Mannors of C and S to the use of the said H P for the terme of his life , without &c. and from and after his decease to the use and behoofe of B. P. his wife for and during the terme of her life for her joynter . And from and after the severall deceases of them the said H and B P. then to the use of the heires males of the body of the said H P lawfully to be begotten . And for default of such issue then to the use of Dame F. P. for and during the terme of her life , untill such time as she the said Dame F. or any other by her allowance shall by any publick act by him or them done or suffered to be done , seek , endeavour , To the use limited for life , untill she shall practise to do an act . or put in practise for to avoide or question the joynter , of the said B P either in part or in all , or any other estate , grant , Lease , or use whatsoever now made or at any time hereafter to be made and limited by the said H P of any part or parcell of the said Mannors , Lands , and other the Premises , and immediately from and after such publike act as aforesaid , or after the decease of the same Dame F then to the use of H P Esquire son of the said &c. untill &c.

And for and concerning the inclosed ground and Park , to the use and behoofe of the said H P for his life , To the use of a woman for part of her Joynter . Joynter by way of the lymitation of a yearely anuity . and after his decease to the use of the said Dame G. for terme of her life for part of her Joynture .

And after her decease to the use , intent , and purpose , that such other wife as the said H P. shall have at his decease ( other then the said Dame G ) shall and may receive , and take out of the said Parke ground , and other the last mentioned Premises one yearly rent of 200 pounds of lawfull money of England , for the terme of the life of such wife for her joynter , the said rent to be paid at the feast of St Michael the Arch-angell , and the anuntiation of our Lady , by equall portions .

And after &c. to such uses , intents , and purposes , Vses limited to ones last will and testament , and for want of such will to any other uses &c. vide plus , 18. 2. 8 , Vses first of all raised for divers mens lives . as the said H P by his last will and Testament in writing , or by any writing , or by any writing to be made by him , sealed and subscribed , shall limit and declare , and for default of such limitation or declaration , to the use and behoofe of the said H P. and his heires for ever .

That is to say , to the use and behoofe of the said F M and of his Assignes , for , and during the joynt lives of him the said F M. and the said E M his son without impeachment &c. and from and after the decease of the said F in case the said F shall fortune to depart this present life during the life of the said E M. his son , then as for and concerning the mannor and Lordship of T. with all his rights , members , & appurtenances , to the use and behoofe of the said A. now wife of the said F F.M. and of her assignes for and during the terme of her naturall life ( if the said E. M. the son shall happen so long to live ) and from and after the decease of the said E. M. Vses raised for satisfaction of Joynter & dower . then as for and concerning the Scite or chiefe Mansion house &c. to the only use and behoofe of the said B. for terme of her naturall life , for and in full satisfaction and recompence of all such Joynter and Dower , as to the same B. shall or of right ought to belong or appertaine , by , from , and after the decease of the said E. M her husband . And as for and concerning the residue of the said Mannor of &c. to the onely use and behoofe of the said A. and of her assignes , absolutely for tearme of her life in full satisfaction of the Joynter of the said A.

And then after the lives ended , the use of the reversion expectant on those lives is setled . And as for and concerning the reversion and reversions , remainder or remainders of the said Mannors &c. as the said uses , estates , and interest therof , herein before lymited or expressed , shall be fully ended and determined , and for and concerning the said Mannor of &c. as the estates and interests therof before limited or expressed in these present Indentures , shall fully end and determine . Then to the use and behoofe of the said F. M. for terme of his naturall life without &c. and from and after his decease , then to the use and behoofe of E. M. for terme of his life , without &c. and from and after his decease to the use and behoofe of the first son to be begotten by the body of the said E. M. and of the heires males of the same first son lawfully begotten , To the use of every other the sons as they shall be in seniority or age . Lands conveighed to uses for the raising of portions for daughters . and so to the second son unto the tenth son .

And for default of such issue then to the use and behoofe of every other the sons to be begotten by the body of the said E. M. successively as they shall be in seniority or age , and of the heires males of their severall bodies lawfully begotten .

And for default of such issue then to the use and behoofe of all , and every the daughters which the said E. M. shall have begotten on the body of the said B. at the time of his decease being then unmarried , and of their assignes , from and after such time as each of them shall have accomplished their severall ages of 18 yeares , or be married , to and untill such time as every of the same daughters , successively one after another as they shall be in seniority or age , shall or may levy , receive , and take to every of their own propper uses and behoofes of the rents , profits , and issues of the Premises ; the severall summes of 300. pounds a peece , of currant money of England , or otherwise shall be fully satisfied , contented , or paid of the said severall summes , by such person or persons to whom the next immediate reversion or remainder of the premises shal then by the intent and meaning of these presents of right belong and appertaine . And from and after such time as the said severall sums , of 300. pounds shall be fully levied , received , or paid , as is aforesaid &c. and for default of such daughters , whichsoever of them shall first happen . Then to the use of T. M. second son of the said F. M. for tearme of his life , and so on with an intaile as before ; and for default of such issue , then to the use and behoofe of the said E. M. and of his heires for ever .

And as for and concerning the said Mannor of &c. Vses raised for payment of debts and performance of his last Will . to the use of F. M. for life , and then to daughters for portions , in such manner as is next before limited . And from and after such time as the said severall summes of &c. shall , or may be had , levyed , or taken ; then to the use and behoofe of the Executors and Administrators of the said F. M. for , and during the terme of ten yeares then next following , for , and towards the payment of the debts of the said F. M. the father , and for , and towards the performance of his last Will & Testament , and from and after the end of the said terme of 10. yeares , then to the use and behoofe of the said E. M. for his life , without &c. and so on with an intaile , et supra .

Reddendo & reservando . A rent must be reserved out of Lands or tenements , whereunto the Lessor may have resort or recourse to distrain , & therfore a rent cannot be reserved by a common person out of any incorporeall inheritance , as advowsons , commons , Offices , corody , multure of a Mill. Reservations of Rent , with all incidents belonging thereunto , and how tenant in taile must reserve the rent upon his Lease .

A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past , yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this , case if the lesser die between the feast of St. Mic. and the end of the month , the heir shall have the rent as incident to the reversion , and not the executors as rent behind , because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over , and the Tenant attorne the Grantee shall have the rent as incident to the reversion

Tithes , Faires , Markets , Liberties , Priviledges , Franchises , and the like : But if the lease be made of them for years , by deed it may be good by way of contract , to have an action of debts , but distrain the lessors cannot , neither shall it passe with the grant of the reversion , for that it is no rent incident to the reversion , but if any grant be reserved in such case upon a lease for life , it is utterly void because in that case no action of debt lieth . But if a man deviseth the vesture or herbage of his land , he may reserve a rent , for that the thing is maynorable , and the lessor may distraine the cattle upon the land , a reversion or remainder of Lands or Tenants may he granted , reserving a rent for the apparent possibility , that it may come in possession , & they are tenements within the words of Litleton Vide fo. 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch. or a month after , with condition of re-entry , and the Lessee tenders the rent at the last instant of the day of the feast of Pasch. The Lessor in the case may not re-enter upon demand made the last instant of the month , because the Lessee hath liberty to pay it then , and the diversity was taken between the disjunctive reservation , and when the reservation is at a certain feast , and a condition is added , that if it bee behind by the space of a month after the feast , that then the Lessor shall re-enter , there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day , because he hath not such liberty and election as in the other case , and it was resolved by all the Justices that in the said case of the disjunctive reservation , if the lessor dy between the said two daies the heire shall have the rent , and not the Executor .

A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas , and the Anuntiation , or within 12. daies after every of the said feasts , payable at the Fontstone in the Temple Church London , upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof , as is aforesaid , therof as is aforeraid that then the said Lease shall be voide , and it was adjudged that the lessee in safegard of his Lease shall have 12. daies , after the 12. daies to pay the rent , for when the rent is not paid at the first day , it is as much as if it had been reserved upon the twelfth day after .

And where it is said per perdictum spacium 12 , dierum post &c. by good construction all the words ought to take effect , ( viz. ) post aliquod festorum praedict. seu dierum solutionis inde , and dies solutionis is the 12. day after the feast , and therefore the Lessee shall have 12. daies , after the twelfth day which is , dies solutionis post festum &c. and that for the most a vaile of the Lessee , for whose benefit over time was given , and those words praedictum spatium 12. dierum , standeth well in good sence ( viz. ) post praedictum spacium 12. dierum post praedictos 12. dies , for that is praedictum spacium , though it hath not the same commencement a the other hath . And so the quere in 3. and 4. P. M. fo. 142. well resolved . Dier .

A Parson of a rectory made a lease for yeares , rendant rent at Michaelmas or within a month after . The Lessor died ten daies after Michaelmas , and was barred by judgement of the Court because the lessor died before the rent was due .

Dame Eliz. Pawlet seised of the Mannor of Wade , for her life by Deed indented , demised the Mannor to William Pawlet for 99. yeares ( if she the said Dame Eliz . did so long live ) yeilding the rent of 100. pounds , at Michaelmas and Pasch. or within 40. daies after either of the said feasts , W. Pawlet made Dulcibel his wife Executrix and died , Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor & died the thirteenth day after Michaelmas , her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. & tota Cu●ia contra quaerentem .

Yeilding and paying therefore yearly during the said terme unto the said &c. the yearely rent or sum , of a 100. pounds , Rent reserved to be paid of the thing demised and without any demand of the rents ; so note , that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof . Nomine penae forfeited for non-payment of rent without any demande made . at two tearmes or Feasts in the yeare most usuall by equall portions , the first payment therof to begin at the Feast &c. next ensuing the date hereof , the same payments to be made yearely , at or in the Mannor house &c. And if it shall happen the said yearly rent of 100. pounds , or any part or parcel therof to be behind , unpaid , in part , or in all , by the space of 40. dayes over or after any the said Feasts or dayes of payment thereof before mentioned , at or on which the same ought to be paid as aforesaid , that then and so often without any demand to be made at the said Mannors or either of them or other the Premises , or to the person of the said H. P. his Executors and Assignes , the said H. P. his Executors Administrators and Assignes shall forfeit , loose and pay for and in the name of a paine , or nomina paenae , the summe of 5. pounds of &c. and then and from thenceforth it shall and may be lawfull to and for the said A. B. C. D. their Executors Administrators and Assignes , or any or either of them , into the said Mannors , Lands , Hereditaments and Premises with the appurtenances to enter and distraine , as well for the said rent of 100. pounds , or any part or parcell thereof so behind and unpaid , and the arrearages thereof ( if any b●… ) as also for the said sum of 5. pounds nomine paenae , so to be lost as aforesaid , and the distresse and distresses so there taken and had , lawfully to lead , drive , take , & carry away , imparke and impound , and in pound to detaine and keep untill they shall be thereof lawfully satisfied and paid .

And if it shall happen the said yearely rent of &c. A re-entry for non payment of rent though no demand be made of the rent . vide plus fo. 13. or any part or parcell thereof , to be behind and unpaid in part , or in all by the space of 40. dayes , over or after any or either the said Feasts or daies of payments therof before mentioned , at or which the same ought to be paid as aforesaid , that then and so often and without any demand thereof as aforesaid , it shall and may be lawfull to and for the said A. B. C. D. their or either of their Executors , Administrators or Assignes into the said Mannors and Premises with the appurtenances , to re-enter and the same to have againe , retaine , repossesse and enjoy , as in their first and former estate , any thing herein to the contrary contained in any wise notwithstanding .

Note , when any summ , nomine paenae shall be forfeited , demande must be made precisely at the day , a convenient time before sun setting . In the one case in respect of the condition , and in the other in respect of the penalty , unlesse it be made without any demand , as it is in this last case before , Coke . 7. part . fo . 28. Maundes case .

Demand of Rent , and how it ought to be made to take benefit of a re-entry . How to make a perfect demand to re-enter for non-payment of rent .

ANd if it happen the said rent to be behind and upaid by the space of ten daies , after any the said Feasts &c.

The last instant of the last ten daies is only of effect , aswell for the Lessee to be ready to pay it , as for the lessor to demand it , and to demand it the last instant of the tenth day , is sufficient for him without any demande at the first day , or Feast when it was first due . Howbeit the Lessor must make demand the last instant of the tenth day before the sun setting , or else he may not re-enter , and if the lessor do not come upon the land the last instant of the last day for to demand the rent , nor the Lessee is there to pay it , the Lessor shall never enter , because he ought to do the first act , ( viz. ) to demand it , and such demand shall not be untill the other be holden to pay it , and that is not till the last instant of the last day , which time is onely materiall for them both . Plowden . fo. 173.

If a man make a Lease for life or yeares , rendant rent at such a Feast , and if it be behind , that he shall enter , there the Lessor ought to come to the Land and demand the rent , otherwise he shall never enter , for there the rent is onely payable upon the land , and the land is his Debtor , and therefore though the Lessee be absent yet the lessor ought to demand the rent of the Land as of the principall Debtor , and as that which may yeild a distresse , if the rent be not ready thereupon , for if he doth not make a demand he shall never enter for default of payment , although the lessee be absent , for the lessors being upon the land at the extreame time of payment of the rent , and to testifie to the jury that he was there ad petendum redditum , and not prove quod petebat redditum , his being there before sun set , and staying there after sun-set doth nothing availe , Plowden Kedwelley vers . Brande .

If a Lease be made rendant rent , with re-entry for default of payment , if the rent be behind and title of entry given , and then the lessor distraineth for the rent , he shall never enter afterwards for that rent then behind , because that by the distresse he affirmeth the terme to have continuance , Plowden fo. 133.

If the lessor made an acquittance to the Lessee for rent behind after the time in which the condition is supposed to be broken , hee shall never re-enter afterward ,

If one Lease two Acres for life , rendant to him and his heires for the one 12. pence , and rendant to him 12. pence for the other , his heir shall not have the 12. pence last reserved , because it was not reserved to him & his heires , and yet if he had reserved the rent without saying any more , the law would have said , that he and his heires should have had it , but when hee saith , reserving to him , the law will not helpe any further then his owne words extend , Plowden , fo. 171.

Yeilding and paying to the Lessor , How tenant in taile ought to reserve the rent reserved on his lease . and to every person to whom the inheritance or the reversion of the Premises shall appertaine during the terme , this is a good reservation , for the law will distribute it to whom any limitation of use shall be made ; but it was agreed that the clearest and surest way was to reserve the rent yearly during the tearme , and leave the law to make distribution , without any expresse reservation to any person , but it was resolved that all the said three severall wayes were good and effectuall , Coke . 8. part . fo . 69. Whitlocks case .

Queen Eliz. made a lease for yeares rendant rent , Demand where it must be made . payable at her receit of her Exchequer at Westminster , or to the hands of her Bayliffe , or Receavor &c. with the usuall condition , to bee voide for non for non payment of the rent , afterwards the Q. granted over the reversion to another & to his heires ; now where the patentee should demand the rent , was the question . And in this case it was adjudged , the demand ought to be made upon the Land , Coke . 4. part . fo. 72.

When Qu. Eliz. made a Lease for yeares rendant rent , which condition ut supra , the Qu. shall take advantage of the condition without any demand ; but when she grants the reversion over , her grantee shall not take advantage of the condition without demand .

If the King make a Lease for yeares rendant rent , without limiting any place , or to whose hands it shall be paid , the Lessee may by the law pay it either at the receit of the Exchequer or to the hands of the Kings Bayliffs or Recevors .

Excellent matter touching demands , and where the demand ought to be made . If a man by Deed indented enfeoff another in fee-simple , rererving to him and his heires a certaine rent payable at one Feast or divers Feasts , upon condition that if the rent be behind then a re-entry , in this case , though the rent be behind and not paid , yet if the Feoffor doth not demand the same &c. he shall never re-enter because the land is the principall debitor , for the rent issueth out of the Land .

The demand must be made upon the land , because the Land is the Debitor , and that is the place of demand appointed by the law , Coke . Liber 4. fo. 72. 73. Borowes Case .

If the rent be reserved to be paid at any place from the Land , yet it is in Law a rent , and the Feoffor must demand it at the place appointed , by the parties , observing that which shall be said hereafter concerning the most notorious place , Coke . liber . 4. 73. Plowden fo. 70.

If there be a house upon the Land , he must demand the rent at the house , and he may not demand it at the back-doore , of the house , ( but at the fore-doore ) because the demande must ever be made at the most notorious place , and it is not materiall whether any person be there or no ; albeit the Feoffee be in the hall or other part of the house , yet the Feoffor need not but to come to the fore-doore for that is the place appointed by the Law , though the doore be open , 15 Eliz. Dier . fo. 329.

If the Feoffment were made of a wood onely , the demand must be made at the gate of the Wood , or at such high-way leading through the Wood , or other most notorious place , and if one place be as notorious as another , the Feoffor hath election to demand it at which he will , and although the Feoffee be in some other place of the Wood ready to pay the rent , yet that shall not availe him . 15. Eliz. Dier . fo . 329

And if the Feoffor demand it on the ground at a place which is not most notorious , as at the back-doore , of a house &c. & in pleading , the Feoffor alleadge a demand of the rent generally at the house , the Feoffee may verse the demand , and upon the Evidence it shall be found for him , for that is a void demand .

And all this is to be understood , when the Feoffee is absent , for if the Feoffee commeth to the Feoffor at any place , upon any part of the ground , at the day of payment , and offer his Rent , albeit they be not at the most notorious place , nor at the last instant of the day , the Feoffor is bound to receive it , or else hee shall not take any advantage of any demand of the Rent for that day .

Therefore the place of demand being now knowne , it is further to be known what time the Law hath appointed for the same ; this partly appeareth by that which hath been last said ; for albeit the last time of demand of the rent is such a convenient time before sun setting of the last day of payment , as the money may be numbred and received , notwithstanding if the tender be made to him that is to receive it , upon any part of the Land , at any time of the last day of payment , and he refuseth , the condition is saved for that time , for by the expresse reservation , the mony is to be paid on the day indefinitely , and convenient time before , the last instant is the uttermost time appointed by the law , to the intent that then both parties should meet together , the one to demand and receive , and the other to pay it , so as the one should not prevent the other , but if the parties meet upon any part of the Land whatsoever on the same day , the tender shall save the condition for ever for that time .

And if the reservation of the Rent be at certaine Feasts , with condition that if it happen the Rent to be behind by the space of a week , after any day of payment &c. In this case the Feoffor needeth not demand it on the Feast day , but the uttermost time for the demand is a convenient time before the last day of the week , unlesse before that the Feoffee meet the Feoffor upon the Land and tender the rent as is aforesaid . Plowden . fo. 167. 172. 20 H. 6. 30. 31 , 6 H. 7. 3.

If a rent be granted payable at a certain day , & if it be behind and demanded , that the grantor shall distraine for it , in this case the Grantor need not demand it at the day , but if he demand it at any time after he shall distraine for it , for the Grantor hath election in this case to demand it when he will , How tender and payment of money upon a bond must be made . Rent payable at a day the party hath all the day till night to pay it , but if it be a great sum , and as a 1000 l. he must be ready as long before sun set as the mony may be told , for the other is not bound to tell it in the night . L. Mariae 172. b. Finch . fo. 38. vide . fo. 63. plus de hoc . to enable him to distraine , Coke Littleton fo. 201. 202. 203 Cokes report , li. 7. fo. 28. Maundes case .

If a man make a Lease for yeares , reserving a rent , with condition that if the rent be behind , that the Lessor shall re-enter and take the profits untill thereof he be satisfied , there the profits shall be accounted as parcell of the satisfaction , and during the time that he so taketh the profits , he shall not have an action of debt for the rent , for the satisfaction whereof he taketh the profits , but if the condition be , that hee shall take the profits untill the Feoffor be satisfied and paid of the rent , without saying thereof , or to the like effect , there the profits shall be accounted no part of the satisfaction , but to hasten the Lessee to pay it , Cokes Littleton , fo. 203. 3 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21.

Although that the last time of payment of money by force of the condition is convenient time in which the money may be numbred before sun setting , yet if tender be made to him that ought to receive it at the place specified in the condition at any time of the day , and he refuse it , the condition is saved for ever , and the mortgagor or obligor needeth not to tender it againe before the last instant , for by the expresse letter of the condition the money is to be paid upon the day indefinitly , and convenient time before the last instant , is the extreame time appointed by the law , to the end the one should not prevent the other , the one being sometimes there , and the other not , and therefore the law appointeth the extream time in the day , to the intent both parties may certainly meet together . But if both parties meet at any time of the same day , and the Mortgagor or Obligor make tender in the place to the Mortgagee or Obligee , and he refuse , the penalty is saved for ever , and needs not make any other tender , Wades case 5. part . fo. 1141.

If a condition be broken for non payment of rent , Condition broken . Assise brought . Distresse . Acceptance . Bar of entry . yet if the Feoffer bring an Assise for the rent due at that time , he shall never enter for the condition broken , because he affirmeth the rent to have continuance , and thereby waiveth the condition , and so it is , if the rent had had a clause of distresse annexed unto it , if the Feoffer had distrained for the rent for non payment , wherof the condition was broken , but hee may receive that rent and acquit the same , and yet enter for the condition broken , but if hee accept a rent due at another day after , he shall not enter for the conditon broken , because he therby affirmeth the Lease to have continuance .

All grantees of reversions may enter upon Farmors , If a lessor bargaine and sell the reversion by Deed , Indented and inroled , or or if the lessor make a Feoffment in fee , and the Lessee re-enter , the grantor or feoffe shall not take any advantage of any condition , without making notice to the Lessee . for any forfeiture or condition , and have like advantages against them ( by action onely ) for any other covenants , condition , or agreement contained in the Indenture of their lease , as the Lessors , their heires or successors might ; and the like for the Lessees against the Grantees of the reversion , recovery in value only excepted , 32. H. 8. cap. 34.

If a man make a gift in taile , or a lease for life , And albeit the whole words of the statute of 32. H. S. be for non-payment of the rent or for dooing of wast , or other forfeiture , yet the entry or claime must be made upon a condition broken . upon condition , that if the Denee or Lessee go not to Rome before such a day , the Lease shall cease or be void , the Grantee of the reversion shall never take advantage of this condition , because the estate cannot cease before an entry , but if the lease had beene for yeares , there the Grantee should have taken advantage of the condition , because the lease for yeares , ipso facto , by the breach of the condition without any entry was void , for a lease for yeares may begin without ceremony , and so may end without ceremony , but an estate of free-hold cannot begin nor end without ceremony , and therefore not to be avoided without an entry , which entry descendeth to the heire , and not to any stranger .

Grantees or Assignes shall not take benefit of every forfeiture by force of a condition , but onely of such conditions as either are incident to the reversion or rent , or the benefit of the estate , as for not doing of waste , for keeping the houses in reparations , for making of Fences , scowring of ditches , for preserving of Wood , and such like , and not for payment of any sum in grosse , delivery of Corne , Wood , or the like . And therefore regularly when any man will take advantage of a condition , if he may enter he must enter , and when he cannot enter , he must make a claime , and the reason is , for that a free-hold and an inheritance shall not cease without entry or claime , and also the Feoffor or Grantor may waive the condition

For if a man grant an Advowson to a man and his heires , upon condition , that if the Grantor , &c. pay 20. pounds on such a day &c. the estate of the grantee shall cease or be utterly voide , the Grantor payeth the money , yet the estate is not revested in the Grantor before a claime , and that claime must be made at the Church . And so it is of a reversion or a remainder of a Rent , common , or the like , there must be a claime before the estate bee revested in the Grantor by force of the condition , and that claime must be made upon the Land .

If a man bargaine and sell Land by Deed indented and inrolled , with a Proviso , that if the bargenor pay &c. that then the estate shall cease and be void , hee payeth the money , yet the estate is not revested in the Bargenor before re-entry , and so it is if a bargaine and sale be made of a reversion , remainder , advowson , rent , common . &c.

If a Lessor bargaine and sell the reversion by Deed Indented and Inroled , or if the Lessor make a Feofment in Fee , and the Lessee re-enter , the Grantee or Feoffee shall not take advantage of any condition without making notice to the Lessee .

When a man by Deed indented , If a man make a lease for life or yeares , and after levie a fine to A. to the use of B. and his heires , B. shall distraine and have an Action of Waste , although the conusee had never any Attornment , because the reversion is vested in him by force of the statute , and hath no remedy to compell the Lessee to Attorn , New Litttleton fo. 32. doth bargaine and sell lands , and before the inrolement , levieth a fine thereof , and after the deed is inrolled the conusee shal be in by the fine and not by the indenture inrolled and therefore the conusee in this case cannot take advantage of a condition before Attornment .

Where conusee by fine of a Revertion before Attornment , doth bargaine and sell the revertion to another by Deed Indented and Inrolled , But if conusee of a 〈◊〉 before any attornment by Deed indented and inrolled bargaineth and selleth the Seignory to another , the bargainee shall not distraine , because the bargenor could not distraine . the Bargaine shall not distraine for the Rent reserved upon the Lease , but if the conuse hath had express attornement , then the Bargaine shall distraine without any Atornement .

If the Lessor bargaine and sell his revesion by Deed indented and inrolled , But if a fine had been levied to a stranger to the use of a second party , then the second person had been in by the statute , and so Attornement needles , quod nota . the bargainee ( although he needs not any Attornement ) shall never take benefit of a condition upon a demand of rent without giving notice to the Lessee of the bargaine and sale , and therefore notice in this case is requisite .

Note that a fine levied before the Inrolement of the bargain and sale , maketh the conusee , to be in by the fine and not by the bargaine and sale .

And the bargaine of a reversion shall never take advantage of a condition before notice given .

Edward Fox for the consideration of 5 pound demysed and granted certaine Tenements to have from the day of the date of the Indenture for ninety nine years ; ( A Lease of the Premisses formerly made ) being then in being . It was adjudged that this Demise and Grant upon consideration of fifty pounds , did amount to a Bargaine and Sale for the said years , whereupon there needeth no Attornment .

In this case of a Lease for term of years , which is a Chattell , there needeth no Inrolement , for being but a term of years , and no Estate of Frank-tenement , there needeth no Attornment , because it is Executed by the Statute of 27 H. 8 S. Coke 8. pars fol. 94.

Livery and Seisin in toto , vide fol. 35.

Note , An actuall delivery of a writing sealed to the party , without any words , is a good delivery . And therefore if A. make a writing to B. and sealeth and delivereth it to B. as a Scrow , to take effect as his Deed , when certaine conditions are performed , that is his Deed forthwith ; for the Law respecteth the delivery to the party himself , and rejecteth the words which shall make the expresse delivery to the party upon the matter no delivery : So that the Deed is effectuall , though the conditions he never performed : And there is a diversity when it is delivered to the pary himselfe , and when to a stranger . If a Writing be sealed and then it lieth in a Window , or on a Table , and the Obligor saith to the Obligee : See there the writing , take it as my Deed , and he take it accordingly , this is a good delivery in Law , Coke 9. pars . fol. 137.

A Livery in Deed may be done two manner of waies , by a solemne Act , and words , as by delivery of the Ring , or Hasp of the Doore , by a branch or twig of a Tree , or by a Turff of the Land . And with these or the like words the Feoffor and the Feoffee both holding the Deed of Feoffment , and the Ring of the doore , Hasp , Branch , Twig , or Turff , and the Feoffor saying , Here I deliver you seisin and possession of this house , in the name of all the Lands and Tenements contained in this Deed , according to the forme and effect of this Deed.

Or by words without any Ceremony or Act : As the Feoffor being at the house doore , or within the house , saith , Here I deliver you seisin and possession of this house , in the name of seisin and possession of all the Lands and Tenements contained in this Deed ; Or enter into the house or land , and God give you joy . Or ,

I am content you shall enjoy this Land according to the Deed. But if a man deliver the Deed of Feoffment upon the Land , this amounts to no livery of the Land , for it hath another operation to take effect as a Deed : But if he deliver the Deed upon the Land in name of seisin of all the Lands contained in the Deed , this is a good Livery .

If divers parcels be contained in a Deed , and the Feoffor delivers seisure of one parcell according to the Deed , all the parcels do passe , albeit he saith not , in name of all , because the Deed containeth all . And if there be divers Feoffees , and he maketh livery to one according to the Deed , the Land passeth to all the Feoffees . And yet the plainer way is to say , in the name of the whole , or all the Feoffees .

If a man make a Charter in Fee , and deliver Seisin for life , secundum formam Charte , the whole Fee-simple shall passe , for it shall be taken most strong against the Feoffor .

If a man make a Lease for years by Deed , and deliver seisin according to the forme and effect of the Deed , yet he hath but an Estate for years , and the Livery is void .

A man makes a Lease for years , But if Lessee for years make a Lease for a certaine terme of any parcell , and so divide the possession of that from the residue , if of such parcell so severed Livery he made , the possession in the residue by the first Lessee is not any impediment to the Livery for this parcell , Coke 2. pars . Betsworths case . and after makes a Deed of Feoffment , and delivers seisin , the Lessee being in possession , and not assenting to the Feoffment , this Livery is void , for albeit the Feoffor hath the Free-hold and the Inheritance in him , yet that is not sufficient , for a Livery must be given of the possession also . But if the Lessee be absent , and hath neither Wife nor Servants ( though he hath Cattell upon the ground ) the Livery and Seisin shall be good .

If a man be seised of a house , and of divers severall Closes in one County in Fee , and makes a Lease therof for years , and afterwards makes a Feoffment in Fee of the same , and makes Livery and Seisin in the Closes ( the Lessee or his Wife , or Servants then being in the house ) the Livery is void for the whole , The delivery of a peice of Gold , or any other thing upon the land in name of seisin is sufficient , Thorowgoods case , Coke 9. pars . fol. 136 for the Lessee cannot be upon every parcell of the Land to him demised , for the preservation and continuance of his possession therein . And therefore his being in the house , or upon any parcell of the Land to him demised , is sufficient to preserve and continue his possession in the whole from being outed or dispossessed . New Littleton , fol. 4. 8. a. b.

A man makes a Lease to A. the remainder to B. in fee and makes Livery to A. within the view , this Livery is void , for no man can take by force of a Livery within the view , but he that taketh the Freehold himselfe .

If Lessee for life make a Deed of Feoffment , and a Letter of Attorney to the Lessor to make Livery , and he makes Livery accordingly , notwithstanding he shall enter for the forfeiture .

But if the Lessee for years make a Feoffment in fee , and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly , this Livery shal bind the Lessor , and shal not be avoided by him , for the Lessor cannot make Livery as Attorney to the Lessee , because he had no Freehold whereof to make Livery , but the Freehold was in the Lessor .

If the Lessor make a Deed of Feoffment and a Letter of Attorney to the Lessee for years to make Livery , and he doth it accordingly , this shall not drown or extinguish his term , because he did it as a Minister to another and in anothers right , and is accounted in Judgment of Law the act of the other , and the Feoffee claimeth nothing by him , Trin. 7 Eliz. in com . Banco .

If Tenant for life or years ( the reversion or remainder being in the King ) make a Feoffment in fee , Forfeiture . Tenant for life , the remainder to the King for life , the remainder to another in fee , if the first Tenant for life make a Feoffment , that is a forfeiture , and yet nothing passeth but his own estate : But making a Livery in fee , it is a forfeiture , though none of the remainders be divested , Coke 2. pars . fol. 76. b. Bredons case , vide plus fol. 50. this is a forfeiture , and yet no reversion or remainder is divested out of the King . A particular Estate of any thing that lyeth in Grant cannot be forfeited by any grant in Fee by Deed : As if Tenant for life or years of an Advowson , Rent , Common , or of a reversion , or remainder of Land by Deed , grant the same in fee , this is no forfeiture . But if such a Tenant levy a Fine , &c , then it is a forfeiture .

Note , The diversi●y between Livery and Se●sin of Land , and the delivery of a deed and what is a good delivery of a deed in Law . there is a diversity between Livery and Seisin of Land , and the delivery of a Deed , for if a man deliver a Deed without saying of any thing , it is a good delivery , but to a Livery of Seisin of Lands words are necessary , as taking in his hands the Deed , and the ring of the doore ( if it be of a house ) or a turff , or twig ( if it be of Land ) and using the words aforesaid . And a Deed may be delivered to the party without words , without any act of delivery : As if the Writing sealed lyeth upon the Table , and the Feoffor or Obligor saith to the Feoffee or Obligee , Go and take up the said Writing , it is sufficient for you , or it will serve the turne , or take it as my Deed , or the like words , it is a sufficient delivery . Cokes , Littleton , title Dower , fol. 36. a. 29 H. 8. Dyer , fol. 95 43 Eliz. inter Hawsly & Lacker , in Banco Rs. Hillary 12 Jac. Rs. in Com. Banco .

The Grant of a Seignory , Rent-charge , Rent-seck , Attornment in toto withall incidents therunto . as also the Remainder or reversion of any of these , or the remainder or reversion of the Land it self , is nothing worth without Attornment ( viz. ) the agreement of the Tenant , that must be presently charged .

As Lord , Mesne , and Tenant , the Lord grants his Seignory , the Mesne must attorne and not the Tenant prevaile , for the Mesne is Tenant to the Lord ; Lord and Tenant , the Tenant letteth the Land for life , or giveth in taile saving the reversion to himself ; Now if the Lord grant his Seignory , he in the reversion must attorne to the Grantee , and not the Tenant for life , or Tenant in taile , for he in the reversion is Tenant to the Lord , and not the other : But if the Tenant had let his Land to one for life , the remainder in fee , thereupon a grant of the Seignory the Tenant for life must attorne , for he is Tenant to the Lord , so is not he in the remainder so long as Tenant for life liveth . If Lands be let for years , or given in taile , saving the reversion upon a Grant of the reversion , the Tenant of the Land must attorne : And an Attornment may either be by word , as to say , I agree , or am content with the Grant . Or , I attorne to you and become your Tenant , by force of the Grant , or else by the delivery of a penny , and to the Grantee , &c. in name of Attornment , or by any other matter implying an agreement , as by a surrender to the Grantee of the reversion , praying in aide of him , &c. and if such an Attornment be not to the Grantee in the life of the Grantor , then the Grant is void .

In the Grant of a Reversion depending on a Freehold , the attornment of the Freeholder is sufficient , though he be not the Tenant that must presently be charged . As if Lands be let to a man for years , the remainder to another for life , and hee in reversion grant the reversion to another , the attornment of him in the remainder is sufficient , 1 Littleton , fol. 1●…

〈◊〉 the 〈…〉 nly , and where not . If a man bind himself and his Heires in an Obligation , or 〈◊〉 covenant by writing for him and his 〈…〉 or 〈◊〉 grant an Annuity for him and his ●…res : in all these cases the Law chargeth the Heire after the death of the Ancestor , with this Obligation , Covenant , Annuity , Warranty , yet with these three cautions , that the party must by speciall name bind himself and his Heires , for if the party in the bond , Covenant , Annuity , or Warranty , doth not bind himself as well as his Heires , in such case the Heire shall never be bound . 2. Some Action must be brought against the Heire whilest the Land or other Inheritance resteth in him unalienated away . For if the Ancestor dye , and the Heire before an Action be brought against him upon those Bonds , Covenants or Warranties , do alien away the Land , then the Heire is cleaned discharged of the burthen . 3. No Heire is further to be charged then the value of the Land descendeth to him from that Ancestor that made the charge , and that not to be sold outright , but to be kept in extent and at a yearly value , untill the Debt or damage be run out . Neverthelesse if an Heire that is sued upon such a Debt of his Ancestor doth not deale clearly with the Court when he is sued , that is , if he come not immediatly by way of confession , and set down the true quantity of his Inheritance discended , and so submit himself as the Law requireth , then that Heire shall be charged of his owne other Lands , Goods , and money for this Deed of his Ancestor . As if a man bind himself and his Heirs in an Obligation of a hundred pounds , and dieth , leaving but ten acres of Lands to his Heire , if his Heire be sued upon the Bond , and cometh in and denieth that he hath any by discent , and it is found against him by verdict that he hath ten acres , this Heire shall be now charged by his false plea , of his owne Lands , Goods , and body , to pay the hundred pounds , though the Land be not worth ten pounds .

All words which do prove by specialty , Words onely which do shew a man to be a Debtor to another , is a good Obligation without binding the Executor . that the maker of the Writing is a Debtor to another , that is a sufficient Obligation , and though the Executor or Administrator are not expressed , yet the Law will charge them , because they represent the Estate of the Testator , but the Heire shall never be charged without expresse mention of the Heire , Dyer , fol , 2 , 3.

Acquittance for one Rent is a discharge of all former Rents . Those cannot be heirs If a Rent be behind for twenty years , and the Lord make an Acquittance for the last that is due , all the rest are presumed to be paid , and the Law will admit no proofe against this presumption , Cokes Littleton , fol. 373.

A Bastard can be no Heire , nor have any , unlesse it be his owne Child . A man attainted of Treason or Felony can be no Heire , nor have an Heir , though it be his owne Child .

Attainders which give Escheat . Attainder by Verdict , Confession , Outlawry , Abjuration , but upon either of them judgment must be given .

Forfeiture of Goods and Chattels . Going beyond the Sea without license : Exigent awarded in Felony , though he yeild his body thereupon . Clergy in Felony , standing mute in Felony . Felo de se . Flying for Felony , though he returne and be tryed , and found not guilty : These bring a forfeiture of all a mans Goods and Chattels as well reall as personall .

Attainder to what time it shal relate for the forfeiture of Lands and Goods . Forfeiture . He that is attainted of Felony by Verdict , Confession , or Outlawry , doth forfeit all the Lands he had at the time of the offence committed , so that he can do no Act afterward to encumber the Land .

If Tenant in taile be attainted of high Treason , he shall forfeit for no longer time then for his owne life .

If a man have an Estate for life of himselfe , or of another , do commit Treason or Felony , the whole Estate is forfeited to the King , but no escheat to the Lord .

But a Copyhold of Fees as for life is forfeited to the Lord , and not to the Crowne , and if it be entailed , Forfeiture by a Copy-holder . the Lord is to have it during the life of the Offender , and then his Heire is to have it .

A man attainted may purchase , Pardon . Corruption of blood . but it shall be to the Kings use , untill the party be pardoned , yet the pardon giveth not back their Lands or Goods without a speciall Patent of Restitution , which cannot restore the blood without an Act of Parliament . So if a man hath a Son , and then is attainted of Felony , and pardoned , and then purchaseth Land , and then hath issue another Son , and dieth , the Son he had before the pardon , though he be his eldest Son , and the Patent have words of restitution to his Lands , yet he shall not inherit them , but the second Son shall inherit them , because the blood is corrupted by the Attainder , and cannot be restored by Patent alone , but by Act of Parliament .

And if a man hath two Sonnes , Where a man shall be said to dye without Heire , although he have one . and the eldest is attainted in the life of his Father , and dieth without issue ( living the Father ) the second Son shall inherite the Fathers Lands , but if the eldest Son have any Issue , though he dye in the life of his Father , then neither the second Son , nor the Issue of the eldest shall inherit the Fathers Land , but the Father shall be there accounted to dye without Heire , and the Land shall escheat , whether the eldest Son hath issue or not , though he be pardoned after the death of his Father .

Note , that the Heires procreate after the Attainder shall not inherite the Lands of his Father nor of his Mother .

But the Heires begotten before the Attainder shall inherit the Lands of that Father and of that Mother which was not attainted , but the Lands of his Father attainted , or of his Mother which is attainted , he shall not inherit , although the King hath pardoned the Attainder .

The operation and effect of a pardon . For a pardon doth but onely cleare the corruption of the bloud of these children , which be borne after the pardon , and so to make them capeable to inherit such lands , which their Ancestor shall purchase at the time of the pardon or any time after , but not to inherit such lands as the Ancestor was seised of before , nor to purge the bloud of those children begotten before the pardon , as to make them inheritable to any Ancestor .

Alien and Denizen . A man seised of lands in Fee , hath issue an Alien borne out of the Kings Leigeance , he cannot be heire , Propter , defectum subjectionis , though he be born within lawfull marriage , if made Denizen by the Kings Letters patents , yet cannot he inherit to his father or any other , but otherwise it is if he be naturalized by act of Parliament , for then he is not accounted in law , Alienigena , but Indigena , but after one is made Denizen , the issue that hee hath afterwards shall be heire to him , but no issue that he had before .

If an Alien come into England , and hath issue two sons , these two sons Indigenae subjects borne , because borne within the Realme , and yet if one of them purchase land in Fee , and dieth without issue , his brother shall not be his heire , for there was never any inheritable bloud between the Father and them : and where the sons by no possibility can be heire to the Father , the one of them shall not be heire to the other .

An Alien that is naturalized by Act of Parliament , is to all intents and purposes as a naturall born subject , & differs much from denization by Letters patents , for if he had issue in England before his denization that issue is not inheritable to his father but if his father be naturalized by Parliament , such issue shall inherit , so if an issue of an English man be born beyond Sea , if the issue be naturalized by act of Parliament he shall inherit his fathers land , but if he be made denizen by Letters Patents he shall not , and many other differences there are between them .

An Alien borne out of the Kings leigeance his ancestors not being of the faith and leigeance of England , is neither heire to inherit nor to purchase within this realme , yet the Lord shall not have the escheate , because he died without heire , but the King which is the supreame head and the supreame person shall have this Land by the common Law .

But an Alien borne out of the Realme and within the Legiance of the King , his Father and Mother , being then and all their live , of the legiance of the King , shall inherit by the common Law ; Infants borne out of the Kings legiance , the father and mother at the time of the birth being leigemen of England , shall inherit by the Statute of 25 E. 3. so that the mothers of the children pass the Sea with the husbands leave and consent ; this statute extendeth all to children whose fathers and mothers were dwelling in England .

If an Alien marry here an english woman and hath issue , this issue shall inherit to the wife , the same law where the husband , an English-man , marry a woman that is an Alien and hath issue , he shall inherit his father .

All which said trusts every one of them the said A. B. C. D. for himselfe severally and respectively , Covenant severall & no joynt covenant , and for his severall and respective heire , Executors , and Administrators , for as much as shall concerne him or them , and his or their said heires , Executors , or Administrators &c. doth covenant , &c.

And the said A. B. C. D. do severally and respectively ( that is to say ) either of them for himselfe and by himselfe , his severall heires , Executor , When Covenants are , severall they are as severall Deeds written in one Parchment , Coke . 5. part . fo. 23. and Administrator , and for so much onely as concerneth or may concerne his owne act , and not one for anothers act , doth severally and respectively and not joyntly covenant , promise and agree to and with the said E. F. &c.

And the said A. B. C. D. do severally , covenant , &c. to and with the said E. this is a severall covenant without further words Coke . 5 part . fo. 2. 3.

And the said A. B. C. D. each of them severally for himself , his severall heirs , Executors , and Administrators doth severally and not jointly covenant &c.

Proviso & conditions & the apt words to make them Vide. plus . fo. 186. 19. a Vid. Coke 2. pars . fo. 71. 72. 73. good matter touching Provisoes and conditions . No condition may be made ( to be properly said a condition ) but by him which departeth with the estate , and by his owne words , and the words conditionall must be restraining , and must compell the person to do , or not to do a thing upon paine of forfeiture of the thing given , and no words make a condition unlesse it be uncertaine , and may be broken or kept , and every condition must either go to the inlarging of the estate , or utter destruction thereof , and these are the apt words to make a condition .

Illa quod , if the Lessee doth such an act , Si contingat proviso semper sub conditione , for these are words conditional . pro in case of a grant executory maketh a condition , as a grant of Annuity , Pro concilio impendendo , but those words ad effectum , ea intentione ad solvendum , or such like make no conditions .

If a man by Deed make a Lease for yeares wherein is this clause , and the said Lessee shall continually dwell upon the Lands leased , upon pain of forfeiture , of the said terme , the words amount to a condition .

Quod non licebit to the Lessee to give , grant , or Alien his estate upon paine of forfeiiure , this will make the Lease defesible , and this reason was given by the Court in the common Pleas , tempore Reginae Elizabethae , that a Lease for yeares was but a contract which may begin by word , and by word may be dissolved . But such words in a Lease for life make no condition , in that a Franke-tenement cannot be avoided by word , without conditional words that will give an entry , tamen quere .

The apt words of lymitation are , quam diu , dum ,

Words of limitation which determine an estate without entry or claime . Vide plus fo. 5. When this word proviso shall make an estate or interest conditionall , three things are to be observed ( viz. ) that the proviso dot not depend upon another sentence , nor participate thereof , that the proviso be the word of the Bargenor , Feoffor , Donor Lessor &c.

That it be compulsary to enforce the Barginee , Feoffee , &c. to do an act , Coke . 2. pars . fo. 71. 72 , 73.

quousque , durante , as a grant out of the Mannour of Dale , quam diu the Grantee shall dwell there , a Lease of Land dummodo the Lesse shall pay 20. pounds , a lease to a Feme , dum sola vixerit , a Feoffment in Fee , tanque the Feoffor hath paid him certaine , tanque hee be promoted to a benefice , tanque the Lessee hath levied a 100 pounds . If a man make a Lease quousque I. S. come from Rome , a Lease for life to a Widdow ( si tam diu in pura viduitate viveret ) A Lease for a hundred yeares ( if the Lessee live so long ) dummodo solvat to the Grantor for his life 10 pounds , all these are words of lymitation , which determine the estate without entry or claime , and if no livery bee made then those Lessees have estate but at will .

A man seised of Lands in Fee , having issue divers sons , by deed indented , covenanted in consideration of fatherly love , and for the advancement of his bloud , or any other good considerations , to stand seised of three Acrees of land to the use of himselfe for life , and after to the use of Thomas his eldest son in taile , and for default of such issue to the issue of the second son in taile , with divers remainders over with proviso , that it shall be lawfull for the covenantor at any time during his life to revoke any of the said uses &c. This proviso being coupled with a use is allowed to be good , and not repugnant to the former states , but in case of a Feoffement or other conveyance whereby the Feoffee or Grantee &c. is in by the common Law , such a proviso were meerely repugnant and void .

If a man hath power of revocation and after to the intent to defraud a purchasor , doth Levy a fine , or make a Feoffment , or other conveyance to a stranger , whereby he extinguisheth his power , and after bargaines and sells the land to another , for valuable consideration , the bargainee shall enjoy the Land , for as to him , the Fine , Feoffement , or other conveiance , whereby the condition was extinct , was void by the statute of 13. Eliz cap. 5. and so the first clause whereby all fraudulent and covenous conveyances are made void , as to the purchasor , extend to the last clause of the act ( viz. ) when he that makes the bargaine and sale had power of revocations , and it was said , that the Statute of 27. Eliz. hath made voluntary estates made with power of revocation , as to purchasors , with equall degree with conveiances made by fraud and covin to defraud purchasors , and such volunteary conveyances which are originally subject to power of revocation , be it in presenti or in futuro , shall not stand against a purchasor , bona fide for valuable consideration 3. part . Lo. Co. fo. 80. Twines case , vide Twines case 3. part . fo 83. And first in the case aforesaid , if the covenant or who had an estate for life , doth revoke the uses according to his power , he is seised againe in Fee , without entry or claime .

Secondly , he may revoke part at one time and part at another .

Thirdly , if he make a Feoffement in Fee , or levy a fine &c. of any part , this doth extinguish his power , but for that part whereas in that case the whole condition is extinct , but if it be made of the whole , all the power is extinguished , so as to some purpose it is of the nature of a condition and to another in nature of a limitation .

Fourthly , if he that hath such power of revocation hath no private interest in the Land , nor by the Cessor of the estate shall have nothing , then his Feoffement or fine &c. of the land is no extinguishment of his power , because it is meere collaterall to the land .

Fiftly , by the same conveiance that the old uses be revoked , by the same may new be created or limited , if the revocation doth so mention

Sixtly , that these revocations are favourably interpreted , because many mens inheritances depend on the same .

Note .

That every use ought to be raised either by covenant out of the estate of the covenantor , or by Feoffment , Fine , Recovery , &c. by transmutation of the possession out of the estate of the Feoffees , conusees , &c. Coke . 6. part . fo. 27.

Twines case , fo. 83. Lo. Coke . 3 pars .

IF a man make an estate for life ,

Conditions .

Vide plus . fo. 17. 6. fo. 35.

the remainder in taile , the remainder over in Fee , upon condition that any of them in remainder shall doe a certaine act , then if hee doth not do it , the Feoffer and his heires may enter without any words of re-entry in the proviso , and thereby shall defeate the estate in possession , and all the remainders , for he that entreth for a condition broken , and a condition in Deed , is in of such estate he had before the condition made ; but otherwise it is where an entry is made upon a condition in law , Coke . 8. pars Whittinghams case . Vide. fo. 50. b.

For if Lessee for life or yeares grant a Rent charge out of the lands , or make a Lease of some part of the terme , or doth acknowledge a Statute or Recognizance , and then afterwards doth make a Feoffment in Fee , or commit any acts which are forfeitures in Law , or doth surrender his estate to his Lessor , yet the Lessor shall hold the Land charged .

And note that a condition in law , which by force of a Statute giveth a recovery , is stronger then a condition in Law which giveth an entry without a recovery .

For if Lessee for life make a Lease for yeares , and then entreth into the land and doth Waste , and the Lessor recover in an action of Waste against the Lessee for life , he shal avoid the Lease made before the Waste committed .

But if the Lesse for life make a Lease for yeares , and then entreth , and makes a Feoffement in Fee , the Lessor shall not avoide the Lease for yeares .

So if the Tenant make a Lease for yeares , and then is attained of Felony , or dieth without heire , although the Lord recover by Writ or escheat , yet he shall not avoide the tearme 8. pars . fo . 44. Whittinghams case .

Remainder . If I make a lease for life , upon condition that if the Lessee doth such an Act hee shall have Fee , and he doth it accordingly there he shall have Fee , because he is privy to the condition , and therefore shall take the benefit therof .

Remainder . Lessee for 5 yeares , upon condition that if he pay me 20 pound within two yeares , that then he shall have Fee , the Fee passeth out of the lessor forthwith .

Remainedr . So where a Lease is made for life upon condition that if I. S. marry my daughter during the Estate for life , that then it shall remaine unto him , this is a good remainder , and yet it doth commence upon condition , for there is an estate whereupon a remainder may bee founded , and the condition goeth not to the destruction of the particular estate .

If I make a Lease for yeares , the remainder for life , upon condition that if he in remainder , doth such an act , that the remainder shall be void , now before the condition broken the remainder is good , and in him to whom it is appointed . But if the condition be broken , then the remainder is out of him , and in the person of the Lessor againe .

Lessee for life , the remainder to A. his wife for her life ( if she live so long sole and unmarried ) the remainder to D. their son for his life , the remainder to D. is good , though it commence upon a conditon , because the particular estate continueth , and the condition goeth not to the destruction of the particular estate , and the first remainder doth vest during the perticular estate , which maketh the latter to be good , though it doth commence upon the condition , but quaere whether the second remainder shall begin either upon her marriage , or her death .

If a man for him and his Heires warrant lands to one and his Heires , that is a generall Warranty , Warranty , and what words make a generall Warranty . for that it is not restrained against any person in certaine , Coke 1. pars . fol. 2.

This word , give , in a Feoffment , importeth a generall Warranty against all men during the life of the Feoffor . And this word , Grant , in a Chattel-real , doth import a Warranty in it selfe alone , without any clause of Warranty , so as there be in the Deed no speciall matter to qualifie the Warranty by some speciall Covenant ; But this word Concessi , or Demisi , in case of Frank-tenement or Inheritance , doth import not Warranty , Coke 5. pars fol 18.

The clause of , without impeachment of waste , Waste in toto , and the full definition of the word , without impeachment of Waste , and what is Waste . giveth power to the lessee which shall produce an interest unto him if he doth execute his power during the privity of his Estate , and therefore to examine it in reason these words , Absque impetitione vasti , are in effect as without demand for waste , for Impetitio is derived of In and peto , and petere is to demand , and petio is a demand , and sine impetitione is without any manner of demand or impeachment : Then this word , Demand , is of a large extent , for if a man disseise me of my land , or take my Goods , if I release unto him all Actions , yet I may enter into the land or seise my goods , for by the release of the Action the right or interest is not released ; but if in such case I release all Demands , that shall exclude me not onely of my Action but also of my entry and sciser , and of the right of my land and property in my Chattels . But if the words had been Absque impetitione vasti per aliquod breve de vasto , then the Action onely shall be discharged and not the property in the Trees , but the Lessor after the cutting of them may seise them , and the diversity appeareth in 30 E. 3. 44. in Walter Idles case , where a Lease was made without being impeached or impleaded for waste , whereupon it was gathered that these words , Without being impeached for waste , were not sufficient to barr the Lessor of his property : And that if the Lessor had granted that the Lessee might do waste , he by that hath power not onely to do waste , but also to convert it to his owne use . And the opinion of Wray chiefe Justice , and Manhood cited in Herlakendens case , was not judiciall but prima facie upon Arbitrement without any argument , Coke 11. pars . fol. 82.

When Tenant in fees granteth all his estate to another , the Grantee shall have no Fee-simple for want of these words ( Heires ) but estate for life , but his estate in such case shall be without impeachment of waste , as the estate of the Grantee of Tenant in taile shall be , and the Feesimple shall be in Nubibus there , as well as it shall be of an estate taile ; and there if he doth commit Treason , and dieth , the Fee-simple shall escheat to the Common Lord of whom the land is holden , for that the blood is corrupt between him and his Heires , so that his Heire may not have it by discent , and the King shall not have it , because he that did the Treason , had not the Fee at the time of the Treason , or afterward , Plowden 562. 556.

If a man do lease or assure his land to another , and all the Mynes and Pits thein , for life or yeares , the lessee may open and dig the ground for Coale , Morter , Stone , &c. and take and carry away the same , although there were not any Myne open at the time of the lease , for by this assurance it appeareth that the lessor was contented that waste should be made in any part of the ground leased by myning or digging . And in this case the lessee may sell and dispose the same Coale , Stone , Marle , Morter , &c. at his pleasure , for it is as much as if the lease had been made without impeachment of any manner of waste to be committed by Myne , Pits , or digging .

Lessee for life , the Remainder for life , the Remainder in Fee , the first doth waste , that is not punishable by him which hath the Fee , by reason of the meane Remainder , otherwise it is if the meane estate be for years .

If Lessee for life be , the Remainder for life , and the Lessee for life doth Waste , this Waste is dispunishable at this time , for the advantage of him in Remainder for life : And where a Lease for life is granted , and then the Reversion is granted for life , and the Tenant attorneth , an Action of Waste lyeth not , yet vide the Register 75. that Waste lyeth where there is a mean estate for life in Remainder : And though the Waste be unpunishable in the first case , yet it seemeth the Chancery may enjoyne him upon complaint against the first Lessee , that he shall not do Waste , for that he ought not to do Waste by the Law , although no Action lyeth .

The Process in Waste is Summons , Attachment , and Distresse , and if he appeare not at the Distresse , then a Writ to the Sheriff to enquire of the Waste by the Oath of twelve men .

There are two kinds of Waste ( viz. ) Voluntary or permissive : Waste in houses . Waste may be done in houses by pulling them downe , or by suffering them to be uncovered , whereby the Spars or Rafters , Planchers , or other Timber of the house are rotten : But if the house be uncovered when the Tenant cometh in , it is no Waste in the Tenant to suffer the same to fall downe . But though the house be ruinous at the Tenants income , yet if he pull it downe it is Waste , unlesse he reedifie it againe ; if Glasse-Windowes ( though glazed by the Tenant himselfe ) be broken downe or carried away , it is Waste , for the Glasse is part of the house . And so it is of Wainscot , Benches , Doores , Windowes , Furnaces and the like , annexed or fixed to the house , either by him in Reversion , or the Tenant .

Though there be no Timber growing upon the ground , yet the Tenant at his perill must keep the house from wasting .

If the Tenant do Waste or suffer Waste to be done in houses , yet if he repaire them before an Action brought , there lyeth no Action of Waste against him , but he cannot plead Quod non fecit vastum , but the speciall matter .

Waste in Gardens and Orchards . If the Tenant cut downe or destroy any Fruit-trees growing in the Garden or Orchard , it is Waste , but if they grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard , it is no Waste .

Lopping of Trees by a Copyholder is not a forfeiture , but a Copyholder may not lop and burne them in another house of the Land or Mannor , nor sell the Lops unlesse by the Custome he may do waste Kitchin forfeiture 125.

Waste in building of a new house . If the Tenant build a new house it is Waste , and if he suffer it to be wasted , it is a new Wast ; if the house fall downe by tempest , or be burned by the lightning , or prostrated by enemies , or the like , without a default of the Tenant , or was ruinous at his coming in , and fall downe , the Tenant may build the same againe with such matterials as remain , and with other Timber which he may take growing on the ground for his habitation , but he must not make the house larger then it was : if the house be uncovered by tempest , the Tenant must in convenient time repaire it .

Waste in Dove-houses , Parks , Ponds , &c. Waste in Timber-trees . If the Tenant of a Dove-house , Warren , Parke , Ponds , or the like , do take so many as such sufficient store be not left as he found when he came in , this is Waste .

Waste properly is in houses , Gardens , Timber-trees , ( viz. ) Oke , Ash , and Elme , and these be Timber-trees in all places , either by cutting them downe , topping them , or doing any act whereby the timber may decay . Also in Countries where timber is scant , and Beeches , or the like are converted to building for the habitation of man , or the like , they are also accounted timber , that is , if the Tenant cut downe timber-trees , or such as are accounted timber , as is aforesaid , this is Waste . And if he suffer the young Gerignes to be destroyed , Wast in cutting Beeches , &c. this is destruction .

Cutting down of Beech , Willowes , Birch , Aspe , Maple , or the like , standing in the defence and safeguard of the house , is destruction , if there be a Quick-set fence of Whit-thorne , if the Tenant stub it up , or suffer it to be destroyed , this is destruction , and for all these and the like destructions an Action of Waste lyeth : turning of Trees to Coales for Fewell , when there is sufficient dead Wood , is waste .

If the Tenant suffer the houses to be wasted , Waste , digging for Gravell , Cole , &c. and then fell downe timber to repaire the same , this is a double waste ; digging for Gravell , Lyme , Clay , Brick , Earth , Stone , or the like , or for Mynes of Mettall , Coale , or the like , hid in the Earth , and were not open when the Tenant came in , is waste , but the Tenant may dig for Gravell , or Clay for reparations of the house , as well as he may take convenient Timber-trees .

If the Tenant convert arrable land into Wood , Wastin converting arrable into wood , or Meadow into arrable . or wood into arrable , or Meadow into arrable , it is waste .

The Tenant may take sufficient wood to repaire the Walls , Pales , Fences , Hedges , and Ditches as he found them , but he can take no new , and he may also take sufficient Plow-bote , Fire-bote , and other House-bote .

The Tenant cutteth downe Trees for reparations , and selleth them , and after buyeth them againe , and imployes them about necessary reparations , yet it is waste for the Sale , he cannot sell Trees , and with the money cover the house , burning of the house by negligence or mischances waste .

An Occupant shall be punished for waste , and so if an estate be made to A. and his Heires during the life of B. A. dieth , the Heire of A. shall be punished in an action of waste .

If a Lease be made to A. for life , the Remainder to B. for life , the Remainder to C. in Fee , in this case where it is said in the Register , and in Fitz. R. B. that an Action of waste doth lye , it is to be understood after the death or surrender of B. in the mean Remainder , for during his life no action of waste doth lye : But if a Lease for life be made , the Remainder for years , the remainder in fee , an action doth lie presently during the term in Remainder , for the mean terme for years is no impediment .

If waste be done Sparsim here and there in Woods , the whole Woods shall be recovered , or so much wherin the waste Sparsim is done . And so in houses so many roomes shall be recovered wherein there is waste done : But if waste be done Sparsim throughout , all shall be recovered ; it hath been said , that if the Hall be wasted , the whole house shall be recovered , because the whole house is denominated of the Hall , but latter authority is to the contrary .

In many cases a Tenant for life or years may fell down timber to make reparations , albeit he be not compellable thereunto , and shall not be punished for the same in any action of waste : As if a house be ruinous at the time of the Lease made , if the Lessee suffer the house to fall down , he is not punishable , for he is not bound by the Law to repaire the house in that case ; and yet if he cut down Timber upon the ground so letten , and repaire it , he may well justifie it , the reason is for that the Law doth favour the supportation and maintenance of houses of habitation for mankind .

If the Lessor by his Covenant undertake to repaire the houses , yet the Lessee ( if the Lessor doth it not ) may with the timber growing upon the ground repaire it , though he be not compellable thereunto .

A man hath Land wherein there is a Myne of Coals , or the like , and maketh a Lease of the Land ( without mentioning any Mynes ) for life , or years , the Lessee for such Mines as were open at the time of the Lease made , may dig and take the profit thereof ; but he cannot dig any new Myne that was not open at the time of the Lease made , for that should be adjudged waste : And if there be open Mynes , and the Owner make a Lease of the land with the Mines therein , this shall extend to the open Mynes only , and not to any hidden Myne , but if there be not open Mynes , and the Lease is made of the land , together with all the Mynes therein , there the Lessee may dig for Mynes and enjoy the benefit thereof , otherwise these words should be void .

A. enfeoffeth B. to the use of A. himself for life ,

Vses and remainders of Uses , vide plus fo. 18.

Touching revocations , see 6 , pars . fol. 32. 28. 63. 10. pars . fo. 78. 143. 1. pars . fol. 111. 173. 175. 3. pars . fol. 5. 82. 83. Plowden Com. fol. 102. 5. pars fol. 90.

and then to the use of B. in taile , and then to the use of C. in fee , with Proviso and liberty to revoke the uses , and to limit new Uses ( if A. survive B. ) and after A. makes a Feoffment , and B. dieth , whether A. may limit new Uses against his owne Feoffment is the question : He cannot , because a livery is of such force , that it giveth and excludeth the Feoffor not only of all present Rights , but of all future Rights and Titles : Admit the Proviso had been onely that if A. survived B. that then he might revoke the first uses ; in this case it were very cleare that after the said Feoffment he might not revoke , for then he should have the land againe against his owne Feoffment , which were against reason : In this case the Proviso goeth further ( viz. ) And that he may alter , change , &c. admit then that he should have power to revoke the ancient uses , and power to limit new Uses to a stranger , how should this stranger have this new use , why surely by force of the first First Feoffment made by A for out of that all the present and future uses do grow : And the stranger should have this use in manner by the said A. against his last Feoffment , and own livery which may not be .

So if a man covenant to do a collaterall act in this case , before the breach thereof a release of all Actions , Suits , and Quarrels doth not availe , for before the breach thereof , there is not any duty or cause of Action , but the breach ought to precede , and so it was adjudged , but in the same case a release of all Covenants shall be a bar to the Covenant ; But if the power of Revocation had been present , as the usuall Provisoes of Revocations are , then it may be extinct by a Release made by him which hath such power to any that hath estate of Frank-tenement in the land in possession , remainder , or reversion , and therefore the estates , which before were defeisible by the Proviso , are by such release made absolute , Albaines case , 1. pars . fol. 3.

There is a diversity betweene a Condition that is compulsary , and a power of revocation which is voluntary , for a man that hath power of revocation may by his own act extinguish his power of revocation in part , as by levying a Fine of a part , or making of a Feoffment of a part , and yet the power shall remain for the residue , because it is in nature of a Limitation , and nor of a Condition , and so it was resolved in the Earle of Shrewsburies case in the Court of Wards , Pasch. 39 Eliz. & Mich. 40. and 41 Eliz. but destroy a Condition in part , and it is destroyed in the whole , for a Condition cannot be apportioned . He that hath power by Proviso to alter uses in land , may revoke and alter part at one time , and part at another , and so to the residue , till he hath revoked all : But he may revoke but one self part at one time , unless he hath new power of Revocation to the Uses newly limited .

Where a Revocation is to be made by Deed indented to be enrolled , that is as much to say , as by Deed indented and inrolled , for no Revocation shall be in that case , untill the Deed of Revocation be inrolled : And therefore a Fine levied by him that hath such power of revocation before the Deed of Revocation be inrolled , doth extinguish the power of Revocation .

But if a Feoffment be made by A. to divers uses , with Proviso that if B. shall revoke , that the Uses shall cease , then B. may not release this power , and a Fine levied , and a Feoffment by him shall not extinguish it for the power of B. is meerly collaterall , See many good causes more to this purpose , fo. 51. and the land doth move from him , nor the party shall not be by him , nor under him . But a Fine , Feoffment , or Release by A. if the power had been reserved to him shall extinguish it , 1. pars . Diggs case , fol. 173.

Where Uses are raised by way of Covenant , that Covenantor may not make leases by any Proviso . But he may make voide the Indenture of Covenant , and all the Uses in the same Indenture , if he hath such a Proviso .

Nicholas Scroope seised in Fee of divers Mannors , Vses and powers in Contingency and possibility may be ( by mutuall assent of the parties ) revoked and determined , for as they may be raised by Indenture , so by Proviso or Limitation annexed to them in the same Indentures they may be extinguished and destroyed either before or after their essence , Co. 10. pars fol. 68. A Fine shall be paid to the King for the execution of an Vse upon a Covenant , though no Fine be levied by force of the Proviso in the Statute of 27 H. 8. which otherwise should not have been , 6. pars . Coke fol. 28. having issue Anne his Daughter , by Indenture dated 26. Junii , 23 Eliz. for the preferment of Wynifride his Wife , and Anne their Daughter , covenanted with divers to stand seised of the said Mannors to the use of the said Nicholas , Wynifride , and Anne for their lives , and after to the said Anne , and of the Heires of her body , with other Remainders over , with a Proviso , that if the said Nicholas during his life , and after the debts paid , mentioned in the Schedule annexed to the Indenture , should be disposed or determined to disanull , change , alter , enlarge , diminish , or make void the Uses or Estates , or any of them of the Premisses , that then it shall be lawfull to and for the said Nicholas at all times at his will and pleasure , by his writing indented , under his hand and Seale , subscribed in the presence of thirteen Witnesses , to determine disanull , &c. And also by the same writing at his will and pleasure , or any other writing , whatsoever signed and subscribed as aforesaid , to limit , declare , and appoint the Uses of the same to the persons abovesaid , or to any other person or persons , &c. Wynifride dieth , and then Nicholas espouseth Elizabeth Morris , and by Indenture ultimo Novemb. 33 Eliz. subscribed in the presence of three witnesses , in consideration of a Joynture to be made to the said Elizabeth , covenanted with W. and W. to stand seised of the said Manors , to the use of the said Nich. and Eliz. for their lives , and then to the use of the right Heires of the said Nicholas for ever .

The Covenant in this case to stand seised to the use of himselfe and of his wife Elizabeth , and after to his right Heires , is a good revocation in Law of the former Uses , and the last Vses are well raised , though he never made any expresse signification to determine or disanull the same : But it was resolved , that all incident circumstances prescribed by the Proviso ( viz. ) As to the subscription , witnesses , and other circumstances , ought to be observed in the second Indenture .

Note , that in the case of Cheny in Cur. Wardor . 27 Eliz. it was resolved that where he in reversion enfeoffed his Lessee for yeares , to the use of others , that although the Lease should be surrendred and extinguished by the Common Law , yet by the saving of the Statute of 27 H. 8. of Uses , the terme of the Feoffee was saved .

Also in the same Court 28 Eliz. in the case of one Ised , it was resolved , that where the Lord enfeoffed the Copyholder to the use of others , that the Copy-hold estate by the saving of the said Act was preserved .

Where any be seised to the use of a Trustee of another , Ceste que use , or Trustee shal have the possession in such quality , manner , and condition as he had the Use or Trust . So when any be seised to the use or intent that another shall have a yearly rent out of the said lands , Ceste que use of the rent shall be deemed in the possession thereof of like estate as he had that use , 27 H. 8. cap , 10.

Vses created by Bargaine and Sale , and by way of Covenant .

Bargaine and Sale , and Covenants , vide fol. 7. A Deed was made Habendum eis & heredibus eorum imperpet ▪ ad propriū opus & usū of the Feoffees , imperpetuum , and not heredum suorum cum clausula warranti , heredibus & assign , suis in forma praedicta , whereby it was doubted that the Feoffees had not fee , because it was to them without Heires , but if those words had failed , it had been cleare , that the consideration of seven hundred pounds had given fee , for the Law intends sufficient consideration by reason of the said summe : but when the Use is otherwise expressed by the party himselfe , otherwise it is Dier , 169.

If a man sel his land by Deed indented and inrolled to I. S. and his Assignes , the Barginee hath but estate for life , for the word Assignes conteyned in the Deed interrupt the operation and construction of the Law and maketh exposition that it was not the intent of the parties to have a Fee-simple transferred .

A man selleth land to another and executeth an estate to the Vendee , Habendum sibi imperpetuum without the words , heires , where the intent of the Barginor is to sell the Feesimple , and the vendor upon request refuseth to make other assurance , the vendee shall have a subpoena , liber fundment . legum Angl.

A man in consideration of 100 pounds , and of marriage , covenanteth from thenceforth to be seised of certaine land to the use of himselfe for life , and after to the use of his son in taile , and the Deed is not inrolled according to the statute of 27 H. 8 , yet the use and possession is charged , because the said statute speaketh of Bargaine and sale only , and the use is not because of bargaine and sale onely , but also for marriage , Plowden . fo . 4. Manxils case .

A consideration not expressed in the Indenture may be averred , though that otherwise is contained in the said Indenture , besides that which is averrable as for marriage and mony , & of marriage nothing is spoken .

It seemeth that any consideration which is good and reasonable , and where there is a quid pro quo , Bargaines and Sales to raise an use of inheritance , or freehold , must be by Deed indented and inrolled within six months , in a court of Record at Westminster , or in the county where the Land lyeth , 27 H 8. cap. 10. is sufficient to alter an use at this day and the statute transferreth the possession to the use , except only in case of Bargaine and sale , which is excepted by the statute of uses , Plowden fo. 301.

A consideration expressed in the Indenture is not examinable , be it true or false , Dier . fo. 169.

A man by Indenture doth covenant ( in consideration that it shall raigne before Easter next and grant to bee seised to the use of another in Fee , this altereth the use , although the cosideration doth not availe , for the consideration is not examinable , where it is by Indenture , and much more an use altereth where an Indenture is made for diverse good causes and considerations , that he covenanteth and granteth to be seised to his use in Fee , although no consideration be expresly showne , because the Indenture is an Estopell to say it was not a good consideration , and it seemeth the Court may not examine the consideration , and there is a diversity where the Grant is by Indenture and where by word only .

Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives .

But if a man hath power by proviso to make any lease or Grant , provided that such lease or Grant exceed not the number of three lives or 21. yeares , there he may make a lease for ninety nine yeares , ( if three lives so long live ) for that doth not exceed the number of three lives , but that in truth is lesser , for every tearme for yeares which is but a Chattle , is lesser in estimation of the law then estate for life , which is Frank-tenement .

If A. be Tenant for life , the remainder in taile , and A. hath power to make leases for twenty one yeares , rendant the ancient rent , he may not make a lease by Warrant of Attorney by force of his power , because he hath but particular power which is personall unto him .

Lands may be conveyed 6. manner of wayes . First by Feoffment executed from one man to another man , and his heires by solemn livery and Seisin ,

By Feoffement .

By Fine . By recovereys Bargain and Sale . By use . By Covenant . By Will.

if a lesser Estate be given then Fee-simple , is it not cal●ed a Feoffement unless the Fee-simple be conveighed .

A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land , to the use of himselfe for life , and afterwards to the use of his son in taile , and the deed is not inrolled , according to 27 H. 8. the use and profits is charged , because the statute speaketh of bargain and sale only , and the use is not because of Bargain and sale only , but also for marriage . Ploudens case Manxell , fo. 4.

A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines , What a Fine is , and how lands may be conuerted therby . Tenant for life , the remainder to A. in taile , the remainder to B. in tail &c. with diverse remainders over , and tenant for life suffers a common recovery , wherein he voucheth A. and he the common vouchee , that shall binde all the otheir remainders , for no Covin or collusion may be supposed , when the next in remainder in taile , which hath the immediate inheritance , is vouched . Coke . 10 pars fo. 48. a rent may be reserved , but no condition or Covenant , this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme , and for foure termes together , and if any man having right to the same make not his claime within 5. yeares after the proclamations ended , hee looseth his right for ever ( an Infant , a Feme covert , a Madman , or one beyond the Seas only excepted ) whose rights are saved , so that he claime within 5 yeares after full age , death of her husband , recovery of the Wits , or returne beyond the Seas , it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not , if he claime by him that levied the fine .

A recovery barreth entailes , and all remainders , and reversions that should take place after the entailes , saving where the King is giver of the entaile , and keepeth the reversion to himselfe , then neither the heire nor reversion is barred by the recovery . And now by use recoveries are become common assurances against entailes , remainders , and reversions , and the greatest security purchasers have for their money , for a Fine will barr the heire in taile , but not the remainders , nor reversions , Why recoveries doe barr remainders and reversions . but a common recovery will bar them all ; and the reason why the heires , remainders and reversions are thus barred is , because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate , as the Land should have done , and then it was not reason to allow the heire the liberty to keep the land it selfe , and also to have recompence , and therefore he loseth the Land and is to trust to the recompence .

Vpon Feoffements and recoveries the estate doth settle , Vpon Fines , Feoffements and recoveries , the estate doth settle according to the intent of the parties . as the use and intent of the parties is declared by word or writing before the act was done , as for example , if they make a writing that any of them shall levie a Fine , make a Feoffement or suffer a common recovery to the other , but the use and intent is , that one shall have it for his life and after his decease a stranger to have it in taile , and then a third in Fee-simple , in this case the Law setteth an estate according to the use and intent declared . And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine , Feoffement or recovery according to the use and intent of the parties .

The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled . Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances ( viz. ) Bargaines and Sales , and Covenants to stand seised to uses for this statute wheresoever it findeth an use , conjoyneth the possession to it , and turneth it into like quality of state , condition , rent , and the like as the use hath .

But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them , peradventure in an Alehouse or a Tavern upon straineable advantages , did therefore gravely provide another Act in the same Parliament , that the Land upon payment of this money should not pass away , unlesse there were a writing , indented made between the said 2. parties , and the said wrighting also within six months inrolled at some of the Courts of Westminster , or in the Sessions Rolls in the Sheir where the land lieth .

The first conveyance by covenant is a conveyance to stand seised to uses , it is in this sort ; A Covenant to stand seised to a use , needeth no Inrolement as a Bargaine and Sale to an use doth , so as it be to the use of Wife , Child , or Cousin , or one he meaneth to marry . a man that hath a wife and children , brethen and kinsfolke , may by writing under his hand and Seale agree , that for him they or any of their heirs he wil stand seised of his lands to their uses , either for life in taile or in Fee , so as he shal see cause , upon which agreement in writing there ariseth an equity or honesty that the land should go according to those agreements , nature and reason allowing those provisions , which equity and honesty is the use , and the use being created in this sort the statute of 27 H. 8. containeth the estates of the Land , as the use is appointed ; and so this covenant to stand seised to uses is at this day a conveyance of land , and with this difference from a bargaine and sale , in that this needs no inrolement , nor needeth not to be a writing indented as a bargain and sale must , and if the party to whose use he agreeth to stand seised of the land , be not wife or Child , Cosin , or one that hee meaneth to marry , then will no use arise and so no conveyance , Vpon a fine Feoffement or recovery , a man may limit the use to whom he will without consideration of bloud or money , otherwise in a bargaine and sale , or Covenant . for although the law alloweth such weighty considerations of marriage and bloud to raise uses , yet doth it not admit so trifling considerations as of acquaintance , Schooling , service , or the like , but where a man maketh an estate of his land to others by Fine , Feoffment , or Recovery , he may then appoint the use to whom he listeth , without respect of marriage , kindred , money , or other thing , it is not so when he maketh an Estate , but agreeth to stand seised , nor when he hath taken any thing , as in the cases of Bargaine and Sale , and Covenant to stand seised to Uses .

The last of the six conveyances is a Will in writing ; which course of conveyance was first ordained by the statute of 32 H. 8. before which statute no man might give land by will , except it were in a Burrowgh-Towne where there was a speciall custome , that men might give their lands by Will , as in Lond. and many other places .

In what manner the statute of 32. H. 8. giveth power to dispose of lands by Wil. By the Statute of 32 H 8. a man may give lands by will in this sort , first it must be by Will in writing . Secondly he must be seised of an estate in Fee-simple , for tenant for another mans life , or tenant in taile cannot give lands by Will by that statute .

If a man be seised of Capite Lands and Socage , he cannot devise but two parts of the whole . Thirdly , he must be solely seised and not jointly with another , and then being thus seised for all the Land he holdeth in socage being tenure , he may give it by the Will , except he holdeth any peece of Land in capite by Knights service of the King , and laying all his lands together he can give but two parts by will , for the third part of the whole aswell in socage as in capite must discend to the heire to answer Wardship , Livery , and Primmer seisin to the Crowne .

And so if he hold Lands by Knights service of a subject , he can devise but two parts of his Lands , and the Lord by Wardship , and the heire by discent is to hold .

A conveyance by devise of Capite Lands to the wife for her Joyner , or to his Children for their good , or to pay debt , is void for a third part by 32 H. 8. And if a man that hath three Acres of Land holden in capite by Knights service , do make a Jointure to his wise of one , and convey another to any of his children , or to friends to take the profits to pay his debts or Legacies , or daughters portions , then the third Acre or any part therof he cannot give by Will , but must suffer it to descend to the heir , and that must satisfie Wardship .

Yet a man having three acres as before , may convey all to his wife and children by conveyance in his life time , as by Feoffment , Fine , Recovery , Bargaine , and Sale , or Covenant to stand seised to Uses , and to disinherit the Heire , but if the Heire be within age when the Father dieth , the King or other Lord shal have that Heire in Ward , and shall have one of the three acres during the Wardship to sue Livery and primer Seisin . But at full age the Heire shall have no part of it , but it shall go according to the conveyance made by the Father .

It hath been debated how the Thirds shall be set forth , for it is the use , The King nor Lord can intermeddle , if a full third part be left to descend to the heir . Entailed lands part of the Thirds . that all lands which the Father leaveth to descend to the Heire , being Fee-simples , or in taile , must be part of the Thirds , and if it be a full Third , then the King , nor Heire , nor Land can intermeddle with the rest , if it be not a full Third , yet they must take it so much as it is , and have a supply out of the rest .

This supply is thus to be taken , if it be the Kings Ward , then by a Commission out of the Court of Wards , whereupon a Jury upon Oath may set downe so much as shall make up the Thirds , except the Officers of the Court of Wards can otherwise agree with the parties , if there be no Wardship due to the King , then the other Lord is to have a supply by a Commission out of the Chancery , and a Jury thereupon .

But in all the Cases these Statutes do give power to him that maketh the Will , The Statute giveth power to the Testator to set out the Thirds himselfe , and if it be not a third part , yet the King or Lord must take that in part , and have a supply out of the rest . to set forth and appoint of himselfe which lands shall go for the Thirds , and neither King nor Lord can refuse it ; and if it be not enough , yet they must take that in part , and onely have a supply in manner as before is mentioned out of the rest .

A Feoffment made to the use of ones Will , if his Will be declared before , or at the time of his Feoffment , it cannot be altered , because it is executed , otherwise it is if his Will be declared afterwards , 20 H. 7. 11. vide fol. 27. b.

What persons may make Leases at this day . There be three kinds of persons at this day which may make Leases for three lives , &c. in such sort as hereafter is expressed , which could not so do when Littleton wrote .

Any person seised of an Estate in Fee-simple in the right of his Church , and any person seised of an Estate in Fee-taile in his owne right .

Any Husband and Wife seised of any Estate of Inheritance in Fee , or in Fee-taile , in the right of his wife , or joyntly with his wife before the Coverture or after ( viz. ) The Tenant in taile by Deed to bind his Issues in taile but not the Reversion or Remainder .

The Bishop by Deed without the Deane and Chapiter to bind his Successors , the husband and wife by Deed to bind the wife , and her and their Heires , and these are made good by the Statute of 32 H. 8. which enableth them thereunto , but to the making good of such Leases by the said Statute , there are nine things necessary to be observed belonging to them all , and some other to some of them in particular .

1. The Lease must be made by Deed indented .

2. He must be made to begin from the day of the making , or from the making thereof .

3. If there be an old Lease in being it must be surrendred , or expired , or ended within a year of the making of the Lease , and the surrender must be absolute , and not conditionall .

4. There must not be a double Lease in being at one time ; As if a Lease for years be made according to the Statute , he in the Reversion cannot expulse the Lessee , and make a Lease for life or lives according to the Statute , nor e converso , for the words of the Statute be to make a Lease for three lives , or one and twenty yeares , so as the one or the other may be made , and not both .

5. It must not exceed three lives , or one and twenty yeares from the making of it , but it may be for a Lesser terme , or fewer lives .

6. It must be of Lands , Tenements , or Hereditaments maynorable , or corporeall , which are necessary to be letten , and whereunto a Rent by Law may be reserved , and not of things that lye in Grant , as Advowsons , Faires , Markets , Franchises , and the like , out whereof a Rent cannot be reserved .

7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made , so as if it be letten for eleven yeares at one , or severall times within those twenty yeares , it is sufficient . A Grant by Copy of Court Roll in fee , for life or yeares , is a good letting to farme within this Statute , for he is but Tenant at will , Secund. Cons. Manerii : And so it is of a Lease at will by the Common Law ; But those lettings to Farme must be made by some seised of an Estate of inheritance , and not by a Guardian in Chivalry , Tenant by Gurtesie , Tenant in Dower , or the like .

8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors , their Heirs and Successors &c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made .

Hereby first it appeareth that nothing can be demised by authority of this Act , but that whereon a Rent may be lawfully reserved .

Secondly , that where not only a yearly Rent was formerly reserved , but things not annuall , as Herriots , or any Fine , or other profit , at or upon the death of the farmor , yet if the yearly rent be reserved upon a Lease made by force of this Statute , it sufficeth by the expresse words of the Act : And if twenty acres of land have been accustomably letten , and a Lease is made of these twenty , and one acre which was not accustomably letten , reserving the customably yearely rent , and so much more as exceeds the value of the other acre , this Lease is not warrantably letten , and the rent issueth out of the whole .

If Tenant in taile let part of the land accustomably letten , and reserve a rent pro rat , or more , this is good , for that is in substance the accustomable Rent .

If two Coparceners be Tenant in taile of 20. acres , every one of equall value , and usually letten , and they make partition , so as each have ten acres , they may make Leases of their severall parts , each of them reserving the halfe of the accustomable rent .

If the usuall Rent had been payable at foure dayes or Feasts of the yeare , yet if it be reserved yearly payable at one Feast , it is sufficient , for the words of the Statute be [ reserved yearely . ]

Ninthly , nor to any Lease to be made without impeachment of Waste , therefore if a Lease be made for life , the Remainder for life &c. this is not Warranted by the Statute because it is dispunishable for Waste , but if a Lease be made to one during three lives , this is good for the Occupant , if any happen , shall be punished for Waste , the words of the Statute be , seised in the right of his Church , yet if a Bishop that is seised in jure Episcopatus : A Deane of his sole possessions in jure Decanatus ; An Arch-deacon in jure Archidiaconatus . A Prebendary and the life are within the Statute , for every of them is generally seised in jure Ecclesiae .

All Grants , Feoffments , Leases , and other Conveyances or Estates to any Master , or Fellowes of a Colledge , Deane and Chapiter , Master , or Guardian of an Hospitall , Parson , Vicar , &c. other then for one and twenty yeares , or three lives , from the time of such Lease or Grant , reserving the accustomable yearely rent yearly payable , shall be meerly void . 18 Eliz. cap. 11. All Leases made by such persons ( as 13 Eliz. cap. 10. before ) where another Lease for yeares is in being , not to be expired , surrendred , or ended within three years next after the making of such new Lease , shall be void : All Bonds , and Covenants for renewing or making of any Lease contrary hereunto , or to 13 Eliz. cap. 10. before , shall be void .

But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives , &c. of lands usually letten , reserving the usuall rent , it must be also confirmed by the Patron and Ordinary , because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares .

Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are , Notes of things well and duty to be observed . other then for the terme of one and twenty years , or three lives , from such time as any Grant or assurance shall be given , whereupon the old and accustomed yearely rent or more shall be reserved . And to that effect is the exception in the Statute of 13 Eliz. First , it is to be understood , that neither of these nor any other do in any ▪ sort alter or change the enabling Statute of 32 H. 8● but leaveth it for a patterne in many things for Lease to be made for others .

Secondly , it is to bee knowne that no lease made according to exceptation of 1 Eliz , and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop , or any sole Corporation , but it must be confirmed by the Deanes and Chapiters , or others that have interest , as hath been said in the case of the Parson and Vicar , but examples do illustrate . If a Bishop make a Lease for one and twenty yeares , and all these yeares being spent , saving three , or more , yet may the Bishop make a new Lease to another for one and twenty yeares , to begin from the making , according to the exception of the Statute , but not a Lease for life or lives as hath been said : But this concurrent Lease hath been resolved to be good as well upon the exception of 1 Eliz. in the case of Bishops as upon 13 Eliz. which extend to Spirituall and Ecclesiasticall Corporations aggregate of many , as Deanes and Chapiters , &c. which 32 H. 8. for the Leases for years to be made according to the exceptions of the Statute of 1. and 13 Eliz. must begin from the making and not from the day of the making , but by force of 32 H. 8. from the day of the making : And though the Statutes of 1. and 13 Eliz. do not appoint the Lease to be made by writing , yet must it therein and in the other 8. properties or qualities before mentioned , and required by 32 H. 8. follow the patterne thereof , the concurrent Lease onely excepted . And though the exception in 1. and 13 Eliz. concerning the accustomed rent is more generall then that of 32 H. 8. and there is not any provision made for Leases made dispunishable of waste , &c. yet must the patterne of 32 H. 8. be followed for Leases made without impeachment of waste by such Spirituall and Ecclesiasticall persons , are unreasonable , and are causes of disputations : And albeit it be proved by the said Acts , that all Grants , &c. Leases , &c. other then Leases for three lives , or one and twenty yeares , according to these Acts , should be utterly void and of none effect to all intents . Yet Grants or Leases , &c. nor warranted by these Acts , are not void but good against the Lessor , ( if it be a sole Corporation ) or so long as the Deane or other head of the Corporation remaine , if it be a Corporation aggregate of many , for the Statute was made in benefit of the Successor , 3. pars . Coke fol. 50. 60. pars . 39. Eliz. inter Hunt & Singleton .

How to make a perfect Joynture within the Statute of 27 H. 8. wherein six things are to be well observed .

Joynture to bar Dower . FIrst , her Joynture by the first Limitation is to take effect for her life in possessions or profit presently after the death of her Husband .

Secondly , that it be made for the terme of her owne life .

Thirdly , it must be made to her selfe , and none other for her .

Fourthly , it must be made in satisfaction of her whole Dower , and not in part of her Dower .

Fifthly , it must either be expressed or averred to be in satisfaction of her Dower .

Sixthly , it may be made either before or after marriage .

Concerning the first , if a man make a Feoffment in fee of Lands or Tenements either before or after marriage , to the use of the husband for life , and after to the use of A. for life , and then to the use of the wife for life in satisfaction of her Dower , this is no Joynture within the Statute , because by the first limitation it was not to take effect in possessions or profit presently after the death of her husband ; and although in that case A. should dye , living the husband , and after the death of the husband the wife entreth , yet this is no Bar of Dower , but she shal have her Dower also , because it is not within the said Statute , and by the Common Law it was no Bar of Dower .

Secondly , it must be either in Fee-taile , or for terme of her owne life , for an Estate for life or lives , of one or many others , or to her for a hundred yeares ( if she live so long ) or without such limitation is no Bar of Dower , albeit it be made expresly in satisfaction of her Dower .

Thirdly , if an Estate be made to others in Fee-simple , or for life upon trust , so as the Estate remaine in them , albeit it be for her benefit , and by her assent , and by expresse words to be in full satisfaction of her Dower , yet is this no Bar of her Dower .

The fourth is so plaine , as it needeth not any example .

Fifthly a Devise by will cannot be averred to be in satisfaction of her Dower , unlesse it be so expressed in the Will.

Sixthly , if the Joynture be made before marriage the wife cannot waive it and claime her Dower at the Common Law , but if it be made after marriage , then she may waive the same , and claime her Dower , Vernons case , 4. pars . Co. fol 4.

If a Joynture be made to the wife of Lands before the Coverture , and after the Baron and Feme alien by Fine , those lands so conveyed for her Joynture , she shall not be endowed of any other of her husbands lands : But if the Joynture had been made after marriage , notwithstanding the alienation by the husband and wife thereof by Fine , yet seeing her Estate was originally waivable , and the time of her election came not till after the death of her husband , she may claim her Dower in the residue of his lands .

Note , that by force of the Statute of 1 Ed. 6. cap. 2. & 5 Ed 6. cap. 11. a wife shall not lease any Title of Dower which to her was accrued by the Attainder of her husband , for any manner of Murther or other Felony whatsoever : But if the husband be attainted of high Treason , or petite Treason she shall be barred of her Dower at this day .

Feoffment to the use of a mans last Will and Testament . When a Feoffment is made to a future use , as to the performance of his last Will , the Feoffees shall be seised to the use of the Feoffor and his Heires in the mean time , 35 H. 6. 22. 15 H. 7. 12. H. 36. 11. H. 4. 521. 7 H. 4. 2. 2. 1 Mariae III. Dyer vide fol. 25. a.

Surrenders .

Surrender in Law . A Surrender in Law is in some cases of greater force then a Surrender in Deed , as if a man make a Lease for yeares to begin at Michaelmas next , this future interest cannot be surrendred , because there is no reversion wherein it may be drown - But by a Surrender in Law it may be drowned : As if the Lessee before Michaelmas take a new Lease for yeares , either to begin presently , or at a day to come , this is a Surrender in Law of the former Lease .

Lessee for yeares grants a Rent-charge , and surrenders , yet the Rent shall be paid during the yeares . So if he in Reversion grant a Rent-charge during the terme , and then the Lessee doth surrender unto him , he shall pay the Rent during the terme , for a stranger that is a Grantee of the Rent shall say for his benefit that the terme continueth , and that it is not determined .

If a man make a Lease for forty yeares , Surrender by acceptance of a new Lease . By Surrender one of Court , the Copy-hold estate passeth to the Lord under a secret condition that it be presented at the next court , according to the custome of the Mannor : And therefore if after such a Surrender and before the next court he that made the Surrender dieth , yet the Surrender standeth good , and if it be presented at the next court Ceaque use shall be admitted thereunto . But if it be not presented at the next court according to the custome , then the surrender becometh void , and so it was clearly holden , Pasch. 14 Eliz. in the court of common Pleas. the Lessee afterwards ▪ taketh a Lease for twenty years , upon condition , that if he doth such an act , then the Lease for twenty yeares shall be void , and after the Lessee breakes the Condition by force , whereof the second Lease is void , yet the Lease for forty yeares is surrendred , for the Condition was annexed to the Lease for twenty yeares , but the Surrender was absolute . So if a man make a Lease for forty years , and the Lessor grants the Reversion to the Lessee upon Condition , and after the Condition is broken , the terme was absolutely surrendred . And the diversity is when the Lessor grants the Reversion , and when the Lessee grants or surrenders his Estates to the Lessor , for a Condition to a Surrender may revest the particular Estate , because the Surrender is conditionall . But when the Lessor grants the Reversion to the Lessee upon Condition , there the Condition is annexed to the Reversion , and the Surrender absolute .

If Lessee for yeares accept a new Lease of his Lessor to begin presently or at a day to come , that is a present surrender of the first Lease .

And if Lessee for forty yeares take a new Lease to him and his Son by Deed indented for twenty yeares , by which . Deed the Lessor covenanteth , that if the Son dye within the terme , that then the first Lease shall stand in his force , the same Lease , or any other thing notwithstanding , although the Son dye within the said twenty yeares , yet this Covenant shall not revive the first Lease .

And if a Lease be made for twenty yeares , to begin at Michaelmas , and after before Michaelmas the Lessee excepteth a new Lease of his Lessor , of the same land by Deed indented for sixteen yeares , the Lessee upon his entry at Michaelmas is but Termor for sixteen yeares , and that is by reason of the Deed indented , and the agreement which amounteth to a Grant of the first Lease , &c. for an interest of a terme may not be surrendred before that it be in possession , nor the Lessee shall not have Ejectione firmae , nor Action of Trespasse before he be in possession : But he may forfeit or grant such interest of a terme , yet some hold that such interest may by acceptance of a new Lease be surrendred very well . And they take a diversity where the second Lease may determine before the beginning of the first , then the acceptance of that is no Surrender , otherwise it is if it containe a day after the beginning of the other , then they say that it is a Surrender .

But it is a Principle that it behoveth that he that surrendreth be seised or possessed of the Estate and of the thing surrendred at the time of the surrender made , for a surrender made by Tenant for life disseised is void , for that he hath but a right at the time of the surrender , the same Law of a surrender made by a Fome which hath title to Dower , is void . Also a man may not surrender a right to a terme , and a man may not surrender that which he hath not as a terme , which is to begin at a day to come , nor a terme before that the Lessor which surrenders hath entred lawfully by force of his Lease , for a Release made to such Lessee by the Lessor before the beginning , and before the possession had of his Lease is void . Also the Lessor remaineth possessed of the Demesne , and hath not any reversion before that .

And in every surrender these foure things are to be considered and observed ( viz. ) Foure things to be observed in every surrender .

1. It behoveth him that surrendreth to have in him the thing surrendred at the time .

2. The surrender ought to be made of the thing leased , for this word , Surrender , is of such effect to give againe , and nothing may be given againe but that which was created before .

3. It behoveth alwaies that there be a privity between him that surrendreth , and him to whom the surrender is made , which privity is defeated and destroyed by granting over of their Estates .

4. And it behoveth also that he to whom the Surrender is made , hath in him and in his right the immediate Reversion or Remainder of the thing at the time of the Surrender made , and of such Estate , so that the thing surrendred may draw therein , for surrender made to him which hath but a right of Reversion as to the Disseisee or to Tenant in Law , as to the Heire or to the Lord by Escheat , before that they have entred , or have seisin or possession in Deed , or to the Discontinuee , of Tenant in taile , &c. is a void surrender .

And note , that there is a Surrender in Deed , and a Surrender in Law of a terme for yeares , Surrender in deed , and Surrender in Law . and therfore if Tenant for yeares , and the Lessor make a Feoffment or Lease for life , that shall be taken the Livery of the Lessor , and the surrender of the Lessee , for the terme thereby is extinct , and yet there is not any word of surrender , but it shall be so taken by the Judgment of Law , which alwaies incline the words of the parties to the minds of the parties : But if Tenant for life and his Lessor make a Feoffment in fee by Deed , that is the Feoffment of Tenant for life , and the Confirmation of the Lessor , although there be not any word of Confirmation in the Deed , and that shall not be taken to be a Surrender in Law . But if Tenant for life speaketh that he agreeth or sheweth his contentment to enable him in the Reversion onely to make a Feoffment , and Livery and Seisin to a stranger , that is a Surrender in fait .

But if he surrender by word in another County , that is not a Surrender untill he to whom it is made hath entred . And it is to be thought that if Tenant for life take a new Estate of his Lessor for twenty yeares , that this is a surrender in Law of the Lease for life , for otherwise the second Lease was made to him , when he was seised or possessed of the first Lease .

Surrender by expresse words . Note , that a Surrender by expresse words is where the Lessee saith to the Lessor , that his will is , that he shall have againe the land , or that he will no longer occupy the same , if the Lessor thereunto agree and enter , that is a Surrender , and else not : But if Tenant for life waive the possession , and the Lessor enter , that is no Surrender .

In Chenies case it was resolved in Curia Hardorum , 27 Eliz. that where he in Reversion enfeoffed his Lessee for yeares to the use of others , that although the Lease be surrendred and extinguished by the Common Law , yet by the saving of the Statute of 27 H. 8. of Uses , the terme of the Feoffee was saved .

Also in the same Court , Anno 28 Eliz. in the case of Ized , it was resolved , that where the Lord enfeoffed the Copyholder to the use of others , that the Copyhold Estate by the saving of the said Act was preserved .

Devises .

IT is a principle in Law , A Lease to A. for life the remainder to the right heires of B. B. haveing a daughter dieth , his wife privily with child of a Son , in this case the daughter claimeth by purchase , and therefore the son borne after shall never divest it , Coke . 1. pars , fo 95. that in all gifts be they by devise or otherwise , it behooveth to have a donee in esse , which hath power and capacity to take the thing given at the very time when it ought to vest , for if there be not any such in rerum natura when the thing ought to vest , then the gift shall be void . Plow . fo. 345.

For if a man devise a Lease or goods to I. S. which dieth , and then the devisor dieth , the Executor of I. S. shall not have them . And if a man seised of lands in Fee devisable , make his will and thereby devise his lands to I. S. and his heires , and then I. S. dieth and afterwards the devisor dieth I. S. and his heires nor any of them shall take nothing by this devise , and here the thing ought not to vest in the devisee untill the death of the devisor , at which time the devisee was dead , and so was not in rerum natura . And as to that heires are named in the gift , that is to say , it is given to the devisee and to his heires , for which cause they shall be contemned and concluded in the intent , that is not so , for heires are not there taken to be immediately takers , but onely to expresse the quantity of the estate that the devisee should have , for without expressing heires , the Devisor might not properly make an estate in Feesimple in the devisee and none other . But if a man devise Lands to one and his heires and the devisor dieth in the life of the devisee , and then the devisee , dieth , now the heire shall take by the devise Coke , prima pars fo . 95

If a man lease lands to a man for life , Contingent remainder . and if the Lessor die without heire of his body , that then the Lessee shall have the land to him and his heires ; in this case if the Lessee for life dieth , and then the lessor dieth without heires of his body , the heire of the lessee shall not have the land , and so clearely holden , Plowden , com . fo. 483.

Quere de hoc . It was agreed for good law , that the occupation of a Chattel may be devised by way of remainder , but if the thing it selfe were devised to use , the remainder were void , for the gift or devise of a Chattel for an howre is pro imperpetuum , and the donee or devisee may give it , sell it , and dispose it , and the remainder thereupon is void , Brook . devise fo. 13.

The occupation of a Chattel personall may be devised by way of remainder . A Lease devised 20. yeares to one for the first ten yeares , the remainder to another , or devised to one for so many yeares as he shall live , the remainder to another , a delivery to the first devisee serveth for him in the remainder also . So though it be but the occupation of a terme which is so devised , for the occupation and profits of the Land is all one with land it selfe , but if the occupation of a Booke , glasse , or other Chattel personall be devised to one for life , and after his death to another in like sort , there a delivery to the first is no delivery to the other , for their occupations are severall , and in such Chattles personall the occupation is distinct from the property , 7 H. 6. 30. Plowden , fo. 522.

A devise to one and his heires Males , is an estate taile , but a devise to I. S. in Fee upon condition , that if he pay not I. D , 10 l. then I. D. to have it in Fee , is a void condition and remainder , for it is contrary to the law . 27 H. 8. 27. 29 H. 8. Dier. 33.

But a devise of the fee-simple to Alice S. and after her death to B. is onely an estate for life , the remainder for life to B. the remainder to Alice in Fee , so as the husband of Alice , In a devise by what words Fee-simple passeth . ( if she die in the life of B. ) cannot be Tenant by courtesie , 19 Eliz. Dier. 357.

If a man devise lands to a man for ever , or to give and to sell , or in fee-simple , or to him and his Assignes for ever , Fee-simple passeth , but if the devise bee to a man and his Assignes without saying for ever , the Devisee hath but an estate for life , if a man Devise lands to one & sanguini suo , that is Fee-simple , but if it bee semini suo it is estate taile .

If a man Devise Lands upon condition , A devise , upon a condition repugnant is voide . that the Devisee shall not Alien , this condition is void , and so it is of a Grant , Release , Confirmation , or other conveyance whereby a Fee-simple doth passe . And so it is , if a man bee possest of a Lease for yeares , or of a Horse , or of any other Chattel , reall or personall , and give it or set it upon any such condition .

When a man deviseth that the Executors shall set the Land , A devise that the Executors shall sell the Land . there the Land descendeth in the meane time to the heire , and untill the Sale be made , the heir may enter and take the profits .

But when the land is devised , to his Executor to be sold , there the devise taketh away the discent , A device of Land to the Executors to be by them sold . and vesteth the state of the land in the Executors , and they may enter and take the profits , & make sale according to the Devise , and here it appeareth , that when a man deviseth his Tenements to be sold by his Executors , is all one as if he had devised his Tenements to his Executors to be sold . And the reason is , because he deviseth the Tenements whereby he makes the discent .

Although that the last Will shall avoid the former Will , yet if a man be seised of lands in Fee , No alteration of such a Will . and therof enfeoffe a stranger , and declare his Will upon the Livery of Seisin made to the stranger , that is , that the Feoffee shall bee seised to the use of the Feoffor for terme of his life , the remainder to I. S. in Fee , now he may not alter this Will by a latter Will in prejudice of ceste que use in remainder , because the use is in him in remainder forthwith , so that he may set it , but if in the same case the remainder of the use had been to the right heires of the Feoffor , then the Feoffor might alter this use by his last Will , and if the Feoffor had declared his Will upon the Livery of Seisin , that the Feoffee should be seised to the use of I. F. for life , the remainder to the use of the Feoffor , or in taile , the remainder to the use of a stranger in Fee , in this case the Feoffor may not alter this Will by his last Will , Perkins Testaments , fo. 93. and 92.

Such a Wil may be altered . If a man seised of Lands in Fee , thereof enfeoffe a stranger , to the intent to performe his Will , and after the Feoffor maketh his Will and deviseth the same Land to a stranger in Fee , in this case the Devisor may alter this Will by a latter Will , because in this case the Devisee shall not have this Land but by force of the Testatment , and that may not take effect till after the death of the Devisor . And the same law it is of Lands , Tenements , Rents , or Common , &c. devisable by the custome used in any place &c. And also the same law is it of all Chattels reall and personall devised , Perkins Testaments , fo. 93.

A Feoffment to performe a Will . When a Feoffement is made to a future use , as to the performance of his last Will , the Feoffees shall bee seised to the use of the Feoffor and his heires in the meane time , 35 H. 6. 22. 15 H. 7. 12. 37 H 6. 36. 11. H. 4. 52. 7 H. 4. 22. 1 Mariae . 111. Dier .

Of such Will. there is no alteration . A Feoffment made to the use of ones Will , if his Will be declared before , or at the time of his Feoffment , it cannot bee altered because it is executed , otherwise it is if his Will be declared afterwards , 20 ● . 7. 11.

If a man devise his land to W. N. solvendum 10 l. to his Executors and die , A man deviseth lands to his wife so long as she should continue sole , and if she marry , the remainder in taile , the remainder to his right heire , so that the marriage is the limitation which determineth the estate , and so the remainder beginneth upon the estate ended there . Coke . 10. pars . fo. 41. the Devisee hath Feesimple by reason of the payment without words to his heires , for ever . And that shall bee intended the intent of the Devisor : so if a man sell land to W. N for 20 l. that shall be intended a Sale in Fee-simple without words , heires , for conscience , &c. Brook estates fo. 78.

Termor deviseth to his wife the Land for so many yeares as she should live , and afterward the terme to his son , and made his wife . Executrix and died , the wife prooved the Testament and entred and agreed to the devise , and afterwards shee aliened the terme and died , the son or his Administrator may enter .

A man deviseth his Land to I. S. that shall bee taken but for terme for life , but if he saith paying 100 l. to W. N. that shall bee intended Fee-simple , and if hee doth not pay it in his life time , yet if his heire or Executor pay it , it sufficeth Quaere of his Assignee , Brooke , Testament , 18.

A Devise to a man and his heires , hee hath issue a daughter and dieth , his wife privily with Child of a Son , the daughter entreth , she shall retaine the land for ever , and yet the son is heire , but not to toll the land before vested in the daughter .

If Lessee for yeares devise his terme or other his goods or Chattels by Testament to one for terme of his life , the remainder over to another and dieth , and the Devisee entreth and doth not Alien the terme , nor give , nor sell the Chattel , and die there , hee in remainder shall have it , but if the first devisee had aliened given or sold it , he in remainder had beene remedilesse , Brook Chattel 23. And so B. thinketh it if it be forfeited in his life , he in remainder is without remedie .

If a terme be devised to one & his heirs males of his body , his heire shall not have it , but his executor , for a terme which is but a Chattel may not be entailed , and such Devisee may well Alien the terme to whom please him Coke . 10. pars . fo. 22.

If a man devise Lands to one to have to him and his heires after the death of the Devisors wife , the wife although she were not named before the Habendum shall have an estate for life by this Devise .

The husband possest of a terme in jure uxoris suae maketh a Lease of parcell rendant rent , the wife shall have the residue of the terme but not the rent , 9. Eliz. Dier . fo. 246.

If a man devise his land to his wife for her life , upon condition that if she marry , that then the land shall remaine to I. S. in taile , this is a good remainder , for the construction of this devise is to make the same condition , to be a lymitation and not any condition , and upon a lymitation or determination of a particular estate which is certaine and not uncertaine a remainder clearly may well depend .

A man possessed of a terme of yeares in the right of his wife , cannot devise it to another by his Will , for she hath an estate in it before and at the time of his death , which preventeth the Devisee , nor can he grant charge out of it , for she surviving is remitted to the terme , and therefore shall avoide the charge . But by by an expresse Act he might in his life time have given it away , but if a woman having Chattels personall take a husband , the law devesteth the property out of her and vesteth it in her husband only .

What Deeds of Gifts shall be counted fraudulent .

Fraud . IF a man make a generall Deed of Gift of all his goods , this is suspicious to bee done upon fraud to deceive the Creditors .

And if a man which is in debt make a Deed of gift of all his goods , to protract the taking of them in execution for his debt , this deed of gift is void , as against those to whom he stood indebted : But as against himselfe his owne Executor or Administrator or any man to whom afterwards he shall sell them or convey them , it is good .

What is sale bona fide , and what not . By sale any man may convey his own goods to another , & although he may feare Execution for debts , he may sell them out-right for money at any time before the Execution served , so that there be no reservation of trust between them , that providing the money he shall have the goods againe , for that trust in such case doth prove plainely a fraud to prevent the Creditors from taking the goods in execution .

A Deed of gift of goods to defraud Creditors is voide against them , but is good against him his Executors or ministrators .

Where Sale in a Market Overt shall Bar the owner , and where not .

IF a man steale my Goods or Cartel , Market Overt . or take them from me in jest , or borrow them of mee , and carry them to the market or faire , and there selleth them , this sale doth bar me of the property of my goods , saving that if it be a horse he must bee ridden two hours in the Market or Faire between ten and five of the Clock , and Tolled for in the Tolle-Booke , and the seller must bring one to avouch this Sale known to the Tolle-book-keeper , or else the Sale bindeth not , and for any other goods , where the Sale in a Market or Faire shall bar the owner , not being the seller , of his property , it must be sale in a Market or Faire where usually things of that nature are sold . As if a man steale a horse and sell him in Smithfield , the true owner is not barred by this Sale , but if hee sell , the Horse in Cheap-side , New-gate , or Westminster Market , the true owner is not barred by this Sale because these Markets are usuall , for Flesh , Fish , &c. & not for horses .

So as where by Custome of London , every shop there is a Market all the dayes of the week , saving Sun-daies and Holly-daies , yet if a peice of Plate or a Jewell that is lost , or a chaine of Gold , or Pearle , that is stollen or borrowed , be sold in a Draper or Scrivenors Shop , or any other but a Gold-smith , the sale barreth not the true owner & sic in similibus .

The owner may seise his goods after they are stollen , wheresoever hee findeth them except they were sold in a Faire or Market , and that bona fide without fraud .

But if the Thiefe bee condemned of the Felony , or out-lawed for the same , or out-lawed in any personall Action , or have counted a forfeiture of goods to the Crowne , then the true owner is without remedie , and yet if after the goods were stolen , the true owner maketh fresh pursuite after the thiefe & taketh the goods with the theef , hee may take them againe , and if he make no fresh persuit , yet if hee prosecute the Felon so far as Justice requireth , as to have him arraigned , indited , and found guilty , ( though he be not hanged nor have judgement of death ) in all these cases he shall have the goods againe by a writ of a restitution to the party in whose hands they are .

No Sale on a Sunday or Holiday shall be said a sale in Market Overt to alter the property .

Waive . A Theife having stollen goods being pursued flyeth away , and leaveth the goods , this leaving is called a waving , and the property is to the King or to the Lord of the Mannour , where it was wayved . But if the Felon be Indited , Adjudged , found guilty , or unlawed at the suite of the owner of these goods , he shall have restitution of them as before .

Stray . Property in live Chattel is thus gotten , when they come into other mens grounds , then the party or Lord into whose grounds or Mannours they come , causeth them to be seised , and with a Withe put about their necks , and to be cryed in three Markets adjoyning , shewing the Markes of the Cattel , which done , if the true owner claime them not within a yeare and a day , then the property of them is in the Lord , and if the stray remaine with the Lord eight or ten Months , and then strayeth away to another Lordship and is seised by a second Lord , the first Lord hath no remedy to have it againe .

Wrecke . Where a man , Dog , or Cat escape alive out of Ships , it shall be no wreck , but the things shall bee prized by the Sheriffe or Coroner , and delivered to those of the Towne where they be found , to answer them . So as if any within the yeare and day prove that the goods bee his , they shall be restored to him . Westminster , cap. 4.

Treasure hid in the earth ( not upon the earth nor in the Sea ) and Coyne though not hidden being found , Treasure Trove . is the Kings , Stanford , 410. 10 Eliz. Plowden fo. 322.

If a man be out-lawed , Indited of Felonie or Treason , Forfeitures . or confesse it , or be found guilty of it , or refuse to be tryed by Peeres , or Jury , or be attainted by Jury , or fly for Felony , though hee be not guilty , or suffer the Exigent to bee awarded against him , although hee be not outlawed , or go over the Seas without License , all the goods he had at the judgement , hee forfeiteth to the Crowne , except some Lord by Charter can claime them , for in those cases prescription will not serve , except it bee so ancient that it hath had allowance before the Justices in Eire in their circuites , Execution sued in personall Actions . or in the Kings Bench in ancient time .

Recoveries in personall Actions are of two sorts , either to have execution of the profits of the land and Chattels , or a capias ad satisfaciendum .

In those of the first sort execution shall be of any land which the party had the day of the judgement given , but for Chattels , though it be Leases for yeares only , those which he had the day of the execution sued . So as if he sell his goods bona fide after judgment & before execution sued forth , those goods are not liable to the Execution . Or if a Writ of Execution be sued forth and never returned , and after the Defendant Alien his goods , and the Plantiffe purchase another Writ which is returned , yet the Execution shall not be of these goods , for Writs which never are returned , are not of record nor of any force at all , but an alienation made after the teste of that second Writ , had been nothing worth , Old Na. Br. 165. 42. E. 3. 11. 2. H. 4. 141.

Executors , with all things incident to that Office .

Executors . BY Executor-ship goods are gotten , when a man is possessed of goods maketh his last Will and Testament in writing , or by word , and maketh one or more Executors thereof , these Executors have by the Will and death of the parties all the property of their goods , Chattels , Leases for yeares , Wardships , and extents , and all right concerning those things .

Those Executors may meddle with the goods and dispose them before they prove the Will , but they cannot bring an Action for any debt or duty , before they have proved the Will .

The proving of the Will is thus , they are to exhibit the Will into the Bishops Court , and then they are to be sworne , and the Bishops Officers are to keep the Will Originall , and certifie the Copy thereof in Parchment under the Bishops scale of Office , which Parchment so sealed is called the Will proved .

Administration and Executors . By letters of Administration property in goods is thus gotten , when a man possest of goods dieth without any Will , there such things as the Executors should have had , if he had made a Will , were by ancient law to have come to the Bishop of the Diocesse to dispose for the good of his soule that died , he first paying his funerall and debts , and giving the rest , ad pios usus .

This is now altered by the Statute Law , so as the Bishops are to grant Letters of Administration of the goods at this day to the Wife , if she require it , or children , or next of kin , if they refuse it ( as often they doe ) because the debts are greater then the estate will beare , then some Creditors or some other will take it , as the Bishops Officers shall think meet . It groweth often in question what Bishop shall have the right of proving Wills , and granting Administration of Goods .

In which Controversie the rule is thus , That if the party dead , had at the time of his death Bona notabilia in divers Diocesses of some reasonable value , the Arch-bishop of the Province where he died is to have the approbation of his Will , and grant the Administration of his Goods , as the case falleth out , otherwise the Bishop of the Diocesse is to do it .

If there be but one Executor made , yet he may refuse the Executorship coming before the Bishop , so that he hath not intermeddled with any of the Goods before , or with receiving Debts or paying Legacies .

And if there be more Executors then one , so many as list may refuse , and if any one take it upon him , the rest that did once refuse may when they will take it upon them , & no executor shal be further charged with Debts or legacies , then the value of the goods come to his hands . So that he foresee that he pay Debts upon Record , Debts to the King . Then upon Judgments , Statutes , Recognizances , then Debts by Bond and Bill sealed , Rent unpaid , Servants Wages , payment to head-workmen ; and lastly Shop-books , and Contracts by word , for if an Executor or Administrator pay Debts to others before to the King , or Debts due by Bond before those due by Record , or Debts by Shop-book , and Contracts before those by Bond , Arrearages of rent , and Servants Wages , he shall pay the same over againe to these others in the said degrees .

But yet the law giveth them choice , that where divers have debts due in equall degree of record or specialty , he may pay which of them he will before any Suit be brought against him , but if Suit be brought he must first pay them that get Judgment against him .

Any one Executor may convey the Goods , or release Debts without his Companion , and any one by himselfe may do as much as all together : But one mans releasing of Debts , or selling of Goods shall not charge the other to pay so much of the Goods , if there be not enough to pay debts , but it shall charge the party himself that did so release or convey .

But it is not so with Administrators , for they have but one Authority given them by the Bishop over the Goods , which Authority being given to many , is to be executed by all of them joyned together .

And if an Executor dye making an Executor , the second Executor is Executor to the first Testator .

But if an Administrator die intestate , then his Administrator shall not be Executor to the first : But in that case the Bishop whom we call the Ordinarie is to commit the Administration of the first Testators Goods to his Wife , or next of kin , as if he had died intestate ; Alwaies provided , that that which the Executor did in his life time is to be allowed for good . And so if an Administrator die and make his Executor , the Executor of the Administrator shall not be Executor to the first Intestate , but the Ordinarie must new commit the Administration of the Goods of the first Intestate .

Again , if the Exetutor or Administrator pay Debts or Funeralls , or Legacies of his owne money , he may retaine so much of the Goods in kind of the Testator or Intestate , and shall have property of it in kind .

Legacy .

PRoperty by legacie is where a man maketh a Will , and Executors , and giveth legacies , he or they to whom the Legacies are given , must have the assent of the Executors , or of one of them to have his Legacy ; and the property of that Lease or other Goods bequeathed unto him is said to be in him , but he may not enter nor take his legacy without the assent of the Executors , or of one of them , because the Executors are charged to pay debts before legacies ; And if one of them assent to pay legacies , he shall pay the value thereof of his own purse .

But this is to be understood by debts of Record to the King , or by Bill and Bond sealed , or Arrearages of Rent , or Servants , or Work-mens Wages , and not debts of Shop-books , or Bills unsealed , or Contract by word , for before them legacies are to be paid .

And if the Executors doubt that they shall not have enough to pay every legacy , they may pay which they please first , but they may not sell any speciall legacie which they will to pay debts , or a lease of goods to pay a money legacy : But they may sell any legacie which they will to pay debts , if they have not enough besides .

If a man make a Will , and make no Executor , or if the Executors refuse , the Ordinary is to commit Administration cum Testamento annexo , and take Bonds of the Administrators to performe the Will , and he is to do it in such sort as the Executor should have done if he had been named .

A Lease was made to one William Cecill for the terme of one and forty yeares ( if he so long live ) and if he dye within the terme aforesaid , Remainder void , fol. 56. then E. the wife of the said W. should have and hold all the said Premisses for the residue of the said terme ( if she so long live ) and if she die within the same terme , then W. Cecill Son of the said W. Cecill should have and hold all the Premisses for the residue of the terme aforesaid unexpired : By Catelin and Dier , the Remainders are all void , because that the terme is determinable on the life of W. Cecill , so the residue of the said terme may not remaine , Dyer , fol. 253.

Releases .

AS a Release of Suits is more large and beneficiall then a Release of Querela's , or of Actions , so a Release of demands is more large and beneficial then any of them , for thereby is released all that which are released by the others , and more . By a release of all Demands , all Free-holds , and Inheritances Executory are released , as Rents , and the like ; by a Release of all Demands , all Executions are released by a Release of all Demands to the Disseisor , the right of entry to the land , and all which is contained within it is released . So it is resolved in Chamies case , 34 H. 8 titulo Release , that he which releaseth all Demands excludeth himself of all Actions , Entries , and Seisures . Littleton holdeth , cap. Garranties 80. 170. That if Tenant in taile enfeoff his Uncle who enfeoffs another in fee with Warranty , if after the Feoffee by his Deed release to his Uncle all manner of Warranties , or all manner of Covenants reall , or all manner of Demands by such Release , the Warranty ( which is a Covenant reall and executory ) is extinct . And the reason of all that was , because that by a Release of Demands , all the meanes and remedies , and the causes of them which any hath to Lands , Tenements , Goods , Chattels , &c. are extinct , and by consequence the right and interest to the thing it self .

But note although that a Release of all Demands be of so great extent , yet that extendeth not to such Writs by which nothing is demanded neither in fact nor in Law , by doing onely to releive the Plaintiff by way of discharge , and not by way of demand . A Release of all Demands is not a bar in a Writ of Error to reverse an Outlawry .

By a release of all demands , Rent-seck , all Actions mixt . Warranty which is a Covenant reall , and all other Covenants reall and personall , Estovers , all manner of Commons , Profits apprender , Conditions before they be broken or performed , or afterwards Annuities , Recognizances , Statutes , Obligations , and Contracts , &c. are released and discharged .

If a man by Dead covenant to make a house , or to make an Estate , and before the Covenant broken , the Covenantee release to him all Actions , Suits , and Quarrels , that is no discharge of the Covenant , because that at the time of the Release nothing was due , nor was it any debt or duty , or any cause of Action in esse , but in this case of all Covenants is a good discharge of the Covenant before it be broken .

A Release of all duties extendeth to all things due which is certaine , and therefore dischargeth Judgments in personall Actions and Executions also . If the Plaintiff after Judgments release all Demands , the execution is discharged . By a Release of all Quarrels , all Causes of Actions are released , although no Action be then depending . Coke 10. pars . fol. 51. 38 H. 8 Release . 6 H. 7. 15. 19 H 6. 3. 4. 40 E. 3. 22. 5 Eliz. Dyer 217.

By a Release of all Suites the execution is released .

If a man be in Execution , If a man make a Lease for ten years , the remainder for twenty years , he in remainder releaseth all his right to the Lessee , he shall have an estate for thirty years , for one Chattell cannot drown in another , and yeares cannot be consumed in years . Cokes Littleton , 260. b. Co. 6. pars fo. 47. a Release of all Debts or Duties , he is to be discharged of the Execution , because the Debt or Duty is discharged .

If Judgment be given in an Action of Debt , and the body of the Defendant is taken in execution by Capias ad satisfaciendum , and afterwards the Plaintiff releaseth the Judgment , by that the body shall be discharged of the execution .

In an Action of Debt brought by Hoe in the Kings Bench , If a rent be behind for twenty years , and the Lord do make an Acquittance for the last that is due , all the rest are presumed to be paid . And the Law will admit no proof against this presumption , Cokes Littleton , fol. 373. Phelix Marshall was baile for the Defendant , and afterwards before any Judgment given the Plaintiff released to Pehlix all Actions , Duties , and Demands , and after Judgment was given against the Defendant , and upon a default of the Defendant , Scire facias went out against Phelix Marshall , who pleaded the said generall Release , upon which plea the Plaintiff demurred : And it was adjudged that this Release shall not bar the Plaintiff , for the words of the baile are conditionall ( viz. ) Si contigeret predictum defendentem debit . & dam. ill . prefat quer . minime solvere aut se prisonae Mareshalss . ea occasione non reddere , &c. So that it may not be by the said Baile any certaine duty untill Judgment be given , for before that none may know to what summ the Debt and Damages will amount to : he which is baile for the Defendant is not bound in any certaine summ at the first ; but his Recognizance being generall , shall be reduced to a certainty by the Judgment and not before .

The effect of a speciall bail given in the Kings Bench. The Condition , &c. That where the above named H. C. and one R. H. in their proper persons have undertaken , so the above bounden C , F. by a Recognizance or Mainprise taken and knowledged before the Justices of the Kings Bench at Westminster , that if it happen the said C. F. to be condemned in any Action at the suit of T. B. Esquire , that then the said R. H. and H. D. did grant all Costs and Damages , and Executions which should be judged to the said T. B. in that behalf , should be levied to the use of the said T. B. of the Lands and Chattels of the said R. H. and H. C. if so it be that the said C. F. do not pay the same Damages himself to the said T. B. or restore and yeild himself againe by meanes thereof to the Prison of the Marshall of the Marshalsey , if the said C. F. his Heires , &c. and every of them , at all times hereafter , from time to time , do well and truly acquit , discharge , or save harmlesse the said H. C. and R. H. their Heires , &c. and every of them against the said T. B. his , &c of and for the breach and forfeiture of the said Recognizance and Mainprise , and of and for the execution of the said Action , whereupon the same Recognizance and Mainprise was so taken and knowledged , and also of for , and upon all other Bonds , Obligations , and Recognizances , wherein the said H. C. standeth bound to any other person or persons , for and in the behalf of the said C. F. that then , &c.

Cases in Law of divers and sundry manners and matters .

I. A. by Indenture , bearing date the third of May , Livery and seisin void , but if in this case Livery be made by the Lessor himself at the day that this Lease in futuro is to commence , then the Lease is good , but if by Attorney then void , vide plus de hoc fol. 50. fol. 51. leaseth a Messuage to B. to have to the said B. from the Feast of the Annunciation of our Lady then next coming , for the terme of his life , and Livery is executed the tenth of March following , the Livery in this case is void , because every Livery ought to vest the Freehold in him to whome the Livery is made at the time of the Livery , and this Grant did not commence untill the Annunciation following , so that the livery could not bring a possession before the terme was to begin , and where there is no Estate present whereunto the livery may be annexed , nor whereunto it may unite , in the mean time then such livery is void . Plowden fol. 156.

An estate of Frank-tenement at the Common Law may not commence in futuro , A Frank-tenement be it in possession , reversion , or remainder may not be limited to commence at a day to come . but ought to take effect forthwith in possession , reversion , or remainder , as if a man make a lease for life to begin at Mich. next , that is void , so if a man make a lease for life , to have from the date of the Indenture , or from the day of the date , or from the day of the making , or from the day of the sealing and delivery , such leases are meerly void , for the date is excluded , and the lessee may not enter untill the morrow , for when a man makes a lease for life to commence at a day to come , he may not make present livery to a future estate , and therfore in such case nothing passeth , and Livery or Attornment afterwards will never make a void Grant to be good , Coke 5. pars . fol. 94. 2. pars . fol. 55.

If a Lease be made for years , or at Will by Deed , and Livery and Seisin be made to the Lessee , yet he is but Tenant for years , or Tenant at Will , according to the limitation of the Deed , and not Tenant for life by force of the livery . But if a lease be made for years , the Remainder to a stranger for life , and livery is made to the Lessee who enters , this livery shall vest the Remainder in the stranger , and if the Lessee enter by force of his lease , before livery be made unto him , then the Remainder is void .

Condition , where an en●ry is reserved to a stranger , vide casus tertium prox . sequent . A man enfeoffeth one upon condition that he shall pay ten pounds to B. and upon default that B. shall enter , now if the rent be not paid the Feoffee may enter in Law , and Conscience , and not B. for he is a stranger to the Condition , and B. hath no remedy in Conscience to have the land . And when the Feoffment is made upon Condition , although it doth not speak that for default of payment he may re-enter , yet that is implied in the word , Condition , and as to the words , that B. shall enter by default of payment , they are void words , Doctor & Student , fol. 93.

Condition for non-payment of rent , and then an Assise is brought or a Distress taken . If a Condition be broken for non-payment of rent , yet if the Feoffor bring an Assise for rent due at that time , he shall never enter for the Condition broken , because he affirmeth the rent to have continuance , and whereby waiveth the condition , and so it is if the rent had had a clause of Distresse annexed unto it , if the Feoffor had distrained for the rent for non-payment , whereof the condition was broken , he should never enter for the condition broken ; but he may receive that rent , and acquit the same , and yet enter for the condition broken : Acceptance of rent barreth a re-entry . But if he accept a rent due at another day after , he shall not enter for the condition broken , because he thereby affirmeth the lease to have continuance , Coke Lit. fol. 211. b.

If a man enfeoff one by Indenture , by which it is covenanted and agreed that the Feoffee shall pay to a stranger , and his Heires ten pounds per annum at a certaine day , and if he faile , that the stranger and his Heires may enter ; in that case if the Feoffee doth not pay it , the stranger shall have use of the land in conscience , and not by the common law , and shall have a Subpaena to constraine the Feoffee to make an estate unto him . But in the said case if it had been upon condition that a stranger may enter for non-payment of the rent , there the Feoffor himself shall enter , and not the stranger , for none may enter for a condition annexed to Fee , but for lives , and when the Feoffor hath entred he is not holden to convey the land to a stranger that ought to have the Rent . Doctor & Student 100. 101.

In Mary Portingtons case , Coke 10. pars . fol. 39. Incidents to an estate taile . It was observed and agreed for Law , that to an Estate-taile there are three manner of incidents , some by the common Law , some by Act of Parliament , and some by custome ; by the common law , they are such which are not restrained by the Statute , and may not be restrained by any condition , 22 E. 3. 17. as Dower , and Tenant by the curtesie after issue are incident to an Estate taile , and may not be restrained by any condition . An Estate taile cannot be restrained by any condition , or limitation , vide Coke 9. pars . fol. 128. & 6. pars . Sir Anth. Mildmaies case . Recovery fraudulent Also the Estate of him and Tenant in taile after possibility are dispunishable for Waste ; And collaterall Warranty is a bar to the Estate-taile , and so is a common recovery also , and none of these may be restrained by any condition or limitation , by the Statute law , as to make leases by the Statute of 32 H. 8. cap. 36. and to levie a Fine by the Statute 4 H. 7 cap. 24. and 33 H. 8. cap. 36. to bar Issues , and none of those which are incidents to that Statute by act of Parliament may be restrained by condition , for when a man maketh a Gift in taile , he tacire doth give these incidents thereunto : And therefore to restraine them by condition or limitation shall be repugnant .

And as to the case upon the Statute of 11 H. 7. it was answered that when the husband for advancement of the wife , with competent Joynture and preferment of their Heires of their two bodies engendred , hath caused an estate to be made to himself and to his wife in tail , and after the deaths of the husband , the wives to disinherit the issues of their former husbands suffer recoveries , and convey the land to strangers of the bloud of the husband , such recovery was worthy by the Parliament to be noted with the marke to be suffered by Covin . And the act of the wife either when she is sole , or with her and her second husband is so odious , that a recovery had upon a good title against them by Covin is made void by the said Act.

Fraud . So in the said Acts of 32. H 8. and 14. Eliz. when a common recovery was had against Tenant for life to the prejudice of those who had the inheritance , that may be well termed covenous and by collusion , and yet in the same case , when tenant for life , the remainder to A. in taile , the remainder to B. in taile &c. with divers remainders over , and Tenant for life suffereth a common recovery wherin he voucheth A. and he the common vouchee that shall bind all the other remainders , for no Covin or collusion may bee supposed when the next in remainder in taile , which hath the immediate inheritance , is vouchee , as it was adjudged in Jennings case .

Fraudulent conveyances to defraud purchasors , Vide plus de hoc fo. 18. 27 E. cap. 4. every Conveyance , Grant , Charge , Lease , Estate , incumbrance and limitation of use of Lands , Tenements , or Hereditaments made since the beginning of her Majesties Raigne , or hereafter to be made for the defrauding of Purchasors of the Land it selfe , or any part or profit out of it , shall be void against the person so purchasing , for money or other good consideration , and against all claiming under him with penalty in the Statute of 27. Eliz. Cap. 1.

This doth not extend to the avoyding of any grant , &c. upon good consideration , and bona fide , if any such conveiance be made with clause of revocation or alteration at his pleasure by writing , and after he shall bargaine , demise , sell , grant , convey , or charge the same Lands , &c. for money or other good consideration , the conveyance not revoked or altered , then the conveyance &c. shall be void against the Barganees &c. and all claiming under them ( lawfull Mortages only excepted . )

A Lease was made of a Messuage and Lands for yeares , A grant of land Habendum the reversion . ( if the Lessee so long should live ) and afterwards the Lessor by his Deed indented , granted the Messuage and Land to another , to have and to hold the reversion to the grantee for life , cum per mortem sursum redditionem vel forisfacturam of the Lessee , aut aliter acciderit , reddendo inde annuitie to the Grantor and his heires , when the said reversion shall happen nine shillings and foure pence per Annum . The Lessee dieth , the Grantor of the reversion distraineth for the arrearages of the rent aswell before the death of the Lessee , as afterwards , whereupon four points were clearely resolved upon by the Court.

That by the Demise of a Messuage and Land for life , the reversion thereof doth passe , but by the Grant of a reversion land in possession doth not passe , Lofields case 10. pars fo. 107. Plowden . 197. A grant of the reversion Habendum the land .

By the Grant of a Messuage and Land Habendum revertionem &c. or life after the death of the Lessee &c. that the Habendum is good , for in judgement of law , nothing but the reversion is granted by the Premises and as in Throchmertons case Plowden Coment . fo , 147. when the reversion is granted habendum the land , the habendum is adjudged good , so when the land is granted habendum the reversion , and after the death of the Lessee &c. is in consideration as much to say as to take effect , in possession after the death &c. Also the habendum had been good , although no mention had been made either of the Land or of the reversion in the habendum , for the Office of the habendum is to limit the estate of the land contayned in the Premises .

It was resolved that by the said reservation the rent shall not commence before the reversion fall in possession , and these words cum revertio predict . acciderit shall be expounded according to the intention of the parties , which was not that the Grantee for life , should pay the rent before , that he may take the profits to make the rent of them .

That the distresse was well taken for the Arrerages after the death of the Lessee , and not for the arearages incurred before .

Statute released by matter in Law . A statute was acknowledged the 26. of May , the Cognusee by his release Dated the 25. May , before released to the Cognusor all demands from the beginning of the world untill the making therof , and sealed and delivered the release as his Deed the 27. May following , the statute is freely discharged , for the day of the delivery is dies confectionis , but if the words had been , untill the date or day of the Date of these presents then otherwise it had been , See . Dier . fo. 307.

Defeasance of a statute mis-recited , the statute becometh single . If a Defeasance be made of a statute which is recited to bee made the tenth day of May , where indeed it beareth Date the first day of May , the Defeasance is void for the Mis-prision of time , for the Law saith that in so much as it may be that there were two statutes , the one dated the first day and the other the tenth day , the time of the date is materiall , Plowden fo. 393.

Attornement needlesse . A reversion granted for yeares , for consideration of money , doth passe without Attornement , Coke . 8 pars . fo. 941. for let the case be that there is Lessee for terme of yeares or life rendant-rent , Afterwards the lessor by Indenture for the consideration of 50 l. demiseth and granteth the Premises to another for 90. yeares rendant 40 pounds per annum , although the first Lessee doth never Attorne , yet the second demise shall be good and shall passe as a Bargaine executed by the statute of 27 H. 8. whereunto there needeth no Attornemnt or Inrolement of the Deed , because it is not but a terme for yeares , and no Frank-tenement . And note that if a man for money do enffeoffe , Alien and grant Land to one and his heires or in taile or for life by deed indented and inrolled , that doth amount to a bargaine and sale , and the land shall pass without livery and Seisin .

Attornement needlesse . A grant of a reversion of Land , habendum the land from the end and expiration of a former Lease in being , is a good lease and needeth no attornement .

A demise of the reversion of Land , Attornement needles . habendum the reversion of the land from the end and determination of a former lease in being , is a good Lease and needeth no attornement .

If a man make a gift in taile or a Lease for life , Remainder voide . the remainder to his owne right heires , this remainder is void , and he hath the reversion in him , for the Ancestor during his life beareth in his body ( in the judgment of the law ) all his heires , and this appeareth in a common case , that if Land be given to a man and his heires , all his heires are so totall in him that he may give the land to whom he will .

So it is , if a man be seised of Lands in Fee by Indenture , make a Lease for life , Remainder voide the remainder to the heirs males of his owne body , this is a void remainder , for the donor cannot make his owne right heire a purchasor of an estate taile without departing of the whole fee-simple out of him , as if a man make a Feoffement in Fee to the use of himselfe for life , and then to the use of the heires males of his body , this is a good estate taile executed in himselfe , and the limitation is good by way of use , because it is raised out of the estate of the Feoffees , which the Feoffor departed with , for a limitation of a use to himselfe had been good without question Cokes Littleton , fo. 22. b.

The King may make a Lease for yeares rendant rent to a stranger , and that is a good reservation , Conditions , Entries , and re-entries , may not be given or reserved to strangers . and the stranger may distraine for it , or have an Action of Debt after the lease determined , and that is by reason of his prerogative which he hath above all persons , for he is not bound so strictly by the lawes as others are , but in the case of a common person otherwise it is , because that no rent which is properly said to be a rent , may in any wise be reserved to a stranger which is not privie to the Lease or Deed. Also nothing which goeth in privity as conditions , entries , or re-entries , for conditions or such like which are given by the law to privies onely may not be limited or granted to others , which are strangers by the common Law , and therefore if a Lease bee made for yeares rendant rent , and upon condition of non payment that it shall remaine to a stranger , and livery , and seisin is made accordingly , that is a void a remainder which commenceth upon a repugnancy precedent , and which dependeth upon a condition which goeth in destruction of the perticular estate , and especially where such a remainder is created by lease or grant .

Vpon and by the limitation of a devise or limitation of an use , a remainder may commence upon a condition that goeth to the destruction of the perticular estate . But by limitation of a devise or limitation of use , such a remainder is good , as a Feoffement made to the use of I. S. for yeares , and upon non payment by him of such a summe that it shall remaine to I. D. for life &c. this is a good remainder , so it is where the remainder is created by the limitation of a last Will . As if a man devise his land to his wife for her life , upon condition , that if she marry that the Land shall remaine to F. M. in taile , that is a good remainder , for the construction of this devise is to make the same condition to be a limitation and not any condition . And upon a limitation or determination of a perticular estate which is certaine or not uncertaine , a remainder clearely may well depend . As if a Lease be made for life upon condition that if the Lessee die it shall remaine to a stranger , that is a good remainder . A remain● by a limitation of an use may commence or depend upon any condition and one feesimple may depend upon another by way of use , Where one hath an Office of charge as to be Steward , Officers , Stewards , Bayliffs &c. Bayliffe , Parker , &c. the grantor may out them and pay their Fee , if the Fee bee only certaine but not where they have profits of Court , 34 H. 8. titulo . 243 Kitchin fo. 143 a.

Stewardship , Parker . It was agreed that the Owner of Parke may dispark the Park , notwithstanding a grant of the said Office , the Office of Steward was granted to one for life with a Fee of forty shillings , for the execution thereof , if the Lord discharge him , yet hee shall have the Fee . But if the grant be to him to be taken out of the issues and profits of the Court , the Lord may not discharge him 1 S. E. 4. 8. And if a Parker for life which hath a Fee , for the exercising of the Office is discharged of his Office , yet he shall have the Fee , for it is but an Office of charge , but if the Parker hath the Office for life and hath Windfalls , Deer-skins , and such like , he may not be expulsed from his Office , and of such Office hee may have an Affize Brook 134. 38 H. 8. whereby I conceive that where the Steward hath a cetaine Fee , for execution of his Office , yet if he hath other profit incident to his Office , as Fees for entries of Plaints , making of grants by Copie , taking of surrenders and admittances of Copy tenants and such like , the Lord cannot remove the Steward .

Officers that have no other profits , but a Collaterall certaine fee , there the grantor may discharge him . As to be a Bayliffe , Receivor , Surveior , Auditor or the like , the exercise whereof is but labour and charge to him , but hee must have his Fee for the maine rule of the Law is , that no man can frustrate or derogate from his owne grant to the prejuice of the Grantee . And where albeit the Grantee hath no other profit but his Fee , yet that fee is to be taken out of the profits appertaining to the Lord within his Office for there the grantor cannot discharge him of his service or attendance , for that may turne to the prejudice of the grantee , if the Grantor will not grant the Office at all but in all cases where the Officer relinquisheth his Office and refuseth to attend , he loseth his Office , Fee , profits and all .

There are three causes of the forfeiture of an Office , as the Office of a Steward , Parker , Wood-ward , and such like ( viz. ) Abuser , non-user , and refuser , vide Coke . 8 pars . the County of Rutlands Case . fo. 55. 9 pars , County of Salops Case fo. 49. for in all cases when an Officer upon request doth refuse to execute his Office , that is a forfeiture as if the Steward of a Mannor upon the Lords request to hold a Court , refuse to do it this is a forfeiture .

There is another diversity where the Grantee besides his certaine Fee , hath profits and availes besides his Office , there the Grantor cannot discharge him of his service or attendance , as if a man doth grant to another the Office of the steward-ship of his Court , or of his Mannors with a certaine fee , the Grantor cannot discharge him of his Office , service or attendance because he hath other profits and fees belonging to his Office .

Parker . If a Parker kill any deere without warrant , or cut any Trees , Woods , or Vnder-woods , and convert them to his owne use , it is a forfeitute of his Office .

Parker for life may not assigne his Office to another , because it is an Office of trust , but otherwise it is if hee bee Parker in Fee , Plow . fo. 379. and so for a Steward as I conceive without words in the Patent to make a deputy .

There is a condition in Law annexed to every Office of trust , as to the Office of Steward or Parker , and such like ( viz. ) that the Parker shall keep well the game and shall do all things pertaining to the Office of Parker and so for steward &c.

A parker kept not his Parke such a day by reason whereof the Deere were killed by unknowne persons , this is a forfeiture of his Office .

A Parker is not holden to keep his Parke in Festivall dayes , for he ought to be at divine service , nor in the night , nor to keep the Parke with 6 or 8. men vide 2 H. 7. 8. that in Assize of Office it was said by the reporter and not denied , that if the Office of Parker be granted , if he doth not keep the Parke , or if he destroy the Deer , that is a forfeiture of his Office , if a Forrester or Parker cut or fall Woods , unlesse it be for necessary bruse for the Deere , this is a forfeiture of their Offices for the destruction of vert is the destruction of venison .

If a man hath a lease for yeares , Grants in toto . and grants to another all his tearme that shall bee to come at the time of his death , that grant is void , because he would retaine the terme , during his life , If a rent be granted to one for life by deed , and willeth that the Grantee and his heires distraine in the Lands charged for the same rent , the grantee hath in this case fee-simple in the rent , and not estate for life , for the distresse is the creation of the rent-charge , and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse . for therein he retaineth it for a terme , which is as long as he hath in the Land , and therefore hath not any certainty that terme will ever commence , and therefore the grant void .

And where Lessee for yeares without any habendum granteth to another all his tearme , which shall be to come at the time of his death , shall be all void .

A Termor reciting by Indenture his terme , and lease , granted all his terme estate and interest to another , habendum sibi & assign , suis immediate post mortem ipsius , the Grantor and the case was ruled and adjudged that the habendum was void , and the premises of the grant good to make the whole terme to passe forthwith , Dier fo. 272.

If I have a rent in Fee , if I grant it to another and stay there , this is a grant for life , but if I goe further and say habendum after the death of I. S. there all shall be void , vide . fo. 2.

If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee , the grantee shall not have a state of Frank-tenement , because he cannot have a stare of Frank-tenement derived out of a Chattel reall , but he shall have the rent during all the yeares if the Grantee so long shall live , Plowden , fo. 525.

If I have a rent in fee and grant it to another post mortem I. S. this grant is void , for the nature of a grant is that the thing ought to passe forthwith .

If a man make a lease for yeares , and afterwards the lessor grants a rent charge out of the Land , that grant shall charge the reversion . And this proveth that the Land and the reversion are nor two distinct things , but that in the reversion the Land is contained , Plowden fo. 173.

The Abbot leased land for life , and afterward leased the reversion , to have the Land from Michaelmas next after the first Lease ended by death , surrender or forfeiture for 21. yeares , this is a good Lease , Plowden , fo. 146.

A grant of a reversion Habendum , the said reversion after the end and expiration of the Tenant for life , Attornement needdes . for sixty yeares , this is a good grant without Attornement .

If I make a Lease to one for life , and afterwards I grant the reversion to another habendum , from the Feast of St. Michael next ensuing , to him , and his heires , this grant is void , because that no franke-tenement be it in possession , reversion , or remainder , may be limited to commence at a day to come .

If I have a rent in Fee , I may not grant it to commence in futuro or at a day to come ; but if I have land I may grant a new rent out of it to commence at a day to come , for there I shall not have any particular estate in the meane , for it was not in esse before , but doth commence of new , and therefore I may appoint it to commence when I will .

Pertinentiis . A man makes a Feoffement of a house , cum pertinent . nothing passeth by these words , cum pertinentiis , but the Garden , Curtilage and close adjoyning to the house , and whereupon the house is built and no other Land , though other Lands have been occupied with the house .

A man leased a house cum pertin . no land passeth by these word , but otherwise it is where a man leaseth a house , cum omnibus terris eidem partin . , there the lands therewithall used doe passe .

If a man makes a Feoffement of a house , ac omnes terras , tenementa & heriditamenta eidem messuagio pertin . aut cum eodem occupata , locata aut dimissa existent . hereby the land used with the house doth pass .

Tenant in taile and the Lessee , shall acknowledge the Tenements to be the right of one A stranger , Lease by fine to bind Tenant in Taile and his issue . and that A. shall grant and render by the same fine to the Lessee for 60. yeares , the remainder to the Lessor and his heires , and it was with proclamations which shall bind the taile after proclamation made .

If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee , Recovery the best to barr estates taile and remainders who voucheth tenant for taile , who voucheth over &c. there the tail shall be barred , because that he when he commeth in as vouchee , shall bee in the degree of tenent in taile , and the recompence in value which he hath or may have shall goe in taile , and therefore such manner of recovery is best , and the surest way to barr the taile , and all the remainders , and the reversion also .

If A. be tenant in taile , the remainder to B. in taile , the remainder to C. in taile , the remainder to B. in Fee . A makes a Feoffement , the Feoffees suffer a common recovery wherein B. is vouched , & he over the common vouchee . In this case A. is not bound , but B. and all the remainders over are barred . For although that by the Feoffment of A. all the remainders were discontinued , and the estates that B.C.D. had converted into meere rights , and though the remainders may never be remitted before the estate taile in possession be recontinued , yet in case of a common recovery which is the common assurance of the Land , he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had , though the precedent estate wherupon the state of the vouchee dependeth be devested , or discontinued . Coke . 3 pars . fo. 60.

Tenement is a large word , Tenement and Hereditament . to passe not onely lands and other inheritances which are holden , but also Officers , Rents , Commons , Profits , apprender our of lands , and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento , but an Hereditament is the largest word of all in that kind , for whatsoever may be inherited is an hereditant , be it corporeall or incorporeall , reall or personall or mixt .

Vesturam terrae . If a man hath twenty Acres of Lands and by Deed granteth to another and his heires , Vesturam terrae , and maketh Livery secundum formam chartae , the Land it selfe shall not passe , because he hath a particular right in the land , for thereby he shall not have the houses , timber , trees , and other reall things , parcell of the inheritance , but he shall have the vesture of the Land , that is the Corne , Grasse , and Vnder-wood , Sweepage , and the like , and shall have trespasse , quare clausam fregit .

Herbagium terrae . If a man grant herbagium terrae , he hath a like particular right in the Land , and shall have quare clausuam fregit , but by grant thereof and Livery made , the soile shall not passe as is abovesaid .

Herbagium Boscorum . If a man let to B. the Herbage of his Woods and after grant all his lands in tenure possession , or occupation of B. the Woods shall passe , for B. hath a particular possession and occupation which is sufficient in this case and so it was resolved .

Seperal . Pischar . So if a man seised of a River , and by Deed doe grant Seperal . pischar . in the same and maketh Livery and Seisin secundum for ▪ chartae , neither the soile nor water doth passe , for the grantor may take water there , and if the River become dry , hee may take the benefit of the soile , for there passeth to the Grantee but a particular right , and the Livery being made secundum formam chartae cannot enlarge the grant .

Aquam suaem . If a man grant aquam suam the soile passeth not , but the fishing within the water passeth .

Profits of Land . But if a man seised of Lands in fee by his deed granteth to another the profits of his Lands Habendum to him and his heires , and maketh Livery secundum form . chartae , the whole land it selfe doth passe , for what is the Land but the profits thereof , for thereby Vesture , Herbage , Trees , Mines , and all whatsoever parcell of that land doth passe .

If the Lessor by his Deed license the Lessee for life or years ( which is restrained by Condition not to alien without license ) to alien , License to alien may not be countermanded . and the Lessor dieth before the Lessee doth alien , yet is his death no Countermand of the license , but that he may alien , for the License exempteth the Lessee out of the penalty of the Condition , and it was executed on the part of the Lessor as much as might he . And so it was resolved Mich. 3 Jacobi in Communi Banco . Q ?

If a man make a Lease to another for two and twenty years ( if the Lessee so long live ) and the Lessor and Lessee joyne in Grant by Deed of the terme to another , and after the Lessee dieth within the terme , the Grantee shall enjoy the land during the residue of the terme absolutely .

A man leased a house by Indenture for years , Covenants . the Lessee for him , and his Executors did covenant and grant with the Lessor to repair the house at all times necessary : The Lessee assigned it over to Hide , who suffered it to decay , the Lessor brought an Action of Covenant against the Assignee , and it was adjudged by all the Court that the Action of Covenant lieth , although the Lessor hath not covenanted for his Assignes , for such covenant that extendeth to the supportation of the thing demised , is , Quodam modo appurtenant thereunto : And in respect that the Lessee hath taken upon him to bear the charges of reparations , the yearly rent was the lesser which trencheth to the Assignee Et qui sentit commodum , sentire debet & onus , if the Lessee covenant to discharge the Lessor , De omnibus onerious ordinariis & extraordinariis , and to repair the houses , an Action lieth against the Assignee , Coke 5. pars . fol. 27.

S. did covenant for him , his Executors , and Administrators , with the Lessor , that he , his Executors , Administrators , or Assignes , would build a Brick-wall upon parcell of the land demised . S. assigned over his Terme to I. and for the not making of the Brick-wall , the Lessor brought an Action of Covenant against the Assignee . And thus it was agreed per totam Curiam .

1. When the Covenant extendeth to a thing in esse , parcell of the Demise , the thing to be done by force of the Covenant , is quodammodo annexed and appendant to the thing demised , and shall remain with the Land , and shall bind the Assignee , although he be not bound by express words .

But when the Covenant extendeth to a thing which hath no essence at the time of the Demise made , that may not be appurtenant nor annexed to the thing which hath not essence . As if Lessee covenant to repaire the houses to him demised , during the terme , that is parcell of the Contract , and extendeth to the supportation of the thing demised , and therefore is quodammodo annexed and appurtenant to the house , and shall bind the Assignee although he be not bound expresly by the Covenant . But in the case at the Bar , the Covenant concerned a thing which was not in esse at the time of the Demise made , but to be newly made afterward , and therefore shall bind the Covenantor , his Executors or Administrators , and not the Assignee , for the Law will not annex the Covenant to a thing which hath not essence .

2. It was resolved that in this case , that if the Lessee had covenanted for him and his Assignes that they should make a new Wall upon any part of the thing demised , that that shall bind the Assignee , for although the Covenant extend to a thing to be newly made , yet that is to be done upon the thing demised , and the Assignee is to take the benefit thereof , and therefore shall bind the Assignee by express words . But although the Covenant be for him and his assignes , yet if the thing to be made or done be meerly collaterall to the land , and doth not touch or concern the thing demised , in any sort the assignee shall not be charged , as if the Lessee covenant for him and his assignes to build a house upon the land of the Lessor , which is not any parcell of the Demise , or to pay any collaterall summe to the Lessor , or to a stranger that shall not bind the assignee because it is meer collaterall , and no manner toucheth or concerneth the thing which was demised , or which is assigned over , and therefore in such case the assignee of the thing demised may not be charged with that more then any stranger .

3. It was resolved that if a man demise Sheep or ther stock of Cattell , or any other Goods personall for any time , and the Lessee covenant for him and his Assignes at the end of the time , to deliver such Cattell or Goods as good as the things demised were , or such price for them : And the Lessee assigne the Sheep over , this Covenant shall not bind the Assignee , for that is not but a personall contract , and wanteth such privity as is between the Lessor and the Lessee , and his Assignes of the Land in respect of the reversion : But in case of a Lease of Goods personall , there is not any privity nor any reversion , but meerly a thing in action in the personalty , which may not bind any but the Covenantor , his Executors or Administrators which represent him : the same Law if a man devise a Mease and Land for years , with a stock or summe of money rendant rent , and the Lessee doth covenant for him , his Executors , Administrators , and Assignes , to deliver the stock or summe of money at the end of the terme , yet the Assignee shall not be charged with this Covenant , for although the rent reserved was increased in respect of the stock , or the summe , yet the rent doth not issue out of the stock or summe , but out of the land onely , and therefore as to the stock or summe the Covenant is personall , and shall bind the Covenantor , his Executors and Administrators , and not his Assignee , for it may be wasted or otherwise consumed or perished by the Lessee , and therefore the Law cannot determine at the time of the Lease made , that such Covenant shall bind the Assignee .

If a man demise or grant land to a woman for years and the Lessor covenanteth with the Lessee to repaire the houses during the terme , the wife taketh a husband and dieth , the husband shall have an action of Covenant , as well upon the Covenant in Law upon these words , Demise , or Grant , as upon the expresse Covenant : But it was resolved by Wray chief Justice and all the Court , that this word Concessi , or Demisi , in case of Frank-tenement , or inheritance doth not import any Warranty , see the Statute of 32 H. 8. cap. 24. what act was resolved to extend to Covenants which touch or concern the thing demised , and not to collaterall Covenants .

Demise , Grant . Dier . Upon these words , Demise , grant , in Leases for years or lives , 9 Eliz. 257. the Lessee and his Assignes shall have a Writ of Covenant , alwaies provided there be no speciall Covenant following after in such Leases , for then this generall Covenant is qualified , and the former word , Demise , Grant , shall loose his operation , Coke 4 pars . Nokes case .

And if a man be bound in an Obligation to perform all Covenants , Grants , Articles , and agreements , &c. in such Indenture , now the Lessee or his Assignes upon eviction may bring an Action upon the Obligation , by reason of the Covenant in Law which is broken , viz. Demise , Grant , Co. 4. pars .

Assignment of Estate . If Lessee assigne over his terme , the Lessor may charge the Lessee or his Assignee at his election , but if the Lessor accepteth rent of the Assignee , he hath determined his election , and shall not have an action against the Lessee afterward for rent due after the assignment , no more then if the Lord once accept the rent of the Feoffee , he shall not avow upon the Feoffor , Co. 3. pars . Walkers case .

Proviso , that the Lessee or his Assignes shall not alien to any person without license of the Lessor , afterward the Lessor gives license to alien or demise the land , or any part thereof , the Lessor doth alien accordingly , this one license hath determined the Condition , so that no alienation to be made afterwards can break the Proviso , be it done by the Lessee himself , or his Assignes , so that a dispensation with one alienation is a dispensation of all other , 4 pars . ●ol. 119.

A Lease was made to three , upon Condition that they or any of them should not alter without the assent of the Lessor , after one aliened with his assent , then the other two aliened without license , the Condition being determined to one by license of the Lessor , was determined in all and so adjudged : And the case in Dyer fol. 334. was denied for Law , 4. pars . fol. 119.

Note that a Condition may not be apportioned or divided by the acts of the parties , 4 pars . fol. 119. Recovery ,

Recovery against Baron and Feme by Writ of entry in the Post , where the wife is Tenant in taile , and they vouch over , and so the demandant recovereth against Baron and Feme , and they over in value , that shall bind the Taile and the Heire of the Wife . This assurance was made by the advice of Brudnell and other Justices , Quere de hoc .

Where a Writ of entry in the Post is brought against Tenant for life to bind the Feoffees , he ought to pray aid of him in reversion , and then they to vouch upon the joynder , &c. and such a recovery with voucher is used to dock the taile in ancient Demaine upon a Writ of Right , and Voucher ever .

If an Obligation of 100 l. be made with condition for payment of 50 l. at a day , Tender . and at the day the Obligor tenders the money , and the Obligee refuseth the same yet upon an action of debt upon the Obligation , if the Defendant plead the tender and refusall , he must also plead that he is yet ready to pay the money and tender the same in Court , but if the Plaintiff will not then receive it , but take issue upon the tender , and the same be found against him , he hath lost the money for ever .

If a man be bound in two hundred quarters for delivery of a hundred quarters , if the Obligor tender at the day the hundred quarters , he shall not plead Uncorprist . because albeit it be parcell of the Condition , yet they be bona peritura , and it is a charge for the Obligor to keep them , and the reason wherefore in the case of the Obligation the summe mentioned in the Condition , is not lost by the tender and refusall , is not onely for that it is a duty and parcell of the Obligation , and therefore is not lost by the tender and refusall , but also for that the Obligee hath remedy by Law for the same .

But if a man make a single Bond , or knowledge a Statute , or Recognizance , and afterward make a Defeasance for the payment of a lesser summe at the day , and the Obligee or Cognisee refuse it , he shall never have any remedy by Law to recover it , because it is not parcell of the summe contained in the Obligation , Statute , or Recognizance . And in this case in pleading of the tender and refusall , the party shall not be driven to plead uncorprist , or to tender it in Court. Neither hath the Obligee or Cognusee any remedy by Law to recover the same summe contained in the Defeazance . And so it is if a man make an Obligation of a hundred pounds , with condition for delivery of Corne or Timber , &c. or for the performance of an Arbitrement , or the doing of an act that is collaterall to the Obligation , that is to say , is not parcell of it , and therefore a tender and refusall is a perpetuall Bar.

Tender upon a Mortgage . If the Condition upon a Mortgage be to pay to the Mortgagee or his Heirs the money , &c and before the day of payment the Mortgagee dye , the Feoffor may not pay the money to the Executors of the Mortgagee , for in this case the money ought to be paid to the Heire , Et in hoc casu designatio unius personae est exclusio alterius , & expressum facit cessare tacitum . And the Law will never seek out a person when the parties themselves have appointed one , vide Coke 5. pars . 96. Goodales case , Dye● 2 Eliz. fol. 181. But if the Condition be to pay the money to the Feoffor , his Heires or Executors , then the Feoffee hath election to pay it either to the Heire or Executors

Payment on a Mortgage If a man make a Feoffment in Fee , upon Condition that the Feoffee shall pay to the Feoffor his Heires or Assignes twenty pounds at such a day , and before the day the Feoffor make his Executors and dieth , the Feoffee may pay the same to the Heire or to the Executors , for they are his Assignes in Law to this intent .

But if a man make a Feoffment in fee , upon Condition that if the Feoffor pay to the Feoffee , Morgage . his Heires or Assignes twenty pounds before such a Feast , and before the Feast the Feoffee make his Executors and dieth , the Feoffor ought to pay the money to the Heire and not to the Executors , for the Executors in this case are no Assignes in Law , and the reason of this diversity is this , for that in the first case the Law must of necessity find out Assignes , because there cannot be any Assignes in Deed , for the Feoffor hath but a bare Condition , and no Estate in the land which he can assigne over . But in the other case the Feoffee hath an estate in the land which he may assigne over , and where there be Assignes in Deed , the Law shall never seek out or appoint any Assignes in Law : And albeit the Feoffee make no assignment of the state yet the Executors cannot be Assignes , because Assignees were onely intended by the Condition to be Assignes of the Estate .

But if the Condition be to pay money to the Feoffee , his Heires or Assignes , Morgage . Vide Lord Coke , 2. pars . fol. 79. 80. many excellent matters touching Conditions . and the Feoffee make a Feoffment over , it is in the election of the Feoffor to pay the money to the first Feoffee , or to the second Feoffee , and so if the first Feoffee dieth , the Feoffor may either pay the money to the Heire of the first Feoffee , or to the second Feoffee , for the Law will not enforce the Feoffor to take notice of the second Feoffment , nor of the validity thereof but at his pleasure , and the first Feoffee and his Heires are expresly named in the Condition , Plow . Com. 186. 288. 2 Eliz. Dyer 181. Co. 5. parse fo. 96 , 97. Goodales case .

If a man be bound in an Obligation with Condition , Conditions impossible . The Obligation or Feoffment good , and the Condition void , but estates shall not be enlarged by a Condition impossible . that if the Obligor do go from the Church of Saint Peter in Westminster , to the Church of Saint Peter in Rome in three houres , that then the Obligation shall be void , the Condition is void and impossible , and the Obligation standeth good : And so it is if a Feoffment be made upon such or the like condition , the estate of the Feoffee is absolute , and the condition impossible and void .

If a man make a Lease for life , upon condition that if the Lessee goe to Rome , as is aforesaid , that then he shall have Fee , the condition precedent is impossible and void , and therefore no Feesimple can grow to the Lessee .

If a man make a Feoffment in Fee , upon condition that the Feoffee shall reinfeoffe him before such a day , and before the day the Feoffor desseise the Feoffee and hold him out by force untill the day be past , the state of the Feoffee is absolute , for the Feoffor is the cause whereof the condition is impossible to be performed , and therefore shall never take advantage for non-performance thereof , and so it is if A. be bound to B. that I. S. shall marry I. N. before such a day , and before the day B. marrieth with Jane N. he shall never take advantage of the Bond , for that he himselfe is the meane that the condition could not be performed , and so thereby become impossible .

Paris . A man makes a Feoffment in Fee upon condition that the Feoffor shall within one yeare go to Paris about the affaires of the Feoffee , and presently after the Feoffee dieth , so that the condition is become impossible by the act of God , yet the estate of the Feoffee is become absolute , for though the condition be subsequent to the estate , yet there is a precedencie before the re-entry , ( viz. ) the performance of the condition . And so it is , if the Feoffor shall appeare in such a Court the next Tearme , and before the day the Feoffor dieth , or Cognisor , or Obligor dieth , the Recognizance or Obligation is saved . And if a condition of a Bond &c. be impossible at the time of the making of the condition the Obligation is single . And so it is , in case of a Feoffment in Fee with condition subsequent which is impossible , the state of the Feoffee is absolute , but if the condition precedent be impossible no estate or interest shall grow thereupon .

Conditions against the Law . But it is commonly holden that if the condition of a Bond &c. be against the Law , that the Bond it selfe is void .

But herein the Law distinguisheth between a condition against the Law for doing of any act that is malum in se , and a condition against law that concerneth not any thing that that is malum in se , but therefore is against law because it is either repugnant to the estate , or against some maxime or rule in Law , and therefore the common opinion is to be understood against Law for the doing of some Act that is malum in se ; and yet therein also the Law distinguisheth : As if a man be bound upon condition that he shall kill I. S. the Bond is void , but if a man make a feoffement upon condition that the Feoffee shall kill I. S. the estate is absolute , and the condition void

In conditions against the Law the estates be good and the conditions void unlesse the estate commence by the condition , and then both are void , nor shall estates be enlarged by any such condition , and if an obligation bee endorsed expresly with a condition which is against the law , then the obligation and condition are both void .

But if a man be bound upon condition wherein other conditions are tacite implied , and not plainely expressed in the condition , then the obligation is good and the condition void , because such things are not expresly rehearsed in the condition , and so it cannot be expresly said that the will of the Obligee was that the Obligor should keep him without dammages , for such Acts to be done against the law . As if a man be bound to keep the Obligee without dammages , and sheweth not in what thing , for he may have damage for treason or other Felony which is implied and not expressed , and so the condition void .

If a man make a Feoffment in Fee upon condition , Conditions repugnant , the condition is void , and the Bond or estate good that he shall not Alien , this condition is repugnant and against law , and the estate of the Feoffee is absolute , but if the Feoffee bee bound in a Bond that the Feoffee or his heires shall not Alien , this is good , for he may Alien if he will forfeit his Bond.

So it is if a man make a Feoffment in Fee , upon condition that the Feoffee shall not take the profits of the Lands , this condition is repugnant and against law , and the estate is absolute . But a Bond with condition that the Feoffee shall not take the profits is good . If a man bee bound with a condition to enfeoffe his wife , the condition is repugnant void and against law , because it is against a Maxime in Law , and yet the Bond is good .

Deeds suspitions to be forged . Yet before anno 13 H. 8. the Deed do stile the King Defender of the Faith , or Supream head before the 20. H. 8. such a Deed is a forged Deed.

King H. 8. used not the stile of Supreame head in his Charters till 22. of his Raigne , nor King of Ireland before 33. of his Raigne , New Littleton fo. 7.

Age to bind man or woman . 21. yeares is the full age for man or woman to make good any act they doe , 14. their age of discretion , and therefore that is the competent age to bind a man in matter of marriage , 12. to bind a woman , and 9. to deserve her Dower .

Remainder . No remainder may commence upon any repugnancy or impossibility precedent , nor upon any condition that goeth to the destruction of the particular estate , for conditions alway enure in a privity , so that none shall take advantage of conditions , but those which are privies , for none shall enter for a condition broken but onely the Feoffor , Donor , Lessor , or their heires , and as none shall avoid an estate formerly made by the Breach of a condition but onely the privies , so none shall take a new estate by performance of a condition but onely the privies .

Generall Livery , and speciall Livery , the difference . A generall Livery , hath two properties , first it is full of charge to the heire , for he must find an Office in every County where he hath Land , or else he cannot sue a generall Livery , and he must sue out his Writ of aetate probanda .

The second property is , it is full of danger ; first it concludeth the heir for ever after to deny any tenure found in the Office . Secondly , if Livery be not sued of all and of every parcell which the King ought to have , whether it be found in the Office or not found , the Livery is void and the King may reseise the Land , and be answered of the meane profits , so it is , if the Office be insufficient , or the process wherof the Livery was made , be insufficient or the like , the King shall re-seise .

Therefore for the ease of the heire and for avoiding such danger , the heire for the most part sueth out a speciall Livery which containeth a beneficiall pardon , and saveth the said charges and preventeth the said conclusion and other dangers , which being of grace and not of right ( as the generall Livery is ) the King may justly take more for a speciall Livery then for a generall , but ever with such moderation as the heire may ever goe cheerefully through with it , 23 Eliz. 77.28 H. 8.

One Mr. Shotbolt was bound in an obligation to one Hickman , and in the Obligation he was named John Shotbolt which was mistaken , but Mr. Shotbolt well perceiving his misnaming , sealed and delivered the Obligation as his Deed , and in Debt brought upon this Obligation against him by the name of William Shotbolt , alias dictus Johannes Shotbolt , he pleaded non est factum , and this speciall matter was found by verdict at Guild-hall London , and whether he should be charged by this Obligation , and plea , that was the doubt , and the Postea was speciall ut supra , and by the opinion of the Justices of the Bench , the plantiff shall not recover upon this Verdict , but it had been better for him to have brought the Action by the name of John Shotbolt , as he is named in the Obligation , and then if he appeared therunto and pleaded ut supra , non est sactum , he should have been concluded by the Obligation v●… 3 H. 6. 34 H. 6. 5 E. 4. this matter well debated ; similis casus inter Turpin & Jaxon ( viz ) Ann for Agraes , and she sued by her right name , nuper dicta Anna. Hillar . 18. Rotulo . 738. Dier . fo. 279.

An obligation made beyond the Seas may be sued here in England , in what place the party will , what if it beare date Bourdeaux in France where shall it be sued and answer was made , that it may be alleadged in quodam loco vocat . Bourdiaux in France , in ●slington in the County of Midd. and there it shall be tryed , for whether there be such a place in Islington in the County of Midd. or not , is not traversable in that case , and so the varieties of opinions in our Bookes well reconciled , New Littleton , 361. b. 6. pars . fo . 47. Dondales case , 32 H. 6. 25. 48. E. 3. 3. 11 H. 6. 16.

Mise . Mise is a word of Act appropriated onely to a Writ of right , so called , because both parties have put themselves upon the meere right to be tried by grand Assize or by Battel , so as that which in all other actions are called an issue , in a Writ of right in that Case is called a Mise .

A yeare , how & into how many parts it is divided . A quarter of a yeare is 91 daies , halfe a yeare is 182 daies , a yeare is 365 daies , and to the 6. houres the Law hath no regard , Diers Abridgement , fo. 89. this is according to the computation in the Kalender .

And when a Patron is to present , hee hath six months to present according to the computation of the Kalender , which is 182. daies before any Lapse shall accrue . But a Month according to the computation of the Law for reservation of rents and re-entries , for non payment of Rent &c. doth account 28. daies to the Month and no more .

Kings-Silver . Note that the fine pro licencia concordandi is that which is called the Kings-Silver , or post fine .

And if the Fine in the Hamper , which is commonly endorsed upon the writ of Covenant be 26. shillings 8. pence , then alwayes the Kings-Silver , or post-fine is halfe as much more as the Fine in the Hamper .

Suspension . If a Lease be made of 10. Acres of Land for yeares , reserving rent , and after the Lessor enters in 2. Acres , the entire rent is thereby suspended , for a contract which is entire may not be apportioned , but being suspended in part it is suspended in all , & being destroyed in part is destroyed in the whole , and especially as to the Act of the Lessor , which doth suspend or extinguish it .

Suspension . A man gives Land in taile or leaseth it for life or yeares , rendant rent , with condition for default of payment to re-enter , there if the Lessee lease part of the Land to the Donor or Lessor ; or if the Donor or Lessor enter in part of the land , he may not re-enter for rent behind after , for the condition is suspended in all , and a condition may not be apportioned nor divided , B. extinguishment , 49. conditions 193. Suspension .

If a Lease be made for yeares rendantrent upon condition of non payment , by such entry of the lessor into parcell of the land leased , the condition is suspended in all . And if the Lessor after such entry make an alienation of this parcell to a stranger , the condition is thereby destroyed and extinct in all ; for the condition which is a thing entire may not be apportioned by the act of him which is to take a vaile thereof . But by the act of the Law or by the Act of him which is charged with the condition , the condition may in some speciall cases be apportioned .

An Obligation is made , solvendum numquam this solvendum is void , and the thing presently due , 21 E. 4. 36. Obligation .

A. is bound to B. solvendum eidem A. this is a good obligation and the solvendum is void , for the plaintiff may declare upon a solvendum to himselfe , 4 E 4. 29.

An annuity granted pro concilio impendendo , or a Feoffment , ad erudiendum filium , or ad solvendum ten shillings , is a condition without words conditionall , Condition . otherwise the party hath no remedy .

If the Lessor enter upon his Lessee for terme of yeares , and make a Feoffment in Fee with Livery , the rent is suspended for ever , Suspention of rent . Re-entry upon such as faile to pay their Rent at the day . although the Lessee re-enter , for it is a tortious entry .

And if it happen , &c. That then and from thenceforth this present Demise and grant ( onely in respect and having regard to the state and interest demised or granted , or hereby mentioned or intended to be demised or granted to the said A.B. C. and D. and every of them which shall make default of payment of the said yearely rent , in such manner and forme as is aforesaid aforesaid to be utterly void and of none effect , and that then and from thenceforth at all times , then after it shall and may bee lawfull to and for the said Lessor , his heires and Assignes into the said Messuages or tenement , Lands , Tenements , Hereditaments , and Premises , with their and every of their appertenances , onely in respect and having regard to the estate and interest demised and granted , or hereby mencioned &c. to such of the said A. B. C. D. as shall make default of payment of the said rent aforesaid , in manner and forme aforesaid wholly to re-enter , and the same to have againe and repossesse as in his or their former estate , and every such of the said A. B. C. D. as shall make default of payment of the yearely rent aforesaid , in manner and forme aforesaid utterly to expell , a move and put out , any thing in these present Indentures to the contrary therof contained , in any wise notwithstanding .

Tithes . To the Parson belongeth of common right , the tenths of all manner of yearely encrease which we call Dismes or Tithes , and therefore by a Lease of Rectoria , the Lessee shall have the Dismes and Offerings of the same Church , for they are incident unto it , 15 H. 7. 8 Fitz. Na. Br. 175.

And if a Parson demise his Gleeb to any man , hee shall pay tithe because they are of common right .

Heire This word ( Heires ) in the plurall number is worthy observation , for if a man give Lands to one and to his heire in the singular number , he hath but an estate for life , for his heir cannot take a Fee-simple by discent , because he is but one , and therefore in that case his heire shall take nothing , and observeable is this conjunctive ( Et. ) for if a man give lands to one to have to him or his heires , he hath but an estate for life , for the incertainty ( ses suis ) If a man give Lands to two , to have and to hold to them , & heredibus , omitting suis , they have but an estate for life for the incertainty . But it is said if land be given to a man & heredibus omitting suis a Fee-simple passeth . But follow Littleton . Cokes Litt. fo. 8. b.

Such unity which is within the Branch of the said Act , ought to have four qualities , Tythes . What vnity is sufficient within the Statute of 31 H. 8. to discharge the Land of Tythe . first the unity ought to Iusta , and rightfull , and not by wrong ; secondly it ought to be equall , that is in Fee , one with the other , for if the Abbots , Priors , &c. have holden by Lease , time out of memory , that is no unity within the statute ; thirdly it ought to be perpetuall , time out of memory &c. and fourthly it ought to be free from payment of any tithes , for if their Farmours at will for yeares &c. have paid tithes unto them , the unity perpetuall shall not serve , Coke . 11. pars . fol. 9. Pruddy and Nappars Case .

An Abbot is Parson imparsonee , and hath Lands within the same Pasonage , and all commeth to the King by suppression , and the King grants the personage to one , and the land to another , this was argued upon demurrer in the Kings Bench , and the opinion of the Justices there was , that Tithes should not be paid more now then the Abbey paid before the suppression .

The King shall not pay Tithes for Lands which are in his hands , although the Leviticall Law saith , that every one shall pay Tithes , ut dicitur .

No Tithes shall be paid for Sea-coles which a man findes and diggeth in his Land for , it is not yearely profit , ut accidit in W. C. and Master Leech , Fitz. Na. Br. 53. and Register 54.

Note that by the Statute of 27. Eliz. cap. 1. it is ordayned vacua .

Henry the second granted unto the Abbot of York the tenth of all his Venison in York shire by his Charter . By this it appeareth that for Wild Beasts there was no Tythe due , for then might not the King have granted another mans Tythe &c. Itner . Pickering , fo. 170. b.

The Prior of Lancaster did claime the Tythe of Venison , and the Tythe of pawnage ( viz. ) decimam bestiam in carne & corio , per manus ministrorum de sorresta , and the tenth penny of the pawnage , when the pawnage of the Forrest was collected , and he made his by vertue of a grant made by the Lord of the Forrest unto one of his Predecessors , and his claime was allowed of for good . Itin. Lanc. anno . 10. Ed. 3. fo. 64. b. c.

No prohibition lieth where a Parson demandeth Tithes of Horne-beam , Sallows , Hasells , Maples , and such like , although they be of the Age of 40. yeares , for they will not serve to build , otherwise it is of Oakes , Ashes , Elmes , and such like , and also of their bowes which are above the age of twenty yeares , Coment . Plowden . fo. 470.

It was never seen that any Tythes should be paid of great trees , because they are parcell of the inheritance , and this is proved by the Statute of 45. E 3. Cap. 3. in that such case a prohibition lieth .

If Timber Trees have been usually lopt , Tythes shall not be paid for them , for as the Law priviledgeth the body of the Tree being parcell of the inheritance , so doth it priviledge the Branches also , so if a man cut his timber trees , Tythes shall not be paid for the boughs or sprouts which are going out of the roots or stowles , in respect that the root is parcell of the inheritance , so if a timber tree become arda , sicca , & non portans folia , nec fructus in aestate , nec existens macorin . and the owner cut him , no Tythes shall be paid therof in respect of the inheritance which was once in him , so for the barke of Oakes being timber , no tythes shall be paid , but for Acornes tythe shall be paid because that groweth yearely .

Inheritance doth passe without livery and seisin by a grant . If I grant all my Trees within the Mannor of G. to one and his heires , the Grantee shall have inheritance in them without any Livery and Seisin , Coke Barringtons case S. pars fo. 137. And so if I grant to you my Trees in my Wood , you may come with Waines or Carts over my Land to carry them , Coke 11. pars . fo. 53.

Vsery . Clayton requested Reynolds to lend him 30. l. and upon communication between them , Reynolds lent Claton 30. pound the sixth day of December , 34 Eliz. unto the second of June next following , to pay unto him for the principall and Lone thereof 33 l. upon the said second of June , if the sonne of Reynolds were then alive , and if he died before the day , that then he should pay unto him twenty seven pounds which was 3 l. under the principals this is by the resolution of the whole Court , was usery within the letter of the Statute . Coke . 5. pars fo. 70.

It was agreed between T. W. and A. G that A. Boortons case Coke . 5. pars . fo. 69. should lend to T. W. 100 l. and that the said T. W. should grant to the said A. and his heires a rent , which was in esse of 20 l. upon a condition , that the said A. should lend to the said T. W. 100 l. as aforesaid . And that the said T. should grant to the said A. and his heires the rent of 20 l. upon this condition , that if the said T. should pay to the said A. 100 l s. the 17. of July 1580. ( which was a full yeare before the contract made ) that then the rent should cease , and hereupon the money was received , and the rent granted accordingly . This was not within the statute of usury , because nothing was to be paid by T. W. the Grantor within a yeare and a quarter after the Grant made , for within the 17. day of Iuly 1579. and Christmas 1580. ( at which time a distres was taken for the rent ) no rent was limitted to be paid , and if the Grantor had paid the 100 l. the 17. of July 1580. the rent had ceased without paying any thing for the same 100 l. So the whole Court adjudged that it was a plaine bargaine , and conditionall purchase of such a rent , and no usery . But it was resolved by the Court that if it had been agreed between the Grantor and the Grantee , that notwithstanding such power of redemption that the 100 pounds should not have been paid at the day , and that the clause of redemption was inserted to make an evasion out of the Statute , then it had been an usurious bargaine and contract within the Statute . Coke 3. pars fo. 69.

Where a man for 100 l. selleth his land , upon condition , that if the Vendor or his heire repay the sum citra festum Pasch . or such like , then next comming , that then he may re-enter , that is not usury , for he may repay it the morrow after , or at any time before Pasc●… . And therefore he hath not any gaine certaine to receive any profit of the land . And likewise where any Defeasance or Statute is made for the repayment citra tale festum . But it is otherwise , if the condition be , that if the said Vendor repay such a day , such a yeare , or two yeares after , this is usury , for he is sure to have the Land and the rents , land or profits that yeare or these two yeares . And so when a Defeasance or Statute is made for the repayment at such a feast which is a yeare or two years after , B. Usury 1.

If a man morgage his Land upon Defeasance of repayment to re-enter , by which Indenture the Vendee leaseth the same land to the Vendor for yeares rendant rent there , if there bee a condition in the Lease , that if the Vendor repay the same before such a day that then the lease shall be void , that is not usury . But otherwise it is , if he be to pay it such a day certaine or such a yeare or more after , B. usury , 2. 32 H. 8.

Inheritances lineall and collaterall . Lands purchased may goe to the heires both of the part of the father and mother of the Purchasor , unlesse it be once attached in the heire of the part of the Father , for the heir of the part of the Mother shall never have it , because they are not of blood to him that was last seised .

But Lands discended goeth onely to the heire of that part from whence it discends , as if from the Father who did purchase it , then it may goe to the heirs of the part of the mother of the same father , but not to the heirs of the part of the sons mother , for though they be of blood to the sonne that was last seised , yet they are not of blood to the father which was the first purchasor .

And if a man Purchase Lands in Fee-simple , and die without issue , he which is next Cousin collaterall of the whole bloud , how far soever he be from him in degree may inherit and have the Land as heire to him .

These words do intend that where a man doth purchase lands and dieth without issue , and having neither brother nor sister , then his next Cosin collaterall shall inherit . So as there is implied a division of Heires ( viz ) lineall ( who shall ever first inherit , and collaterall who are to inherit in default of lineal ) for in discent it is a Maxime in Law , Quod linea recta semper praefertur transversali Lineall discent is conveyed downward in a right line , as from the Grandfather to the Father , from the Father to the Son , and so downward , collaterall discent is derived from the side of the lineall , as Granfathers Brother , Fathers Brother , &c.

Vpon this word ( Next ) I put this case , One hath issue two Sons , A. and B. and dieth , B. hath two Sons C. and D. and dieth , C. the eldest Son hath issue , and dieth . A. purchaseth lands in Fee-simple , and dieth without issue , D. is his next Cosin , and yet shall not inherit , but the issue of C. for he that is inheritable is accounted in Law next of blood . And therefore here is understood a division of next ( viz. ) next jure representationis , and next jure propinquitatis , that is by right of representation , and by right of propinquity . And Littleton meaneth of the right of representation , for legally in course of discent he is next of blood inheritable : And the issue of C. doth represent the person of C. and if C. had lived , he had been legally next of blood . And whensoever the Father if he had lived should have inherited , his lineall heire by right of representation , shall inherit before any other , though a Mother be jure propinquitati●… , neerer of blood .

But if there be Father and Son , and the Father hath a brother that is Uncle to the Son , and the Son purchase lands in fee , and die without issue , living the Father , the Uncle shall have the lands as heire to the Son , and not the Father , yet the Father is neerer of blood ; because it is a Maxime in Law , that inheritance may lineally descend , but not ascend , yet if the Son in this case die without issue , and the Uncle enter into the land as heire to the Son , and after the Uncle dieth without issue ( living the Father ) the Father shall have the land as heire to the Uncle , and not as heire to his Son , for that he cometh to the land by collaterall discent , and not by lineall ascent , and his Uncle enter into the land : for if the Uncle in this case doth not enter into the land , then cannot the Father inherit the land ; for there is another Maxime in Law herein implied , That a man that claimeth as heir in Fee-simple to any man by discent , must make himself heire to him that was last seised of the actual Freehold and inheritance . And if the Uncle in this case doth not enter , then had he but a Freehold in Law , and no actuall Freehold , but the last that was seised of the actuall Freehold , was the Son to whom the Father cannot make himself heire . And therefore Littleton saith , And his Uncle enter into the land ( as he ought ) by the Law to make the Father to inherit as heire to the Uncle .

Note , that true it is , that the Uncle in this case is heire but not absolutely heire , for if after the discent to him the Father hath issue a Son or a Daughter , that issue shall enter upon the Uncle . And so it is if a man hath issue a Son and a Daughter , the Son purchaseth land in fee , and dieth without issue , the Daughter shall inherit the land , but if the Father hath afterward issue a Son , this Son shall enter into the land as heire to his brother , and if he hath issue a Daughter and no Son , she shall be Co-partner with her Sister .

As he ought by the Law . These words as a Key do open the secrets of the Law ; for hereupon it is concluded , that where the Uncle cannot get an actuall possession , by entry or otherwise there the Father in this case cannot inherit . And therefore if an Advowson be granted to the Son and his Heires , and the Son die , and this discend to the Uncle , and he die before he doth or can present to the Church , the Father shall not inherit , because he should make himself heire to the Son , which he cannot do . And so of a rent and the like : But if the Uncle had presented to the Church , or had Seisin of the rent , there the Father should have inherited . For Littleton putteth his case of an entry into land : But for an example , if the Son make a Lease for life and die without issue , and the Reversion discend to the Uncle , and he die , the Reversion shall not discend to the Father , because in that case he must make himself heire to the Son .

If the Father make a Lease for years , and the Lessee entreth , and the Father dieth , the eldest Son dieth before entry , or receipt of the rent , the younger Son of the half blood shall not inherit , but the Sister , because the possession of the Lessee for years is the possession of the eldest Son , so as he is actually seised of the Frank-tenement and the Inheritance , and consequently the Sister of the whole blood is to be heire . And so if lands be holden by Knights service , and the eldest Son is within age , and the Guardian entreth into the lands . An so likewise if Guardian in Socage enters .

But in the case aforesaid , if the Father make a lease for life , or a gift in tail , and dieth , and the eldest Son dieth in the life of Tenant for life , &c. the younger brother of the half blood shall inherit , because the Tenant for life or Tenant in tail is seised of the Freehold , and the eldest Son had nothing but a Reversion expectant upon the Freehold , and therefore the youngest Son shall inherit the land as Heire to his Father , who was last seised of the actuall Freehold . And albeit a rent had been reserved on the estate for life , and the eldest Son had received the rent , and died , yet it is holden by that the younger brother shall inherit , because the seisin of the rent is no actuall seisin of the Freehold of the land : but Liber Ass . part. 2. seemeth to the contrary . Ideo quaere .

He that claimeth Lands , Tenements , Maxime upon collaterall discent . or Hereditaments , as collaterall heire to any one , must claim from such an one that had an actuall possessession , and died actually seised of the Frank-tenement , and the inheritance in Fee-simple of those lands which he so claimeth by discent , and not from such a one who had but a possession in Law , or a reversion in Fees . expectant on a Frank-tenement discendible unto him . But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived : But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase , it is sufficient .

Actuall possession . Note , that an actuall possession must be gained either by a mans own act , or by the actuall possession of another , but if neither by his own act , nor by the possession of another , he doth gain no more then discendeth unto him , then the brother of the half blood shall inherit .

Possessio quid . And this word , Possessio is no other but pedis positio , and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession , for when the eldest Son hath not an actuall possession , or if it be such inheritance whereof any possession may not be gained per pedis positionem , or by any other act , then the inheritance by the Law shall discend to the brother of the half blood . As for example .

The King by his Letters Patents createth a Baron , and giveth the Dignity to him and his Heires , and he hath issue a Son and a Daughter by one venter , and a Son by another venture , and dieth , the eldest Son dieth without issue : To whom shall the dignity discend ? To the younger Son , for it may not be said that the elder son was in possession of the dignity , no more then of his blood , for the dignity is inherent to his blood , and neither by his own act , nor by the act of another hath he gained more actuall possession then by the Law descended to him , Coke 3. pars . fol. 42.

Actuall possession , quid . Possession in Law , quid . Here s jure proprietatis & heres jure representationis An actuall possession is when a man entreth in Deed into lands to him discended .

A possession in Law , is when lands be discended to a man , and he hath not yet really entred into them , nor hath seisin of the rents reserved upon any estate made for life , by him from whom he claimeth .

Every one that is heire unto another , is as the eldest Son shall inherit onely before all his brothers , Aut heres jure representationis , as where the eldest Son dieth in the life of his Father , his issue shall inherit before the youngest Son ; for although the youngest Son be magis propinquus , yet jure representationis , the issue of the eldest Son shall inherit , for he doth represent the person of his Father .

And even as none may be procreate but of one Father and one Mother , and ought to have in him two bloods ( viz. ) the blood of his Father , and the blood of his Mother , those two bloods commix in him by lawfull marriage , doth constitute and make him heire . So none may be heire to any one , unless he hath in him both the bloods of him to whom he shall make himself heire : And therefore the heire of the half blood shall not inherit , because he wanteth one of the bloods that should make him inheritable , for as in this case the blood of the Father and the blood of the Mother make but one blood inheritable , and both are necessary to the procreation of an heire , therefore desiciente uno , non potest esse haeres : And this is the reason of the Maxime of Possessio fratris de feodi simplex , facis sororem esse haeredem , Co. 3. pars . Ratcliffs case , fo. 37.

If a man be attainted of felony by judgment , the heires begotten after the attainder are foreclosed from all manner of hereditary Succession , as well on the part of the Mother , as on the part of the Father . And Britton gave this reason , because the Son procreate after the judgment , had not two bloods inheritable in him , for at the time of his birth , the blood of his Father was corrupt , for ex leproso parente leprosus generatur filius . And when the Father is attainted of felony , the blood in respect of what it shall be inheritable , being corrupt , the Son ( as like to it ) hath not but half blood , ( viz. ) the blood of the Mother in him without corruption : And therefore he holdeth that such a Son shall not inherit his Mother .

And with him Bracton accordeth , for saith he , Non valebit felonis generatio , nec ad hereditatem paternam vel maternam , si autem ante feloniam generationem fecerit , talis generatio succedit in hereditatem patris , a quo non fuit felonia perpetrata . Because that at the time of his birth , he had two lawfull bloods commixt in him , which may not be corrupt by attainder subsequent , but onely as to that Father , or that Mother , by whom the Felony was done and committed .

Assise . To arraigne an Assise is to cause the Demandant to be called to make the plaint , and to set the cause in such order as the Tenant may be inforced to answer thereunto , and is derived of the French word Arrayner , to order , or set in right place , and the Assise is Arrained in French , and entred in Latine .

Executed , and things executory , a difference . There is a diversity between Inheritances executed and Inheritances executory . As Lands executed by Livery , &c. cannot by Indentures of Defeasance be defeated afterwards .

And so if a Disseisee release to a Disseisor , it cannot be defeated by Indenturs of Defeasance made afterward , but at the time of the Release or Feoffment , &c. the same may be defeated by Indentures of Defeasance , for it is a Maxime in Law , Quae in continenti fiunt in esse videntur . But Rents , Annuities , Conditions , Warranties , and such like , that be inheritances executory may be defeated by Defeasance made either at that time , or at any time after : And so the Law is of Statutes , Recognizances , Obligations , and other things executory .

Distress for a mercement . He that distraineth for an Amercement , and such like , must be sure to distraine the Goods and Chattels of him that is amerced , because he may not distraine another mans beasts for this amercement . But for rent or services it is otherwise ; for the party may distraine the beasts found in the land that are levant and couchant there , N. B. fol. 100. B.

Distress , Damage-feasant . And if a man take beasts for Damage-feasant , and the other offer sufficient amends , & he refuse , &c. Now if he sue a Replevin , &c. for the beasts , he shall recover Damages onely for the Detinue of them , and not for the taking , for that was lawfull , F.N.B. 69.

The Lord may seise a Herriot service aswell as a Herriot custome , Herriot service & Herriot custome may be seised . Warde . and so it was then adjudged by the whole Court , Plow . fo . 96. Replevin . Woodland versus Mantle .

It was resolved that when the King maketh an heir apparent which in age of a Tenent by Knights service a Kt in the life of his ancestor , & after the ancestor dieth the said heir within age , in this case he shall be out of ward and shall pay no value of his marriage , nor the Lord shall have the custody of the Land , for in such ease by the making of him Knight in the life of his Ancestor , he is made as of full age , so that when his Ancestor dieth , no interest either in the body or in the land ever vesteth in the Lord .

It was also resolved that when the heir within age is made Knight after tender made to him , although that he within age marry else where , yet he shall not pay the forfeiture of marriage Cok. 6. pars . fo . 73. Sir Drue Druries case .

If an infant in the life of his father be made Knight , and his Father die he shall be in Ward , but otherwise it is where an infant in Ward is made Knight , there he shall be out of Ward , 2. E 6. tit . Garde 42. Magna Char. Cap. 3.

Touching the time of the beginnning of a Lease for yeares it is to be observed , Commencement of a lease Inclusive & exclusive . that if a Lease be made by indenture bearing Date the 26. of May &c. to have and to hold for 21. yeares from the Date or from the day of the Date , it shall begin the 27. day of May.

If a Lease beare Date the 26. of May. &c. to have and to hold from the making hereof or from henceforth or from the sealing and delivery hereof , it shall begin on the day in which it is delivered , for the words of the indenture are not of any effect till the delivery , and thereby from the making or from henceforth take their effect .

But if it be a die confectionis , or a die datus , or a datu , then it shall begin the next day after the delivery ,

If the habendum bee for the terme of twenty one yeares , without mentioning when it shall begin , it shall begin from the delivery , for there the words take effect as is aforesaid .

If an Indenture of Lease beare Date which is void , or impossible , as the 30. day of February , or the 40. of March , if in this case the terme be limited to begin from the date , it shall begin from the delivery as if there had been no date at all .

And so it is , if a man by his indenture of lease either recite a Lease which is not , or is void , or recite a Lease amisse in point materiall which is in esse , to have from the ending of the former Lease , this Lease shall begin in course of time from the delivery therof , Coke . 5. pars . fo. 1 12. Eliz. Dier . fo. 286. 14. El. Dier. 307. 5. Eliz. Dier fo. 218.

Re-enter and take the profits untill &c. If a man make a lease for yeares , reserving a rent , with condition that if the rent bee behind , that the Lessor shall re-enter , and take the profits untill therof he be satisfied , there the profits thereof shall be accounted as parcell of the satisfaction , and during the time that he so taketh the profits he shall not have an action of debt for the rent , for the satisfaction whereof he taketh the profits , but if the condition be that he shall take the profits untill the Feoffor be satisfied or paid off the rent , without saying ( thereof , or to the like effect ) there the profits shall not be accounted in part of the satisfaction , but to hasten the Lessee to pay it , New Littleton fo. 203. 30 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21.

Livery & Seisin Tantamount . Of free hold , and inheritances , some be corporeall , as Houses , Lands , &c. these are to pass by Livery and Seisin , by Deed , or without Deed ; some bee incorporeall , as Advowsons , Rents , Commons , Estovers , &c. these cannot passe without Deed , but yet without any Livery . And the Law hath provided the Deed instead of a Livery , and so it is if a man make a Lease , and by Deed grant the reversion in Fee , here the Free-hold with the Attornment of the Lessee by the Deed doth pass which is in lieu of the Livery .

To say that money is fallen , Actions on the case . that he hath gone about to get poison to kill the child that such a woman goeth with , that a man did lie in wait to rob one , or procured another , or agreed with another to murder him , or sought his life for his land , to call a Marchant bankerupt , ( but not to call a Gent. &c. bankerupt is not actionable ) to call an Attorney Ambidexter or or to say that he dealeth corruptly . But words of choller and heate , as to call one cousiner , crafty-knave , common Extortioner , Drunker , Witch , Rogue , Pillory-Knave , Villain , ( unlesse he say Villaine to such a man , or regardant to such a Mannor ) are not actionable .

But if the speaker be able to justifie the words , for then it is not falsely . As to call a man perjured , by reason of a perjury comitted in the Star-chamber , Murtherer , Thiefe , or such like , upon a conviction too , but to call one Theife or Murtherer , upon an inditement or common fame is actionable .

If one having another mans goods , convert them to his owne use , if a Smith cloy my horse , these are actionable , but not if he take him to cure , ( without warranting of him ) and doing all he can , yet the Horse impaire .

If being committed to the Goale , the Jaylor of malice put upon me two many Irons , or otherwise use mee so hardly that I become lame thereby , this is actionable , Sir Hen. Finch fo. 186.

A grant by an Infant under the age of twenty one yeares , A grant . one out of his right mind whom wee call non sanae memoriae , or non compos mentis , or one compelled to doe an act , either by duress of imprisonment , or feare of some bodily hurt threatned to himselfe ( but not to his Father , mother , Brother , &c ) as losse of life and member , or though it be but of imprisonment , for imprisonment is a corporeall paine , and one may be imprisoned that he die of it , otherwise of menace to breake or burne downe ones house , for that is but the losse of ones goods , is avoidable and may be avoided at any time by entry , action &c. if they deliver it with their hand as in a grant of a rent , advowson &c , or a Feoffment by letters of Attorney , it is meerely void and nothing at all passeth .

So if a grant made by one which hath no understanding , as if he be borne Dumbe , Deafe , and blind , but one Dumb may make a good grant , or borne dumb and deafe , for diverse may have understanding by their sight only though dumb and deafe .

If an infant bargaine for his necessary meat , drink and apparell &c. it shall bind him .

Other Grants of his where himselfe hath likewise benefit , we call it quid pro quo , are onely voydable and not void , as if he let lands for yeares reserving a rent Sir H. Finch fo. 102.

Pretended right . None shall buy , sell , or get , or take promise , or grant to have any pretended rights or titles to lands &c. except the seller , or these ( by whom he claimeth ) were in possession , or took the profits by the space of a yeare next before upon paine that the sellor &c. shall forfeit the value of the land , and likewise the buyer knowing the same , provided he that is in lawfull possession by taking the yearly profits may buy &c. anothers pretended right , 32 H. 8. ca. 9.

Tole in market . The seller shall not pay Toll , but the buyer , neither shall a man pay Toll for the things he bringeth to the Faire , but for the things he selleth , but by the custome he may for every thing brought to the faire , and for his standing also , Finch fo. 166.

If the Parson of a Church purchase a Mannor within his Parrish , now by this purchase and unity of possession , the Mannor which was titheable before is now made non decimabilis , because hee cannot pay tithes to himselfe , but if the Parson make a Lease of his Parsonage , and Rectory to a stranger , now the Parson himselfe shal pay Tythes of his Mannor to the Lessee of the Rectory , and if the parson make a Feoffment of the Mannor , the Feoffee shall pay Tythes to the Feoffor Parson , because that Tythes may not be extinct by any unity of possession , as rent-charge may which is issuing out of Lands , but tythes are due by the Law of God , ex debito , by the manurance and tillage of the occupier in whose hands soever the land commeth , if it be not in the hands of the Parson himselfe . And all this matter was agreed by the Justices and Serjeants , but they were in severall opinions , if the Parson Lease parcell of Gleeb Lands for yeares or life reserving a rent , whether the Lessee shall pay tythes or not , Quere , Dier fo. 44.

If a man levy a fine of land in ancient demaine at the common law to another , Ancient demain deceit . now the Lord of ancient demaine shall have a writ of deceit against him that levied the fine , and him that is tenant , and thereby he shall reverse the Fine , and there he which hath given the Land shall be restored to his possessions and title which he had given by the Fine , because that the Fine and gift therby is utterly defeated . But if he that levied the Fine had after the Fine released to him which had the possession by the Fine by his deed , or confirmed his estate by his deed in the land , then it seemeth that he to whom such release or confirmation is made , shall retaine and have the Land , notwithstanding the Fine be reversed , because that this release or confirmation made to him being in possession maketh his estate firme , and rightfull against him and his heires which released or confirmed , Na. Bre. fo . 98. A. Pace regis & reginae fo. 68.

Terminus , Terminus annorum & tempus annorum . in the understanding of the Law doth not onely signifie the limits and limitation of time , but also the estate and interest that passeth for that time , as if a man make a lease for twenty one yeares , and after make a lease to begin a fine , & expiratione predicti termini 21. annor . dinnisor . and after the first Lease is surrendred the second lease shall commence presently , but if it had been to begin post finem & expirationem predict. 21. annorum , in that case although the first terme had been surrendred , yet the second lease shall not begin till after the 21. yeares be ended , by effluction of time ; And so note , that diversity between the terme of 21. yeares , and 21. yeares Coke . 1 a pars fo. 154.

If A. make a lease to B. for ten yeares , and covenant that if B. pay 100 l. to A. infra dictos decem annos , that B. shall have Fee , if B. surrender his terme to A. and after pay the 100 l. within the 10 years , he shall have Fee , but otherwise it is where it is covenanted , that if he pay a 100 l. infra terminum praedictorum decem annorum , folio eodem .

Tripartite Indentures . In witnesse whereof &c. the parties above named to these present Indentures Tripartite , interchangeably have set their hands and seales , dated the day and yeare above written .

In Witnesse whereof all the said parties have to every part of these presents set their Hands and Seales the day and yeare first above written .

IN witnesse whereof to the first part of these Indentures remaining with the said Sir Jo. Tracy , Sir Will . Coke , and Sir Thomas Eastcourt , the said Sir H. Poole hath set his Seale .

1. Sir H. Poole . 2. Sir Jo. Tracy . Sir Will . Cooke . Sir Thomas Eastcourte .

And to the second part of the said Indentures , remaining with the said William Guies , Iohn Bridgman , and Fr. Marsh , the said Sir H Poole , Sir Jo. Tracy , Sir Wil. Cooke , and Sir Thomas Eastcourt , have set their Seales .

3. Will . Guies . Io. Bridgeman . Fra. Marsh .

And to the third part of these indentures , remaining with the said , Sir . H. Poole , the said Sir Jo. Tracy , Sir Wil. Cook , Sir Thomas Eastcourt , Wil. Guies , John Bridgeman and Fra. Marsh have set their seales , even the day and yeare first above written .

To the first part of these Indentures remaining with the said H. Poole , the said William Bridges , Tho. Nichoas , William Freame , Giles Bridges and Jeffrey Bath have set their Seales .

1. Henry Poole . 2. Will . Bridges . Tho. Nicholas . Will . Freame .

To the second part of these presents remaining with the said Wil. Bridges , Tho. Nicholas , and Wil. Freame the said Hen. Poole , Gi. Bridges , and Jeff. Bathe , have set their Seales .

3. Gi. Bridges . Jeffery Bathe .

And to the third part of these presents remayning with the said G. Bridges . and Jeffery Bath . the said Hen. Poole , W. Bridges Thomas Nicholas and Will . Freame , have set their Seales .

TO one part of this Indenture remaining with the said Sir Hen. Poole the said Dorothy Vnton , and Geo. Shierley , have set their Seales .

1. Dorothy Vnton . 2. George Shierly . 3. Sir Hen. Poole .

To another part remaining with the said Geo. Shirley the said Dorothy Vnton and sir H. Poole , have set their Seales .

To another part remaining with the said Dorothy Unton the said Sir Hen. Poole and Geo. Shierley have set their Seales .

TO one part of these Indentures remaining with the said Geo. Raleigh , the said Gab. Pountney and Edw. Raleigh , Tho. Spencer , and Edward Essex , have set their Seales .

And to one other part remainder with the said Gab. Pountney , and Edward Raleigh , the said Geo. Raleigh , Thomas Spencer , and Edward Essex , have set their Seales .

And to one other part remainder with the said Tho. Spencer , and Edward Essex , the said Geo. Raleigh , Gab. Pountney , and Edw. Raleigh have set their Seales .

1. Geo. Raleigh . 2. Gab. Pountney . Edward Raleigh . 3. Tho. Spencer . Edward Essex .

TO the first part remaining with the said Fran. Shirley , the said Jo. Shirley and Jane , Ralph Shirley , Robert Brooksbey , Jo. Brooke , William Vnderhill have set their Seales .

To the second part remaining with John Shirley and Jane , the said Fra. Ralph . Jo. Brook , Robert , and Will . Underhill have set their Seales .

1. Fran. Shierly . Ralph Shierley . 2. Jo. Shirley . Jane Shirley . 3. Rob. Brookesby . John Brooke . Wil. Vnderhill

To the third part remainder with Rob. Brookesby , Jo. Brooke and William Vnderhill , the said Fra. Jo. Jane and Ralph , have set their Seales .

Livery void . Tenant for terme of life makes a Lease for yeares , & then granted tenemenia predicta to C. to have from Michaelmas next ensuing for life , after the said feast of Michaelmas , tenant for yeares attorned , this grant to C. is void , for a grant of a Frank-tenement may not commence in futuro , and the grant being void at the beginning , the attornment after shall not make the Frank-tenement to passe , for every frank-tenement ought forthwith either to commence in possession , reversion or remainder . And when a man makes a Lease for life to commence at a day to come , he may not make present Livery to a future estate , ideo nothing passeth , secunda pars , L. Coke fo. 35.

But if a man make an estate for life to commence at Michaelmas next , and then the Lessor himselfe after Michaelmas execute livery to the Lessee , the estate is made good only by the Livery , but if the Livery be so made by warrant of Attorney of the Lessor , then the livery , and the Lease are both void .

If Tenant at will sowe the Crop , set Roots , Emblements who shall have them . sowe Hemp or Flax , or any other annuall profit , if after the same be planted , the Lessor out the Lessee , or if the Lessee dieth , yet he or his executors shall have the yeares Crop , and this rule holdeth to every particular tenant that hath an estate in certaine , for if tenant for life soweth the ground , and dieth , his executors shall have the corne sowne , for that his estate was uncertaine , and determined by the act of God . And the same law is of Lessee for yeares of tenant for life ; if a man be seised of land in the right of his wife , and sewe the ground , he dieth , his executors shall have the corne , for that his estate was uncertaine , and if his wife die before him , he shall have the corne . If a man seised of lands in Fee , hath issue a daughter and dieth , his wife with child of a son , the daughter soweth the ground , the son is borne , yet the daughter shall have the corne , because her estate was lawfull and defeated by the Act of God , and it is good for the Common-wealth that the ground be sowen .

But if the Lessee at will sow ground with corne &c. and after he himselfe determineth his will , and refuseth to occupie the ground , in that case the Lessor shall have the corne , because he loseth his rent , and if a woman that holdeth land durante viduitate soweth the ground and taketh a husband , the lessor shall have the Emblements , because the determination of her owne estate grew by her own act . But where the estate of the Lessee being incertain is defeasible by a right Paramoūt , or if the Lease determine by the act of the lessee , as by forfeiture , condition &c. there he that hath the right Paramount , or that entereth for any forfeiture &c. shal have the corn , New Lit. fo 55. titulo tenant at wil.

Olands case 5. pars Coke . fo. 116. vel . 126 If a feme seised of land durante viduitate make a Lease for yeares and the Lessee sow the lands , and after the wife that made the lease take a husband , the Lessee shal not have the Emblements , for though his estate determin by the act of a strāger , yet he shal not be as to the first lessor in better estate then his lessor was .

Uses Uses . Note That it is not good to make such a limitation generally without any restraint because it maketh all estates with the remainders over to be in contingency . To the use of Leonard Lovey for life , and after his decease to the use of such farmors or tenants to whom he shall demise any part of the premises for or during life , or lives , and for any terme of yeares as in any such demise or demises shall be limitted and appointed , and then to the use and performance of the last Will and Testament of the said L. Lovey and to the use of such person and persons severally to whom the said L. Lovey by his last Will shall devise any estate or estates , of or in the said Mannors lastly mentioned or of any part of them according to the true intent and meaning of his said last Will .

And after the performance of his said last Will to the use of &c. and for some other Mannors he devised them to Tho. Lovey his son and to the heires males of his body lawfully begotten from and after the decease of the said L. Lovey the father for 500. years then next ensuing fully to be compleated and ended , upon condition that his said sonne shall allow of all such estates grants and conveyances thereof already made , or at any time to be made by the said L. Lovey of and in the said Mannors , Messuages &c. and other the premises by him , by that his last Will given , granted and bequeathed , according to the purport , true meaning and effect of the said Lease , & Leases so made or to be made , with power of revocation .

It was resolued that all the remainders were in possibility & contingency , but yet that the uses and powers in contingency may by mutuall assent of the parties be revoked and determined , for as they may be raised by Indenturer so by Proviso or limitation annexed to them in the same Indenture they may be destroyed either before or after their essence .

And where it is incertaine and doubtfull whether the use or estate limited in futuro shall ever vest in estate or interest or not , If a man give lands to a man such a woman as shall bee his wife , the man taketh the entire . But if a man make a Feoffment in Fee to the use of himselfe and his wife which shall he , and he after takes a Wife , his wife shall take joyntly with him Coke 1. pars . fo. 101. there the use or estate is in contingency . But yet these contingent estates ( where power of revocation is ) may be revoked 10. pars fo. 78 Leonard Loveyes case .

If a man at this day make a Feoffment in fee to the use of A. for yeares and after to the use of the right heires of B. or to the use of the wife of B. which shall be , this limitation to the right heires of B. or to the wife of B. which shall be is void , because it had beene void , if it had been limited in possession .

Francis Earle of Bedford made a feoffment in Fee of diverse Mannors to the use of himselfe for yeares , and then to the use of Jo. L. Russell his son and heire , and to the heires Males of his body engendered , and for default of such issue to the use of the right heires of the said Earle , and after the said Jo. L. Russell died without issue male in the life of the said Earle , and it was resolved that the use and estate limited by way of remainder to the right heires of the Earle were void , for it had been void if it had been limitted by estate , executed at the common law , for the remainder ought to vest during the particular estate , prima pars fo. 130. Chudleis case .

A Fine was levied to the use of A. and the heires males of his body , untill he or the heires males of his body hath done such a thing , and after such a thing done to the use of another in taile , and dieth without issue , without any thing done , and it was adjudged the remainder was in contingency , & ne unques eschie .

Note , that every use in esse , that is to say in possession , reversion or remainder is executed by the Statute , and that no contingent use or right of a use shall be executed within this Statute of 27 H. 8. untill they come in esse , 1. a pars . fo. 126. Chudleis case .

Disjunctive and copulative . A Lease for yeares , yeilding yearly to the Lessor or his heires forty shillings , this reservation in the disjunctive is good . See the book at large , the reason . Mallories Case 5. pars . fo .

And there : If a feoffment be made to A. to have to him or his heirs , there he hath but an estate for life , for there want words precedent to direct the words in the disjunctive , & these words ( Heires ) are of the essence of the estate , and without them no estate of inheritance shall pass .

And so by the same reason , if a reversion upon a Feoffement in Fee be made to one or his heires , such reservation is good no longer , but during the life of the Feoffor .

A. covenants to make a lease to B. and his assignes for 21. yeares , the sence of these words shall be taken that he shall make the Lease to B. or his Assignes for 21. yeares , Plow . Com. fo. 289.

The defendant bound himselfe by Indenture to pay to the Plantiff a certaine sum , if so be that the Defendant did not enfeoffee the plantiffe nor his heires of certain Land when he came to his aunt , and the Plantiffe declared that the Defendant came to his aunt , and the Plantiffe required him to enfeoffee him and he did not enfeoffee him per quod actio . accrevit , and exception was taken to this declaration because the condition was in a disjunctive , that is to say , that the Plantiff should have the sum if the Defendant did not enfeoffee him nor his heires , and he hath said that he did not enfeoffe him , not speaking of the Feoffment to his heires , and if he had performed any of the parts ' of the disjunctive , the Plantiffe might not have the debt , but the Count was holden very good , notwithstanding that exception for the plantiff might not have an heir , during his life , so that although the condition in words be disjunctive , yet forasmuch as the Plantiffe was alive , in sence it was not disjunctive , for he might not have an heir being alive , and the sence of the words are to be taken to enfeoffee the Plantiffe if he be alive , & if he were dead then to enfeoffee his heires , and as the Plantiffe may not have an heire during his life , so heere in the case above B. may not have an executor during his life ; and as the condition there in the disjunctive to enfeoffee at a time to come him or his heirs was taken to enfeoffe him at the time limitted if hee were alive , and if he were dead at the time then to his heirs , so here the Covenant to make a lease at a time to come to him and his assignes copulatively shall be taken disjunctively in sence , that is to say to him if he be alive , and to his assignes if he be dead , Plow . com . fo. 289. Of uses in esse & in futuro .

A. makes a Feoffment in Fee to the use of D. for life , and after to the use of him which shall be his first son in taile , and for default of such issue to the use of B. in taile , and for default of such issue to the use of C. in fee. In this case forthwith by the Feoffment D. hath estate for life , the remainder to B. in taile , the remainder to C. in Fee , and no estate is put in abeyance , or left in the Feoffees , but if after A. hath issue a son , then the possibility which the Feoffee had , becomes to an estate in Law , and forthwith the statute of 27. H 8. cap. 10. executeth the possession according to the limitation of the use .

But if Tenant for life be disseised before the birth of the son , and after he hath issue a son , now nothing vesteth in the son , because there ought to be a use in esse before that the Statute can execute the possession . But who shall enter to remoove the impediment and to restore the privity of the estates ? Surely if the tenant for life shall re-enter , hee shall revive all the former estates , which the statute of 27 H. 8. hath executed to the former uses in taile , and for that also the statute transferreth the estate of the Land to the son in taile , for that is the privity which the Statute requireth , ( scil. ) privity of estates which the same statute hath executed upon the lymitation of the uses in the same conveyance before , and after the death of tenant for life the Feoffees may enter and revive the use , and as lessee for yeares or for life upon condition to have fee may not have increase and inlargement of his estate , but upon the privity of the estate of the Lessee , so no remainder of a future use may be transferred in estate by force of the Act before the particular estates executed by the statue upon lymitation of uses in the same conveyances be recontinued , but if Tenant for life make a Feoffment in fee , or dy before the birth of the son his remainder is destroyed , as if a Lease be made for life the remainder to the right heires of I. S if lessee for life make a Feoffement or die , during the life of I. S. the remainder to the right heires is destroyed , and that is the best construction of the statute of 27 H. 8.

The chief Baron said that Scintilla juris which is mentioned in 17 Eliz. is like to Sir Tho. Mores Eutopia , and they said that after this Statute no trust or confidence was reposed in the Feoffees , for now as Walinslow said , the Feoffees non possunt agere aut permittere aliquid in prejudice of ceste qu●… use , before the Statute the office of the Feoffe was to execute the estate according to the use , but now the statute hath taken all & Walinslow said even as a fountain giveth to every one that commeth in their time unto it their just measure of water , so likewise the first estate and seisin in fee given by the first Feoffment to the feoffees is sufficient to all persons to whom any use present or future is limitted a competent measure of estate in their time proportionable to their estate which they shall have in the use , so that the first seisin by force of the Feoffment , whereby the fee-simple is given to the Feoffees , shall bee sufficient to serve all their particular uses , as well future as present in their severall times , and nothing shall remaine in the Feoffees , but Walinslow said , that all the estate shall be first vested in those which are in rerum natura , and the possession shall bee vested in him which hath the future use when that commeth in esse by force of the first livery , and shall divide the estates which were conjoyned before .

If a feoffment in fee be made to the use of one for life and after to the use of the right heires of I. S. the fee simple of the land shall be in abeyance , and before the Statute , if a man had made a feoffment to the use of one for yeares , and after to the use of the right heires of I. S. the Fee-simple of the land shall be in abeyance . And before the Statute , if a man had made a Feoffement to the use of one for yeares , and after to the use of the right heires of I. S. this limitation had been good , for the Feoffees shall remaine tenants of the Frank-tenement , but such limitation after the Statute is void , for then the Frank-tenement shall be in suspence , for nothing may remaine in the Feoffees . But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life , and although the remainders are in custody of the Law , yet they ought to be subject to the rules of the law , for the law will never preserve any thing against the rule of the Law , and because that the rule of the law is , that he in remainder ought to take the Land when the particular estate determineth , or otherwise the remainder shall be void , and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture & then those in the future remainder were not in esse to take it , for this cause these remainders in futuro , by this matter ex post facto were all utterly destroyed & made void . And no diversity when the estate of tenant for life determineth by the death of tenant of life , and when it determineth in right by his forfeiture , for in both cases entry is given to him in the next remainder , and then if he may not take the Land when the particular estate determineth , the remainders void .

A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee , and after A. S. dieth , his right heire shall never have the remainder nor any Charter that concerneth it , for the estate of the Land was by the feoffment of S. in taile divested and discontinued , and all estates vested in the Feoffee , and there was not any particular estate either in esse nor in right , to support the remainder when that shall fall , for by the Feoffment of S. in taile , his right heire was utterly gone .

But if tenant in taile were deceased and dieth , that shall not toll the remainder , for there is a right of particular estate to support the right of the remainder , but when tenant in taile made a feoffment , no right remained in him , and so note that there ought to be a person in esse of both parties ( viz. ) that shall be seised to use , and that shall take the use , so that there needeth not onely to have a use limited , but a person capable of the use when this Statute transferreth the possession thereunto , and therefore if a person wanteth , it is impossible to have the possession executed by this Statute to one which is not in rerum natura , for the Statute saith &c.

If by a Feoffment to uses the estate shall be utterly out of the Feoffees , and all vest in them which have the present uses , then the future use shall never rise , for it is impossible that it should be raised out of the possession of ceste que use , for a use may not be raised out of a use , for if A. enfeoffe B. in fee , to the use of C , and his heires , with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires , that is utterly void , for the future use ought to be raised out of the estate of the Feoffee , and not out of the estate of ceste que use .

And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse , and that in the mean time all the uses in esse shall be vested , and when the future use commeth in esse , then the Feoffees ( if the possession be not disturbed by disseisin or other meanes ) shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute , and that seisin and execution ought to concurr and meet together at one selfe same time , and in such case when the future use commeth in esse , the Feoffees shall have by force of the act , a qualified estate sufficient to serve the future use .

All the Justices and Barons of the Chequer , but Periam , Walmsley , Gawdy , concluded &c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse , and not to any uses that depend in possibility onely , for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law , and by consequence they may be destroyed or discontinued before they come in esse , and by all such meanes as Uses might have beene discontinued or destroyed by the common law .

And all the Justices and Barons of the Chequer agreed with the chiefe Baron and Walmsley in this point , that these remainders limited in use in the case at the barr , shall follow the rule and reason of estates executed in possession by the common law , and therefore they al only agreed that if the estate for life in the case at the barr , had been determined by the death of the Feoffees before the birth of the eldest son , that the said remainders in futuro were void and never shall take effect , although that the son were borne afterwards , for a remainder in use ought to vest either during the particular estate , or eo instante when the particular estate endeth , as well as estates in possession .

All these cases last before touching contingent uses , see Coke prima pars fo. 120. Chudleis case unto the end of the said case .

If a future use come not in esse during the particular estate , then it shall never take effect , because it is in nature of a remainder , which ought to take effect and vest during the particular estate , and no use shall be executed by 27 H. 8. which are limited against the rule of the common law . A use is in nature of a remainder , and therefore in the raising of uses , the order and rule of the common law touching remainders in all things must be observed , but upon and by the limitation of a devise or limitation of a use , a remainder may commence upon a condition , which goeth to the destruction of the particular estate , and one fee-simple may depend upon another .

If a man at this day make a feoffement in Fee to the use of A. for yeares , and after to the use of the wife of B. which shall be , this limitation to the right heirs , & to the wife is void , because if it had been void it had been limited in possession . So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be , if A. dieth and then B. dieth , or taketh a wife , this remainder limited to the right heires or to the wife of B. is void for it were void , if it had been limited in possession . And 72 H. 8. intended to restore the good and the ancient common law , and not to give more priviledge to the Execution of uses then to estates which are executed by the ancient common law , vide fo. 51.

In proofe whereof it was resolved by all the Justices of England , Pasch , 35. Eliz. in the Earle of Bedfords case , which was such , Francis Earle of Bedford made a Feoffment in fee of diverse Mannors , to the use of himselfe for years , & after to the use of Jo. L. Russel , his son and heir apparent , and the heires males of his body begotten , and for default of such issue to the right heires of the said Earle , and afterward the said Jo. L Russel died without issue male in the life of the said Earle , and it was resolved that the use and the estate limited by way of remainder ought to vest during the particular estate , prima pars Co. fo. 129. 130.

If a man make a feoffment in fee to the use of himselfe for life and after to the use of his first Son to be begotten in taile , and tenant for life dies , or makes a feoffment in fee before the birth of his son , the remainder is destroyed for ever , and so in this case , if tenant for life die , his wife privily with child , and then a son is borne , that issue shall not have the use ut opinor .

A Lease to A. for life , the remainder to the right heires of B. B. having a daughter dieth , his wife being privily enceint with a Son , the daughter claimeth that by purchase , and therefore the son born afterwards shall never divest it , Coke . 1. pars . fo . 95. Shellies case .

Forfeiture , De pace regis & regni tit . forfeiture fo. 222.

THe King shall have all the goods of Felons which be condemned , What goods of Felons the King shall have . and which be fugitive ( viz. ) all their goods moveable and unmoveable , for the King shall have the corne growing upon the land of the felon attainted , and the issues and profits of the Land which he hath in his owne right , or in the right of his wife during the time of his life , Forfeiture●… upon flying or untill he doth purchase his pardon . But touching the profits of fugitives lands there is a difference between a flying presented before a Coroner , and a flying found by verdict upon an acquittall , for upon a flying presented before the Coroner , he shall forfeit the profits of his lands untill his death , or untill he be acquit , or untill he hath purchased the Kings pardon . But upon a flying found by verdict upon acquittall he shall forfeit no issues of his Lands , for by his acquittal the Land is discharged , and consequently the issues thereof .

The law hath restrained offendors in treason and Felony to certaine times to make alienation of their Lands and goods , and hath prefixed limits , From what time forfeiture of lands shall have relation . whereunto the forfeiture of their said lands and goods shall have relation , and yet with this difference , that as soone as any treason or Felony is committed , the offender therin is restrained to make any alienation of his lands , for then it is not his land , but by the committing of the treason or felony , he hath forfeited all the estate he had therin , and therfore if between the time of the committing of the treason or felony , & of the offenders attainder thereof , the offender doth make an alienation or assurance of his land after the time that the offender shall be attainted of the same treason or Felony , the said assurance shall be void whether the same attainder be by verdict , confession , or utlary , for the forfeiture of the land shall have relation from the time of the offence committed .

From what time the forfeiture of goods shall have relation . The forfeiture of Goods and Chattels shall not look back so far as forfeiture of lands , nor shall have relation from the time of the treason or felony committed , but from the time of the attainder of the treason or Felony , and therfore if one do commit treason or felony , and in the meane time between the treason or felony committed and the offendors attainder therof , the offendor doth give away his goods , this is a good gift , for as yet they be not forfeit but be his owne to maintain himselfe & his family , untill he be attainted , and by the law adjudged unworthy to possesse or enjoy goods or to have sustenance , and therefore if upon a fugam fecit presented before the Coroner , one doth forfeit his goods , he shall not forfeit those goods he had at the time of the felony committed , but shall only forfeit those goods which he had at that day , when the fugam fecit was presented against him : and in like sort , if one that is indicted of Felony be acquitted thereof by verdict , and in their verdict the Jury finde that the Prisoner fled for the felony , in this case the Prisoner shall forfeit those goods which hee had the day of the verdict given , and not any goods which hee had before . And so it is , if one be convict by verdict , the goods shall bee forfeited , which the offender had the day of the verdict given and not those he had before : and he that is outlawed of treason or felony shall forfeit those goods which he hath at the time of the Exigent awarded , and not those which he had before and hath aliened . But if a man commit treason or felony and is arrested therof , and as he is carrying to a Justice to be examined , or to the Goale by the Constables or others , doe break away , or in making of rescous or resistance is slaine by those which doe so carry him , because he will not yield , and be justified by the law , in this case those goods shall be forfeited which he had at the time of the felony committed : and so it is , if one commit a felony , and when the Sheriff , Coroner , Constable , or others , do attempt to apprehend him , he is slaine because he doth resist and will not yeild to be arrested , the goods shall be forfeited which he hath at the time of the felony committed .

Note , this difference is to be observed in the seising of a Felons goods ; for where the goods be forfeited before the felony tryed ( as where one is found guilty before the Coroner of the death of another , or where it is found before the Coroner that one did fly for a felony ) in such case the goods shall be presently seised upon the forfeiture of them , though there be no conviction of the felon , and upon such forfeiture the goods be presently the Kings , & the felon is to have no maintenance out of them . Daltons office of Sheriffs , tit . forfeiture fo. 32.

And yet lest the goods should be disorderly wasted imbesseled or sold away , the Sheriffe &c. before the attainder of the felon may take surety that the goods be not imbesseled &c. ( ss. ) may cause the owner or some of his friends to finde surety , and for want of sureties , the Sheriffe &c. may seise them and deliver them to the towne ( ss. ) to some of the neighbours of the towne where the goods were , by them safely to be kept , and by the opinion of M. Brook tit . forfeiture 44. this order ought to be observed concerning the goods of every one which committeth felony , untill he be attainted , but yet the felon must have reasonable maintenance out of them for himselfe and his family in the meane time , Plowden 68.

Sur Statute Merchant of the body , Lands and Goods . Statute Staple . of the body , Lands and Goods . Recognizance Elegit . Of the moietie of the Lands and al the goods . Executions . Of the moiety of the Lands and of all the Goods of the Debitor . Capias ad satisfact . Of the body only . Fieri facias . Of the goods only . Levare Facias . Of the profits of the Lands and Goods .

Statute Merchant . AN execution finall is , when the Defendants lands are extended or his goods sold and delivered to the Plantiff , who accepting this in satisfaction ends the suit .

Execution finall & quousque . An execution with a quousque and not finall is in the case of a Capias ad satisfaciendum where the body is taken to the intent to satisfie the Plantiffe , but is no satisfaction but a pledge for the debt .

Note , that the statute Merchant is a bond or obligation of record acknowledged before the Major of London , York , Bristoll , or of other City , or before the Bayliffe of any Burrough , or Towne , or before other persons there to that purpose appointed , and it is sealed with the seale of the Debitor and of the King , the forme wherof , see Wests pre . 106.

If a Statute Merchant be not sealed by the party non valet , 6 R. 2. Fitz. Execution 131.

If a man be bound in a Statute Merchant , and doe not pay the debt at the day , execution shall be done thereof in this manner . How the Statute Merchant shall be executed , the money being unpaid at the day . First the Connusee may come to the Major or other Officer before whom the Statute was acknowledged , and pray him to certifie the same into the Chancery , under his seale &c. and if he will not certifie it , then a Writ of Certiorare must be sued forth of the Chancery , directed to the said Officer of the place where the Statute was knowledged to certifie the acknowledgement of the same Statute into the petty-bag Office in the Chancery , Executions shall be of body . and upon the certification a Writ of Execution ( ss. ) a capias shall goe out against the body only of the Cognisor ( si laicus sit ) to take his body , and command the Sheriff to keepe him safely in Prison untill he hath agreed for , or fully satisfied the debt . But the debitor after he is taken hath liberty given him within a quarter of a yeare to sell his lands and goods to discharge his debts , and if he do not agree for his said debt within the next quarter , Lands and Goods . then all his lands and goods shall be delivered ( by the Sheriff ) to the Creditors upon a reasonable extent to hold untill the debt be paid , and yet neverthelesse the body of the debitor shall remain in Prison untill the debt be paid .

And this Writ may be returnable into the Court of Common Pleas or into the Kings Bench.

But upon the returne by the Sheriff of that Shire to whom the capias was directed quod laicus est , & non est inventus in Bal. sua , then shall go out an extent against all the Connusors lands and goods , and against his body , see the Register 247.

And upon such an extent come to the Sheriffs hands , the Sheriff shall or may presently cause the moveable goods of the debitor to be prized and sold , as far as the debt doth amount , and the debt without delay to be paid , Stat. Acton Burnell , 13 E. 1.

Note , that if the Sheriff can finde no buyer , he shall cause the same goods to be delivered to the Creditor at a reasonable price , as much as doth amoūt to the debt , and if the Prizers of the goods doe set an over high price to the damage of the Creditor , then shall the things so prized be delivered to the prizors at the same price , and they shall be forthwith answerable to the Creditor for his debt . But the Sheriff must sell the goods to them which offer most for them . And yet if the Sheriff shall sell them at an underprice , it seemeth the Debitor hath no remedy , Fitz. Extent 7. see the Statute of Acton Burnell .

If the Debitor have no moveables , whereupon the debt may be levied then shall his body bee taken and kept in prison untill he hath made agreement , 13 E. 1.

If the Sheriff doe not returne the Capias , or do return that the Writ came too late , or that he directed it to the Bayliffe of some Franchise , he shall be punished and yeild damages to the party grieved according to the Statute of Westminster , 2. cap. 39.

If the Sheriff returne that the Debitor is a Clark , then shall there go out an extent against his lands and goods onely , to be delivered upon a reasonable extent as aforesaid , but his body shall not be taken .

If the Debitor found sureties ( which acknowledged themselves to be principall debitors after the day passed ) they shal be ordered in all things as the principall debitors ( scil. ) for their bodies and delivery of lands and goods , Stat de mercator .

But so long as the debt may be fully levied of the goods of the Debitor , the sureties shall receive no losse , Stat. de Acton Burnell .

And if any of these Debitors ( being in prison ) shall happen to escape , the Sheriffe or Goaler must answer the body or the debt , and therefore it behooveth the Sheriffe and Goler , that the prisoners be safely kept , Statute de mercator .

Note , that when any Statute Merchant is certified into the Chancery , and thereupon a Writ awarded to the Sheriff , and returned into the Common place , and the Statute there once shewed , that howsoever the process after the same shewing be discontinued , that at what time the party sueth to have the process recontinued , and to have execution of the same Statute , that the Justices of the Bench where the Statute was once shewed , may upon the same Record make and award full Execution of the Statute Merchant aforesaid , without having the sight thereof another time , 5 H 4. cap. 12.

And the Dier fo. 180. Terminum Pasche anno 2. Eliz. where the Connusee of a Statute Merchant having the same certificate into the Chancery , upon a certiorari directed to the Major , thereupon sued a Capias against the Connusor returnable into the Bench , at which day the Sheriffe returned , non est inventus , and the connusee there shewed the Statute ( as he ought ) and had another Capias before the returne whereof the Connusee died , and it was doubted whether his Executors should have a scire facias against the Connusor , or that they should begin of new ( ss. ) to sue a new speciall Writ out of the Chancery to the Major to make Certificate ( notwithstanding the first Certificate ) and to have out of the Chancery a new Capias or no , or whether ( at the suite of the Executors ) the Justices of the Bench might have awarded an alias Capias or a Writ of extent upon the first proceeding or not . But it was agreed by the Court that no Scire facias did lie in this case , but upon oath made by the Executors in the Chancery , that the debt is not satisfied , they shall have a new Certiorari to the Major &c. to make a new Certificate of the Statute , and so to begin all anew again , Dier 180.

Satute Staple .

THe Statute Staple is of two sorts , or in two manners , the one by force of the Statute 27 E. 3. cap. 9. the other by force of the Statute 23 H. 8. cap. 6.

The first is an obligation of Record acknowledged before the Major of the Staple in presence of one of the Constables of the same Staple , and is sealed with the seale of the Staple and Seale of the party , but such Statute Staple shall not be taken but onely amongst Merchants of the same Staple , and for Marchandizes of the same Staple , 23 H. 8. ca. 6.

The other is an obligation also of Record and of the same nature and force as the first is , as to the execution thereof . But it is acknowledged before the one of the chief Justices , and in their absence ( out of Terme ) before the Major of the Staple at Westminster , and the Recorder of London , and is sealed with their Seales ( viz. ) with the Seale of the Connusor , of the King , and of one of the said Justices , or of the Major and Recorder , 23 H. 8. cap. 6.

The formes of these Statutes Staple vide , West . 108. 109. Note , that all Statutes Merchant and Staple shall be brought to the Clarke of the Recognizances within 4 Months and inrolled , within six months , or else such Statute shall be void against Purchasors &c. 27. Eliz. cap. 4.

A Statute Staple must be certified into the Chancery in the like manner as a Statute Merchant , and upon that Certificate a Writ of execution shall go presently forth both against the body ( si laicus sit ) and against the lands and goods of the Connusor returneable in the Chancery in the petty-bagg Office there ( and not into the Court of common Pleas or Kings Bench as the Writs of Execution upon a Statute Merchant shall , and upon the Writ of execution , the Sheriff shall take the body of the Connusor , and shall also per sacramentum proborum & legalium hominum & juxta verum valorem , Fitz. 131 d. presently extend and price , and shall seise into the Kings hands , his Lands , his Goods and Chattels , and that extent and prizement or valuation of the Lands and goods shall returne and certifie into the Chancery as aforeraid , and therupon the Reconusee shall have another Writ called a liberate to the Sheriff out of the Chancery , to deliver to the Conusee those lands and goods to the value of his debt , and upon that liberate delivered to the Sheriff , then such lands and goods as are taken in execution shall be delivered to the Connusee , by the Sheriff and not before . And this execution shall be made in manner as is before declared upon a Statute Merchant 27 E 3. cap. 9. Plow. 62. b.

And so note , that upon a statute Merchant the connusor shall bee imprisoned for halfe a yeare , and if hee doth not sell his lands within the same time for to pay his debts , then his lands shall be delivered to the obligee until his debt be satisfied . And upon statute staple the Debitor or connusor after that hee is taken shall not have liberty to sell his lands and goods within the halfe yeare , as he shall have upon Statute Merchant ; But by force of this statute Staple , if the money be not paid at the day forthwith after certificate therof in the chancery , the creditor may have Execution of the body , Lands and goods of the Debitor , ( ss. ) the connusor shall be imprisoned , and all his lands and goods shall be extended instantly , 27 E. 3 cap. 9 ,

Also note , that upon Statute staple the extent shall be first made and returned , and aftet a Writ of liberate shall be awarded , but delivery shall not be made at the beginning untill the thing appeareth certainly by the return of the Sheriff , Plow. 62. b.

All obligations and specialties made to the King or to his use for any cause , shall bee of the same force as Statute Staple is , 33 H. 8. cap 59. and so for obligations made by parsons for their first fruits 26 H. 8. cap. 39.

The lands of many Accomptants to the King shal be liable and put in execution , as if they had been bound in Statute Staple 13. Eliz. Cap. 4.

The heir that claimeth by the gift of his Ancestor , shall be bound to pay the Kings debt , 33 H. 8. cap. 39.

The heir in taile by the same Statute shall be liable to pay the Kings debt due by his Ancestor Plow. 240. b. 249 , b. 554. b. Fitz. 217. c.

But if tenant in taile become in debt to the King by receipt of the Kings moneyes or otherwise , unlesse that it be by judgement , recognisance , obligation or other specialty , and dieth , the land in the seisin of the issue in taile by force of the said act of 33 H. 8. shall not be extended for such debt of the King . For the Statute of 33 H. 8. extendeth only to the said 4. cases , and all other debts of the King remain at the common law .

Execution upon Statute .

IF Tenant in Taile become in debt to the King by one of the said 4. wayes ( scil. ) by judgment , recognisance , obligation or other specialty , and dieth , and before any prosces , or extent , the issue in taile ( bona fide ) alien or Lease the Land intailed , now this Land shall not be extended by force of the said Act of 33 H. 8. C. 7. 22.

So where debt was originally due to a subject , and after comes or accrues to the King by reason of attainder , Out-lawry , Forfeiture , gift of the partie , or by any other way or meane , such debt is not within the said Statute of 33 H. 8. to charge lands intailed in the possession of the heir in taile , Co. 7. 22.

But lands in fee-simple were extendable at the common law , for debt of the King , into whose hands soever they should come , and therefore as to them the said Statute of 33 H. 8. was not but a declaration of the ancient law , Co. 7. 21.

Two Joyntenants in fee the one of them being a debtor of the King dieth , the other shall hold discharged Fitz. Execut. 113.

The heire shall bee chargeable to pay debt of the King , although he bee not named , or that this word Heir be not comprised within the recognizance , obligation or specialty , 33 H. 8. cap , 39.

The King shall be preferred in his suit and execution before common persons by the Statute , 9 H. 3. cap. 18. and 33. H. 8. cap. 39.

Debitor of the King possessed of a Lease selleth it bona fide . This bindeth the King , for it is but a Chattel , Co. 8. 172.

Note , that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe ( scil. ) of his body , his lands and goods in his own hands , but in the hands of his Heires , Assignes , Executors or Administrators , and if he hath no Executors or Administrators , then in the hands of the possessors of the goods of the dead .

What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute &c. in case of a common person .

NOte , that upon Statute Merchant , or Staple , all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged , or at any time after , shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation , Feoffement , or otherwise , Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12.

But if the Debitor die , the body of his heire shall not be taken , but his Fee simple lands which descendeth to him from the Connusor shall be taken ( in form aforesaid ) if he be of full age , or when he commeth to full age , untill the debt be levied , Statut. de mercator .

And so was the common Law before , that in debt against the heir , the Plaintiff shall have all the Land which discendeth to the heir in execution , and yet he shall not have then execution of any part of the land against the father himselfe .

Note , that it hath been holden that the heir shall not be charged where the Executors have assets , Fitz. Executors , 25. Br. Debt. 237. 17 E. 4. 13. Plow. 439. 440.

But at this day the law seemeth otherwise ( scil. ) that it is at the election of the Creditor to sue the heir or Executors , when both have assets , 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. & Stud. 153. Dier. 204. Plowden . 439. 440.

Also it seemeth that if the heire doth not confesse the action , and shew the certainty of the assets which he hath by discent , but plead nothing by discent , or is condemned by default , that there the Plaintiff shall have execution of his other lands , or of his goods , or of his body , by cap. ad satisfac . Plow. 440.

Note , that Fee-simple lands of the heire which he hath by discent , the day of the Writ purchased or after , shall be liable , but otherwise if he hath aliened before the Writ purchased , unlesse it be by covin . Co. 5. 60.

Possession in law discendeth upon the heir shall charge him . So where he enters upon a condition , Br. assetts , 8.

Reversion upon an estate for life discends upon the heire that shall charge him , Br. Assets . 12. 19.

A reversion shall be put in execution , and the judgment shall be cum acciderit , and in the meane time of the rent , Di. 373. Fitz. Assetts . 237.

Note , in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given , 2. H. 4. Fitz. Executors , 24.

If a man sue a Statute Merchant of parcell of the Lands , in name of all the Lands , he shall not have other execution afterwards , Fitz. Execution . 13. 4.

If I have but one Acre by discent , I shall be charged with 1000 l. by obligation made by my father , by Belk . 40 E. 15. Fitz. Execution 32 , vide & quaere . For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged .

Lands intailed are liable but during the life of the Connusor , as if tenant in taile be bound in a Satute , or Recognizance , the land taile shall be bound during his life , but it is not bound against the issue in taile Br. Recog. 7. yet if the issue in taile enfeoffe a stranger , now execution shall be against the Feoffee 19 E. 3. Fitz receipt . 112.

But if Tenant in taile acknowledge a Statute or Recognizance , and after alien , the lands in the hands of the Feoffee , or alienee , shall be subvert to this Statute or Recognizance , Co. 1. 62. and 2. 52. 8 H. 7. 89.

Copy hold Lands are not liable , nor shall bee extended upon a Statute or Recognizance , Lease or Terme for life shall be extended .

Lease for tearme of yeares and all other goods and Chattels of the Connusor , or Debitor , are liable and shall be extended ( ss. ) such which the Connusor &c. hath in his owne possession and to his own use at the time of the execution sued or awarded . But sale of Chattels ( bona-fide ) after judgement , and before execution awarded is good , but not after execution awarded , as appeareth in 2 H. 4. fo. 14. per curiam .

Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute , the goods which he hath , the day of the judgment or knowledge of the Recognisance shall be bound to the execution , in whose hands soever they shall come , quod non fuit negatum & Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment . But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution , vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. & . 7 & les liures . 43 E. 3. fol. 3. Dier 295. & Co. 3. 81. 82. 83.

Lands in ancient demesne are liable to the Statute , vide Fitz. Execution 118. and retorne 109. contra .

Lands or goods holden joyntly by the Connusor with a stranger , and the connusor is condemned in damages and dieth before execution , those lands or goods comming to the stranger by survivor are not extendable , Br. execution 126. 148. 13 H. 7. 22. a.

Lands of a wife are extendable during the coverture by debt of the husband , 15 H. 7. fo. 14.

Rent may be delivered in execution Fitz. avowry 237 Exec. 63.

Rent extent by release of the party may be extended , Co. 7. ●8 . 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it , and therefore although that after judgment that be released , yet that may be extended . But a man shall never have a thing extended upon an execution ; except that he may grant and assigne the same thing by Shelly , 28 H. 8. fo. 7.

So the profits of an Office or other thing which may not be granted or assigned over shall not be extended , Dier fo. 7.

Goods demised , pawned , or pledged , may not be taken in execution , for his debt , that demised or pawned them during or terme that they are s● demised or pawned 22 E. 4. fo. 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years , or if he deliver his goods in pledge & after shal be condemned in personall actions , there such Sheep or goods shall not be taken and put in execution untill the lease be determined , or the money paid for the pledge , Br. distresse 75.

So it seemeth of Goods which are distrained for just cause , as for rent , amercement , damage feasant , & such like , and are impounded , they are now in custodialegis , as long as they are so , they may not be taken in execution Br. pledges 28.

If the Connusor enfeoffe the King , that land is discharged from execution , Fitz. 266. so all other lands of the King are exempted from distresses and executions , Plowden . 242. b.

If many men be severally seised of lands , and they all severally joyne in one recognizance , Satute Merchant or Statute staple , in this case the connusee may not extend the land of any of the Connusors onely , but all the Connusors ought equally to be charged , & the one of them alone shall not beare all the burthen , because they are all in equall degree , and in executions which concerne the realty and charge of the land , the Sheriff may not doe execution of the Land of the one alone , Co. 3. 13. a 14.

When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged , because he himselfe is the person which was the debtor and which was bound , and therefore he and his lands may be solely charged , Co. 3. 14. Br. suite . 10 12.

And as to a purchasor of lands , although their said Lands after the judgement , recognisance , or Statute be subject to the execution , yet such purchasors have greater priviledges given to them by the law , then the Connusor himselfe or his heires have . So that if land of a purchasor be onely extended for the entire debt , such purchasor shall have contribution against all the others of the purchasors , and against the connusor , or his heir , but note , that by this word , contribution , it is not to be understood that the others shall give or allow to him any thing by way of contribution , but ought to be intended , that the purchasor or party which hath his lands onely extended for all , may by Audita querela or scire facias ( as the case requireth ) defeate the execution , and therby shall be restored to all the meane profits , and drive the Connusee to sue execution of all the land , so that in this manner every one shall be contributory , that is , the land of every ter-tenant shall be equally extended , co. 3. 14.

But if the Connusor enfeoffee the connuse of parcell of the land , and a stranger of another parcell , and reserve parcell in his hands , now the connusee shall not have execution against the stranger ( or any other Feoffee , for all shall be extinct against the Feoffees ) but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands .

If connusor of Statute Merchant or statute Staple be taken , and die in Execution , yet the connusee shall have execution of his lands and goods co. 5. 86. 87. Fitz. 246. b.

If the connusor upon a Statute &c. be taken in execution and escape , yet his goods and lands upon the same statute may be extended for the escape , and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co. 5. 86.

By the statute of 3. Jacobi . cap. 8. no execution shall be stayed or delayed by Writ of Error , or superseded for reversing of any judgement in any action of Debt , except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given , to prosecute the said Writ of error with effect , and to pay all the debt , damages and costs &c. if the judgement be affirmed , and also costs and damages for such delay .

And therefore if a man be condemned in any court , and his body put in execution , and after he procures a Writ of corpus cum causa , or certiorari to be directed to the Sheriff to remove his body , there the Sheriff upon the said Writ ought to return the truth , ( scil ) that his prisoner is condemned by judgement given against him , upon which the Prisoner shall be forthwith remanded to prison , there to remaine untill he hath satisfied the Plantiff , 2 H. 5. cap. 2. Fitz. 151. e.

If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor , then it seemeth that the said statute hath lost his force against both , see the Register . 147.

If execution be sued of the body , and of the land , and after the connusor enfeoffeth the connusee of the Land , or surrender parcell descended to him , in all these cases , the body shall be discharged , for by discharge of part of the thing in Execution , all is discharged : Plow. 72. b ▪

When the extent upon a Statute is satisfied and ran out by efluxion of time , the Connusor may enter againe . Co. 4. 67.

But when the extent is satisfied by casuall profit the Connusor must have a Scire facias , ibid.

Defeasance to a Statue made after execution is good , and defeateth aswell the Statute as the execution thereupon , Co. 6. 13.

But note , where the Statute of Actor Burnell is , that if the Prisors of the goods of the Connusor prize them too high ( in favour of the Debitor and to the dammage of the Creditor ) the things so prized shall be delivered to the Prisors by the same price , and they to yield the Credtior his debt : these Statutes are penall and extend not to any other Writs of execution , but upon the Statute Merchant or Staple , or recognizance , and therefore upon a Writ of Elegit or other Writ of execution upon judgement , if the extenders or prisors praise the lands or goods , too high , the Plantiff ( scil. ) the Creditor hath no remedy . Benl . 4. P. and M.

Note , that when the lands or goods are delivered to the extenders , they forthwith shall answer to the Creditor his debt by the words of the Statute , and yet they shall not pay the money untill the daies assessed and limited in the extent . Plow. 205. b.

If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate , yet he hath no remedy . ( Stat of Actor Bur. ) for in such cases the Debitor may pay the money and recover his lands and good . 15 H. 7. 15.

The creditor may well refuse to accept , because the Sheriff will not deliver but parcell of the lands of the Connusor , for if he accept it he shall be concluded to demand all afterward , Fitz h. execution . 84. 88.

Execution upon a Recognizance .

REcognizance is an obligation of record acknowledged in any Court of Record , or before any Judge or other Officer having authority to take it , as before the Judges of the Kings Bench , or of commons Pleas , the Barons of the exchequer , the masters of Chancery , the Justices of Peace &c. & those which are meere Recognizances are not sealed but are inrolled . And sometimes are sealed with the seale of the party , and may be with condition annexed , or may bee single and then to have indentures of defeasance .

Also the King may by his commission give authority to any man to receive connusance of another man , and to returne it in Chancery , and by vertue of such commission , if the man knowledge it before a commission any debt to another to be paid to him at a certain day , and that certifieth into the Chancery with the commission &c. Now upon certificate made of this connusance , if he doth not pay the debt at the day , he shall have an elegit upon this recognizance so taken aswell as if it were taken in the Chancery .

Upon a Recognizance there shall not goe a Capias but a Scire facias returnable in Chancery , and upon the returne thereof , they use to award a Capias , a fieri facicias or an Elegit at the election of the Connusee , 48 E. 3. fo. 14.

Upon a Recognisance the connusee may not have an action of debt against the heire , for the recognizance is quod tunc vult & concedit , quod dictae pecuniae summa de bonis & catall . terr. & tenementis &c. levetur so that the charge is imposed upon his Goods and Lands , so that debt lieth not therupon against the heire , co. 3. 15.

Yet upon a recognizance acknowledged to the use of the King , although the words of the recognizance are de bon. & catt . terr. & tenemenntis &c. levetur , the King shal have liable to his execution as wel the body as the lands & goods of his Debitor , see co. 3. 12. b & . 11 93. a.

Execution by force of a Recognizance ( in case of a common person ) shall bee of all the Goods and Chattels of the Connusor ( except his Plowcattle and implements of husbandry ) and of the moietie of his lands , west . 103.

Note , that this word Recognizance , extendeth oftentimes in our Books to Statute Merchant and Statute staple .

Execution by Elegit .

AN Elegit is a Writ judiciall and lieth for him that hath recovered debt , or damages in the Kings Court , and must be sued within the yeare , Tearmes de ley .

By force of an Elegit the Sheriff may take in Execution , and deliver unto the party ( scil. ) unto the cerditor , the one halfe of the lands of the Connusor , and all his good and chattels ( praeter Boves & affros de carvia sua ) saving onely his Oxen and beasts of his plow , untill the debt be levied upon a reasonable price or extent . And this is by force of the Statute of Westminster , 2. cap. 18. which is the first statute that did subject land to be taken in execution or upon a recognizance , which is in the nature of a judgement , 13 E. 1 ca. 18. co. 3. 12.

This Statute of Westminster 2. which giveth the Elegit , provideth quod Vicecomes liberet ei omnia cattalla &c. & medietatem terrae suae quousque debitum fuerit levat . per rationabile praetium , & extentum . which last word praetium is to be referred to Chattels , & extentum to be referred unto lands & rationabile praetium & extentum ought to be sound by inquisition and verdict ( scil. ) the apprizing of the goods and the extent or valuation of the Lands ought to be per sacram. 12. probor . & legalium hominum &c. for the Sheriff himselfe cannot appraise the goods , nor value nor extend the lands upon an elegit , neither can the Sheriff upon an elegit deliver any goods in Execution , or extend any lands but onely such as are appraised , and valued by the Jurors of the inquisition , Co. 4. 74. otherwise it seemeth of all other sorts of Executions .

The words of this Statute of Westminster , 2 , ca. 18. are thus , liberent ei medietaeem terrae debiteris , which by construction of Law is the moietie of all that he hath at the time of the judgment given or at any time after Co. 7. 19. and by the equity of that Statute , the Sheriff may deliver to the Creditor or Connusee the moietie of the Rents , Br. Parliament 10● . Plow. 178.

Also these words in the said statute , quousque debitum fuerit levatum , shall be intended , be or might be levied , for if the Conusee or tenant by elegit , or tenant by statute Merchant or Staple neglect to take the profits , yet when the connusee might have been satisfied of his debt according to the extent , the connusor shall have againe his land , but it seemeth he may not enter in such case , but is put to his scire facias , Co. 4. 82.

If Tenant by elegit be outed by a stranger , there the time shall on , and he is put to his remedie against the trespasser . ibm .

If the Connusee be outed by wrong by the connusor , or by any other claiming under him for life or years &c. the connusee shall hold over , co. 4 , 66.

If the lands delivered in execution be lawfully recovered , taken , or evicted , from the possession of the connusee before his debt be satisfied , he shall have a scire facias , and upon that a new writ of Execution . Statute , 32 H. 8. ca. 5. co. 3. 87.

This Statute of Westminster 2. cap 18. that giveth the elegit , doth not extend to Copyhold Lands , for it should be prejudiciall to the Lord , and against the custome of the Mannor , that a stranger should have interest in the land holden by copy , where by the custome it may not be transferred to any without &c. co. 3. 9.

Terme for yeares may not be extended by the Sheriff upon elegit , without finding the beginning and certainty of the terme by inquisition , for execution by elegit ought to be by inquisition , and if it be found by the inquisition that the debitor was possessed of certain land , per terminum quorandum annorum ad tunc ventur . This inquisition is insufficient , for they ought to find the certainty , and the reason is , because that after the debt satisfied the party is to have again his terme , if any part thereof remaine , which certainty of terme ought to appear upon the returne of the Sheriff , as it seemeth Cok. 4. 74.

But upon a Fieri facias the Sheriff may sell the lease or terme without reciting any certainty ( scil ) the Sheriff may recite that the Debitor hath a terme of such a thing pro terminis diversis annorum ad nunc ventur . and that he sold that by force of a fieri facias to I. S. and that is good , so if the Sheriff sell all the interest that the Debitor hath in the Land , that is good , notwith●standing misreticall , for by the common intendment the Sheriff may not have precise connuzance of the certainty of the commencement , and certainty of the end of the terme , but if he take upon him to recite the terme and mistake it , reciting it falsly , and sell the same terme , this sale is void , because there is not any such lease or terme , yet false recitall notwithstanding , if the Sheriff sell also all the interest that the Debitor hath in the said land , that sale is good .

Also the Sherriff need not to mention any certainty of a terme in his returne of Fieri facias , but generally quod fieri fecit de bon. & catall . &c.

Note , that it is at the election of the Sheriff to extend or to sell a lease or terme as long as it remaineth in the hands of the Debitor ( scil. ) the Sheriff at his election may sell that quite , or he may extend and deliver it to the Connusee at a certaine yearely value ( as of Frank-tenement ) and there the Connusee to whom the terme is delivered hath a property which is uncertain , and the Lessee or connusor himselfe hath another propetty , so that upon the payment of the debt or upon the debt received of the revenew of that by the connusee , the connusor shall have his terme , Plow 5. 24 Co. 8. 171.

Note , there a diversitie between the sale ( by the Sheriff ) of a terme , and an extent of a terme , and that upon sale of a terme by the Sheriff , the partie hath no remedie to have his terme againe ( if any remain ) after the debt satisfied as it seemeth .

Execution upon Capias ad satisfaciendum .

NOte , upon a Capias ad satisfaciendum , although the Defendant be not found , the Plantiff may not have another execution , 20. E. 2. and this capias ad satisfaciendum , is onely against the body , which the Sheriff must be sure to keep safe , or else perhaps pay the debt himselfe , and therefore if the Sheriff shall take a upon a Capias ad satisfaciendum to him directed , or shall have any prisoner to him committed for debt upon any execution , and he after shall let the Prisoner goe at liberty before the debt be satisfied , the Creditor may either have his action of debt against the Sheriff and shall recover his debt , or the Creditor may have his action of the case against the Sheriff , 22 H. 7. 23 Fitz. 93. a. c.

And if the Prisoner doe escape of his owne wrong against the Will of the Officer , although he escape and get out of sight or into another County , where the Sheriff or Officer hath no authority , yet if fresh suite be made and he be taken again upon the fresh suite he shall be said to be still in execution , Co. 3. 52.

And if the Prisoner do escape against the will , and without the consent of the Sheriff or his Officer , may then the Sheriff or his Officer take him again where or whensoever hee can find him by vertue of the same Writ before the returne thereof , yea though it be in another County . And if that the prisoner which so escaped be followed with fresh suite and taken again before an action be brought by the Plantiff , against the Sherriff for the escape , it shall be adjudged no escape , Co 3. 44. 52.

And if the Plantiff hath brought his action against the Sheriff for the escape before he hath taken the prisoner againe : Or if upon the escape the Sherriff or his Officers did not make fresh suit after the Prisoner , yet in both these cases , if the escape were against the will of the Officer the Sheriff may take such prisoner again , and keep his body in custody untill the prisoner hath made his agreement with the Sheriff , or otherwise the Sheriff may have his action upon the case against such prisoner , for such his wrongfull escape , if the prisoner that so escaped be able to make him satisfaction . And the prisoner in these cases shall not be relieved , because the escape was of his owne wrong , and without the consent of the Sheriff or Officer , co. 3. 52.

If the connusor of a Statute Merchant or Staple is taken and dies in execution , yet the connusee shall have the execution of his goods and lands , Co. 5. 87.

Connusor upon a Statute is taken and escape , yet his goods and lands upon the same statute may be extended .

For although by the law unica tantum fiat executio , yet that is to be understood of an execution with satisfaction .

Where 2. men are condemned in debt , and the one is taken and dieth in execution , yet the other may lawfully be taken in execution , co. 5 , 86.

So if two be bound joyntly and severally in one Obligation , and the one is sued , condemned and taken in execution , yet the other also may be sued and taken in execution , untill the Plantiff be satisfied in deed of his intire debt , co. 5. 86.

If a man hath judgement in an action of debt , and after the judgement , outlawes the Defendant , there if the Defendant be taken by Capias utlegat . at the suite of the King , he shall be in execution for the Plantiff if he will , co. 5 88.

Also in all cases when the Plantiff may have a cap. ad satisfaciendum , and the defendant is taken by cap. pro fine , there the Defendant is in execution forthwith , if the Plantiff will , without any prayer of the partie , co. ibidem .

And in such cases , if the Sheriff suffer such prisoner to goe at large , it seemeth to be an escape , and that thereby the Sheriff is subject to pay the Plantiff his debt , Fitz. 121. p.

By the law those which are in execution ought not to goe at liberty within the prison , much lesse abroad , though with their keeper , but such prisoner ought to be keept in arcta & salva custodia , yea the Sheriff may keep such as are in execution in Gives and Fetters , to the intent that they may the sooner pay and satisfie their creditors 13 E. 1. cap. 11. 2 R. 2. cap. 12. co. 3. 44 ▪ Plow. 360. a

Where the Sheriff hath one in execution for debt , & an Habeas Corpus commeth to him to have the body in the Kings Bench at a certain day , and he carrieth his prisoner to London to an Inne &c. and the Prisoner of his owne head goeth at large , and after commeth againe to the Sheriff , so as the Sheriff at the day of the returne of the Habeas corpus , doth deliver the body in court , this was adjudged to be no escape , for that the commandement of the Writ is performed ( scil. ) to have the body in court at such a day , and in such case the Sheriff may go and take what way or place he shall think to be most sure and safe for himselfe , and to carry his prisoner , co. 3. 44.

It was adjudged if one being in execution no commandement , although of the K. himselfe without Writ , is sufficient Warrant to discharge the Keeper &c. and so by the same reason shall not discharge the Sheriff .

But note , that inasmuch as escapes are so penall to Sheriffs , Bayliffs of Liberties , and Goalers , the Judges of the Law have alwaies made a favourable construction as much as the law will permit in favour of the Sheriffs , Bayliffs of Liberties , and Goalers , who are Officers and Ministers of Justice , co. 3. 44.

Note , if a man recover debt or damages against against another , he may chuse to have a cap. or elegit , but if he take the Capias he shal not have the Elegit afterwards , nec e converso , 15 H. 7. 15.

Fieri facias .

THis Writ of Fieri facias is onely against the goods ( scil. ) Leases for yeares or moveables goods , as Cattel , Corne , House-hold-stuffe , Money , Plate , Apparrell , and this Writ ought also to be sued within the yeare after the judgement . Co. 3. 12.

In the execution of a Fieri facias , it is the surer course for the Sheriff , either to keep the goods untill the parties be agreed , or else to take good security of the Plantiff to defend and save him harmeless , and to stay the returning of his Writs untill he may be well advised what to doe therein . But if he take a bond of the Plantiff , it is questionable whether it be good or no in law , and not within the compasse of the Statute of 23 H. 6. ca. 10. to be taken colore Officii .

But the safest and surest course for the Sheriff or Officer , is not to take in execution , or not to meddle at all with any such goods as shall not not plainly appear to them , to be the proper goods of the Defendant , for it seemeth that the Officer is bound at his perill to take knowledge whose the goods are , or at lest that they be the proper goods of the defendant .

Note , that after the Fieri facias a man may have the Elegit , but not e contra , because the Elegit is of a higher nature then the fieri facias .

Upon a fieri facias the Sheriff may sell a Lease or terme of yeares , and upon a fieri facias the Sheriff ought to sell , to levy the debt , Co. 5. 90. Co. 8. 171.

Upon a fieri facias if the Sheriff sell the goods , and after the judgement is reversed in a Writ of Error , yet the defendant shall not have restitution of his goods , but the value of them for what they were sold , and those which so buy such goods of the Sheriff may lawfully enjoy them , for the Sheriff which made the sale , had lawfull authority to sell , and by the sale the Vendee hath absolute property in the goods and , if the sale of the Sheriff by force of the Fieri facias shall be avoided by subsequent reversall of the judgement then no man will buy , and by consequence no execution shal be done . Co. 5. 90. and 8. 96. and 143.

Levari facias .

THis Levari facias is onely to be executed upon the profits of the Lands , and upon the goods , or the Sheriff may hereupon take the rents payable by the tenants in execution for the debt , and bring them in Court , but he cannot seise the land and deliver that to the party by this Writ , Plow. 441. a. and this ought to be sued within the yeare , after the day of payment to be made , by the recognizance , or after the judgement , for after the yeare the Connusee or Plantiff is now by the Statute of Westminster , 2. cap. 45. to have a scire facias , whereby the Sheriff is commanded that he give knowledge to the Defendant that he appeare in the Chancery at a certaine day , there to shew what he can say why he should not pay the debt or dammages , and if he come not at the day , or doe come and can say nothing why execution ought not to be done , then the Sheriff shall be commanded to do execution . Fitz. 266. c.

And if the Sheriff upon the Levari facias shall returne that he hath levied part of the sum ( scil. ) 20 l. part thereof which he hath delivered to the party , now upon this returne the party which ought to have the money , may have a sicut alias Levari facias directed to the Sheriff to levy the residue of the sum , Fitz. 265. h.

Summons .

SUmmons is a Writ to the Sheriff to cite or warne one to appeare at a certaine day , and the Summons must be made by or in the presence of two or three Summoners , and these summonitors ought by law to be liberi & legales homines as it seemeth .

In Summons in reall actions , the Summoners in the presence of the Pernors or Veiors , ought to summon the tenant , first to keep his day of the returne , and to name that in certainty to answer &c. Secondly , they ought to name the name of the demandant , and Lastly , they ought to name the Land in demand , co. 6. 54.

This word Pernor , seemeth to signifie the Pernor of the profits of the land , or the Occupier or Farmer , therof . And this Veior to signifie such as are sent by the Court , to take view of the place in question for the better decision of the right . Minshaw .

Note , that the Defendant ought alwaies to be summoned 15. daies at the least before the day of the returne of the Writ , 28 E. 1. cap. 15. Fitz. 177.

Note , when the Tenant appeares by the summons , he may not take advantage after to say that he was not well summoned , and so if he bee essoined , for all that affirmeth the Summons , 46 E. 3. Br. Summons . 22.

Note also , if the Sheriff shall summon him which hath no land to or by his person , and shall returne him summoned , it is good . And in Actions of annuity , Covenant , or the like , Summons is the process , hath he land or not , and where a man hath no land where he may be summoned , there the Sheriff may summon him by his person 33 H. 6. 4. H. 7. 7.

In a Writ of right of Advowson , the Sheriff may summon the Defendant in the Church , Br. returne , 101. 11 H. 6.

In a quaere impedit , the Sheriff may summon the Defendant in the Church IX H. 6. and so by advise it was done inter Lancelotum episcopum Eliens . and the Author of this book Anno 16. Jacobi regis

In a Praecipe against 4. the Sheriff cannot summon the one but that is a summons to all , 3 E. 4. Br. Summons 10.

In a Praecipe , there ought to be two summoners , for if there be but one , and the Tenant maketh default , and loseth by default , he shall have a Writ of disceit against the Sheriff , Plow. 393.

Note , that the Tenant may wage his law of non summons and yet a corporation , recluse , and decrepit may not do their Law , but their summons shall be tryed by the country 33 H. 6. fo. 8. Thel . 334. Quaere .

Attachment .

ATtachement cannot bee by land nor by Chattel reall , as a lease for yeares 7 H. 6. 27 H. 6. neither may a Table dormant or any other thing fastened unto the free-hold be attached 21 H. 7. fo. 26. but an Attachment must be made by mooveables , which may be forfeited by outlary , and which shall be forfeited by the default of the party if he appeare not , Br. 1. 4

In debt , trespasse or the like , a man ought not to attach the Defendant by his horse whereupon he rides , where he hath other goods whereby he may be attached , but if he hath no other goods , then the Officer may attach him by the Horse hee rideth upon Br. 23. neither may a man be attached by his apparrell 7 H. 6 Br. 4. But this seemeth to be understood of his apparrell which is upon his body , for if his apparrell lieth by him it seemeth he may be attached thereby .

Neither shall any goods be attached but the proper goods of the party , and not goods pawned or borrowed , 35 H. 6. Br 20.

An Attachment may be made by pledges ( scil. ) by finding pledges or sureties to appeare , Br. Attachment , 1. 7. 9.

Also if the Officer shall give warning to the tenant in the presence of other honest men to appeare , it is good enough though hee made no other Attachment by the goods or pledges . 34 ess. Br. 9.

Where the Sheriff or his Officers shall attach another by a Cow or by any other goods ▪ if the party appeare not at the day of his returne , his Cow or other goods attached are forfeited to the King , and the Sheriff shall bee answerable for the value thereof , and therefore the Sheriff had need either to keep the goods attached , or else to take security to be saved harmeles therein , 9 H. 7. 6. 34 H. 6. 29.

Note , that the property of goods attached are not out of the party untill the day of the return , and that he maketh default , but if at the day of the returne the party make default , then the Sheriff or his Officer may take such goods as forfeit , though he hath left such goods with the party which was attached by them , and so note , that upon attachment the Officer may at his election take the goods attached with him or may leave them with the owner , and after take them upon default of appearance by the owner , 9 H. 7. 6. B. attachment 10.

28 H. 6. 3. 4. H. 6. fo. 29. and 40. 21. E. 4. fo. 78. Note also , that by the essoine the attchment or goods attached is saved , notwithstanding he appeareth not at the day of the essoine , Br. attachment , 3. 11. and no goods attached shall be forfeit , but in Courts of Record . But many opinions to the contrary , vide .

A feme covert shall be attached by the goods of her husband , for the husband is to bring in his wife and the defendant ought alwaies to be attached , 15. daies at the least before the day of the returne of the Writ Br. attachment , 1. 5. 6.

Yet tryall of not attached by 15. daies shall be onely by the examination of the Officer that makes the returne , and if he be absent the attachment shall be intended to be made according to Law ( scil ) by 5. daies and the defendant shall be awarded to answer , Br. attachment 6. 12. 17. 18.

Also note , that in the Kings Bench they allowed an attachment in an Assize of No. dis . of 8. dayes and of lesse , Br. attachment 13.

Note , that if an indenture be made between 2. as parties , as inter A. ex una , and B. ex altera parte , Parties to a Deed. and in the Deed one of them granteth or letteth a thing to another that is not named in the beginning , he is not party to the deed , nor shall take any thing thereby , Termes del ley , fo. 145.

Upon a condition for the payment of a summe of money at a certaine day , although that the last time for payment of the money by force of the condition , is the fit time wherein the money may be numbred , before the setting of the Sun , yet if tender be made to him which ought to receive it at the place specified in the condition at any time of the day , and he refuse it , the condition is saved for ever , and the Mortgagor needeth not , nor the obligor &c. to make tender therof againe before the last instant ; for by the expresse letter of the condition the monies are to be paid upon the day indefinitely , and convenient time before the last instant , is the extreame time appointed by the law , to the intent the one shall not prevent the other , the one being sometime there , and the other not , and the other being sometimes there and the other not , and therefore the law appointeth the extreame time , in the day , to the intent that both parties may certainly meet together . But if both parties meet at any time of the same day , and the Mortgagor or Obligor &c. make tender in the place &c. to the Mortgagee &c. and he refuse , the penalty is saved for ever , Wades case , 5. pars .

Tender of money may be made in baggs , without shewing or telling of it , ( if the truth be that there was so much as should be paid , in the baggs ) for when the condition is that the Obligor or Mortgagor shall pay 250 l. the Mortgagor or Obligor doe all that which is required by the law for them to doe , if they provide the money and offer it to the Mortgagee or Obligee in baggs , which is the usuall manner to carry money , and then it is the part of the Mortgagee &c. to tell it ( if he will ) or if he will give trust to the Mortgagor , he may accept it without telling of it ; then if the telling thereof belong to the Mortgagee &c. by consequence he ought to put it out of the baggs , which is incident thereunto , for without so doing he cannot tell it : and if the Morgagor &c. put the money out of the baggs , yet is it at the perill of the Mortgagee or Obligee to see it , for peradventure there may be counterfeits , and yet have a good shew of good and lawfull money . Also it is at his perill to tell it , Wade ibid.

And if a man be bound in 40000 l. to be paid at a certaine day , if he tender it in baggs , it is sufficient , for it cannot be numbred in one day , and so hereby you may the better understand the opinion in 22 E. 4. fo. 21. it was adjudged , that where the Lessor demands rent of his Lessee according to the condition of re-entry , the Lessee paid the money to the Lessor and he received it , and put it in his purse , and after in receiving thereof , at the very time he found amongst the money he had received some counterfeit pieces , and thereupon refused to carry away the money , but re-entred for the condition broken . And it was adjudged that the entry was not lawfull , for when the Lessor had accepted the money , it was at his perill , and after this allowance he may not take exeption to any of them . Wadescase , 5. pars fo. 115. Coke .

How to know the end and determination of any lease .

FIrst , see what day of the month , what yeare of the Kings raigne , and in what yeare of the Lord , the Lease tooke his commencement .

Next of all you are to note , for what number of yeares the Lease was granted , which being done then add that number of yeares to that yeare of our Lord , in which your Lease began , the totall summe whereof being cast up will shew you the yeare of our Lord in which the years shall end , so that if your Lease commenced at Michaelmas , it will end at Michaelmas , in the same yeare . Or if it begin the twenty fourth of March in that yeare ( which is but one day before the end and change of the yeare ) then it will end the twenty forth of March the said yeare : As for example ;

A Lease began Michaelmas Anno. 7. Eliz. 1564. to endure for the terme of ninetie yeares , I demand ; how many yeares is to come of this Lease , and when the same terme of yeares will be determined ; first , I set downe the day of the Month , and the yeare of our Lord in which the Lease tooke his commencement , as at Michaelmas 1564. unto which summ I adde the number of yeares , which was granted by the Lease , being ninety yeares , which being cast up maketh the summe to be one thousand six hundred fifty four , in which yeare at Michaelmas , the yeares will be expired and the Lease determined : then to know how many yeares are to come of the same Lease , I set downe the Lease will expire , and then substract out of that summe the yeare of our Lord which then is , as for example one thousand six hundred twenty eight , whereby I find the substracted number to be twenty six , and so many yeares there is yet to come from Michaelmas 1628.

A Lease was made for eighty yeares , to commence at Michaelmas 1567 80 1647. the Lease will end .

The yeare of our Lord 1628 substracted , sheweth that 0019. there is 19. yeares to come at Michaelmas . 1628.

A Warrant to Summon a Court of Surveigh .

THese are to will , and in his Highnesse name , to require you to give notice & warning to be given to all & singular , the Tenants aswell Freeholders as Copiholders , and they that hold by Lease or at Will of or within his Highness Mannor of C. in the County of S. that they and every of them do make their personal appearance at his highnes Court of Surveigh , there to be holden upon Wednesday next , being the 16. of July 1655. by 8. of the Clock in the forenoone of the same day , at the usuall place of keeping the Court of the same Mannor , and that they and every of them , do then and there bring and shew forth or cause to be brought and shewd forth all their Deeds , Leases , Copies of Court-Rolles and all other their evidences , whereby they , and every of them , doe pretend or claime to hold any Lands and Tenements whatsoever of or belonging to the said Mannor . And also that they and every of them doe then and there bring and shew forth all such Rentalls , Court-rolls , Surveighes , Terrats , Suit-rolls , and all other Escripts , Writings , Minuments and Records , which they or any of them have any way concerning the said Mannor , or any part , member , or parcel of the same , and to give such further attendance , in and about his Highnesse said service of survey as shall be of them and every of them necessarily required , wherof faile not as you tender his Highnesse service , dated &c.

Your loving friend , I. N.

To the Bayliff of his Highnesse Mannor of C. or to his deputy or to every of the Tenants of or belonging to the said Mannor , and the members thereof .

Cause this to be published in the Church at the time of divine service and cause the under Tenants to give notice to them whose undertenants they are , that dwell remote .