An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden, an apprentice of the common law. Concerning diverse cases and matters in law, and the arguments thereupon; in the times of the reignes of King Edward the Sixth, Queen Mary, King Philip, and Queen Mary, and Queen Elizabeth, with the exceptions to the pleadings, and answers thereunto; the resolutions of the matters in law, and all other principall matters arising upon the same. By F.H. of the Inner Temple London, Esq;

THE FIRST PART .

Reniger against Fogassa .

An Information by Reniger , against Fogassa , upon the Statute of

1. Ed. 6. cap. 13.

FOgassa shipped 4500 Kintals of Woad for England , 2 E. 6. in the Exchequer Chamber . and upon the sea a tempest did arise , and endanger the drowning of the ship ; for the safety whereof , and of the men and goods in it , he casts part of the Woad into the sea , and after ( arrives at the Port with the residue ; and before the landing , Fogassa came to the Collector of the Subsidie , and shewed unto him the accident aforesaid , and that by reason thereof , he knew not the certaintie of the remnant , and prayed him to make entry of 2000. Kintals of Woad , which he supposed were left ; and if more were remaining , then he would pay Custom for it according to the rate when the certainty should appear ; and desired licence for to land it , which was granted ; and before the woad was weighed , Reniger informed against him for landing 1693 Kintals of woad more then 4500. Kintals , the Subsidie not paid , nor the Collector agreed with for it ; to which he pleaded the matter aforesaid , and concluded ; and super hoc , he did agree , and upon the agreement Issue was taken , and the Defendant gave in evidence , the especial agreement aforesaid , and upon the evidence , the King Demurs , and adjudged for Fogassa the Defendant , by force of a Privy Seal sent by the King to that purpose . But the opinion of all the Justices and Barons , except Hales and Montague , were with the Defendant .

1. For that this agreement incertain , and conditional , is an agreement , and so saith the words of the Statute , which sufficeth , because the Statute is penal , and shall be expounded strictly against offenders , and shall not be intended beneficial for the King to be an agreement .

2. Admit it to be an Agreement , yet here this incertaintie is reducible to a certaintie , by circumstances , viz. by weighing , which shall be done by the Collector at his pleasure .

3. Admit that the agreement ought to be certain at first , yet here the casting out of the woad for the avoiding of greater mischief , viz. The drowning of the ship , men , and goods , the necessity , for the avoiding of eminent danger of death , the compulsion , for fear of death , caused his ignorance to be involuntary , and by consequence , his agreement incertain , every one of which by it self , may dispence with any law , à fortiori , altogether .

4. When the defendant pleads a special agreement in the Affirmative , and concludes upon it , & super hoc agreement , the conclusion hath not waved the matter aforesaid , as if it had been in the Negative .

5. He had performed the intent of the Statute by this agreement , for when the Collector hath weighed the woad , that he may do his pleasure , then the King shall have an action upon the agreement , and if he doth not weigh , it is the folly of the Collector .

Griffith , the Kings Sollicitor . Agreement , or concord executed with satisfaction in deed , or with accord , or means for recovery of recompence , is a good bar in Trespass ; Executory is not ; howbeit , it is the mutual assent of the parties , because it giveth neither recompence , action , nor remedy whereby to obtain recompence ; and therefore it is not but a void communication , and nudum pactum , as in 20. H. 6. In Trespass the Defendant pleads concord between them , That he shall pay 20. s. to the Plantiff at a day to come ; it is not a bar , because it is not satisfaction , nor recompence for it , because he shall not have debt after the day , so 9. E. 4.19 . in Trepsass upon 5. R. 2. Defendant pleads accord , That the Plantiff should re-enter , and have the land , and that the Defendant deliver to the Plantiff all the Evidences concerning the land , and said that the Plantiff had entred , and that he had delivered all the evidences unto him ; It is no bar , for it intends the proper evidences of the Plantiff , and so no satisfaction of the wrong , but if it conveys to him Title to the evidence , then it is a good bar , so in 15. H. 6. in Trespass against him by the Plantiff , he pleads , That they agree , that if the Defendant doth his endeavor for to agree them for a Trespass by the Plantiff to S. That then , &c. and saith , That he did his endeavor , so that they are accorded : it is no plea , because no satisfaction ; but if he saith , That he hath accorded them at his own costs , it is a good bar .

Gawdy the elder , for the Defendant . Arbitrement , which is Executory , 9. E. 4.51 . Fitz. H. 4. Br. 3. accord is a good bar in Trespass , because he may have debt at the day appointed for the payment of the summ agreed to be paid in recompence , and so the Trespass is converted into another thing , viz. Debt by the Arbitrators , which are judges of it : and so accord countervails satisfaction in facto , otherwise , it is of a concord executory , 6. H. 7.11 . because the pleading of the concord confesseth a wrong , and it is not reason that the Plantiff in an action thereupon , should be barred without satisfaction . And so shall the King be satisfied here . Also in concord , the wrong to be recompenced precede the agreement , but here the agreement precedes the wrong supposed , and cometh not after the wrong , as in concord , and therefore this case may not be resembled to the case before of accord . Incertaintie at the beginning , which may be reduced to certaintie by matter ex post facto , countervaileth certaintie , ab initio ; as a man leaseth all his Acres in D. paying for every one 12. d. it is a good reservation , because when the Acres are measured , the Rent shall be certain ; so a gift of two Acres , of the one for Life , and of the other in Fee , by the Feoffment , of the one he shall have Fee in this ab initio : so Lessee of white-acre , and Black-acre for life : the remainder of the one in Fee , to a stranger , and the Lessor licences him for to cut Trees in White-acre : now he shall be adjudged to have the remainder of this Acre , ab initio ; so the thing which at the commencement was incertain , is made certain . So in Wheelers case , 14. H. 8.17 . So a Lease for so many years as I. S. shall name , is good , when he shall name the years . So 17. E. 4.1 . A. bargains that B. shall have his wheat when he hath viewed it , if he please , paying 4. s. the Acre , good contract , if he paies when he carrieth it away , yet the quantity and summ incertain at the first , so here , when the Collector hath weighed the woad . And therefore this conditional agreement doth countervail an agreement certain at the beginning . And where acts ought to be performed strictly , yet in divers cases the performance of the intent , and not the words , good , for it countervaileth the performance of the words : So here . But performance of the words , and not of the intent , is not good : as Lit. fol. 182. of conditions upon a Feoffment , for to give again to I. S. and his wife in special Tail , and they die , and the Feoffees make an estate to their issue , and the heirs of his father and mother , good , because the intent of the condition is performed . So 17. E. 4.3 . Obligation upon condition to infeoff I. S. and he Lease for years , and Release in Fee , it is a good performance , and a good Feoffment , and yet the words of a condition shall be performed as strictly as a Statute .

Bradshaw the Kings Attorney . The mutual assent of the parties upon a thing incertain , is in Law but a vain communication before the certainty known , as in 37. H. 6.8 . A man promises in marriage with his daughter so much as I. S. shall arbitrate . The party which shall marry his daughter shall not have it , if he marry her , until I. S. hath made his award , and appointed it ; for before that it is reduced into certainty , it is but a vain communication . So in 20. H. 6. A man Leases to A. for so many years as B. shall name , he cannot enter into the land , before that B. hath named the number of years ; And the witness of the Defendant , which saith , That he found suerties , and hath not shewed who , or what , as he ought , is wanting both in the name and ability of the sureties , which the Court ought to adjudge of , as in 22. E. 4.40 . A man that was bound to shew a sufficient discharge of an annuity , pleaded that he had offered to shew it to him , and he refused to see it , and held no good plea. Agreement according to the Statute in issue shall be intended general ; viz. certain , and special ; viz. incertain in evidence proves not the issue , neither is it pursuant to the issue ; as in 31. H. 6. Upon non est factum pleaded in debt , witnesses say , That it was delivered at another place then it did bear date , whereupon the Defendant demurred , and the Plantiff was barred , because this proved not it to be his Deed ; for the delivery shall be intended where it was dated , and the witnesses prove the contrary , and so the evidence warrants not the issue ; so in 18. H. 6.16 . One deed of Lease for life without Livery given in evidence , shall not maintain upon Free-hold , pleaded the issue ; so in 14. E. 3. Upon traverse of a gift in Tail , the witnesses prove that another made the gift , and awarded that the Plaintiff should be barred , so if he had pleaded the general agreement in bar , and special in the rejoinder , it is a departure ; as in 6. H. 7.8 . In Trespass the Defendant pleaded a descent to him , and the Plaintiff said , That after the Defendant infeoffed him ; and the Denfendant said , That it was upon condition , and for breach thereof he entred ; this is a departure from the Bar , for it is a new matter . For the same reason a special agreement in evidence shall not maintain the general issue , one witness is not enough , nor one Juror , for to try an issue , if more were warned by the Sheriff : 8. E. 3.50 . So here the Defendant had but one witness which proves for him , which is not sufficient , and so judgement shall be given for the King .

Atkins for the Defendant . A witness produced to prove a thing , if he saith . That he knoweth nothing of the matter , his deposition is void ; so , if he depose negatively , as to say no more was not entred then so much , and if no witness , the knowing of the Jurors aid not the tryal of the matter ; and a Verdict given contrary to the testimony of witnesses , good . It is not needfull to aver that , which of necessity must be intended ; as that the King hath a Beam there ; special agreement is an agreement , as a Feoffment upon condition , is a Feoffment , and so this word Agreement , includes every agreement , by which the evidence well maintains the issue . The Statute speaks not of surety , and peradventure intends it not , and therefore in vain to speak of it ; and therefore it may be he hath not answered to this exception . Agreement in our Law is threefold , viz. Executed at the beginning of it , with payment intended , by the Statute of 25. E. 3. cap. 3. which saith , That goods bought by fore-stallers , are forfeited to the King , if the buyer had made agreement with the seller ; such agreement is not meant in our case , because then , the Statute should not be intended in the disjunctive ; for then the first , and the second clause should be all one : but the word , [ Or ] disjoyns the clauses . Agreement to an act made by another , as in 20. E. 4.9 . To a disseisin to his use , maketh him a disseisor from the beginning : so the party ravished , to agree to the ravisher , is an agreement executed here because nothing is to be done afterwards , and agreement here may not be an executory agreement , because the performance shall be afterwards , yet both parties accord at one time before , & 26. H. 8. cap. 3. intends such , because it speaks of payment , or agreement for first fruits , &c. and common usage to pay after , upon obligation made before , proves this , which intends agreement executory ; and here agreement is intended executory ; because it is not the first , nor the second ; and an agreement executory , is Duplex , the one certain at the beginning , as this of first fruits ; the other by matter ex post facto , upon certainty to be known , as here ; and such agreement executory , the Statute will warrant ; for no Law will punish him , in whom there is no default , and where he cannot prevent the mischance by no possibility , for the necessity of the matter , and for that inevitable chance shall not prejudice any : 20. H. 7.11 . Fineus : A man by the Common Law may kill another in his own defence , or as a champion , for the necessary safeguard of his life , and the Tryal of right ; so notwithstanding the custom of the Realm , new Natura brevium , 94. b. If enemies of the King steal of Guests , the Hoastler is discharged , because he cannot resist . So if the ship were on fire , the casting of the goods on the land without payment , or agreement for the Subsidie , shall excuse the Defendant ; so here the extremity of the Tempest , doth excuse the vigor of the Statute .

Sanders , the Kings Serjeant . Notwitstanding that an agreement conditional is included in the words of the Statute , viz. The Collector not agreed with ; yet every Statute , although it be penal , shall be taken as the makers intended ; for the Statute of Waste , is ; If any make waste in Lands which he holdeth by Demise , &c. yet if his Estate be Ex ligatione , it shall be punishable in waste ; and yet the Statute gives Ex demissione onely , suo de assignat . and so it is holden , 10. H. 6.3 . But Gloucester , cap. 5. W. cap. 14. nor Martebridge , cap. 13. speaks nothing de demissione . So , quia emptores terrarum , viz. W. 3. speaks secundum quantitatem terrae intend . valore . So 4. E. 4.12 . An information for shipping Wooll without sureties , of the carrying of Bullion according to the 14. E. 3. the last chapter , holden good , because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years , nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll , other then Custom , and Subsidie granted to the King , and without assent of Parliament ; and the two last Sta●intend not for to discharge Bullion , but great Subsidies upon Wooll after 3. years ; so that the mind & intent of the makers shall expound the general , and doubtfull words of Star and abridge the generalty of them : so here it shall be intended an agreement certain . Also because the Commons pray the King , That he will be pleased to accept of their Grant , for that the words of the Statute , which is their Grant , shall be taken more beneficial for the King , and most strong against the Grantors , according to the Principle of the Common Law , in case of a common person . So the Statute of Prerogativa Regis , 17. Ed. 2. Rastal , wards 13. is the Grant of the Commons to the King , which saith , The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite , whereof the Tenants were seized in their Demeasne , as of Fee at the day of their death , of whomsoever they hold also by like Knights Service , and notwithstanding that Fee is commonly taken to be Fee-Simple , yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments . Agreements upon which the Common Law giveth no remedy , are void , and not good ; as in 19. H. 6.36 . Upon an information for the forging of false Deeds , the Defendant pleads Arbitrement made , viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant ; and saith also , That the Defendant shall be non-suited in the Assize ; This is no Plea , because non-suited founds not in satisfaction , and cannot compell him to be non-suited : for the award is not good , if it be not executed wholly , or the thing awarded may be recovered by action ; and therefore in 6. H. 7.10 . In Trespass , to say , That he hath paid money , but he hath not made his windows , which the Heir may compel him to do , for the concord is intire , but wants execution in all ; and indeed before action brought , is not good , then it is performed , yet not immediately , and therefore it was held no Plea . So in 27. ass. pl. 5. A Baily known pledge the Ox of his Master for Wheat , and if he pays not , &c. he shall keep the Ox alwaies . This shall bind the Master , because the wheat cometh to his use , otherwise not , because he had no recompence . So in 17. E. 4.1 . In Trespass for the taking of wheat , the Defendant pleads , That the Plaintiff sold it , if he liked it upon view , he should have it , paying 40. d. and afterwards he saw it , liked it , and took it ; this is no good justification , because he doth not alleadge payment , so here . So contracts conditional are good , when they are performed , but before performance , they are onely communications .

Brook , Recorder of London , for the Defendant . Where matters are to be tryed in the Civil Law , there ought to be two witnesses , here not necessary ; For where tryal is by twelve men , because the Inquest may give a precise Verdict , where there is no Testimony , or Verdict , or Evidence , or Evidence be contrary to the Witnesses , as in 14. H. 7.2 . the Inquest acquit one indicted of murther ; he is arrained , and acquit ; the Jury shall say , who killed him ? although they have no witnesses , and so witnesses are not necessary , but where the matter is to be tryed by witnesses onely ; for if the witnesses were so necessary , then it would ensue , That the Jurors should not give their Verdict contrary to the witnesses , where the Law is meerly contrary ; for when witnesses for tryal of the Fact joyn with the Jury , if they cannot agree with the Jurors , the Verdict of the 12. shall be taken , and the witnesses rejected ; wherefore this point is clear enough . And as to this which hath been said by Bradshaw , That the deposition of Da. will make against us ; for that he saith , That S. shewed to him , that the entry was not made for more then 2000 Kintals : Sir , this saying is nothing to the purpose , for if he cannot say something to prove the issue , in which he cometh to depose , then it is neither with us , nor against us , but it is of the same effect in Law , as if he had said nothing , or that he knew not of the matter ; and so this point is also clear enough . And as to that which hath been moved also by Mr. Attorney ; That he ought to shew what rate in certain : Sir , this needs not here , because it is expressed in the Statute , 12. d. of every 20. s. and of general Statutes every one shall take notice . And he argued and said ; That the agreement here shall be good , and is within the intent of the Statute ; for in many Cases , Gifts , and Grants made , will not be certain at the beginning , and yet shall be good , for that there is a mean to reduce them afterwards to certainty , and yet the nature of Gifts , and Grants is to be executed presently , and every Gift is an agreement between the parties , and so is every Grant ; and then if Gifts and Grants , ( which are also agreements , and the nature of which is to be executed properly at the time of the making of them , ) it shall be good , notwithstanding they are incertain at the beginning à fortiori . Agreements Executory of things shall be good , where they are incertain at the first , and to prove that such Gifts , and Grants shall be good , notwithstanding their incertainty at the first , there are many Cases and therefore if the King at this day grant over certain Lands , which have come to his hands before , and Grant over to the Grantee such Liberties , Priviledges , and Jurisdictions , howbeit that the King knoweth not the certainty of the Liberties , &c. yet the Grant is good . So in 9. H. 6.27 . The King grants to the Dutches of York an Island , with all Issues and Amerciaments , &c. there it is holden that the grant is good , yet the King knew not what Issues , or what Americiaments shall be afterwards forfeited ; but for that , that when they shall be forfeit , they will be certainly known , and so hath a means to know the certainty of them ; this is the cause that the Grant shall be good . And so in 5. E. 4. the King Granted to one called Garter , the Office of the King of Heralds , cum seodis & prosicuis ah antiquo , &c. There this Grant purports a certainty of the Fees , and Profits belonging to it , and therefore good . And so in 30. H. 6. The King Grants all such Lands as came to him by Attainder , &c. it is good , although it comprehends no certainty . And so if the King will pardon all Riots , Pardon is good ; howbeit , it comprehends no certainty . 21. H. 6.43 . A Parson grants to me his Tythe-wooll the next year , or perquisites of his Court , the Grants are good . So Perkins 17. Feoffment of two Acres , to hold the one for life , the other in Fee , without saying he shall have Fee ; if he lose both by default , he may have Quod ei deforceat for the one , and Writ of right for the other . So if one grant a rent charge to another , the Grantee may avow , or have a Writ of annuity . So in 9. E. 4.36 . per. Litt. Grant 20. s. or a garment , good , because certain by the will of the Grantor . So a Lease for so many years as I. S. shall name , is good . So Perkins Fol. 17. If I have a black and white Horses , and I give one of them to I. S. this gift is good , notwithstanding the incertainty by the election of the Donee . And although it is not concluded who shall weigh , and when , yet it is good , because there is an Officer in every Port which keeps a Beam , and ought to weigh . And although the Statute do speak of an agreement certain , yet Law , the reason aswaies exempts something out of the prohibition of the words of Statutes , as 15. H. 7.2 . by Keble , a Prisoner which breaketh Prison , by the words of the Statute is a Felon ; but if he break it when it is on fire , not . So 14. H. 7.29 . Stamford , 25. cap. 5. Jurors severed by a great Tempest , shall not be Amerced , and their Verdict good . So W. 2. cap. 3. Gives not to a Fem Covert Receipt , but where the wife is ready to answer , yet the wife received by prayer in aid , 20. H. 6.48 . and there she is received , where she is not ready to answer , because otherwise she shall loose the recompence by warrantie . So W. 2. cap. 1. say , That Dones shall not alien ; yet 5. E. 2. is intended of their Issues , so here , for to avoid mischiefs , &c.

Harris the Kings Serjeant , to the contrary . And he argued as the Kings Attorney did , that is to say , That the evidence which proves the agreement upon condition , warrants not the issue , which shall be intended a general agreement ; as if the Derendant in Trespass plead not guilty , and give a licence in evidence , or in formedon in discendre , upon a gift in free marriage : if the gift is traversed , and a Deed is shewed of the gift in free Marriage . the Remainder over in Fee , or upon traverse of a Lease for years , alleadged without Deed , and the Deed is shewed in evidence , this evidence warrants not the issue : So here an agreement conditional maintains not the general agreement intended in issue ; the Collector could not agree otherwise then for landing , because the Statute will ; as if a Baily pay the debts of his Master , he shall not be allowed for this in his accompt , without specialty ; but if he pay Quit-Rents , issuing out of the Land , he shall be allowed for this , for that the payment of this belongeth to his Office . And so if the Collector accept another Agreement then is intended by the Statute , this shall not help the party ; and said , that agreement upon condition ought to be performed before it be pleaded ; as if I give all the money in my purse to I. S. he cannot have his action for it , except that he alleadge the certainty of it ; So here : wherefore judgement shall be given for the King .

Pollard , Serjeant for the Defendant . An agreement upon condition , is an agreement , as a Feoffment upon condition , is a Feoffment , and included in words of the issue , ( that is to say in this word Agreement , which contains every agreement . So 36. H. 6.2 . In debt upon a Regognisance , and the Defendant saith , That there is no such Recognisance , whereupon they were at issue , and at the day , &c. a Recognisance with condition was certified , & held good , and that he had not failed of the Record , because a Recognisance upon condition is held to be a Recognisance . So here , the agreement general was put in issue , the which shall be intended the more common agreement , and this is the general agreement , and the evidence given by W. proves a special agreement , viz. an agreement upon condition , which is other then the agreement tendred by the issue ; & therefore the Demurrer shall be adjudged for the King , and Informer . Sir , as to this I answer ; That by the arguments made before , nothing hath been put in issue , but if they agree according to the Statute ; so here : admitting that the agreement general had been in issue , but the especial is : The especial matter , viz. Tempest , & super hoc agreavit , are in the affirmative , and may stand together ; and therefore both remain as one entire matter , and substance of the issue . As if the Tenant pleads special Bastardy against the Plaintiff , in mort D'ancester , and alleadge this incertain , as he ought , viz. That the Plaintiff was ingendred between I. and A. and born before marriage , & then they marry and conclude as he ought , and so Bastard ; This conclusion hath not avoided the special matter before , for if so , then it should be Bastard generally , and triable by the Bishop , and then shall be by him certified Mulier , because such is a mulier in the law spiritual , but shal be tried here by Assize ; and therefore the special matter remains , and the issue is taken thereupon . So 3. H. 7.5 . by Keble . One counts of a gift in formedon , and being demandant , maintains it by recovery in value , by reason of a Warranty ; and so gave , the Tenant ought not to traverse the conclusion , viz. as he should do if he had avoided the special matter before , because it is matter in fact , triable by the Countrey , but he ought to answer to the recovery , triable by Record , which proves , That the special matter before the conclusion shall remain . So 32. H. 6.14 . by Litl . If the Plaintiff in Assize makes to himself a Title , and concludes , and so he was seised until by the Defendant disseised ; now if this conclusion hath avoided the especial matter before , then it ensueth that the Defendant cannot answer to the Title ; but the Law is , That he ought to answer to the Title , and traverse it ; by which it is proved , that the conclusion hath not avoided the especiall matter before ; and in all these cases , the matter before the conclusion , and the conclusion , are in the Affirmative ; as in Debt , the Defendant pleads payment , and so ows nothing ; and in Trespass the Defendant pleads a gift of the goods , and so not guilty : when it is agreed between any , That a principal thing shall be done or had , and before that this may be done or had , there is another thing first to be done , which is not certainly agreed who shall do the other thing ; the Law appoints him which hath the most skill , to do the said other thing . So 9. E. 4.4 . One is bound to make the great Bell of M. tunable with the other Bels ; there in that case to say in Debt by Obligation , That the Bell was not weighed , judgement if action , is no Plea , because in construction of the Law he shall weigh it , for it belongeth to his Office . So a Taylor bound to make a gown , shall shape the cloth : So here the Collector in behalf of the King , shall have the Subsidie which is the principal thing ; and therefore he shall weigh , for it belongeth to his Office to try the certainty , for without certainty the King may not be satisfied . And in Trespass , because that he justisies the necessary circumstance and mean , or hath Title to the principal thing ; as 2. R. 2. Fitz. Bar. 333. and Perkins , fol. 23. He may cut and carry trees granted to him , and justifie it , although the grass is spoiled by it . So one may take Fishes in a Pond with Nets , and justifie it , but if he digg a Trench to drain out the water , not . A Collector may weigh when he pleases ; for where one shall have benefit upon the first act to be done by him , and no time is limited when he shall do it ; the Law saith , That it shall be done at his pleasure : So the Mortgager shall pay when he pleaseth , when no time is limited ; so one may marry the daughter of A. when he pleaseth , if no time be limited : so in the principal case , for as much as payment shall be made to the Collector upon the weighing , and no time is limited for the weighing , the Law refers the time of it to the will of the Collector , and so the agreement is good and perfect . 3. H. 7.11 . The Sheriff takes A. by Capias , now he doth well , but if he return non est inventus , then he shall be a Trespassor ab initio ; but here the not weighing , because the King refers this to the Collector in the behalf of the King , in his default the agreement shall not be made void ab initio , in prejudice of the Defendant , which before was good , notwithstanding that the agreement special is an agreement , as Sanders confesseth ; yet it shall be construed best , viz. general for the King , as he urged . The rules of the Common Law in the construction of Statutes , prohibite this ; for Statutes Penal shall be taken and restrained to their general words , favourably , and to the benefit , and not prejudice of him against whom the pain is inflicted , and shall not extend farther then the words , as W. 2. cap. 40. saith , where the husband aliens the land of his wife , quod secta mulieris non differatur , &c. per minorem aetatem heraedis qui warrantizare debet , and saith not the Heir of the husband , nor of a stranger ; yet 18. E. 4.16 . and 17. E. 4.59 . & postea 47. the patol Demur , in cui in vita per nonage of the second vouchee , because he was not heir to the husband , and so because penal , here in savor of him it is restrained to the heir of the husband onely : So by W. 2. cap. 11. an accomptant found in arrearages , shall be imprisoned by Auditors , and saith not when , in 27. H. 6 8. In debt for arrearages of accompt , it is adjudged , That if the Auditors do not commit the accomptant to prison presently after the accompt ; and therefore the generality of time is restrained to a particularity , by the rule of the Common Law in construction of Statutes , and also by the intent of the makers ; for if the scope and end of the matter is satisfied , all the matter , and intent of the matter is accomplished : and the scope of the Statute here was , That the King shall have the Subsidie , and the agreement here sufficeth for that , because it authorizeth the King to weigh Woad by the Collector when he pleaseth , and then the King hath Title of Action and so the surety of the King thereby is referred to will . Also such agreement hath been allowed upon the same words of former Statutes for Subsidies . Also if the Statute had expressed the agreement in certain , yet agreement uncertain should have been good here , and out of the penalty , because the infringing of the words of the Law , without the infringing of the intent of the Law ; for upon some accidents the law priviledges some things done against the words of the Law , of the nature of the Law of this Realm , and of other Realms , and the Law of God : viz. First , for to avoid greater inconveniencies . Secondly , for necessity . Thirdly , by compulsion . Fourthly , by involuntary ignorance . First for the avoiding of greater inconveniencies ; as 22. ass. pl. 6. where a man of non sane memory , and in his rage did great hurt ; and another man and his parents took him , bound him , and beat him with rods ; and here it is holden that they might justifie this in avoidance of greater damage , being of non sane memory ; and yet the Law of nature , and of the Realm prohibites battery , but this particular case for the avoiding of greater mischief , hath one exception , and special priviledge . So 1. H. 6.9 . The Lord ( contrary to the Statute of Marlebridge , ) may lead the Distress from the Land into another County where the Mannor is ; for it should be prejudicial to the Lord , if he should not carry the distress to his Manor . Amongst the Romans they had a Law , That every one which should scale the walls in the night , should be condemned to death ; and one in the night did scale the walls in the time of War , to discry enemies to the Romans , and he by the judgement of the Senate was not onely discharged , but had a reward therefore ; so such interpreting of Laws , is a tempering of the rigor of the Law . Secondly ; necessitas non habet legem ; and therefore it is a good excuse in every Law , as 38. H. 6.11 . Increasing of water excuseth a default in a precipe quod reddat , because he could not appear without danger of death ; yet the Law abhors every default , because it is in contempt of the Court : So David did eat bread for necessity , although prohibited by the Law of God . Thirdly ; compulsion excuses in Law , as the avoiding of an obligation made by dares : So if the arm of any man is drawn by compulsion , and a weapon in his hand kill another , this shall not be Felony , nor he damnified , because he did it by compulsion . Fourthly ; involuntary ignorance doth excuse : as 3. H. 7.1 . Kell . fol. 268. An infant killeth another , it is not Felony , because he hath not discretion , and it shall be imputed to his ignorance , which is involuntary by compulsion of nature ; & so no default in him . So Fitz. Nat. br. 202. b. if one of non sane memory kill another because his ignorance by compulsion , viz. the hand of God , and such other things done by ignorance , because not to be resisted , and this involuntary ignorance is cause of the Act ; and therefore he which kills another by involuntary ignorance , As by th● fall of a hatchet out of his hand , shall have Sanctuary , Deut. 19. But ignorance voluntary is not priviledged ; as if a man killeth another , because this ignorance cometh by his own act and folly , which he might have resisted ; and therefore shall not be priviledged , because he himself was the cause of such ignorance , if any were à fortiori in all the cases together before mentioned , shall excuse , for the Law is not offended for the said four causes ; the incertainty of the agreement here , and therefore in as much as the Statute saith , The Collectors not agreed with , and so gives him authority to agree with the Collector , and the Defendant hath made a special agreement with him , which is an agreement , and so within the words of the Statute ; if seemeth that by the rules of the Common Law used in construction of Statutes , is by the intent of the makers , and by all reason and equity shall be adjudged a sufficient agreement , and warranted by the Statute ; and therefore demanded judgement against the King , and so it was adjudged : But all the Judges were of opinion against the King , onely Hales and Montague ; and afterwards the King sent his Privy-Seal .

Colthirst against Bejushin .

23. Tr●… ; E. 6 in the Common . Pleas. En Trespass , the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret , & residens esset , in and upon the aforesaid Grange and Farm ; and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life ; if he also would inhabite there during the Term aforesaid , and saith , That W. did dye in the life of H. and E. and after H. and E. dyed also , and the said B. now Defendant , entred without shewing in certain when , and took averment that he had inhabited there alwaies after his entry , and upon this Plea , the Plaintiff Demurs ; and it was adjudged against him for the Defendant .

1. For that the averment of his continual residence , is surplusage ; and therefore the incertainty thereof nil refert , by Harris , Hinde , and Montague .

2. It is not a condition compulsary , but a thing elegible , at the discretion of the Defendant , ( by Montague ) and then his entry is not material , but at his pleasure .

3. Admitting that it be a condition , yet it is subsequent , and in defeasance of his Estate ; and therefore ought not to be shewed by him , which shall have benefit thereby : the contrary is of a condition precedent .

4. For that it is pleaded by way of Bar , and being certain to a common intent , it sufficeth , and it shall be intended that he entred immediately after the Remainder happened ; but by Hales Justice , this common intent ought to be of a vehement presumption , and not indifferent .

5. That this word , if W. dye , then this shall remain , is a limitation of time when this shall vest , and not a condition by Hinde , and Montague .

6. Admitting that it be a condition , yet a remainder may depend upon a condition . By Hales , Hinde , and Montague , and adjudged accordingly .

7. The Plaintiff hath not conveyed to himself Title , to have benefit of the breach of the condition , if it be broken . By Montague .

Pollard , Serjeant for the Plaintiff . Except that the Form of the Plea is sufficient . 1 , Because he doth not aver his continual residence after the Remainder happened , but after his entry , which may happen to be long time after , and so although that he hath performed the words of the condition , which hath not satisfied the intent thereof , yet he hath not performed the condition , because the intent was , That he should have all the Mannor . So 21. H. 6.10 . A man is bound that his Feoffees of the Mannor of D. should grant a Rent of 40. s. to the Plaintiff . He had three Feoffees , and two of them grant the said Rent to him , and there all the Justices said , That it shall be intended all the Feoffees ; so that alwaies the intent of the condition ought to be as well performed , as the words of the condition ; and here the intent of the condition appears to be , That Hospitality shall be kept upon the Grange continually from the beginning to the end of the Term , which is the death of the Husband and the Wife ; and here he hath not shewed that he entred within as short time as he conveniently could after the death of the Husband and Wife ; and therefore because he hath not shewed and averred this , he hath not shewed the performance of the condition , and therefore his plea is not good : For in all cases where the time is issuable , he ought also to shew it certainly , and therefore in 32. H. 6. it is held , That if a man plead a Lease for years made to him , that he ought to shew what day the Lease was made , because it is issuable . So in 33. H. 6.44 . In debt by an Executor the Defendant saith , That the Testator made the Plaintiff , and one R. his Executors at L. the which R. is alive and not named , judgement of the Writ , and the Plaintiff confessing it , saith , That after this time last assigned by the Plaintiff , that the Testator made the Plaintiff his sole Executor in Middlesex , and the Defendant saith , That after this time last assigned by the Plaintiff , that the Testator made the Plaintiff and R. his Executors after this time , and the Plea of the Defendant was not held good , for that the day on which the Plaintiff , and R. were made Executors , is uncertain . So 3. H. 6.33 . In Trespass the Defendant pleads in Bar the day of the retaining of the Plaintiff , who traverseth the Bar , and the Defendant enforced to shew the day certain . Matter in Law . As to the matter in Law , it seemeth to him that the Remainder is void , because it ought alwaies to be limited to take its effect after the partricular estate ended , and not during the particular estate ; for if it be limited , and appointed to take its effect , during the particular estate , then it shall be utterly void . As if A. Leases to B. for life , the Remainder for life ; and if B. dies , that it shall remain over to a stranger in Fee , this Remainder is void , for that it is appointed to take effect immediately after the first estate for life ended ; for if the Remainder in Fee should commence , then it shall avoid the Remainder for life ; so if a Lease be made to two , the Remainder over in Fee after the death of the first of them ; this Remainder is void , because the Survivor shall have the Land . So in the principal case it is given to the Baron and Fem for their lives , the Remainder to the eldest son for life upon conditon , That if the eldest die , living husband and wife , that then it shall remain to the Defendant for life , which cannot be ; for the first estate at this time continues , and if the Remainder shall be good , it drowns the estate of husband and wife , and therefore the Remainder void , and also for that it is limited to commence upon condition , which enures alwaies in privity ; therefore if a lease for life be made , rendring rent , and upon condition , That if the Rent be arear , that then it shall remain to a stranger in Fee ; if the Rent be arear , and not paid , the remainder is void ; for the Remainder which commence upon condition , is not good , otherwise it is , if an estate be made for life upon condition , That if the Tenant for Life dies , it shall remain over , this Remainder is good , because that it commenceth upon the Determination of the I state , the which is certain ; and therefore no condition , because conditions are alwaies incertain , and may be performed or broken ; and as our Law is , for to know the time certain when the things pass from one to another , and namely Free-hold , because the Law hath it in greater estimation then other things , and so to prevent contention , hath ordained Ceremonies to be used , as in every Feoffment , Livery , and in every Grant , Reversion , or Rents , &c. That Attornment shall be made , the which are points certain containing time , and by them Estates pass . Rules to know when Remainders are good . The Law hath appointed that every Remainder shall have three things by the matters aforesaid , as Notes and Rules certain for to discern when good . The first is an Estate precedent , made at the same time that the remainder Commences , and that the particular Estate continue when the Remainder vests , and that the remainder be from the Donor at the time of Livery , and if any of the said three things fail the Remainder is void . And therefore for the first point , if the Lessor confirm the state of his Tenant for years , the Remainder in Fee ; this Remainder is vold , for that the Estate for years was made before the Remainder . So if a Lessor disseise his Tenant for Life , and after makes a new Lease to him for Life the remainder in Fee ; this Remainder is void because it is a Remitter to his Estate . So an Estate precedent was not made at the time of the remainder , and therefore the Remainder is void . So the Heir endows his Mother Remainder in Fee , by reason of Relation , and so the precedent Estates are made before the Remainder appointed . Secondly , That the particular Estate continue when the remainder vests , as 21. H. 7.12 . per Frowick , Lease for Life upon Condition , That if he doth not such an Act , that his Estate shall cease , and that then the Remainder over is void , because the Estate precedent is determined before the Remainder appointed , and the Remainder must vest during the particular Estate . Thirdly , because the Remainder passes from the Lessor at the time of the delivery , as Hales , Hinde , and Montague say , and as it is proved by the Cases before cited . So Perkins , 12. and 19. Remainder to the right Heirs of I. S. in Life , passes from the Lessor presently , although it vests not presently ; but here the Remainder passeth not presently , because the Condition precedes the Remainder , as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice , or do such an Act , he shall have an Annuity ; there he shall shew his Promotion , if he demands his Annuity , because it is a Condition precedent , and to him which maketh the Grant ; but if he Grants an Annuity until he be promoted , there he shall not shew it , because the Promotion is subsequent to the Annuity , and will defeat the Annuity ; and therefore it shall be shewed by the other party , which is contray . So 7. E. 3.10 . A Lessee for eight years , rendring 10. s. yearly , and if he holdeth over to him and his heirs , an action of Debt is maintainable during the Term , for the Rent is a Chattle , because the Fee passeth not presently , for that the Condition precedes the Fee . So 6. R. 2. a Lease to two for years upon Condition , That if the Lessee aliens within the Term , or die , he shall have Fee : it is holden that the Fee passeth not presently , because the Condition precedes it ; which Cases prove , That the Remainder passes not out of the Lessor at the time of the Livery , albeit that the Condition precede the Remainder ; and proves also , That the Remainder Commenceth upon Condition ; and proves also , That the Remainder is appointed to begin after the Commencement of the particular Estate , the which is contrary to the grounds of Law , and therefore , and for the said other causes , the Remainder shall be void . And so for the insufficiencie of the matter of the Bar , and Form also , the Plaintiff shall recover .

Cook , Serjeant to the contrary . As to the two Exceptions which have been moved , That the Plea is not good , because he shews not that he hath been resiant ( after the deaths of the Husband and Wife ) alwaies , nor what day he entred . Sir , I take it , That it shall be taken , that he entred immediately after the death of the Husband and Wife , for the Defendant hath pleaded by way of Bar , and if the Bar hath matter of substance , and is good to a common intent , it sufficeth , although it be not good to every special intent ; and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads , That the Testator made the Plaintiff , and one R. his Executor , Judgement , &c. The Plea was good , without shewing that he was made after that the Plaintiff was made sole Executor , because it shall be intended after . So 10. H. 7. 15. by Keble ; in Trespas the Defendant pleads his Free-hold good ; because good by Common intendment ; yet the Plaintiff might have an Estate for years , and it may stand with his Bar , and by which he may punish the default , but such special matter will not be intended . So 6. E. 4.1 . in Debt upon an Obligation the Defendant saith , That he hath done such things as was contained in the Indenture , and at Issue , and found for the Plaintiff , and spoken to in Arrest of Judgement , because the Defendant said not that the two Covenants were all , and so had not alleadged the performance of all , but held good , because by Common intent there shall not be intended more then two Covenants , if the Plaintiff shew not the contrary . So 3. H. 6.4 . in Formedon he gave not prima facie , a good Bar , because it intends a general gift ; and yet it may be , That the Land was recovered in value , and then the Plea is not apt , for other Land was given . So 3. H. 6.3 . In Debt , nothing in their hands pleaded by Executors , good ; yet it may be that other goods first , not the Testators , at the day of his death , are come to their hands in place , instead of other goods . So 21. H. 6.17 . In Assise the Defendant was in by discent , where he had a mean Title , which tolled the Assise of the other , & shall not be void by the said recovery ; but this shall not be intended without shewing ; so discent and entry in Bar , good ; yet it may be that a stranger abated , and dyed seised , and the Heir could not enter ; but if shall not be intended without shewing specially ; but when a thing Commenceth in respect of the time , then the certainty of the time shall be shewed , fol. 24.27.33 . as 20. H. 7.12 . by Rede . A Servant , which demanded 20. s. Sallary for his service by the year , ought to shew the expiration of the year , because the Action is given in respect of the year past , and the time is parcell of the cause of the Demand , and precedes the Demand ; but here the time pursues the Remainder , and is not cause of the Remainder ; and therefore we ought to shew it so certainly , as where time gains a thing , for here it goeth in defeasance of the thing ; and therefore the Bar is good , notwithstanding the said two Exceptions ; besides , it seemeth to me the Remainder is good . For first , he hath an Estate here , upon which the Remainder may be grounded ; & here the remainder is appointed thereupon , but the cause wherefore the Remainder shall not be good , is alleadged in two great points , viz. because the Fee passeth not presently forth of the Lessor , and also for that the Remainder cannot pass upon Condition . And it seems to me , That the Remainder passeth out of the Lessor presently , howbeit that it vests not presently , as in Litl . 81. A Lease for five years , if he pay within the first two , that then he shall have Fee , the Fee passeth out of the Lessor presently ; so the Remainder to the right Heirs of I. S. in life ; and a Remainder may Commence upon Condition , as a Lease for life upon Condition , That I. S. Marry my Daughter during the state for Life , which shall remain to him , is good , because he hath an Estate upon which it may be grounded . So 34. E. 3. Devise for Life upon Condition , That if the Heir to whom the Reversion discends , disturbs Tenant for Life , or his Executors of their Administration , That then the Land shall remain to the Daughter of the Devisor , and to her Heirs , and dyeth : Tenant for Life dyeth , the Son of the Daughter brings his Formedon against the Heir , because he disturbs the Tenant , and also the Executors of the Tenant traverse it , and at issue , and upon this issue is joyned , which should not have been so , if the Remainder had not been good . Also if Assent , as 18. E. 4. 12. by Catesby , ante 8. post 31. to the Diseisen made before to anothers use , may Traverse the Free-hold from one to another , à fortiori a condition may , namely where the Franck-Tenement precedes , to which a Condition may be annexed .

Morgan , Serjeant for the Plaintiff . The Plea is not good , because it doth not shew the day in certain , of the death of W. nor of the Husband and Wife , but he argued not this . Also it is not good , because he shewed not the day of the entry for a Bar good to a Common intent , is not good ; because parcel of the Substance is left out , and because Durante termino , is for all the Term ; for that the time , which is parcel of the Substance of the Bar , ought to be shewed as the Obligee infeoffees fee ; another before M. he must shew in certain what day he did infeoff him . So 3. H. 7.3 . the Lord which Leaseth within the year , entred for Mortmain , for otherwise it shall not be intended for to enter within the year , if he doth not set it forth ; but the Bar is good where such things are limited , because that by special , and not by general intendment they are omitted ; as a Feoffment in Bar is good to a Common intent , yet it may be , That the Feoffor was within age , or in prison , but such special things shall not be intended by the Law , but shall be shewed . As to the matter , there are principally two things , upon which Arguments may be made , viz. Maxims , and Reasons , the Mother of all Laws ; and the Maxims are the Foundations of the Law , and Conclusions of Reason , and therefore are holden as firm Principles , and Authorities of themselves . One is , a Remainder shal not be limitted , except it be to a person capable at the time , as to a Monk profest , which afterwards is deraigned , & after this , the Tenant for life dies , the Lessee for life shal not have the remainder , because he was not a person able at the time of the remainder limited to take it ; so a remainder to him , That the particular Tenants shall name , and after he nameth one , yet the Remainder is void for the cause aforesaid . But 32. H. 6. if the remainder is limited to the right Heirs of Jo. S. who is living , and he die before the particular Tenant , is good , because I. S. shall be intended then dead ; also because by all presumption , and intendment of Law , I. S. may have an Heir , which the Law will appoint in despight , and so will be certain ; and therefore the Remainder good , but shall not be good where it stands indifferent , if he to whom the Remainder is limited , will be a person able , or not . Another Maxim is , That a Remainder may pass out of the Lessor at the time of the Livery ; for that Richel saith in Litl . 162. the Remainder is void for this cause amongst others : so here it passeth not by the first Livery , because a Condition precedes the Commencement of the Remainder , viz. if W. die , living the Husband and Wife , then the remainder to the Defendant , and so passeth not at the first Livery ; and therefore void .

Brook , Serjeant to the contrary . As to the uncertainty of the time of the Entry , the Bar shall be intended the better for the Defendant , which is , That he entred immediately , and the Bar sufficeth , which is good to a Common intent . And therefore about 20. E. 3. it is holden , That if one plead in Bar , That one I. S. died seised , and R. S. entred as Son and Heir to him , whose Estate he hath , this shall make the Bar good ; and yet it may be that he was not Heir , for it is not expresly said , That he is Son and Heir , but that he Entred as Son and Heir ; and yet in as much as it is pleaded by way of Bar , the best shall be intended for the Defendant ; so here . And he argued besides , much in effect as Cook did .

Sanders , Serjeant for the Defendant . The Bar is good to a Common intent , and the best shall be intended for him which pleads it ; for a Plea in Bar is alwaies made for two causes : The one to enforce the Plaintiff to make his replication . The other is to compel him to joyn Issue , which cannot be joyned upon the replication , as it may upon the Bar , and then the certainty shall be in it , and not of necessity in the Bar ; and therefore the Bar good , if it be good to a Common intent . As in Assise , the Tenant pleads in Bar a discent to the Plaintiff , and to two others , and that he hath the state of one , and it is a good Plea , because it is intended lawfully , yet he may have it by Disseisen , and then he is a Disseisor to the Plaintiff also ; for he cannot be a Disseisor to one , except he be so to the other . So 27. ass. 31. in an Assise by the Heir , the Tenant saith , That the Father of the Plaintiff being Tenant by the courtesie , and now in life , Leased his Estate to his Father , which died , and he is in as Son and Heir , Judgement if Assise , and held a good Bar ; yet he doth not say , That he was the first which entred , and yet good . So 21. H. 6. 17. here fol. 26. as to the Remainder it shall be good , because it is a principle , that it shall be taken most strongly against him which made it ; and therefore in 31. H. 8. If a man gives to a man , and to Heirs , without [ his ] it is Fee ; yet he giveth not Fee expresly . So 18. E. 3. 28. after 170. A good Remainder by word , That after the Decease of Tenant for Life , the Lands shall return to A. and B. in Fee . So a Remainder to the right Heirs of I. S. in Life passeth presently , and shall be in abeyance rather than void ; and that if shall be to the benefit of the Lessee against his own Livery and limitation , as alwaies the Law interprets words strongest against the Speakers , as in 40. E. 3. 5. & 49. E. 3. 1. A Termor counts that he left this as good as he found it , and the Wind blew down the House , it is not waste , but Covenant lies , for the special Agreement alters the Law , and maketh his words to be taken more strongly against him . So the Law taketh the Acts aforesaid strongly against the Makers . And therefore if I. give to B. Land upon Condition , That if he Marry my Daughter , he shall have Fee ; if he Marries her he shall have Fee , for by the Livery it taketh Commencement , and by the performance of the Condition , it taketh perfection , and in the mean time it is ambiguous . So a Lease for years upon Condition , That one moneth after he shall have Fee , he shall have it after the moneth accordingly , for the thing passes according to the Covenant , most strong against the Donor . So a Lease to two upon Condition , That if the one die within seven years , that then after the death of the other , it shall remain to a stranger , good ; and Privies and strangers are all one . 24. and 32. he differs , because he hath an Estate first given , to which the Condition may be annexed , and Livery , and by imitation shall be taken strongest against him which makes it . Three things one shall have by Remainder . First , he shall have a Remainder to vest ; Secondly , a Possession in Law ; and Thirdly , a Possession in Deed , & if he be capable at the time of the Possession in Law cast upon him , it sufficeth ( 28. against it ) as 17. E. 3. 29. and 18. E. 3. 15. a gift to one and his first begotten Son , and he hath no Son then , but afterwards he hath , is a good Remainder to his Son . So 39. Assise Pla. 20. a gift to Husband and Wife , and to one Heir of his body , is a good Remainder , yet no Heir to the gift , if he be in being when the Possession in Law is cast upon him ; but a Remainder limited upon contrariety , is not good ( fol. 24. ) according ; but the other cause that Litl . assigns for that it vests not at the time of the Livery , is no cause , as is proved by the cases aforesaid , because after the Alienation and gift , it may not remain to another . And the other cause that Litl . alleadgeth is , because it vests not at the time of Livery , which is no cause . So a gift to A. and his Heirs so long as B. shall have heirs of his body , Remainder to C. in Fee is void ; for the contrariety , because a Remainder cannot depend upon a Fee determinable . So a Lease for life to A. upon Condition , That if B. pay 20. l. to the Lessor , that then immediately it shall remain to B. is void for the contrariety , because A. ought to have it during his life . But if it were to remain after the death of A. to B. then it were good , because no contrariety there ; and here if W. dies , living the Husband and Wife , that then it shall remain to to the Defendant , is not intendable immediately in their lives , but that it should remain as it ought to remain , viz. after their deaths , and so there is no contrariety , and therefore good . As to the Condition which is subsequent if he would dwell there , &c. because it hath two intendments ; the one that he should inhabite there all the Term , and the other to some time during his life , shall be taken strictly , and the more strongly against the Lessor , viz. That he inhabites there at some times during his life which sufficeth , as the Feoffee upon Condition for to pay 10. l. to the Feoffor , and no time is limited he hath during his life . So to serve him in such an Office , and saith not how long he hath , during his life .

Harris , Serjeant to the same purpose . And as to the Exceptions he said , That a Condition subsequent , and which goeth in the Defeasance of the Estate , as here he that claims the Estate shall not shew it , but the other which will defeat the Estate . But where the Condition precedes the state , he shall shew who shall have it , because enabled thereunto ; as if I grant a Rent Charge upon Condition , That he shall do such an Act , there the Grantee shall avow for the rent without shewing the thing done , because it is a condition subsequent , and defeats his Estate . But if I grant , That if he doth such a thing , that then he shall have the rent , he shall not avow without performance shewed , because he is enabled by this to the rent . 14. H. 8. Wheeler Grants his Term to one upon Condition , That he shall obtain the good will of the Lessor , and then shall have it ; he shall not have it until he hath shewed the performance of the Condition , and he affirms the remainder upon Condition to be good .

Hales , Justice . If he would , &c. is a Condition , and that the Plea is insufficient , because the Defendant hath not averred his continual residence after the Remainder happened ; for during the Term , shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term , 27. H. 8. 19. by Audley ; so the Feoffees shall be intended all the Feoffees , and if he hath a reasonable excuse , he ought to shew it . fo. 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife , and entred so soon as he had notice , which he shall shew in certain , that the Justice may trie it , as 22. E. 4. 27. Tenant for Life Leases for years , and dies ; The Lessor bringeth Trespass against the Lessee , who saith , That in as short time as he could after that he had notice of the death of the Tenant for Life , he chased his beasts forth of the land ; and said also that the Trespass was between the death of the Tenant for Life , and the chasing out of the beasts , and held no plea ; for by the death of Tenant for Life , the Lease for years was determined , and no man bound to give him notice ; and there it is holden , that he ought to say ; That such a day he chased out the beasts , and might shew that the Lessor died in another County , and so he could not have so soon notice ; and this shall be tried by the Justice if the avoidance was in reasonable time . So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth ; common intent is that which hath more vehement presumption and intendment then any other intent hath , as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death , good ; yet might have goods were not the Testators , which are assets after the Debts paid ; but the most common intendment is , That he had no other goods , except those which were the Testators , but intendment indifferent the more strong intendment the one way or the other , and therefore ought to be pleaded in Bar , as 13. H. 8. 15. by Willoughby , the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not . So if he pleads a release made after the Obligation , it is not good if he shews it not by express words , that it was delivered after ; it shall be intended that it was delivered when it bears Date . But on the other part it shall be intended also , That the other would not bring an Action if it were delivered after , and therefore shall be shewed which intendment stands indifferent ; so here . A Demurrer all times after the Remainder happens or not , is incertain , and therefore because he hath not shewed this , the Plea is nought . As to the matter in Law , it seemeth to him that the remainder is good ; for a man may pass the thing in question when , where , and how he will if it be not against Law , nor repugnant , as here the limitation , if the remainder is not against Law ; for the remainder need not pass forth of the Lessor , so. 29. for upon the Agreement first had by Act made afterwards , Franck-Tenement , or remainder , may be transferred and devested from one , & vested in another ; as a Lease for life , remainder for life upon condition , That it shall be void if he doth not such an act , the remainder before the Condition broken is in him ; when broken it commeth to the Lessor . So a rent or Reversion passeth by Attornment , not by the Grant presently . So 1 H. 7.31 . by Brian , a remainder to the K. when the Deed is inrolled , then it shall pass and relate to the Livery . So in the case of Plessington 6. R. 2. where the Condition was , That if the Lessor die within the Term , the Lessee shall have for life , and there holden that his estate shall be enlarged if the Lessor die . So Disseisen to the use of I. passeth not a Free hold of I. to I. without his agreement ; so here . A remainder passeth when W. died , not before , by force of the words annexed to the Livery . So by Litl . a confirmation to the Husband and Wife , Tenants for life , passes the remainder to the Husband , yet it passeth not at the time of the first Estate , and the diversity where Fee upon Condition is appointed to privy , and whereto a stranger is but a conceit which is worth nothing , ( 29. according 24. to the contrary , ) and is privity because it reserveth out of both ; so it shall bind him in remainder , and also he in remainder shall have waste , and so is privy to the particular Estate , and the Lessor also ; and the words then which shall remain , shall not be intended presently to destroy the particular Estate , but shall remain as a remainder ought to divest then , and is to be executed after their deaths ; as if Donee in Tail doth such an Act , then to remain to his right heirs , which vests when the Act is done , and after the Tail ended , shall be executed , and not presently upon the Act done to avoid the Tail ; so here . There is not any repugnancie or prejudice to any ; but a thing when it is done , made in prejudice of another , shall be void ; as a remainder that he shall have the land in the life of the particular Tenant . So 21. E. 4.44 . The King discharges an Abbot , That he shall not be a Collector , when any Titles should be granted by the Clergy of England ; and Canterbury Grants Tythes , provided that the Collector returned by the Bishop , shall not be discharged by the King ; and the Bishop returns the Abbot Collector ; there holden that the Grant by the Clergie in this point , viz. to charge persons exempt , is void , because it is in prejudice of others . And so the remainder here shall be void , rather then a shranger shall have prejudice by it ; but for defaults in the pleading , the Plaintiff ought to recover .

Hinde , Justice to the 3. exception ; the death of the particular Tenant shall not be shewed , which is onely conveyance of the execution of the remainder , and is not Traversable , nor Issuable . To the first , and Second exceptions , he needs not shew his continual residence after the Remainder is fallen , nor the day of his entry , because it is a Condition subsequent , and goes in defease of his Estate ; and he which hath benefit by it , ought to shew it ; as 29. H. 6.22 . the Grantee of an annuity pro concilio impendendo , shall have the Annuity without shewing that he hath given Councel , for that the shewing of it is not beneficial to him , and the denial of Councel defeats the Annuity ; so he agrees to the diversity in case of Annuity . 15. H. 7.1 . bont . fol. 25 by Pollard when one shall be promoted , and therefore the shewing hereof that which is surplusage , and the imperfectness of it shall not make the Bar vitious ; and the Remainder here by him commenceth not upon Condition ; but it is a limitation , and explanation from the time that it first begun for nothing , or words makes a Condition but such , which restrains the thing given ; as If I. Lease for life upon Condition , That if the Lessee die , or maketh waste , and I. recover the place wasted , or any parcel of it , That I. shall enter into all ; for it is a Condition for that part in which no waste is done , because it restrains and defeats that part . And if it be a Condition here , yet the Remainder thereupon is good , if it commenced and vested at any time during the particular Estates ; ( 24 , 29. 32 , 34. ) for when he hath Fee-Simple , he may Condition with it as he pleaseth , if it be not against Law ; as if I. Lease for life upon Condition , That I. S. paies to me 20. l. that I. shall enter , then the Remainder is void , because the entry avoids the first estate , and then no particular estate continues upon which a Remainder may depend .

Brown , Justice to the same purpose . The entry of the Defendant , shall be intended immediately , for this is the most common intent ; and a Bar good to a common intent , shall be intended that he entred presently after his Title accrued , and to the matter in Law , hold that the remainder shall be good upon Condition .

Montague , Chief Justice to the same intent . The entry of the Defendant shall be intended presently ; for this is the most common intent ; and a Bar good to a common intent , is good ; as 21. E. 4.83 . in Assize the Tenant pleads a discent to him as Son and Heir , and he entred , and it was held good ; yet the Father of the Plaintiff might have abated , and died seised , and then the Plaintiff is in as Son and Heir , in which case the Tenant might not enter . But this is not intendable ; but the most common intent is , That the Tenant entred immediatly after the death of of his Father . So 9. E. 4.12 . in Debt against five Executors , at the Distress , 3. makes Default , 2. appears and pleads Recovery against them two of 300. and that more they had not in their hands . Exception taken , That because by intent there should be five Executors , two might have abated the first suit , and so the Recovery not duly had , but holden good : because it may be that then they two onely administred , and then they did lie against them two onely ; and the most common intent is , that it might be so rather than at first to lose advantage to have abated the Writ ; and therefore the Plea in Bar was held good , and Execution duly had ; and if it were otherwise , the Plaintiff ought to have shewed it . So 21. E. 4.8.1 . In formidon in discender , The Tenant pleads the release of the Demandant without Warranty in Bar , yet might be made by him in the life time of the father , and then it is no Bar ; but it shall be intended to be made after the death of the Father , if the Demandant replies not to the contrary ; but if he which pleads in Bar is bound at a time certain , he ought to shew the day of his Act certainly ( 24 , 26 , 27. ) as the day of entry for Mortmain , so that it may appear to be within the year . So if one justifies for Common between Lammas and Candlemas . So if one justifies by Warrant , by Licence , by Authority , he alwaies ought to shew the time certain of his justification ; so that pleading in abatement of the Writ , or a plea after the last continuance , ought to plead certainly ; and these are observed as principles in our Law ; but he which pleads in the Negative ought not to plead certainly . If he would dwell , &c. It is like that it is not a Condition here , because it is not compulsive , so that he shall have prejudice if he doth not , but is a thing obligable at the will of the Defendant , and then his entry is not material , but is at pleasure ; and therefore the not shewing thereof shall not make the Plea vicious . Admitting that it be a Condition , yet it is subsequent , and in Defeasance of his Estate . ( 30. ) And therefore shall not be shewed by him , but by him which shall have benefit by the breaking of it . So if a Condition be enlarged , which may be good , leaveth that out which is material , because it is Surplussage . Also it hath no Livery for to convey Title , nor hath it enabled him any waies to take the benefit of the breach of the Condition if it were broken , because he hath Demurred generally upon the Bar , in which the Defendant hath not acknowledged any reversion . And so it appeareth not by the Record that he is other then a meer stranger . And by the Common Law no man shall take benefit of a Condition , but such a one as is privy . And therefore 38. H. 8.34 . Pattentees of the King ( after 177. ) Also if it be a Condition during the Term , it shall be intended all the Term ; as a man bound to perform Covenants , is bound to perform all , and his Feoffees . ( fol. 30. ) Yet if he be sometimes absent , and his Family there , it is good , because the Law shall have a reasonable Construction in things alwaies . If W. dies , then the Remainder is a Limitation , and appoyntment of the time when the remainder shall vest . But admitting that it be a Condition , yet a Remainder may depend upon a Condition , which every lawfull owner of the land may give to what person or persons , and in what manner , and at what time he pleaseth , if his gift be not against Law , or repugnant ; as 10. E. 3.39 . A man makes to his Termor in surety of his Term , a Charter of Feoffment upon Condition , That if he be disturbed of any part of his Term , that then he shall have Fee ; he was disturbed , and afterwards outed , and recovers in Assise , which proves that the Franck-Tenant passed upon condition express to the Livery ; & be it mediate , or immediate , it stales not the Remainder , because his Livery shall be taken most strongly against him . So 27. H. 8.24 . Remainder to a stranger if the gift fail , for bearing of the standard . So in Plessintons case it is held , That the estate of Free-hold there could not Commence upon Condition : but the cause wherefore , was because he had not the Free-hold upon performance of the Condition , which was repugnancie . So a Remainder upon condition , contrary to the Law , or impossible , is not good ; because a Condition unlawfull , or impossible , may not obtain the thing by doing of it . So if the Do●… aliens , then it shall remain , is not good , because repugnant ; for when he hath aliened to one , it may not remain to another . Remainder ought to have estate precedent ; for that 9. H. 6.24 . Lease to a Monk , Remainder over void , because a Monk hath not capacity , and so the estate which precedes the Remainder , void . Remainder also ought to be of a thing in esse before ; and therefore a Grant of a rent out of land , remainder in Fee , void ; because the rent was not in esse before ; and the remainder here passeth presently by the Livery upon possibility to be afterwards performed , and vests when W. dies , and in the mean time rests in abeyance ; as 15. H. 7.10 . Fee Tail passeth upon possibility , That a Fem Covert , and a married man may inter-marry , and in the mean time the Inheritance , viz. The Tail shall be in abeyance , but holden there , That they are seised in Tail presently , and concludes that the Remainder is good , and the pleading also ; and so the Plaintiff shall be Barred .

Plat , against the Sheriffes of London .

ONe Goodlad was in Execution Ludgate upon a recovery in Debt had against him by plaint in the Guild-Hall of London ; 4 E. 6. In the Excheq . and going with a Baston , ( that is to say , a Servant of the Gaolers ) attending upon him into Southwark , in the County of Surrey : and the Administrator of him which recovered , brings his Bill of Debt into the Exchequer against the Sheriffs for the escape ; and adjudged that he should recover thereupon . But no exceptions were taken to the Bill , and the reasons of the Judgement were ,

1. For that the Action lyeth at the Common-Law by 45. E. 3.9 . Debt against one Abbot , or Prior , and also for that , That he had not remedy against him which escaped ; for by the esape he is discharged for ever against the party , and the Goaler also ; and the Officer which suffers the escape , is charged contrary to 13. H. 7.1 . But the Action lay not by the Common Law , by 42. ass. 11. 2. Admitting that it lay not by the Common Law , yet it lyeth by equity of the Statute of 1. R. 2. c. 12. which gives an Action against the Warden of the Fleet , or by the equity of the Statute of Westm. 2. c. 11. which gives an Action against the Gaoler which suffers an Accomptant for to escape . 3. The defendants have admitted the action good by their Demurrer . 4. That it is an escape , because he was out of the Jurisdiction and Authority of the Sheriffs , and that his Imprisonment is ended the last instant that he was in London , and his escape began the first instant that he came into Southwark ; and so he was never in prison in Southwark , for he had no guard there .

The effect of every suit contains and implies in it selfe 3. things . First , to shew the verity of the matter to the Judge thereof , which is the duty of the party . Secondly , to have judgement to recover , and execution thereupon ; and this is the duty of the Judge . Thirdly , the making of execution for to take the Defendants body , and detain it in prison ; and this is the duty of the Officer : and because he only hath offended , it is reason that he be punished , ( that is , ) That he answer the loss to the Plaintiff ; for that he hath not any remedy against him which escapes ( nor the Gaoler never apprehended him , because a personal thing once suspended , is extinguished . ) and therefore if the Debtee maketh the Debtor , and another which surviveth the Debtor , his Executors , yet the Debt is extinct , and the person of either of them discharged . Therefore in respect that after the escape , the Plaintiff shall not have other execution , and so without any remedie against the Defendant , in the first suit the Common Law which is Common Reason , provides , That the Plaintiff shall have an Action of Debt against the Gaoler , in whose default the Execution of the Plaintiff , or otherwise the Common Law will be defective in this point . And therefore by 45. E. 3. 9. Abridged by Fitz. h. in Title Debt. 130. which was before the Stat. of R. 2. where a Prior dative and removeable , le ts one in Execution in his Guard for dammages recovered in his Court of Py-powder escape , P. D. bringeth an Action of Debt against him , and the Abbot his Sovereign ; the Writ shall abate , because he is named Prior , whereas he is but one of the Monks , where he may not be Debitor . But it had been good , if the Prior had been omitted ; and Debt is maintainable without contract between them , or privity , in possibility upon the escape . As 1. H. 7. 8. against the Clark of Hamper , upon a Liberate delivered to him when the Comisor hath assets . Admitting that it lies not by the Common Law , yet it lies by equity of the Statute of Westminster , the 2. ch. 11. which giveth in Action against the Gaoler which suffers an Accomptant to escape : and by the equity of the Statute of 1. R. 12. which gives an Action against the Warden of the Fleet upon an escape , for it shall extend to all other Gaolers by equity ; for although it be penal against the Warden , yet it is benificial to many others ; As 13. E. 1. circumspecte agatis extends to all other Bishops as well as Norwich . So the Statute of 9. E. 3. 5. That the Executor which first cometh by distress , shall answer . 3. H. 6. 14. extends to an Administrator , and 9. H. 6. 19. Debt upon an escape of one in Execution , was maintainable against the Major of the Staple , who in excuse of himself , saith , That he was imprisoned by force of a plaint , and not in Execution ; the words of R. 2. prohibites the Warden of the Fleet onely to suffer any in Execution to go out of Prison by Baston , Mainprise or Bail , and by equity all other Gaolers ; yet these in London use it , and it is not an escape in them , because they may prescribe against the equity and words of Statutes , which is contrary to their Customs and Prescriptions ; for that their Customs as Prescriptions , are confirmed by Statute ; and contrary to the Statute of Silva cedua , and keeping gof Leets at other times then the Statute appoints , and so let them in execution to go by Baston within their liberty . But others shall be bound by equity of the said Statute ; and because this Statute extends to others by equity in this point of escape , it shall extend also to an Action to charge other Officers as to matters of escape . A prisoner marry the Warden of the Fleet , this is an escape , and he is at liberty , for he cannot be under his Wifes Custody . So if the Office discends to an Heir which is a prisoner , there he shall be adjudged at Liberty , although he lieth in fetters , because he cannot be his own keeper in prison .

Baitons case , 44. and Ridgwaies case , 3. 52. by which it appeareth that the cause here is to be understood of voluntary escapes in the Gaoler ; for if the prisoner escape to his own wrong , the Plaintiff shall have a new Capias ad satisfaciendnm , if the Writ of Capias , ( upon which he is not imprisoned ) be not returned , or shall be in Execution to the Plaintiff again if he be re-taken by the Sheriff , before an Action brought against him upon the escape .

Wimbish against Talbois .

THe Husband makes a Feoffment in Fee , to the use of himself , 4. E. 6. In the Common Pleas. and his Wife , in special Tail , the Remainder to the Husband in general Tail , the Remainder to him in Fee , 27. H. 8. of Uses was made ; the Husband and Wife entred , the Husband dies , the Wife suffers a recovery by Confession the first day , which is not executed ; and the Issue in Tail enters for the forfeiture by the Statute of 11. H. 7. c. 10. and the opinion of the Court.

1. That the entry is lawfull , and this forfeiture is within the words of the Statute , although that the wife had not any estate in the Land in use , yet shee had the use in the Land , which is all one ; and this is an Hereditament which will make Possessio fratris , by 5. E. 4. and was appointed by the Act of the Husband , and was an inheritance and purchase in him , and so within the words of the first branch of the Stat. of 11. H. 7.

2. Admitting that it should be out of the words of the first branch , because it speaks of gifts to the Husband and wife by any seised to his use ; and Feoffees are Donees by the Stat. of 27. H. 8. of Uses , by 6. E. 6. Formedon 40.

3. Admitting that it be forth of the words of the first branch , yet it is within the equity , because it is a benificial law , and in advancement of justice , and suppression of fraud .

4. That a remedy by Covin upon a false , or true cause , is within the Statute , although no execution be sued ; for the Covin is a Condition in Law annexed to an estate , which Condition is broken , although that Execution is not sued ; the Statute is general of Recoveries by Covin , and includes all recoveries , & this Condition annexed to the use , shall transfer to the possession by the Stat. of 27. H. 8.

5. That he which entred by such forfeiture , shall be seised in Tail or Fee , as shee should be , if the Wife were dead , and this in course of discent , and not purchase , ( paramount , contrary to Hales ) and that a Son born , may enter upon the Daughter which hath entred for such forfeiture ; contrary of a purchase ; and that the entry for the forfeiture , is maintainable presently in the life of the Wife , which maketh it ; and he which enters may aver generally in pleading , That he is that person which ought to take benefit of the forfeiture ; by all the Justices contrary to Montague .

Cook , Sergeant to the Defendant , which saith , That the Replication is not good , because it shews not how he is Heir in special ( but hath averred , That he is the same person to which , &c. general abatement ) for it is issuable , and when such Statutes gives entry generally to one , yet if he will take advantage of it , he shall shew how he is the same person , and shall not say generally that he is the same person ; as upon 6. R. 2. cap. 6. which will enter by assent to the Ravisher , 5. E. 4. 6. ought to shew how he is next Heir , yet the Stat. is general . so for prayee to be received upon default of Tenant for life , by W. 2. cap. 3. ought to shew how he came to the Reversion . So he which will Intitle himself upon 7. E. 1. for entry upon Mortmain , how he is Lord . As to the Obligation , That because the Defendant in Bar in saying whose heir he is , hath affirmed the Plaintiff to be heir , and therefore in the Replication hath conveyed himself to his entry as Heir special , and so the Replication ill , for default of certainty . Secondly , for that the Plaintiff hath not shewed that execution was had of the said recovery against the Defendant . Thirdly , Exception because he hath not evered the Covin specially ; for otherwise it is not intendable in Recoveries , because they are alwaies intended true , and upon good cause ; and therefore the Wife at the Common Law , by default against her , and her husband , had not any other remedy then a Writ of Right before the Statute of W. 2. cap. 3. which gives a Cui in vita : and before W. 2. cap. 3. a faint Recovery against Tenant for life , bound him in Remainder . Litl . Release , 112. because the Law presumes the Title and case true . So a Recovery upon a faint Title by a man of Religion was out of the penalty of the Statute of Religiosis , untill W. 2. cap. 23. made a Recovery without Title in such plight as a Feoffment in Mortmain was , for the truth supposed by the Law to be therein . So here the Recovety is intended to be true ; and therefore the Plaintiff ought to shew matter ( if there be any ) to prove the contrary . As in 11. H. 4.19 . if the Tenant in a precipe vouch one of the Demandants , he ought to shew cause ; because otherwise the Law will presume that he hath not cause against right . So 15. E. 4.4 . Contrary entry by Title , general averment of Covin by the Plaintiff in Dower , was not held good . Matter in Law . As to the matter in Law , it seemeth here that the case is clear out of the words and penalty of the Statute of 11. H. 7. cap. 30. For although 27. H. 8. hath executed the Possession to the use , yet this case remains here , so as if 27. H. 8. had never been made , and the Wife had continued Tenant in Tail in use , and out of the words of the first branch because he hath an Estate Tail in the use in the land , but hath not an Estate in the land in the use ; and the Statute speaks of an Estate in the Land ; and this Hereditament or use , which is the matter and substance , and the use it self , which is the confidence of the thing , differ . But one may not have the state in Land and use also , because suspended ; yet two may , to the use of one of them ; as Husband and Wife to the use of the Wife ; and so it shall be intended here . Also the first branch speaks of lands , &c. of Inheritance or purchase of the Husband ; but here the use is a new thing , which Commenceth now and was not in being before ; and so is not the inheritance or purchase of the Husband ; and therefore out of the Statute ; as a Rent granted to one out of lands to the use of the Wife of the Grantor ; or if the Husband gives a signiory in Tail to the Wife for her Joyncture , and the Tenancie Escheat , and the Wife suffer a faint Recovery , this is forth of the Statute . So the Husband makes a Feoffment upon Condition to re-enfeoffee him , and his Wife in Tail , the Wife suffers a faint Recovery ; this is out of the Statute ; because the Feoffment of the Land from the Possession of the Husband , and was her purchase , and not the purchase of the Husband , or his Inheritance ; for the Condition , which is the cause of the gift , is a new thing , is not within the second branch ; because the Wife had nothing here of the gift of any of the Ancestors of the husband . Nor the third branch , because the wife had not possession by the Statute , nor by the Feoffees to the use of him in Reversion , but he in Reversion hath the present Title ; and so the Statute shall be intended ; and therefore he may enter presently : If Tenant for Life suffer a faint Recovery ; but 11. H. 7. saith Enjoy according to their Title , intends that he shall not Enter until after the death of his Ancestor , because he hath no Title in the life of his Ancestor . And therefore when the Wife assents to the Ravisher , 6. R. 2. gives title of entry ; saying , habeat titulum intrandi , &c. intends that he shall not have it in the life of the Ancestor . And if the makers of the Statute of 11. H. 7. had intended that the issue in Tail should have entred presently , they would have given to him Title by such like words as the Statute of 6. R. 2. hath ; but the end of the clause which saith , That they shall enjoy according to their Title , expresses that they intented not so . For which causes it is probable that the Defendant is out of the penalty of the Statute ; and that the Plaintiff might not enter , and so shall be Barred .

Whiddon , Serjeant for the Plaintiff . Because the Defendant hath said whose Heir he is , he shall be taken that he is Heir special ; for a Plea which hath two intendments , shall be taken most strongly against him which pleads it ; as 3. H. 7.2 . in Trespass , Release generally is no Plea , because it may be taken to be delivered before the Trespass , or after . So 3. H. 7.8 . and 9. and 26. H. 8. Entry to avoid Warranty Collaterall , pleaded in Bar , is no Plea ; because it may be intended after the discent ; for he may enter in the life of the Ancestor , or after . Also the Plaintiff need not shew how he is Heir , because he was once seised by entry . But if he had brought a formedon upon the Estate Tail , he should ; because by way of Demand ; as 6. E. 4.1 . Executor brought Trespass for a thing taken out of his Possession , he shall not shew his Testament ; but if he Demands a thing whereof he had not ever possession ; he shall . It is not needfull to shew Covin certainly , which is a secret thing ; and the Law doth not enforce one to shew a thing , when by intendment of Law it lieth not in his Conusance ; as 20. H. 7.7 . A woman shall have Dower of a Rent Charge without shewing the Deed of the Grant ; because it belongeth not to her . So the Lord shall have Covin generally for the Ward , where his Tenant aliens , and re-taketh for life , the Remainder to his Heir , being it lieth secretly in the breast , as suspicion lieth ; for that he may justisie imprisonment for suspicion of Felony , without shewing of the cause of his suspicion . So 33. H. 6.5 . In Trespass , a man buys in a Market Overt ; the Plaintiff said , That the said buying was by fraud between the Defendant and a stranger generally , without shewing any thing speciall of the Covin ; and the Plea the e admitted good , So in a Precipe against the Lord of ancient Demeasne , and Tenant , the Lord shall shew that he is Lord ; and this Action is brought against him by Covin generally . So 9. E. 6.41 . He which alleadges Covin , ought to shew cause of the Covin ; and the cause is , for that the Recovery , or Title was tryed by Verdict ; because to say that it was by Covin , shall not be intended true against a Verdict . But Covin generally may be averred , against a Recovery not gainsaying or default ; because this is cause of the Judgement , and no Triall . Wherefore in this case a man shall aver that this was by Covin generally . And as to that which hath been said , That execution ought to be shewed of the Recovery ; that needs not : For the Statute speaketh only of the Recovery , and without Execution , it shall be a Recovery , as a Fine is without Attornment ; for the habere facias seisinam , recites cum A recuperavit seisinam suam , &c. because the Husband raised the use . First it is his purchase , and so within the words of the Statute ; and if not , yet it shall be within the equity ; and nevertheless it is penal .

Sanders , for the Defendant . The Statute here is penal ; because it goeth in avoidance of Estates , and abridges power ; and therefore not equitable . And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty ; because he vouches an Infant ; and yet it is adjudged 18. E. 4.16 . If he maketh a Feoffment over , this Feoffee shall vouch ; because penall against one , shall not extend to another . So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before ; for five years shall not take away the Entry of the disseisee ; yet if one Abator die seised within five years , this discent shall take away the Entry . And so if Tenant for life be disseised , and the disseisor die within five years , and the Tenant for Life dieth , he in Reversion or Remainder may not Enter ; because he was no Disseisor to them ; and to the discent , they had no Title to Enter , but the Tenant for Life , and taken strictly ; because it abridgeth the Liberty given by the Common-Law . By inheritance is understood Land by dicent , as it is proved by a case in 7. H. 4.5 . and a cui in vita abated , because it was quam clamat esse jus & Hereditatem suam ; whereas it was his own purchase . And by 4. H. 5. cap. 3. which speaketh of Lands by purchase , or by discent , and the disjunctive prove the difference between the words . Purchase intends Land by gift or purchase , which is by Title . Disseisen is not purchase , because without Title . Now because the Plaintiff hath in the Replication said , That the Grandfather of the Defendant was seised in Fee ; for to prove the Defendant to be within the first Branch ; the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession ; for the manner of coming to the Land is Issuable , because it may be by Discent , Purchase , or Disseisen . And a Joincture made by a Disseisor to his wife , is out of the Statute ; Recovery without Execution is not a discontinuance .

Harris , Serjeant argues to the same intent ; And he taketh also , that Covin cannot be where the Title is good , except that wrong be done by him which hath the Title ; and this ought to be shewed ; for here in respect that the Title is confessed to be good in this , That it is not traversed , nor confessed and avoided ; this Recovery may not be averred to be by Covin ; for this avernment is repugnant in it self , and it cannot stand together to say that she did right by Covin . And as to the Statute he taketh the case here to be out of the words of the Statute . And note thou that he argued to all the other points moved to the same purpose that they were arguod before .

Molineux , Justice . It is a vain thing to aver this specially , which is apparant , as the Covin , and therefore when the Tenant infeoffes his Son within age by Collusion , the Lord shall seise him for a Ward , without shewing this Collusion specially . So if the Husband will confess an Action , the Wife shall have Dower by the Common Law , proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant ; but it was doubted if the Recovery had been by Default ; but here the Action had been tryed by the Verdict of 12. men , the cause of the Covin ought to have been shewed , because the Law giveth credence to it . As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted , because the Law presumes the Verdict to be true , untill the Reversal be tryed upon Error , in Deed or Record ; so that the Law hath an indifferent judgement of it , viz. to be true or false . And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict . Also Covin upon a good Title is prohibited ; because the Statute of 11. H. 7. is generall . And so Covin generally averred here , without falsifying of the Title , is good ; as 4. H. 7. cap. 20. saith , That if a Recovery be pleaded in Bar of a popular Action , the Plaintiff may aver it was by Covin generally by the Warrant of the Statute . As to the second exception , the Stat. expounds it self to be intended of a Recovery without execution . Every Fee-simple is an inheritance , and then she had an use in the inheritance of her Husband ; and held that the Wife held the inheritance of her Husband , ( that is to say ) his Land in use joyntly with her Husband , and so within the words of the Statute , and if not , it shall be within the equity and intent of the Statute ; and he took without question , that the Heir in Tail might enter presently , and our the Wife which is Defendant , and so held the Plaintiff should recover .

Hales , Justice to the same intent . And first to the Covin , the Replication is good without shewing cause of it . And the Statute is for frail , inconstant women , and will not make them Judges , if the Title of Action be good or not . 18. R. 2. cap. 17. gives receipt to him in Reversion ; where the Tenant for Life is impleaded by Covin of the demandants , that the Tenements shall be recoverred , and he in Reversion , because it speaks generally of Covin . 2. H. 6.14 . and 11. H. 4.3 . For this cause there it sufficeth to say , That Tenant for Life pleaded faintly , and pray to be received without shewing cause ; otherwise it is of Covin at the Common Law ; and 11. H. 7. would have limited the pain to fained recoveries expresly , if it had intended so much . And the Statute prohibits the Covin onely , be the Title good or faint , for faint Recoverie by Covin , the issue in Tail may falsifie before Warranty made 20. years after the Disseisen ; yet it commenceth by Disseisen , by the intent . As if the Father Disseiseth the Son , to the intent to make a Feoffment with Warranty to Bar his Wife , Recovers against one which outs the Tenant by Covin ; yet she had not good Title of Dower , is a Disseiseress ; and Covin is apparent here , because he never took view , voucher , essoin , or other delays which he might . The Statute saith , That the Recovery shall be void , whereby it is not intended that it shall be executed , and shall not be intended to be by Disseisen without shewing .

The words of 11. H. 7. explain the intent , That such Wives who have Lands in use , or use in Lands , are within the Statute . Recovery against Tenant in Tail , was good onely for his life before this Stat. and therefore comprises use here , because the Stat. shall not be made in vain ; for Tail in use may do as great prejudice , as Tail in possession , and so the intent shall aid the obscurity of the words in Construction of words ; but if it be not within the words , yet it shall be taken by equity ; because it restrains Liberty that the Common Law gave to the prejudice of another , as here of Tenant in Tail to bind their issues by recovery or Warranty . So Marlebridge , cap. 6. speaks of a Lease for years for to defraud the Lord of Ward ; yet if it were for Life , or in Tail , taken by equity . So W. 2. cap. 1. speaks of 3. gifts in Tail ; yet 4. H. 5.6 . and 19. H. 6.74 . comprise by equity all manner of intails , because it restrains liberty of breaking the intention of the Donor , suffer by the Common Law . So W. 2. cap. 3. gives receipt to the Reversioner by equity to the Remainder ; for the Common Law , which may not suffer him to be received , suffers a wrong , and this Statute remedies it . So 13. R. 2. cap. 17. gives receipt for faint pleading by equity ; receipt by equity shall be for faint defending . So an Administrator shall have account by equity of the Statute , where it is given to Executors onely . So 1. H. 7.3 . gives an Action of Forgery of false Deeds , by which the Title and Possession of another are disturbed in the Copulative by equity , if the Title onely be disturbed ; and therefore the disseisee which hath not but onely a right , shall have an Action in 4. H. 6.26 . because where the Law defective suffers a thing which is a wrong to another , and a Statute redresseth it , there things in the like mischief shall be taken by equity , in the like purview . So here because it is made in avoidance of Covin , therefore it is beneficial to the Common-wealth .

Brown , Justice , argued to the contrary for 2. causes in the Pleading . The one was for that the cause of the Covin was not shewed ; for howbeit that the Statute speaks generally of Covin , yet it refers the pleading of this to the Common Law ; and therefore because the cause of Covin was not shewed , the replication was nought . The other cause was , for that the Plaintiffs have not shewed how the Wife Plaintiff was Heir , and therefore may not be seised in Tail , as it was pleaded . And as to the execution , he held that it was not necessary to be shewed . And as to the matter in Law , he held the case here within the words of the Statute ; and if it were not , yet he held them within the equity ; for that the Statute was made in avoidance of Covin , which is to be abhorred ; and therefore the Statute is benificial to the Common-wealth ; But for the said defaults in the replication , he held that the Plaintiffs should not recover .

Montague , Chief Justice . Title amends not Covin , for it may be upon a good Title ; and therefore the books are , If a Wife recover Dower against A. who by Covin enters , and outs the Tenant , as in 15. E. 4.4 . yet she is a Disseisoress ; and by 8. H. 4.6 . where the issue in Tail recovers against A. who by Covin Disseise the Discontinuee ; yet 18. H. 8.5 . is not remitted , although his Title good , but is a Disseisor by reason of the Covin . The Title of a man shall not be tryed between strangers , where he which hath the Title is not party , nor shew Covin , because it is a thing secretly determined to the prejudice of another ; as Joyntenancie on part of the Plaintiff ; the Defendant which pleads this , shall not shew of whose Feoffment ; for that , that he may have knowledge of it by presumption of Law on his own part here . H. 21. E. 4.78 . and 19. H. 6.32 . So 19. H. 79. he which pleads a Deed which belongeth not to him , shall not be enforced to shew it : a man may aver Covin generally , where averment is given by Statute , or Common Law ; as the Statute of 13. R. 2. giveth receipt for faint pleader , and may alleadge it generally when he prays to be received . So a Termor for years by the Statute of Gloucestor shall be received , and aver Covin generally ; and faint pleading , and Covin is all one . So 8. H. 6.7 . In Assise the Tenant makes default ; one shall answer for him as Baily , he appears and disallows him , and saith , That he will make default ; the Bailiffs comes and Demands Conusance of this default made by Covin for to take away their Conusance generally , and holden good . So 10. H. 6.15 . In Formedon one Demandant agrees with the Tenant in Challenge which he made to a Juror ; the other Demandant avers the Challenge to be made by Covin generally , and good . So if one pleads imprisonment in excuse of his default , or sale in a Market overt ; the other avers , That it is by Covin generally ; or if he pleads a Feoffment , the other avers , That it was by Champerty generally , and so may aver Covin given by the Statute or Common Law generally , where the cause of it may not be special : if it may be special otherwise , it is 7. H. 4.15 . in scire facias , the Wife received , pleads a recovery by a stranger , upon a not denial , and execution against him ; it is but the acknowledgement of the Tenant , and his own Act , and so Covenous . Faint recovery against Tenant in Tail , which dies before execution , the issue is remitted , and the Recovery not executory against him , and so is defeasable ; yet the Covin in the Recovery , which is as a Condition , is cause of the forfeiture of the State ; as a Feoffment upon Condition , not to infeoffee I. albeit that he within age infeoffees I. and so the State is defeasable , yet he hath broken the Condition .

And as to the other exception taken , for that it was not shewed certainly how he was Heir . Montague held the Replication nought ; for Replications , Titles , Pleas in abatement of Writs , and Estopples , ought to comprehend certainty ; the Replication forceth the party to issue , and therefore shall be certain , because the Court , nor the Jury may not be inveigled , or troubled for the incertainty of the Replication , which maketh the issue , ordained and provided that they should be certain . But a Bar which is certain to a common intent , is good ; for a man shall plead in Bar an Estate , without shewing how , it is not good ; as it is holden 2. E. 4.26 . and every Replication ought to shew contrary matter to the Bar , and then ought to take Traverse , or confesse , and avoid the Bar. And here the Bar is good , and the Replication contains a misbehavior of the Wife of the Defendant , by which here Estate is void , and then the Plaintiff ought to make him able for to take benefit of the misbehavior of the Defendant : and here the Heir pleads this ability certainly , the Bar which is plainly confessed , is not plainly avoided ; for it appeareth not here how the Plaintiff is cosen to G. T. & pretoxtu quorum premissoy , refers to him which is said before , onely as it is expounded 7. H. 6.51 . in a Bill of Debt against the Warden of the Fleet. 4. H. 7.13 . where one binds himselfe , That he will not claim , nor enter into the said land in bar , that he entred not , nor claimed ; the Plaintiff replies that he claims , he ought to say how , viz. That he came to the Land , and claimed , and entred . So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished , with consent to the ravishment . So for Mortmain , how he is Ld. So for receipt , how he came to the reversion by special conveyance to the things , which the Statutes give by general words , as here . Titles alwaies ought to be certain , because he that makes Title , is by this an Actor , and an Actor ought to plead certainly ; by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband , suffers a faint recovery , contrary to 11. H. 7. if the Daughter enter , the Son born after shall not out her during the life of the Wife . By Montogue , he may enter presently , ( and save ) because the Statute saith , he shall enjoy it according to his Title therein ; and the Title is Tail , which is devolved to the Son , and after f. 1●… . But the Daughter , because prima de sanguine ●…ring , because the Wife assents to the Ravisher , shall hold against the Son born afterwards , and there it is Fee-simple . In 5. E. 4.6 . So 9. H. 7.25 . the Daughter shall hold the Remainder appointed to the right Heirs , against a Son born afterwards , because it is vested in the Daughter as a purchaser , because it is Fee-simple , to which the Son afterwards born , hath not right : for the Land was never in any of his Ancestors before , Et possessio fratris de feodo simplici facit , &c. of Fee-Tail not , but it discends to the youngest Son of the half bloud . So a Bastard eign-abate in Fee-simple Land , and dies without interruption , and his issue enter , he shall hold against the Mulier puisne 39. E. 3.38 . Of Land entailed it is otherwise ; so it is a great difference between Fee-simple , and Fee-Tail ; and according to the Proverb , One shall beat the Bush , and another shall have the Bird. As 9. H. 7.24 . and 25. A man hath Lands by the Mother , and aliens upon Condition , and dies without issue ; the Heir of the part of the Father enters for the Condition broken , the Heir on the part of the Mother outs him . 14. H. 8.18 . by Portman ; if a Remainder in Tail be once executed , the issue in formedon shall declare upon the Gift immediately , for all passes at one time , and upon one Livery . But in 20. Ass. Ph. ultima , it was shewed of a Reversion , after Seisen , or making Title by grant of the Reversion , he which makes Title , is alwaies Actor , and ought to plead certainly . So 2. H. 6.14 . A Patentee sheweth his Letters Patents ; if he maketh Title by them . Words alwaies if they are ambiguous and obscure in Statutes , have been expounded according to the intent of the makers ; as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded , when the Husband and Wife lose by default ; because the Law alwaies was , that the Wife may enter , if the Husband alone lose by default . So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur , ipse in re sit nullus . The Words seem to make a Fine void , but yet it is not void ; but is a discontinuance , and void as to bar the right of Tail . So the Statute of Gloucester , cap. 3. saith , Whereof no Fine is levied , intends by husband and Wife ; for they may well levy , the marriages of Women and their Estates , and advancement , by this are greatly favoured in our Law , for 14. H. 8.7 . The Wife shall recover her Land given causa matrimonii praelocuti , if the Feoffee will not marry her . So shall have all Free-hold after Divorce . So a Wife shall have a Cui ante divortium , to recover the land lost by the Husband and Wife by default before the Divorce . So 11. H. 7. intends to punish women , if they will recompence this favor of the Law with wrong to the disinherison of Heirs ; here the Wife hath an Estate in the use , and by his inhereditament , and the Land ; and Use also is the inheritance of the Husband , and therefore within the words of the Statute ; because an Use is an Hereditament . For 5. E. 4.7 . possessio fratris of an Use good , for the Sister also if she hath the value of 40. s. in Use . 15. H. 7.13.5 . E. 4 7. and by Litl . 108. he shall be sworn in Assizes by the Common Law , and Statute of Pernors of Profits , and other Statutes have admitted an Use , for an Hereditament , and the Land and use also , is the inheritance of the Husband ; for an inheritance is such an Estate as the Heir may inherit , as he may here ; and every Fee and Tail by purchase or discent , is inheritance , by Littleton , and Britton contains many errors . As to the Case of cui in vita , in 7. H. 4. before fol. 47. by those of the Chancery , and also by the Register Original 232. is the one & the other quam clamat esse jus & hereditat . &c. The Feoffees here were seised to the use of the husband , and every of them hath an entire Use ; for between Husband and Wife are no moieties , and after the execution of the possession to the Use : By 27. H. 8. The Parliament made the Conveyance of the Land from one to another ; and the Feoffees are Donors ; for when a Gift is made by Parliament , every one by it is privy , and assents to it ; yet the thing shall pass from him which hath most right , and most Authority to give it . As in 21. H. 7.32 . He to whose Use , and the Feoffee joyn in a Feoffment , it shall be said the Feoffment of the Feoffee ; for they have most Authority for to give this . So Tenant for Life , and he in a Reversion joyns in a Feoffment , it shall be adjudged the Livery of the Tenant for Life . So if one seised in Fee , and another which hath nothing joyns in a Feoffment , it shall be said the Feoffment of him which hath right , and the confirmation of the other . So here it shall be said the Gift by Parliament of the Feoffees , and the assent and confirmation of all others . For if any other shall be adjudged the Donor , the Parliament should do wrong to the Feoffees in taking the thing from them . And an Act of Parliament will not prejudice any man , as 19. H. 6.62 . the Rector of Edington had an exemption from Tythes by the Kings Grant , he afterwards agrees to the Act which granted Tythes to the King , and so was one of the Grantors , yet shall not take benefit by this , but shall be discharged . For the Common Law saith , That none shall be damnified by such general Act made by the Parliament ; and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London ; but that remains to this day with protestation to sue in the nature of a Formedon in Discender , if it be out of the words , yet it shall be taken by equity , although it be penal to some man ; for here it restrains the Liberty of Tenant in Tail , because it was for to redress false Covin , for to advance right and justice and benificial to the weal-publick , As W. 2. cap. 3. gives a cui in vita upon a recovery by default , which was a wrong to the Wife , and therefore gave Cui ante Divortium by equity . So Marlebridge , cap. 6. De primogenith , and of Feoffment ; yet if the first Son dies , and he infeoffees the second Son , or Levy a Fine , it shall be taken by equity ; because it redresses Covin , which the Law abhors . So 1. H. 7. cap. 1. gives a Formedon in Remainder against Pernors of Profits . and 14. H. 7.31 . and after 178. scire facias for to execute a Remainder against the taker of the Profits , shall be maintainable by equity . No judgement was ever given in this case for this default , viz. because he had not shewed certainly how he was Heir , and in special , for that it was issuable , and Title given is certain .

Note , that all the Justices held the case here within the words of the Statute of 11. H. 7. And if it were not within the words , that yet it was within the equity of the Statute . And they held also , that the Heir may enter immediately , ( that is to say ) in the life of Tenant in Tail ; but no judgement was given .

Dive against Maningham .

ONe was in prison in execution upon a Recognisance of Debt , M. 4 E. 6 In the Common Pleas in debt . taken according to the Statute of 23. H. 8. cap. 6. and the Defendant being a stranger made an Obligation to the Sheriff , indorced with Condition , That the prisoner should save him from dammage against the King , and the Conusee ; and also that he should be alwaies at his commandment as a true prisoner to appear before the justices and the King at Westminster , or elsewhere , within this Realm . And it was adjudged a void Obligation by the Statute of 23. H. 6. c. 10.

1. For that the prisoner was not bailable , but excepted by the Statute which in this point is not , but an affirmance of the Common Law .

2. For that , That the third branch of the Statute which maketh all Obligations vold , taken for any the causes abovesaid against the form there expressed , extends as well to the second branch , in which the exception is , as to the first ; for the generalty abovesaid , and also by the intent of the Statute , to suppress the extortion of Sheriffs in this behalf .

3. Although it shall not be so , yet he taketh the Obligation colore officii , as Sheriff of his prisoner ; and so within the Statute .

4. No day or place of appearance is limited in the Condition ; so the form appointed by the Stat. is not observed .

5. Other things are mixt in the Condition , with the apparance , as that he shall save harmless ; and this shall be intended there for all things , and at all times .

6. He had but one surety , and the Statute speaks of surety of sufficient persons , in the plural number . by Montaigue . fol. 63.

7. The Obligation here is void by course of the Common Law , for that the Condition is against the Law , for the party is not bailable . 2. H. 4.9 .

The Extent ought to precede the Liberate , here are both in one Writ , yet in nature they are several , but the Writ remains good for the extent , and the other is surplusage . 7. H. 4. 44. for Toll not paid , the Writ was Tolloneum asportavit , & illud solvere recusavit asportavit , is void , because surplusage , and it abates not because he refused to pay , for that is sufficient , and be the Writ good or bad in Law , it shall stand in force until it be Reversed by Error ; because an ancient Record . 37. H. 6. 1. the Sheriff took a single Obligation for to let one to Mainprise , which is not Mainpernable , it was void , because he took colore efficii , which is taken alwaies in ill part , and implies that the thing is done by pretence of Office , but not yet duely ; and their office is but a vail and shadow to falsity , Virtute officii , or Ratione officii taken in good part , because it is alwaies where the Office is just , which causeth the thing , & it is pursuant to the office . Obligation is void where the condition is contrary to Law ; as to be saved harmless if he kils a man , or doth commit trespass ; so here the Obligation is void by the Common Law , because it was to save the Sheriff harmless for wrong done against the Law , as is the letting the Prisoner at freedom , he being one which is not Bailable . So 2. H. 4. 9. A Baily by withernam takes the Beasts of the Defendant , and afterwards re-delivers them to the Defendant , upon Obligation given to him by the Defendant , for the saving of him harmless , wherefore holden void ; because it was to aid the Baily for this wrong in the re-delivery of the beasts to the party , for he ought to have detained them untill , &c.

And afterward Mollineux , Hales , and Brown Justices , argued to the same purpose .

Montague , Cheif Justice . It is likely to me that the Plaintiff shall be barred ; for an Act which is general in particularity , or particular in a generality , which is all one , as in 13. E. 4. 8. That all Corporations , and Licences made by H. 6. shall be void . So that all Bishops or Justices shall do such an Act shall be pleaded ; but a general Act which extends to every man , not ; but the Justices ought to take Conusance thereof ; but if this Act hath several branches concerning several matters ( yet contained in one Chapter ) there he needs not recite all ; but this onely which concerns him , and maketh for his purpose : for every branch is a several Act by it self . But a Record shall not be pleaded ( inter alia , ) for it is intire upon one Originall , and one Judgement upon it , but ought to plead certainly all the Record when it is pleaded in Bar ; because the Record is the matter of substance , and the effect of the Bar , which ought to be plain and perfect when the Record is but conveyance and induction to the Bar or Action , it is sufficient to reciteithis , which is the cause of the Action , as 34. H. 6. 48. A Tenant by Elegit makes avow in ●…eplegiare , for that he had execution as Tenant by Elegit , and made a Lease reserving Rent , for which being arear , he avowed he needed not shew the Record , because the Lease onely is traversable , and is the effect of the Avowry ; and the execution by Elegit , is the Record from which it issues , which is nothing but conveyance to the effect ; and therefore it sufficeth to begin at the Execution upon Damages recovered without pleading how lie brought his first Action , and what answer the Defendant made , or such like . So in the 19. H. 6. 29. a Bill of Deceit against an Attorncy . for imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another , holden good , whithout shewing the Original and certainty of the Land , and all the Record in certain ; because the Record is but a conveyance to the suit of Deceit ; and therefore for this cause cannot be gainsaid ; as to say Nultiel Record . But where a Record is pleaded in Bar , all shall be shewed certainly ; and is Traversable there , in Conclusion or general Demurrer ( as petit judicium ) if the Plaintiff shall maintain the Action , one shall have advantage of all defaults , and of every thing mentioned in the Record , and of every point that the Law gives him . In Conclusion speciall , of defaults onely alleadged in certain as here , petit judicium , if the Plaintiff shall maintain the action there if it be void ; for another cause then this which is mentioned , he shall not have benefit of this : of a thing void ab initio , as the Obligation here , because void by Statute ; so in avoidance of a Deed , That he was not a man lettered , and that it was read to him in another form , So 24. H. 8. 28. because delivered as an Escrow upon . Condition , the Conclusion shall be , so not his Deed , because the matter proves that it was never his Deed of a thing voidable , where it was void after ; because once is was a Deed ; the Conclusion shall be Judgement , if Action ; because the duty is now extinct , as 1. H. 7. 15. by release . 35. H. 6. 18. for nonage . 7. E. 4. 5. by dures . When the Conclusion is nought , and the matter in Law good . Officium Judicis est , for to give Verdict against the Plaintiff , if it appeareth that he had not cause of Action , howbeit that the Defendant hath lost the advantage thereof , as it is here . So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty . C. pleads the gift of B. found guilty , and found for C. no judgement for the Plaintiff , because found against him . So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband , or Trespass against the Lord by distress where nothing is in arear ; because the Statute is Non ideo puacatur dominus , abate ex officio , although the Defendant accepts the Writ , good ; for the Plaintiff shall be barted by the Court ex officio , and shall not have judgement , although the Defendant admits his Title ; or by his Conclusion hath concluded himself of his advantage , if it appeareth that he had no Title .

1. The first branch is commanding and authorising the Sheriff to let to Bail , persons manipernable by the Common Law , viz. persons taken by Writ , Bill , or Warrant upon an Action personall , or indictment of Trespass ; for it was ( indifferent if they were guilty or not ) made in affirmance of the Common Law . 2. The second Branch , viz. The exception was also made in the affirmance of the Common Law before ; for such persons which were in by condemnation , execution , Capias , ut legat . &c. were not bailable before . 3. The third is onely the purview , which relates to the second branch as well as to the first ; for before , refers to all this spoken of before , as well the thing excepted , as otherwise ; as a Lease for years of a Mannor , except a Close , rendring Rent , the Lessee binds himself to perform all Covenants , Grants , and Agreements , expressed or recited in the Indenture , and after disturbs the Lessor of a thing excepted , he hath forfeletd the Obligation , because it is an Agreement ; for when he excepted the Close , the other was contented with it , and that the Lessor should occupy it ; and recited goes to the exception as to the rest . 45. E. 3. 4. contained , and recited , goes to every Covenant in the Indenture . An Act done Colore officii , is extortion ; as if an Officer takes more for Fees then he ought . And an Obligation taken of a prisoner for meat and drink , is void , because it is colore officii ; for he nor the Plaintiff are not bound to give him sustenance : as he which distrains , is not bound to give , although he be in for Felony ; because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law ; which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance , it is his own fault ; because that by presumption , his ill demeanor bringeth him to such imprisonment .

The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners , except the Warden of the Fleet , and the Kings Pallace at Westminster . A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass , which for the surety of the Sheriff , makes an obligation to a stranger to keep his day , is 7. E. 4. 5. held to be void ; because taken to another , and not to the Sheriff onely , according to the Statute . Also there it is held , if the Obligation hath not the Conditions expressed in the Statute , That it is not the Deed of the party ex quo sequitur , that he ought to conclude , not his Deed : keeping without dammage shall be intended by the generalty for all things , Treasons , Felonies , Accounts , and for all times ; if another thing is added by the Statute to be given , it shall make all void ; as if a Condition be made according to the Statute , and hath another thing not according to the Obligation , is void . So to add other words in a Formedon , or Writ of Waste , which are given by Statute , all is void . So to alien all the Land , when he hath licence for part , the licence is void in all : by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him . The Statute saith , That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number ; and because there is but one surety here , the Obligation is void . Also because the Statute saith , That if it shall be taken in any other manner then is contained in the Statute , if shall be void . Also here by Plowden , yet taken by one at large by the words of the first branch , and those aid then third branch ; every person which extends to those at large , nor for any person in their Ward , which extends only to prisoners .

Kidwelly against Brand.

LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind , H. 4. & 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast ; then it shall be lawfull for him , &c. for to re-enter ; the Reversion is granted for Life , the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid , but demanded it not , and for not payment re-entred , and adjudged lawfull .

1. A Grantee for Life of a Reversio , is an assignee within the Statute of 32. H. 8. c. 34. to enter for a Condition broken .

2. The tender of the Rent on the Feast day is not requisite , nor until the last instant of the 40. day .

3. Notwithstanding that the Rent be apppointed to be paid out of the Land at the Feast day , and not the 40. day by express words ; yet it shall be so intended by relation to the place last named .

4. No demand here is requisite ; because that the Land which is Debtor , is absent ; the contrary is upon a general reservation ; and if a Rent seck payable in a forreign County be demanded and denled , there it is not a disseisen by Plowden , contrary upon the Land .

The place which was once charged with the payment in the hands of the Lessor , remains chargeable in the hands of any other because he hath this as a Liberty and Authority imposed upon it by the Lessor , and such Liberty is saved by the Statute of suppression of Monasteries ; and therefore the Lessor , nor the Lessee are not Trespassers , by their coming there to tender and receive the Rent .

Rosse against Pope .

ROss acknowledged a reconusance to Pope , & after Levies a Fine to him of patcel of his Land , 5. E. 6. In Chancery upon an Audita quetela . and afterwards Pope sues Execution , and takes the body of the said Rosse , and he brings an audita querala in the Chancery , and adjudged that it lieth not .

1. For that the Land is not debter , but the person , and the Land is onely charged in respect of the person , and not otherwise , until Execution sued .

2. For that the purchase was before Execution sued , otherwise it had been , if sued afterwards ; for then the Land was charged in facto , and not chargeable . And if any part be discharged by act in Law , as discent , or act of the party , as Surrender , Feoffment , &c. also it shall be discharged , because the duty is personall and entire .

3. Because that the Conusor shall not have contribution against the Feoffees , but they shall have against him ; and here the Conusee shall not have Execution against his Feoffees for that they may not have contribution against him .

Wimbish against Willoughby .

Assize directed Coronatoribus , in Lincoin , upon the surmise of the Plantiff that the Sheriff was his Cosen , and shewed also , Tr. 6. E. 6. Assice against L. Wall . That one of the Coroners was servant to the Defendant , and adjudged good .

1. For the speedy expedition of the Assize , and the mischlef of the Plaintiff , if it should be abated by the exception of the Defendant , and no mischief to him ; and here the venire facias is awarded the first day , as in a precipe .

2. Coroners in Lincoln shall be intended Coroners of Lincoln , for that they are the words of the King .

In the Argument of this case ; see first where a Writ Original shall be directed to the Coroners , where not . Secondly , and when other Judicial process . Thirdly , an exposition of the words ( in and de ) in Writs , Grants , or , &c. Fourthly , what words are sufficlent to make a Grant of a Rent charge . Fifthly , some matters touching challenges , and where they shall be Traversed , &c.

Partridge against Strange and Croker .

IN Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. H. 6. & 7 E. 6. In the Common Leath . Of buying and selling of pretenced Titles and Rights , and alleadge this to be done 28. April , 32. H. 8. where in truth it was not done this day ; and that the Defendants have made a Lease for years of a house , and nine acres of Land pertaining to it , whereof they nor their ancestors , nor any by which the claim were in possession , Reversion , or Remainder , nor took the Profits for one intire year before , &c. and holden .

1. That the Statute need not to be specially recited and pleaded , because it is general ; but for that it is misrecited , it is not good by the Court , sol. 84. and yet is surplusage , and it shall prejudice the party in some cases , sol. 29. as debt by I. S. Parson of D. it is a good Traverse , because he is not Parson ; or that there is not such a village called D.

2. When the Term shall not be certainly pleaded , for that it is Conveyance of the Action , and is not material here , and he which pleads it is a stranger ; as an Indictment of the death of a certain man unknown , or the stealing of the goods of a certain man unknown .

3. That a Lease for years , or a grant of parcell of the Right is within the Statute ; because the Statute speaketh of any right , and is not intended only of an entire right , and that the entire value of the Land shall be forfeit by such Lease , per Curiam fol. 87.

That this Lease made by one in possession , is out of the Statute ; for that it is not averred to be a pretenced right , by Hales and Montague , fol. 87. against Cook . For they mean that he which hath possession one day , or however may make a Lease , or Feoffment bona fide , and shall be forth of the Statute , although that he hath not possession , or taketh the profits one whole year without averment , that it is made for maintenance , and the Statute shall be intended onely of those which makes Leases , &c. having but a right , and not the possession , as Montague held , a promise by him which is out of possession , to depart with the Land when he shall attain the possession . is within the danger of the Statute . fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father , and maketh a Lease for years , this is within the Statute ; for that he Leases his ancient right . So by Morgun , if the heir release to the Abator , and afterwards claiming by discent , maketh a Lease for years , this may be averred a pretenced right , and then is within the danger of the Statute : fol. 86 : and a right is within the Statute , which comprehends all rights .

Pretenced right is , where one hath the possession , and another which is out of possession claims this , or sues for it by Mont. f. 88.

Morgan , Serjeant for the Defendant . He which voucheth a Record , and vary in the year or Term , haith failed of his Record . So the Statute here , no Act without the consent of the King , when all assent , it shall have relation to the first day of the Parliament , and from that time is an Act of Parliament , unless it be otherwise appointed when it shall first take effect . An act made in the first , or second Session relates not but to the first day of the same Session . Misrecital shall prejudice the party in some cases ; as Debt by I. S Parson of D. where there is no such Village D. a good Traverse , and abates the Writ ; yet the naming of him Parson , surplusage . So here because it recites a Statute certain made such a day , where it was not , although that the day is surplusage , it hath made the matter vitious , although it be a general ; because the not referring to the science of the Judges , as he doth , if he saith generally contra formam Stat. & c. a Statute hath no words in vain .

Whiddon , for the Plaintiff . A general Statute shall not be recited , as 27. H. 8. of Conveyance of the possession to the Use . So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line . So an Executor of an Executor shall have account without recital of the Statute , of 25 E. 3. cap. 5. So 5. H. 7.17 . Information for Liveries , good , without reciting of the Statute .

Misrecital of the surplusage shall not make the mattor bad , as 21. H. 6.1 . by Newton ; one as an Executor shall not bring an action of Debt upon a Contract made with himself ; he shall not shew the Testament , for that the naming of him [ Executor ] is surplusage . So 33. H. 6.19 . by Danby in Detinue against two as Executors ; They shall not plead that another is Executor with them , because they are not charged as Executors . But Detinue is cause of Action , and the naming of them Executors , is surplusage . A man shall not aver that , which by the Statute is made apparent ; as the Lord shew that he entred into the Land within the year , because his Tenant aliened to the Dean and Chapter , he shall not aver that it is Mortmain , because it appeareth now ; nor here that it is a pretenced right , because he counts that the Defendant nor his Ancestors , &c. were not in possession the space of a year before the Lease , and then is pretenced Conveyance to the Action ( as the Lease is here ) shall not be pleaded . So certainty is the substance it self , as appeareth 34. H. 6.4 by Prisot in decies lantum . If the Plaintiff sheweth such part of the Record as conveys him to his Action , it is sufficient without shewing all . But a Writ judicial ought to recite the Record certainly out of which it issueth ; because the Record is the substance and effect there ; and not only the Conveyance a stranger to the Deed or thing , as the Plaintiff here is to the Lease that he pleads , shall not shew the certainty of it ; as 35. H. 6.8 . after fol. 148.13 . H. 7.19 . By Fineux ; au ancient Major in Trespass justifie the taking of goods , because the Plantiff was out-lawed without shewing Pattent , because he is now as a stranger to them ; for it belongeth to the successor , and not to him . So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1 . by Strange ; Lessee in Debt against him for Rent reserved , may say , That the Estate of his Lessor was upon Condition , for which broken , such a one had entred before the Rent arear , Judgement , if Action , without shewing what condition .

Sanders , to the same intent . The Statute here , although penall , yet because it is beneficial for the Common Wealth , viz. for to avoid maintenance , subordination of witnesses , &c. Things taken out of the Works thereof , taken by equity , and the words obscurely expounded , most strong for the Common wealth ; and words are but the image of the Statute , and the life thereof in the minds of the makers , and Expositors of it , and which approach nearest to their minds , are the true Expositors ; and words should be inclinable to the mind . So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus , viz. as to right , to be bound ; but as to the possession , is a discontinuance , before fol. 57. and after fol. 137. So the heir may demand the heritage of his Mother , aliened by his Father ; if he onely Levied the Fine : Yet Gloucester cap. 3. saith , Whereof no Fine is Levied , intends lawfull Fines by the Father and Mother : before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee : Yet 21. E. 3.21 . shall be delivered to the extendors , because prised too high ; it shall he delivered to the praisors for the price , after f. 172. So if the Plaintiff be nonsuit in a second deliverance , the Defendant shall recover Dammages by the equity of 7. H. 8.4 . Return irreplevisable shall be awarded ; and so by this means the Plaintiff is barred , and so the intent of the makers directs the words and equity of Statutes . Lessee for years hath a right Estate , and Title to Enter , right ; because by Bracton he hath jus utendi & fruendi in alieno libero Tenemento ; an Estate , because a Remainder in Fee is good upon a Lease for years , and a Remainder is not good without an estate precedent , Title because 7. H. 7.11 . a Termor may falsifie a faint Recovery against his Lessor by the Common Law . So 9. H. 6.64 . by Strange : I grant to B. That if my Tenant for life dies , living my self , that he shall have for 10. years . B. may maintain , because he hath colour , yet he hath nothing , and is in doubt if he shall have it for 10. years or not : Then if the Leffee for years hath such interest , that by the Common Law he may maintain , there is no need of a remedy , for all other the Statutes before avoid maintenance , the suit depending ; for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after . Account shall not abate for default of form , if it hath substance . 36. E. 3. cap. ultimo . After fol. 190. If one be found guilty of an offence which is pardoned by Parliament , Judges ought not to proceed to judgement ; yet it is not pleaded , because they are bound to take notice of it ; for it appeareth to them by judicial knowledge . 26. H. 8 , 7. by Fitz. H. But if A. kill B. in the presence of the Justices , and C. is found guilty of it . 7. H. 4.41 , by Tirwit and Gascoin , the Justice ought to respite judgement , because he knoweth the contrary ; but not to acquit C. because he cannot judge of his own knowledge . 22. E. 4.47 . where it was granted by Parliament , That A. should have a Writ with Proclamation , out of the Chancery against one G. to answer divers trespasses which were contained in the Act of Patliament , and the Writ was abated by award , because it did not mention those Trespasses in certainty ; because a private Act ; and there not recitall , or misrecital , shall hurt .

And as to the cerainty of the Term he shall not shew it , because he is a stranger to it . As the Defendant shall plead Joyntenancie of the Plaintiff without shewing of whose gift .

All the Court say , That Declarations ought to have certainty . So that the Defendant may know to what thing he ought to answer ( after fol. 193. ) and 3. H. 7.12 . So 3. E. 4.21 . In Debt for a sallary against a Successor declares , That he was retained with his Predecessor , and shews not who retained him ; because a stranger may retain him ; the County shall abate by the better opinion for the incertainty ; good by Brook : Laborers , 39. and the truth is , That it ought to be conjoyned to certainty , as 9. H. 7.3 . by Fineux , and 6. H. 4.7 . Debt upon payment at two days , whereof the one is come abates by shewing of the Plaintiff the same , because he hath shewed falsity . So 20. H. 6.30 . one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly , which ought to appear alwaies to the Court , but not in one manner ; as sometimes by the replication in Assizes , sometimes by Verdict , as in aquare impedit the value of the Church . In Ward the value of the Marriage , in Detinue the value of the goods ; as in 20. H. 6. Champerty was brought , which was not Warranted by any Statute ; and there Newton said , That if the party could not shew to them some Statute by which it is Warranted , that they would award that the Writ should abate . And for that which hath been said that he needs not to recite the Statute , and therefore misrecital is not material ; it seemed to them , That howbeit he need not , yet if he recites it , and there is none such , then he hath failed of his substance ; for the Court will not aid him nor think he intendeth any other thing then what he hath shewed ; and by this abundance in reciting more then needs , hurts the party many times . And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 . Fitz. H. Count 15. of forging of false Deeds , the Writ was of Diversa facta , and minimenta , &c. and he counted but of one onely , and by assent of all the Justices it was awarded , That the Writ should abate , and so abundance abated the Writ .

And if one maketh Title in Assize in his plaint where he need not , yet if it be not formall , all shall abate ; and yet it was abundance , and more then he was compelled to do . So in the principal case . And where it was said , That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared , they held , that admitting this to be a confession , yet this binds nor the Court , which is a third person ; as appears by 10. E. 4. Wherein Trespass of Cattle taken , brought by the Lessee for years ; the Defendant said , That the Lessor held of him by Rent , which was Arear , and he took the beasts for it the Plaintiff said nothing Arear , and there although the Defendant had admitted the Writ good , yet the opinion of the Justices was , That the Writ should abate , for that the Lord was Defendant . And so if the Defendant will admit good an appeal brought by the wife of the death of her Father , yet the Court ought to abate it , although the party affirm it : and a Demur-is a Confession of all matters in Fact but not of matters in Law . For by the Demurrer he puts it to the Judgement of the Court , and confesseth not the Law against himself , although the King may wave the Issue , and so Demur in Law , and recover ; afterwards fol. 236. and he hath many other prerogatives , yet shall he be bound by misrecitall , or by misusing , or misconceiving of his Action , and there shall abate the Writs where he is sole party : as in the case of a common person à fortiori where another is party with the King , as here ; the Plaintiff ought to shew certainty of the Lease here by Cook , by other Justices not .

In Decies tantum , certainty of the Summ received here , because he shall not recover ten times as much , and may not without shewing in Champerty , the certainty of the first plea here , because privy to the Record .

So in Trespass , if the Defendant pleads Franck-Tenenemt ; the Plaintiff intitles himself by a Lease made by him ; the Defendant will shew that he made a Feoffment , and that he entred for Forfeiture ; he ought to shew the name of the Feoffee , and certainty of the Feoffment , because he is privy , and in all cases of privies , he ought to shew the certainty , as 2. H. 7.6 . in Bar of Dower , the Heir pleaded detainer of evidences , he shall shew certainty , for he is privy to them , that he affirms to appertain to him ; of a bag sealed with Charters not , 18. H. 8.1 . because the bag sealed is certain . Indictment cujusdam ignoti , good . Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices , as an Attaint shall not 14. H. 7.13 . nor the Statute which augments bread by evil making , nor things out of the words shall not be taken by equity . But the words may be expounded beneficially , as Treason by the Statute 25. E. 3. for killing of a Master , so of a Mistris , are of one effect . 19. H. 6.47 . but not by equity , but rather within words . Plural number contains singular , by Hales . So here pretenced Rights and Titles as shall be punished for forging one false Deed ; yet 1. H. 5. cap. 3. speaks of false Deeds : So for Entry into one Tenement ; yet 5. R. 2. cap. 7. speaks of Entry into Tenements , under this word [ any ] the lesser Estate is contained in the greater , as 23. H. 6.10 . prohibits that a Sheriff shall Lease his County to farm in any manner , shall not Lease part thereof ( after fol. 124. ) contrary by Hales . This Lease here made by one in possession , is out of the Statute , because it is not averred to be a pretenced right , viz. the bargain and Lease to be made for maintenance ( contrary Cook ) for this was the point of the Statute as 9. H. 6.26 . if published onely ; yet the Stat. is in the Copulative , for forging and publishing this within the Statute , but ought to aver , That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute . So here the Lease ought to be averred for maintenance , for this is the point of our Statute .

Montague , Chief Justice . He that is in possession , may buy the pretenced right of another , he which is out of possession , if he promise or bargain to depart with the Land , when he shall get the possession , is within the Statute , and maketh it void by the Common Law , wherefore the Statute affirms it , and adds a greater pain to the thing done against the Common Law ; and the Statute shall be meant to avoid a bargain of Right , when out of possession ; he which hath possession but one hour , alwaies may sell , or it shall be a hard Exposition .

Acts expounded against the words of the Statute , because Law and Reason allows it . As Tenant hanging a Precipe , Infeoffs his Son and Heir . 6. E. 3. fol. 274. after fol. 204. good , contray to the words of the Articuli super Chartas , cap. 2. because the Son may not maintain to the Father , but is bound to aid his father . So an Heir may abet his Mother for to bring an appeal ; as W. 2. Cap. 12. So a Trespass in a Park without hunting , shall not be punished : by a year before refers to the Clause before onely ; so that the Clause being in possession , Reversion , or Remainder , are absolute , viz. if for one hour onely , it sufficeth , and there he may alien without danger of the Statute , and here no offence is shewed to be made against the Statute .

Pollards Assise of Freshforce .

7. E. 6. In the Guild-Hall London , in the Hustings in time of Tent. AN Assise of Freshforce upon a plaint of Intrusion , or of Novell Diseisen , was brought by John Pollard Esquire , and Mary his wife , in the Hustings of the Guild-Hall London , against Bartholomew Jekell , Ralph Foxley , and Anne his wife , and eleven others . 10. of them appear by Baily , and plead nultiel in rerum natura , as one named in the Writ ; this shall abate but for him onely , and shall stand good for the others . It was adjudged so in the quare impedit against the Bishop of Carlile , & many others : where the death of one of the Defendants was pleaded by abatement for speed in avoiding of delays therein . For voucher lyeth not in it , unless the party himself be present in Court , and Protection lyeth not , because excepted in an Assise ; therefore it sufficeth , if Tenant and Disseisor relinquish ; and the Land is the chief and Original cause of the Action , otherwise in Trespass , for there the person is chief ; and the death of one shall abate the whole Writ , by 29. Ass. fol. 62. adjudged ; but the contrary was held , 44. E. 3.18 . 47. E. 3.18 .

The Parson of Honylanes Case .

AN Assise of Freshforce against Moore , 7. F. 6. Panel Parson against Moore & the Mercers of London . and a Corporation . The Corporation may not appear by Baily without Warrant , for that it is to defend their wrong ; otherwise it is to justifie a Trespass , which is but a personall thing . And although the Assise Pone per vadios , & salvos plegios predict . Defend . vel Ballivum suum si ipse inventus non fuerit generally , yet he shall be intended a Lawfull Baily by Warrant . And the Defendant pleaded that the Plaintiff hath entred after the last continuance , and Issue taken thereupon , the Jury gave a speciall Verdict , That he entred for to see the antiquity of the buildings at the request of the Defendant , which had invited him to dinner , and adjudged no entry to abate the Writ ; for that if he were a stranger , he should not be a Trespasser by this , because of the request , because he had not any intent to enter , and continue in possession .

The Jury may give a speciall Verdict , and find the matter at large , upon every issue by equity of the Statute of Westminster , 2. cap. 30. if this tends to prove the part of the Issue onely per curiam .

Woodland against Mantle , and Redsole .

THe Lord incroacheth services of another nature , and avow for this . 5. & 6. E. 6. Replevin . The Tenure shall be Traversed and not the Seisen : otherwise it is if he encroach more of the same nature ; as where he holdeth by 12. d. to encroach 2. s. &c. There the seisen shall be Traversed ; for the quality of the Tenure is Traversable , and not the quantity . But to avoid the incroachment of the quantity , the Tenant is put to a Writ of Customs and Services , or contra formam Feoffamenti ; and this is an Estoppell between true Lord and Tenant onely in Replevin ; and the Tenant may make Rescous , if he Distrains for this incroachment . And the Lord may not make Title in Assise for this incroachment .

And also this encroachment is intendable onely between true Lord , and true Tenant , and not Donor and Donee , Lessor and Lessee ; for there they ought to avow upon the Reservation , which the Tenants may Traverse , notwithstanding the encroachment , by Plowden .

The Lord may Seise or Distrain for Heriot Service , adjudged ; because he hath property in this by the death of his Tenant , and the certainty thereof appeareth by 6. E. 3 277.

Matters of the Crown at Salop.

IF one be present , and abet a Murtherer , he is principall as well as he that kils the man , 1. Mar. at the Sessions in Salop. and shall be indicted although that the Murtherer flies , and be not attainted , because both are principals in the first and same degree . And he which abets , is not onely principall in the second degree , but if one be Indicted as accessary to two , he shall not be arraigned with the abettor , untill he which flies is also attainted , and adjudged , which agreeth with 40. Ass. 25.7 . H. 4.29 . and 36. b. And if the abettor be found guilty by one Verdict , and the Murtherer by another Verdict , is acquitted ; now Judgement shall be respited against the abettor , for the Court will give more credit to the Verdict , which was charged directly upon the principal act , then another which is charged implicitely and oblique .

1 Mar at the same Sessions . FIve were Indicted of Murther of a Servant of Doctor Ellis's , and one venire facias awarded against all , and they severed in peremptory Challenges ; yet the Jurors which were challenged shall be drawn against all upon the Challenge of one , although that the others challenge him not , but allow him .

1. Adjudged , for that the venire facias is intire , that the Court in discretion at the prayer of the Attorney of the King , may sever the Jury and Tales thereupon .

2. They may make one Jury serve severally against every of them by himself .

3. The evidence given against the prisoners prove , That the Servant was killed upon malice prepenced to Doctor Ellis himself , which was in company at the time of the Murther . And the Court resolved , That this Malice to the Master , extends to the Servant , and all others which defend the Master , and resist the malice of the Murtherers .

4. Resolved also , That if two are fighting of malice prepenced , and a stranger which hath no malice takes part with the one , and kils the other , this is manslaughter in him , and Murther in the other .

5. Resolved , if one be indicted of Murther , and found guilty of Manslaughter , and acquitted of the Murther , yet Judgement shall be given against him that he shall be hanged ; for that the death of a man , which is the substance , is found , although that the circumstance is not , yet he was reprieved by the discretion of the Justices .

Fulmerston against Steward .

M. 1. & 2. P. Mar. in the kings Bench in trespass . PLeading that the Masters and confreres of a Colledge was seized in fee , is good without saying in the right of the Colledge ; for it shall be so intended , for that they are named by the name of corporation ; otherwise it is , if they were named by their particular names .

2. If one plead a Lease of a Mannor , with an exception made to the defendant , and will avoid this for parcel of the Mannor , because of another Lease made to the first Lessee , within a year after the making of the Statute of 31. H. 8. ca. 13. he ought to aver in pleading , that the exception extends not to this parcel ; For otherwise it shall so intend strongest against him that pleads it , and then pass not to the first , nor cannot pass by the second Lease , for that is severed for the time by 38. H. 6. fol. 38. That a thing in possession may not be parcel or appendant to a thing in Reversion , as a Lease for life of a Mannor , except the services of I. S. it is not parcel of the Mannor , But is a signiory in gross , and the Land shall be demanded at the common Law , and not in the Court of the Lord ( by Bromely ) But here ( quere ) if the acceptance of the second Lease be a surrender of the first , and the severance by the second Lease , and then the severance by the exception is determined ; and so the Mannor passes entire , as it was at the commencement .

3. If the recitall of one part of the Statute , which maketh for him which recites it , be sufficent .

4. If the pleading of a surrender or grant to the King , by deed inrolled generally , without shewing of the enrollment specially , be good .

5. The King is seised Jure Coronae , of Lands coming to him , by the dissolution of Monasteries , the Tenant pleads a Lease for fifty yeers in Bar , and after by his rejoynder pleads , that the said Lease is made good for twenty one yeers by the Statute of 31. H. 8. this is a departure , for that the state cometh after the Lease ; otherwise it is of a thing pleaded in affirmance of the Bar , which precedes it .

6. That the second Lease made by an Abbot within the yeer of the making of the Statute of 31. H. 8. to one which hath a Lease for yeers of it before , without the reservation of the Ancient Rent , then it shall be good for twenty one yeers only from the making of the second Lease per curiam .

Bromley , The Lessee for yeers accepts of a new Lease within one yeer after the making of the Statute of 31. H. 8. cap. 13. Admitting this second Lease to be good by the same Statute ; yet it is a good surrender of the first Lease , for that the second Lease was once good , and shall be expounded to be viod by the Statute , as to the King ; and after the Land comes to the Kings hands , and not ab initio , and so he shall not avoid the operation of the Common Law in the Surrender ; And by the Common Law , the taking of a second Lease , is a surrender of the first ; for both Estates may not be in one and the same person , at one and the same time ; For if the Lessee for fourty yeers taketh a new Lease for twenty yeers , upon condition that it shall be void if he doth not such an Act ; the condition broken , avoids the second Lease ; But not with such relation , that it shall take away the Surrender of fourty yeers , because it was once executed absolutely . So if a recovery is had of Land , the which is afterwards reversed by error , which avoids the recovery , yet it doth not so avoid it , that the Recoveror shall be punished by Trespas for the issues taken in the mean time ; two points upon the Statute here ; first the second Lease is not so void by the first branch of the Statute ; so that at the time of the second Lease made , the first Lease hath his continuance , but was determined , and the Statute is in the copulative , and then it is not determined by the making of the second Lease , which then had his continuance , & then was not determined , finished , or expired according to the words of the Statute . Secondly , the second Lease for fifty yeers , is abridged to one and twenty yeers , by the second branch ; for contrary to equity , it will destroy the former Lease and the second also ; And so , that the same Lease exceeds not twenty one yeers express in the Statute , extends to the terme abridged , and not to the intire new term to make the clause conditional , but to make the State abridged , good for one and twenty yeers , and shall be as a double repetition of the first clause only , and be also a declaration of the State , and expounded in the future tense , that it shall not exceed twenty one yeers , which is all one with the words , for twenty one yeers ; as in a writ to the Shereist , to seiz goods for the King , Ita quod nullus adea manum apponat . And in the Statute of Gifts conditionall , Ita quod non habeat potestatem alienandi . The word ( So ) is not conditional , but maketh a plain declaration of the thing before , by the words of the Statute sometimes expounded contrary to the text , to make this agree with reason , as by 25. E. 3. cap. 16. after fo. 205. by the exception of non-tenure of parcel , no Writ shall abate but for the quantity of non-tenure which is alledged , expounded by 5. H. 7.7 . where the thing demanded is severall , as Acr●s ; for in a precipe of a Mannor , if the Tenant pleads non-Tenure of parcel , all the writ shall abate , because an intire thing , and there the demandant ought to have an exception in the writ , because it is contrary to reason that a man shall demand the intire mannor against one which is not Tenant , but of parcel of that which he endevors to recover . So Praerogativa Regis is for the Tenure of him in Capite , where the King shall have Primer seisen of all his other Lands ; yet 30. H. 8. and after fol. 204. for Soccage in Capite , he shall not have , because it is contrary to reason that such a small Tenure should be so greatly charged . So W. 2. cap. 21. gives entry to the Heir , yet he shal not have the arrerages in the life of his father , old natura brevium 138. and this exposition is contrary to the text , because the text is contrary to reason , to give an action to the Heir for a thing in consideration of another thing not due to him . So Glouc. cap. 3. for warranty with assets 21. H. 7.10 . & 11. H. 4.21 . the things taken by equity is expounded contrary to the principall , Perveyance , Instans est unum indivisibile in tempore quod non est tempus nec pars temporis , ad quod tamen partes temporis copulantur .

Townsends Case .

A Woman Tenant in tayle taketh husband who maketh a Feoffment in 20. H. 8. to the use of himself and his wife for their lives , the remainder over , the wife is not temitted , Adjudged .

1. For that she cannot avoid the discontinuance by entry , as she might after 32. H. 8. cap. 28. but hath an action ( viz. ) cui in vita given to her to recontinue the possession , which she useth not , but cometh to the possession by another mean , she ought to take it in such order , and with such appendances as the Law limits to such mean , & the mean which she useth here is 27. H. 8. and as the Statute appoints the possession to her , she shall be adjudged in , and not otherwise , although she be a Fem Covert ; For Coverture or Infancy is not materiall here ; for it is not excepted in the Statute , And the Statute of 27. H. 8. of uses in the first branch of it , executes the possession according to the quantity of the State in use ; And the quantity of the State in use was for that Term of the life of the husband and wife ; ergo the Estate executed by the Statute , shall be to them also for their lives according to the use aforesaid . The second branch of the Statute executes the possession according to the quality of the Estate in use ; But the quality and manner of this Estate was by purchase ; for they shall be purchasers of the use ; therefore she shall have the Land as a new purchase , and in no other manner : for the words Affirmative in the Estate includes a Negative , for that where the Statute appoints or limits order or form , in things which shall not be by the Common Law before by words Affirmative , in the Statute includes a Negative , and shall not be in any other manner then the Statute appoints , as execution of uses hereby 27. H. 8. and of voucher , as if he were Tenant by W. 2. cap. 4. 14. H. 7.18 . and after fo. 206. and entry for forfeiture by Jointures , by 11. H. 7. cap. 20. before fol. 56. but contrary , and its words in the Negative , viz. and not above twenty one yeers , and the continuance of the State shall not alter the possession in other degree then the continuance made it at first , where the entry is taken away ; contrary it is where the entry is lawfull , as if the disseisor maketh a Feeffment to the use of the diffeisee , and is in possession by 27. H. 8. but untill his reentry is not remitted , yet after he shall in respect of the first disseisen , and not by possession transferred by the Statute .

3. The wife here is not remitted , because the Statute of 27. H. 8. executes the possessions of the remitter , &c. And if it should be a remitter , the remainder shall be defeated and void thereby , contrary to the words of the Statute . And although that by the Feoffment , the freehold passeth to the wife , and she remains Tenant thereof after the death of her husband , and is Tenant to the precipe of a stranger untill her disagreement or disclaimer ; yet she may use her action against him in the remainder , which is a disagreemen in Law , to the use and possession conveyed by means thereof , and then the possession vests in the next remainder , as if the wife had not been named , or had been a dead person in Law . So if it were to the use of the wife in fee , if she refuse it , she may use her Action of Cui in vita against the Feoffor or his Heir ; for by her refusall they are Tenants to her Action , and the use reflects to the Feoffor or his Heir ; for upon a Feoffment to the use of one which refuses , which is as to the use as a dead person , or of the thing insensible , as Pauls Steeple , there wanteth considerations , and then the Feoffment shall be to the use of the Feoffor , and by using of her Action she may purge the incombrance by her husband ; and so no inconveniency , if she were not remitted as was objected . It is not a remitter as the case here is , if the Estate had been made by immediate Feoffment , because the husband survives the wife ( Littl. here presently fol. 150. ) she is Tenant to the Action of the Heir of the wife ; and therefore in 21. E. 3.26 . & Ass. 2. that the Heir in like case enter upon the husband , bringeth an Assise , and good , no Law now by Brook , Remitter , 41.

The Earle of Darby against Newdigate .

THe Earle challenges the Array of the Pannel , because that he is a Peer of the Realm , 2 Ma. in the Common pleas . Aslise . and no Knight is named in it , and adjudged a good Challenge according to 13. E. 3. Fit . H. Title Challenge 115. Challenge by the Bishop of Exeter was taken in Quare Impedit , because he had not a Knight named in the Pannel , and it was allowed .

Buckly against Rice Thomas .

DEbt upon the Statute of 23. H. 6. by Buckly Knight , M●… . Mar. in debt . against Rice Thomas , the Plantiff counts , that although he was returned a Knight of the Parliament in a County in Wales , whereof the defendant was Sheriff , by the greatest number of Freeholders of the County ; yet the defendant returned not it , But that another was chosen Knight , and recites how by the Statute of 27. H. 8. Wales was incorporated and annexed , and made parcel of England , and the Welch Nation by this enabled and made inheritable to all liberties , franchises , rights , priviledges , and laws of England , as other the subjects of the King of England had , and adjudged that he should recover .

1. For that the allegation alleadged under the [ licet ] is a precise affirmative by the Rules of great authority ; the Latine Authors by the Register , and opinion of Doctors of the Civill Law , by Brook .

2. That the Plantiff need not to shew the number of choosers in certain , for the Infiniteness of it , and for the impossibility that he should take notice of it .

3. That the penalty of the Statute of 23. H. 6. for false returns of Sheriffs upon election of Kinghts of the Parliament , and all other Laws of this Realm , extends to the Welch Nation , by the last clause of the Statute of 27. H. 8 which enables them to it , and not by the generall words of this , which makes it parcell of England .

The most voices in the upper house shall be numbered by the Clerk of the house ; for every one there shall be severally demanded ; Otherwise in the Commons house ; for there the assent is tried by the voice and are all at one time ; So in Election of Coroners , fol. 126. a.

Stamford Justice . Declarations ought contain the materiall points pertaining by apt words of affirmation , and not by recitall , or implication ; As by debt upon an obligation , it appeareth by the obligation , that the defendant stands bound to the plantiff in ten pound , the which he hath not paid . So upon an escape by which the plaintiff was excluded from his debt , is not good , because he saith not that for the matter in fact he was not satisfied when the prisoner escaped . So 38. H. 6.14 . for debt for a salary declare upon retain in all occupations the defendant shall have his Law ; howbeit that the generalty imply husbandry , in which Law lieth not , which is not expressed plainly , but by implication , that he was retained in Husbandry . The Law of England prays aide of other faculties and Sciences in matters appending to it ; as of Grammer for the exposition of Latin words , as of a renuntiavit toti Communiae 9. H. 63. So adjudged imaginavit which was amended in the writ , because no such Latin , 9. H. 6.35 . So of Penticosts 11. H. 6.2.9 . H. 7.16 . of Latin for fine Gold by Sanders fol. 125.7 . H. 6.11 . aide of the Civil Law for difference of Compulsion precisa & causativa , 21. H. 7.35 . of Surgeons for maihem of the Canon Law , 20. H. 6.25 . Of vigor of an appeal pleaded against an excomunication , the usuall form shall be observed and good , as in debt , when the defendant acknowledgeth himself to be bound , &c. So in forgery against one only quod falsa conspiratione habita , good 11. H. 6.2 . because the usuall form , where a man may not have by common intendment precise notice of the certainty of a thing , it sufficeth to alleadge this generally , as 21. H. 6.9 . & 9. H. 7.15 . that executors have administred to B. without shewing what things , good ; because he may not know that another hath administred , and that he is not privy . So 5. E. 4.8 . Obleige to discharge the Sheriff of all things touching his office , he said that he had discharged him generally , good ; because for the infiniteness of it . Talbot and Corbets case tempore H. 7. upon the same Statute 23. H. 6. where the issue was joyned that Corbet was chosen Knight for the Parliament , and he was admitted to prove it , &c. So 2. E 4. 19. imprison to make an obligation to the defendant , & to others unknown without naming them , good ; contrary in false imprisonment . So 10. E. 4. 19. bound for to serve in all lawfull commands , he said that he had served him lawfully , untill such a day without shewing in what , good . So in 12. H 7.14 . he had found him meat , drink and apparel , untill one and twentd yeers without shewing what , good . So monstraverunt homines without shewing the number , because a great number ; for the Law compels not to shew the certainty of the thing which is not to be known or remembred , Brook Chief Justice so . 128. and in Parliament , the most voices in the upper house , shall be numbred by the Clerk of the house ; for every one there shall be severally demanded ; otherwise it is in the house of Commons ; for there the assent is tryed by voices , sounding all at one time ; So in election of Coroners , Sanders so . 126. the County of Chester was alwayes parcel of the Realm of England ; yet Knights and Burgesses came not from thence untill the Statute of 34. & 35. H. 8. ca. 13. Statute penall extends not further then the words , and namely for to punish others , as 21. H. 7.21 . of malefactors in Parks extends not to Forrests . So 13. H. 6. cap. 10. that Sheriffs shall not let their Counties , extends not to him which Leases parcel of it 21. H. 7.36 . the contrary was held 20. H. 7.12 . and before fol. 87. So treble dammages for a forcible entry in an Assise or trespas extends not to entry in the nature of an Assise . 7. H. 4. which limit order for the election of Knights , extended not to the false return of the Sheriff , untill 11. H. 4. was made ; if London inlarge the Ancient custome ( viz ) that a villen shall not be drawn out , which hath remained there a yeer and a day , because Ancient demeansne 7 H. 6.32 . extends not to enlargment . So England altered not the subjecton of Wales . Rape is made fellony by W. 2. ca. 34. Abetters inquirable cap. 12. and at one time , good 2. E. 2.22 . E. 3. yet Chapter the 12. seeme to be intended of fellons before made , and not by the same Statute .

Sanders justice ; the allegation alledged under the ( viz. ) is a plain precise and effectuall affirmation in deed proved by Rules in grammer , the authority of Latine Authors by the Register 66.160 . natura brevium 63.134 . h. 135. b. and the opinion of the Doctors of the Civill Law 21. E. 4.49 . and after so . 143. by Catlin an Abbot in discharge to be collector saith inter Record . of such a term continetum that R. 2. had granted to his predecessors , that he nor his successors shall be collectors , and naught , for it may be contained amongst the Records , and yet no Record ; escuage was first invented to suppress the Welch and Scots rebels against whom war was made by the King of England , as against Rebels , and not as against enemies for that they were subject to England H. 3. made E. 1. his eldest son Prince of Wales ; and so it hath continued to this time ; which Act of H. 3. was the first alteration of Wales . King E. 1. made the Statute of Snowdon . The third was the Statute of 27. H. 8. the welch may sue by quod ei deforceat in the nature of what action they will : Statutes sometimes explaines the Common Law , Merton cap. 2. quod vidua legare possunt bluda , &c. and late Statutes aided by equity Statutes made before ; so lineal warranty Bars not the issue in taile without assets by the equity of Glocester made long before after fol. 78. so Land delivered in execution by the Statute of Marchants 1● . E. 1. yet it shall be delivered also to so high extendors , although 13. E. 1. speaketh not of it by equity of Acton Burnel , 11. E. 1. cap. 2. which giveth goods prised at two high prises in dammage , and that the Connusee shall have them for the price , because it intended to aide things , in like degree , although not in esse then .

Brown , Justice to the same purpose , and said , that in things touching Grammer , their predecessors have consulted with Grammarians , and pursued their Rules , as it appeareth in our books , that the the Judges have said proximo antecedenti fiet Relatio , the which sentence they might take out of Grammar , and he argued that ( licet ) was a plain affirmative , and that the matter contained under the ( licet ) is an affirmation with greater vehemency , then it should be without the ( licet ) and that the licet augments the affirmation . And he argued further that the generall words of the Statute of 27. enabled the plantiffe to take benefit of the penalty , and in what he said agreed with Sanders in effect .

Brook chief Justice . Gavel kind commenced by the Brittans , by partition of England , Scotland and Wales , between the three sons of Brute continued by Bellinus , Brennus , Ferrex and Porrex , and was altered in England by the conquest of the Saxons , and the eldest son by their Law was inheritable . But Gavel kind continued in Wales , until 27. H. 8. for it was not conquered ; Priviledges within certain precincts or Dominions followed , not the enlargement of the place . So 38. H. 6.10 . Liberties granted to the Bishop of Durham in feedis suis extends not to the purchase after . So 21. H. 6. Warren is granted to B. in all his Lands in Dale , and he purchaseth other Land in Dale , he shall not have warren there . So a grant of Conusans of Pleas of a thing parcel of the mannor of Dale tenancy Escheats , afterwards he shall not have of it . For the grant taketh execution of his precinct , and circuit at the time of the making of it , and the services shall be then parcel of the mannor , and not the demeans which now escheat . So grant wreck to B. in all his Lands , it shall not extend to the Land of which he was then disseised , because not his but the disseisors pro tempore . Reference to another thing shall be as this , to which it is referred it , As if a man make a Lease for so many yeers as I. S. hath in the mannor of D. there he shall have so many yeers as I. S. hath , and shall take avermen : that I. S. had so many issiut tale corodium quale I.S. nuper habuit . So 11. H. 4. & 20. H. 7. grant office taking such fee as I. S. which executed the same before had , ought to be shewed what he had . So 20. E. 3. the King granted to Litales liberties , that the Town of N. had by shewing of the records or writings , prove their liberties , the grantee shall have the like .

Browning against Beeston .

LEase for yeers by Indenture , by which the Lessee Covenants and grants to render and pay for that land , 1 Mar in ba. Ray Trespass . thirty seven pound yeerly , at two feasts of the yeer , naming them , or within two moneths after at a certain place out of the Land ; and moreover Covenants & grants , if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor , then the Lease shall be utterly void , extinct , and of no effect ; and that it shall be lawful for the lessor to re-enter ; and after the rent was not paid , and before the entry , the lessor maketh a new Lease , and the first Lessee bringeth trespas against the second Lessee , and he pleads the matter aforesaid , and pleads the condition in this manner , as in the Indenture is contained , and saith not precisely , that the Lessee had Covenanted as aforesaid ; And also said , that the Rent was arear by the space of two moneths next after the said feast , and adjudged for the plantiff for these two causes only .

1. That the pleading of the Covenant , which is contained in the Indenture , that the first Lessee hath covenanted , is not but a recitall , and no express averment , that he hath made such a Covenant in facio fol. 143. by Bromly . 2. Because that the pleading of the Rent arear for two moneths , varies from the Indenture , which is after two moneths , fol. 143. b. by all contrary to Catlin , for he said , that this is to be intended so if necessity .

Matters in Law are left at large , but the better opinion was for the defendant .

If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly , be a reservation of the Rent or not , and by Ramsey , fol. 132 it is not .

1. For that it is not issuing out of the Land by the way of Charge ; for pro terra implies a cause of the grant and is not words to Charge the Land .

2. It is not a Rent service for default of words of reservation of the lessor , as reddendum , reservandum , tenendum , &c. for this commences by words of the Lessee , and which amounts not to a sum in gross , because it goeth not with the revertion , as he which hath Land on the part of the mother , maketh a Lease for yeers by Indenture ; the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent , the Lessor dies without issue ; the heir on the part of the mother , shall have the revertion ; and on the part of the father , the Rent , for that it is a some in gross , and not a Rent incedent to the revertion .

3. It is not farm , because it is not a Rent , because they are all one .

4. It is a void condition , if it be a condition , because it refers to the farm and Rent , where there is not any such , as a condition that the Feoffee shall infeoffe a Corporation , which is not ; or his wife , is voide , because the first is impossible , and the other against Law ; but the state , because it is Precedent in defeasans of which they are made , shall stand good .

Stamford and Walsh Justices , fol. 134. It is a Rent ; first this Covenant and grant is equivalent to reservation , and is by Indenture , in which the words are the words of both , and taken for the words of him which most aptly speaks them , as a Rent upon a Feoffment , Litl . 47. is a grant of the Feoffee , and in Judgment of Law shall dispose words which have substance , formality , and words there shall be taken indifferently ; For all parties assent , and are privy to the speaking of them . But words of a deed poll , taken more available to the grantee , 20. H. 7.8 . by Brian , and the Law expounds one word in the sence of another , as 10. E. 31. 14. H. 8.2 . 21. E. 3.49 . Reverter for Remainder , So it taketh a word spoken by one for the word spoken by another , and namely by Indenture , and although it were not a Rent , but a sum in gross , yet it extends to it , and to issue out of the Land for the Law , because it is spetially alleadged the ground of payment of a sum to be for the Land , and yeerly to be paid , and the one is executory for the other ; For ( before ) fol. 71. if Land recovered by an elder title , shall not pay which hath not the thing which ought to pay , as 15. E. 4.4 . if he may not have the ancient Pale , he is excused to make a new , so 9. E 4 10. if he will not give counsell , the other shall stay the Annuity , and 39. Assise 23. Rent for equality of partition , charge the Land parted , not mentioned because the Rent was granted and executory for the land . So 2. H. 7 5. it shall discend to the heirs of the grantee without naming , because it cometh in respect of the Land , which should discend to the heir , and when the ground of the matter appeareth , the Law supplies the fault of the words , because the Law respects the ground of the matter and consideration .

Gawdy . It is not a rent , fol. 136. in 39. H. 6.33 all the words shall be taken the words of one party , viz. The first in the Indenture wherefore they are not the words of both , because it estops not the other party ; and an estopple discends upon the Heir of him which is Heir at the Common Law , because he is Son by the half venter , neither Sister , or Brother by the entire bloud ; and although they agree to have the same , yet how , viz. as a rent or not , is not parcel of their agreement . So it shall not be construed a rent , because words may have a reasonable construction ; otherwise in 22. E. 4. in the case of the Prior of Bingham , the Covenant was of a rent which shall be intended rent service , the Fine saith not predictum redditum , but was of five acres and was for the land , and the Grantor was Tenant , so holden there to be an annuity ; so here .

Morgan , it is a rent , f. 137. b. for the assent of the parties is the chief matter to be considered , and not who speaks ; for the Lessor shall not have debt for the rent reserved , unless it be a Contract ; and it is not a Contract without the assent of all ; and the words comming out of the mouth of one shall be the words of all in the operation of the Law .

Catline . To the same purpose , because words equivalent to a Reservation ; for the Law takes words of substance , and not usual equivalent ; and words of substance is usuall , and the Law regards the effect and substance more then form ; the words and substance will supply the form , rather then the intent of the parties shall be void ; as Lessor and Lessee for life makes a Feoffment , it shall be the Feoffment of the Lessee , and confirmation of the Lessor , yet no word of Confirmation ( before fol. 59. )

And so if a Tenant for years , and the Lessor make a Feoffment in Fee , this shall be taken the Livery and Feoffment of the Lessor , and surrender of the Lessee ; and yet there is nor any word of surrender of the Lessee , but shall be so taken by the judgemen of Law .

So a rent granted by Tenants in common , is severall , because estates several ; yet words joynt ( after fol. 161.171 . and Perkins fol. 22. ) so renuntiavit communiam , 9 H. 6.35 . ( after fol. 162. ) it is a a Lease ; because where words are equivalent in substance , the Law will appoint how they shall enure , and in Contracts it is not materiall who speaks the words , if the other agree ; for the Law respects it , and the words which prove the assent and have substance sufficient .

And therefore 21. H. 6. if the words of the Obligee make a Condition , viz. the Obligee vult & concedit , if the Obligor steterit arbitrio , yet usually they are the words of the Obligor for Condition , Brooks cond. fol. 58. abridge this contrary .

So an annuity pro consilio , or a rent for Composition of Tythes , 9. E. 4.16 . enure as words Conditionall , and a Covenant that the Farmor shall not be impeached for waste , amounts ( 21. H. 6.47 . ) to hold without impeachment of wast , 17. E. 3.9 . award assigns land of greater value then the Dower to the Widow , and the second Husband , who granted a rent by the same Deed to him , with distress for the overplus , and the Deed recites this , the Wife Lessee after the death of her husband , because the Grant to pay the rent for the overplus of the land , a good reservation ; for otherwise he shall not be bound contrary before of a Grant for reasonable Dower , and no mention made that the land was more worth then the Dower , because without consideration there , and is a Collateral thing ; and so words shall enure upon Acts between the parties concerning the principal matter , and Collateral matter , differ also ; the summ is certainly recited , and the rent shall be this summ ( for the sentence stands good , without words , rent , or farm ) where those words shall be adjudged void , rather then the certainty expressed to be void ; as 4. E. 4.29 . I. is obligee to B. Solvendum to I. yet good , and the Count shall be to be paid to B. for the intent of the parties makes this good .

So a Grant of Remainder by the name of Reversion of the land , a good Grant , notwithstanding the mis-terming of the thing , because the certainty of the land appeareth ; but by a Grant of all Reversions , a Remainder doth not pass , because the grant is in generalty ; and so certainty by special Terms , and by general differs . So where he saith , if all rents shall be arear , and where the said rent of 37. l. 3. s. 4 d. in certain .

So words containing generalty , and incertainty ; and specialty , and incertainty , differ ; to pay 10 s. at Michaelmas 1599 , and at the same Feast of S. Michaelmas next ensuing other 10. s. there the summ is taken the like , for that it cannot be the same if it come after ; so one word taken for another supplies the intent of the parties .

2. That the Covenant and Grant for not payment , that the Lease shall be void , is not a Condition by Ramsey , fol. 133. because it is not spoken by him which gives the estate ; as if two Joynt-Tenants make a Lease upon Condition , and that then one Lessee enters , he shall not enter but into one moytie , for that he gave no more ; and the words of one , because the Law saith , he speaketh only for his moytie , shall not make this Condition to another which speaks not . And also the Condition is subsequent in time of the Statute , which was executed before , for the Demise and habendum maketh the Lease ( contrary by Stamford and Walsh . fol. 135. ) for that the parties are so agreed by Indenture , and the one party and the other assents ; and therefore all one as if he had reserved the Conditional payment , which is called Rent , and is a Condition annexed , for to avoid the Estate Litl . fol. 70.

So here , because the summ certainly named , be it a Rent , or summ in gross ; for it is not requisite that the Lessor should speak ; but if the words of the Indenture had intendment to avoid the estate , it sufficeth , and the words shall be taken agreement of every party , and not spoken by one party more then another , as provisoes are , or si contingal ; and all the words of a Deed shall take effect at one instant , because the delivery is at one instant ; and it hath not several times proved , by 10. ass. 15. where several Deeds delivered at one and the same time , the one being a Lease for years , the other a Charter upon Condition to have Fee , if disturbed ; before fol. 34.

So 9. H. 6.35 . Lease without Impeachment of Waste , provided , That he makes not voluntary waste in houses is Conditional ; and waste lieth because all made by one Deed ; if by two Covenants , yet it is not spoken by the Lessor , more then the Lessee , but shall be taken as an agreement of both the parties .

Gawdie , Justice to the contrary , fol. 137. Defeasance of a thing Executory , as an Obligation , Recognisance , or Warranty , 43. Ass. fol. 44. good ; of a thing executed , not . As 43. E. 3. Defeasance of a release , unless delivered at one instant ; nor of a Lease executed , by Morgan it is Conditional , fol. 138. For Covenant lyeth not here , because that Covenant lyeth of a thing to come , and to be done by the person of some one , and not of a thing to be executed in it self ; and therefore if the words enure not to the effect , to determine the first Lease , here they shall be void , because it may not enure to another effect .

It is not a Condition by Brooks , because it is not restrictive and compulsarie , as are Ita quod non if the Lessee doth such an Act , or if it happens , or proviso ; but a proviso alwaies maketh not a Condition , as in Dockwraies case , 27. H. 8.15 . because voluntary ; for Leessee without words compulsary of the Lessor , Covenants and Grants , That he will remove , &c. by Catlyn , fol. 142. is a condition , because it implies the intent of the parties to be Conditional , yet it hath not the usual words as a Feoffment , to pay 20. s. or instruct his Son in such an Art .

For it is a Condition , because the parties purport such intent . So proviso , That the Lessee make such a thing .

So here , it shall enure as a Condition , in whatsoever manner it be called , it shall enure as a Determination of the Leasee because it was made at the time when the Lease began .

If the second Lease admit it be a Condition , shall be good before re-entry , or not . Ramsey , fol. 133. It is not good , because after the Condition broken , untill he enters , he hath but a Title , because he may not grant , and the Lease continues , and the possession also .

And therefore 22. E. 4.37 . Lesser shall not have Trespass untill entry , 14.3 . Ass. 11. Distress estop his entry , because it affirms the continuance of his Term.

Where a man may enter , he ought to enter , or not have the thing ; and where he cannot enter , he ought to make claim before he shall have it As a Reversion granted upon Condition which is broken , the Rent is extinct without Claim , for that he may not have it by Claim ; by Stamford and Walsh it is good , fol. 136. for that the first Lease for years commenced by words without entry , it may be determined by words without entry ; Lease for life not , 2. Mar. fol. 142. because Livery and Seisen , which gave the State and Entry , which ought to be avoided by entry upon Condition broken , & it is expressed here how the Lease shall be avoided , viz. by entry ; and there if he enters not , or doth an Act which excludes him to Enter , as the making of an acquittance , or distraining , there the Lease is good ; But the words here , are utterly extinct , dissolving the Lease without Entry , and no Act after shall make it good ; and the words of the entry here , are surplusage , and take away the effect of the first words .

As to 22. E. 4. The Lessor cannot punish him , because the entry was first with his assent ; and when the Lease ended , he was Tenant at sufferance ; but he may make a Lease to another , and it determines his will ; by Gawdy it is not good . Void here , shall be expounded void by Entry , as W. 2. cap. 1. before fol. 82. Finis ipsojure sit nullus , viz. to the right ; yet it is a discontinuance . So by 8. H. 6. cap. 10 Outlary shall be void in Indictment , or Appeal , if no Capias in the County where he dwelleth .

Common Law , 19. H. 6.2 . expounds it shall be void by Writ of Error ; he that hath a possession in Law , may Lease before entry , after fol. 142. after a stranger hath abated , not , because another hath possession in Deed.

So a Lease by the Husband for years , shall not be void of the Wives land after his death before entry of the Wife ; for possession ought to be defeated by possession , and possession ought to be gained by entry .

Catline , fol. 142. b. By the not payment , the first Lease is determined without entry , because it may be made by word without other circumstance , ( otherwise of Free-hold ) and therefore may make a Lease , but cannot have Trespass without entry , as Heir ( before fol. 137. ) he may make a Lease before entry , but cannot have Trespess before entry , 11. H. 7.22 .

So a Lessee may grant his Term before it commence , 22. E. 4.37 . yet he shall not have Trespass before entry , 37. H. 6.18 . To shew two matters where both are effectual , and answerable , makes a double plea , as 3. H. 6.32 . Feoffment up-Condition to infeoff the Heir , and averment of the Collusion in Wardship of the body .

So 20. H. 6.7 . Seisen in his Ancestor and himself , by avowing .

So 22. H. 6.37 . Two continuall claims , viz. by the predecessor , and the Plaintiff , for to avoid a discent .

So 19. E. 4.4 . by Vavisor , and Brian . Two discents in Fee bars not ; two discents is not double in Tail , because one answer ( viz. ) he gave not , makes an end of all ; for if he cannot shew one thing without the other , it is not double ; nor if the one is pursuant to the other , as fully administred , and so nothing in his hands ; for the last is but a conclusion of the former . But the other Justices , held the aforesaid two exceptions effectual for the causes aforesaid , and that the Rejoynder was vicious ; wherefore they said , That it was in vain to argue them , and therefore in consideration of them onely , without respect to the other matters rising upon the Rejoynder , and before debate , they awarded for the plaintiff .

Throgmorton against Tracie .

M. Mar in the Common Plaes , second deliverance A Man makes a Lease for life , and after Grants the Reversion of the Land habendum , the land at Michaelmas after the determination of the first Lease for life for one and twenty years , and adjudged a good Lease for years of the Reversion , and of the Land Reverting , and that the Habendum stood well with the premises , because that the land is the degree , and state of the Grantor was included in the premises , by the word [ Reversion , ] and the degree and estate excluded by the Habendum , and the other part onely granted , viz. The land Reverting , and so was the intent of both the parties .

Reversion is compounded of the remnant of the estate which is left in the Lessor , and of the land Reverting , and carties with him the land to be afterwards happening in possession , and the land is the substance of both , and by the grant of this both pass .

So the Mannor which is compounded of Demeasnes and Services , and of stegno aqua priscarie , 4. E. 3. or gurgite , which consists of water and land . The Habendum , which is not pursuant to the premises , is void , as a grant of a Mannor Habendum , a Rent parcell of the Mannor , because in the grant it was Rent service , and in the Habendum it is Rent Seck .

So a Grant of Services , Homage , Fealty , and rent Habendum , the rent to the Grantee in Fee , this habendum is void , because in the grant , the rent was contained as a rent Service , but here it is rent Seck , Grant of it after the death of I. S. void ; for the nature of a Grant is ; that the thing Granted ought to pass presently ( after fol. 155. ) for it is a thing in possession , and is granted as a Reversion where no Reversion was of it .

If one maketh a Lease of land for years , and after maketh a feoffment of the same , without livery it passeth not the Reversion by Attornment , Quere , because the Grant of a thing which includes all interests in it , shall make the Reversion to pass ; but the Reversion granted , shall not make the possession to pass . 38. H. 6.34 . and ( after fol. 399. ) The King Grants a Mannor , to which an Advowson is appendant for life the Advowson passeth not ; nor if he grant the Reversion Habondum cum advocatione , it passeth not , because in gross , because it was not mentioned in the first Grant : but the Reversion of an Advowson may be parcel , or appendant of , or to a Mannor in possession , not possession of , or to the Reversion of a Mannor , the Habendum passes not ; a thing not parcel , nor appendant , or appurtenant ; unless it be comprised in the premises .

The Office of the Habendum , is for to limit the estate ; as a grant , a Rent , ( and stay there ) is for life Habendum for a year , is for one year , 7. E. 3.10 . by Trew . 7. Ass. 1. Perkins fol. 22. The Habendum repugnant to the premises , void , and the estate before the Habendum shall stand . 14. H. 8.13 . by Pollard , Perkins fol. 34. Contrary 13. H. 7.23 . by Fineux , a Grant to one and his Heirs Habendum for Life .

So to two Habendum , to the one of them two for life , the Remainder to the other for life , because it severs the joyncture in the estate .

So a grant of two acres to two Habendum ; the one acre to one , and the other to the other , because it includes the interest of every one in one acre . A Lease of land reserving the profits , or two acres except one , void , because parcel of the thing granted .

Doctor and Student , fol. 98. Reversion is a Tenement , and ought to vest presently as a Reversion , and not at a day to come ; otherwise it is of land Reverting without estate , and agreed of land , by the Serjeants for the Defendant .

Every Deed shall be construed most strongly against the Grantor , and if it may be taken to any effect , by any reasonable intendment , it shall be , and the intent of the parties shall be observed , as here of using this word [ Reversion ] not in its proper signification ; for then it first ought to vest , as in Reversion presently by Attornment , and not at a day to come ; but as a demonstration certain of the land , viz. all the land that they have in Reversion ; and that they will not have the land to pass in the degree of a Reversion , but in degree of Demeasne .

And the Law will , ( That when the intent appeareth , ) incline the words not apt of their proper and common signification to the intent , and one word shall have the sense of another , as Litl . fol. 121. Dedi & concessi by the Disseisee shall enure as a confirmation .

So 17. E. 3.8 . Mannor pass by the name of Fee de Chivalry .

So 10. E. 44. 5. H. 7.1 . plead Demise by words of licence to occupie ; where one word includes in it one thing , as here Reversion includes the land , the thing included shall pass by the word , as 11. R. 2. Piscary pass per a quam , and 40. E. 3.45 . Soil by Piscary , and by Turbary . 7. E. 3.342 . So Soil and Wear , by Gorss , for 14. E. 3. Formedon lyeth de gurgite .

So 6 E. 3.183 . By the name of one acre cornubiensi , for Cornish acres contain so many . A man Grants his Remainder of one acre , to have and to hold , the same Reversion of that acre , good ; because the Law respects the intent of the matter , and applies the words to it .

So a Gift in Tail , reserving the first three daies a Rose , and after 10. s. good because one rent in substance .

A man seised of two acres , Leases one for years , and after maketh a Feoffment of both , Livery in this wherein he hath possession by Attornment , the Reversion of the other passeth , 7. E. 4.21 . So 30. E. 1. Totum Molendinum suum , the Reversion of the third of the Mill which was in Dower , pass ; but Tenant for life ought to Attorn upon the Grant , Brook grants f. 30. the Habendum explains and corrects the words of the premisses , as here the words [ Reversion of the land ] to the land it self , being the same substance .

So 7. E. 3.308 . A Rent Granted out of a Man nor , to take off one acre of the same Mannor , nothing shall be charged but this acre , in performance of the intent of the parties , by the Serjeants for the Plaintiff .

Anthony Brown , Serjeant for the Plaintiff . Tenement compriseth a Reversion , as 33. E. 3. the King licences to purchase Tenements in Mortmain , he purchases a Reversion , good . Fitzh . grants , 402. and Cook Alienation fol. 55. is Advowson ; yet the word [ Tenement ] here , agrees not with the premisses .

First , because that in the mean time after the first Lease finished at Michaelmas , the land is in possession , and then it is not a Reversion , because no particular estate ; and therefore may not yest as a reversion , as 21. H. 7.11 . ( before fol. 25. ) Remainder may not vest , but during the particular estate , and not at the ending of the first estate up on Condition broken .

So 10. E. 3. dower of a rent reserved upon an estate Tail , good , so long as the estate continues , otherwise it is if the Tail be altered in Tail after possibility , or Tenancy by the Courtesie , for that the inheritance is determined , and the rent is now in another degree . 12. E. 3. and 10. H. 7.13 . by Keeble , if a rent be granted with a cessing during the nonage of the Heir , the Wife shall have Dower , and Execution shall be staid , otherwise , the Wife of the Son dying within age ; for that during the Cesser she had not possession .

Secondly , because the Reversion cannot be granted at a day to come , for then he shall have the particular estate in the mean time , and shall be Lessor to himself , and 38. H 6.38 . a man cannot reserve the lesser estate , giving the greater , without alteration of the Lesser , as in 8. H. 7.3 . by Vavisor , before fol. 152. A. hath rent in Fee , and grants this to B. after the death of I.S. void , because the Fee passeth presenly , if ever ; and then he should have Franck-tenement of his own grant , until I.S. dies . And the Estate shall not be so devided without alteration of the whole Estate ; for a thing in esse cannot be granted to be in esse one time , and to be insuspended , or differ from the other : but a new rent may be granted to commence at a day to come ; for there he shall not have the particular estate in the mean time , because not in esse , before ( after fol. 197. ) Time material shall void the thing in all , viz. both the premisses and Habendum not ( e converso ) if it may not pass according to the limitation thereof , because time parcel of the parties intent , and if it may not pass as to the intent , all is void .

As a man hath a Rent or Term , and Grant it , if he stay there , good ; if he saies besides Habendum after the death of I. S all is void , ( after fol. 250. ) So the Remainder void if the Termor enter without Livery , Litl . 12. But if the Term was to Commence at a day to come , the Remainder over there , it is void notwithstanding Livery , because there is no estate present to which the Livery may be annexed , so that the time of Commencement is materiall , and Livery before its Commencement is void ; and Livery shall not destroy the time , but the time the Livery , and grant ; every act shall be taken strongest against the makers , and most beneficial to him to whom it is made , and he hath liberty in another sence to his advantage then the words purport prima facie ; for every Deed shall be construed to some purpose , and not to be void , because it is made to some purpose , as 21. H. 6.8 . one may plead a Lease for years , and a release as a Feoffment .

So 7 H. 6.7 . and 22. H. 6.42 . The Feoffment of a Joynt-Tenant , as a confirmation .

So 9. H. 7.2 . The King by Parliament confirms the estate of the Patentee , & dat & conceditur , he may use it as a Grant or confirmation .

So in 21. H. 7.23 . Obligor may plead a Grant , That it shall not be sued before M. in Bar , or have a Covenant for it .

So here , the party uses this as a Demise of the Land , and not as a Grant of the Reversion ; for the Reyersion of the Land compriseth the Land , as Litl . fol. 106. after fol. 161. a release of all the land to him in Reversion , is good .

So 5. H. 5.8 . A Lease for years , and after a grant of the rent , this changes the reversion .

So Litl . fol. 150. recovery of the land against Tenant for life , will divest the reversion .

So 19. E 4.9 . Writ of Covenant and the Concord , is of the land to pass the reversion .

So Quid jur is clamat recites , That the land was granted before the reversion was .

So before fol. 149. Formed on shall say , de uno messuagio where the Reversion was granted in Tail .

So a Reversion in Fee Granted to a Termor , he hath the intire Term presently in Possession ; for the reversion of the land comprises the land in substance ; one word will pass the thing by another word , having the same sence , yet varying in name , because one same thing and intent of the party , as 2. H. 6.4 . before fol. 134. and afterwards f. 170. reverter for remainder .

So 3. H. 6.6 . makes a Testament , and commits Administration , is an Executor .

So 20. H. 7.11 . Retorn for revert by the Grant ; by Grant of the Church , Advowson passes , 14. E. 4.2 . by Grant of the name of a Clerk , a presentment passeth .

So before fol. 151. by Stagnum molendinum , the Soil passes , and the thing contained in the premises named in the Habendum by another name containing the same in substance , is good .

So a Grant of the nomination of an advowson Habendum , the advowson , good . So Manerium Habendum the services .

So mannor by Fine Habendum , one acre of this in Fee , he shall have the acre in Fee , and the Mannor for life , because it wanteth limitation of the estate in the residue of the Mannor .

So a Gift of a Mannor Habendum , the reversion in Fee of one acre , which is in Lease for life , good , Fee for the acre , and for life in the Mannor , because no estate is expressed in it .

So Litl . fol. 120. confirms the estate of Lessee for life Habendum , the land in Fee , good , because in the estate land was contained .

So a Joint-Tenant confirms to another Habendum , the land to him and his Heirs , the Fee will pass ; the Habendum may limit the estate to a stranger not named before in the premisses , as 13. H. 7.17 . a Devise to I. Habendum to him in Fee , after the death of the Wife of the Devisor not named before , hath an estate by implication of the intent of the party .

So 5. E. 3.17 . a man gives land Habendum in Franck marriage with a Daughter .

So a Lease to A. Habendum to him for 20. years , the remainder to B. in Fee , good , because the intent of the parties ; therefore a fortiori here the Habendum may explain the intent of the parties in the premisses .

Die● , Serjeant for the Plaintiff . A reversion is Jus sine possessio revertendi & nomen verbale quasi terra revertens , after the particular estate ended , proved by W. 2. of Advowsons of Churches , and prayer to recite the reversion , if he shall overlive the Tenant for life , and bringeth wast , good . 14. E. 2. Fines saith , remanera and not revertera , where a reversion was granted , before fol. 157. a reversion granted in Tail ; Formedon in remainder lyeth , because the entire estate is not given , Fitzh . nat. br. 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass . 33. H. 8. cap. ultima the not making of Leases in reversion is expounded , That they shall not make Leases beginning after the first ends ad firmum dimiserunt , imply that the parties intend , that it shall enure as a Lease of the Demeasne ; for properly a man may not be Farmor of a reversion , not have an Ejectione firma of a reversion .

No Attornment needs upon a Lease for years , because it is a Contract interpretationem apportet esse benignam ut res valeat , as 30. E. 2. Discendera pro Remanera , 6. E. 2. recipe pro re-entry . So a gift to one for life & post ejus decessum to 1. in Fee , good remainder for the manifest intent ; an Habendum giveth an estate which was not given before , and to a stranger not named before , and alters the estate given in the premisses as a Confirmation to Husband and Wife , or to Tenant for life , remainder in Fee to another good , Litl . 129.

So Habendum by moity , Litl . 66. makes Tenants in common , 8. E. 3.427 . by the better oppinion , a gift to two Habendum , to one for life , and after his decease to another in Fee , the one shall have the entire for life onely , notwithstanding the Joyncture in the premisses .

Otherwise fol. 153. if it be comprised within the Grant , good in the Habendum ; as a Grant De dispositione Ecclesiae habendum advocationem , grants de Soil , the Wood habendum , the Wood defundo domus , habendum domum , Manerium habendum , the advowson appendant , good : but a Grant of Common out of the land habendum , the land or herbage of a Park habendum , the Park and such like are not good , because not comprised in the premisses .

Stamford , Justice ; rules of Exposition . First , deeds shall be taken most beneficially for the Grantee .

Secondly , they shall not be void , where the words may be applyed to any intent .

Thirdly , words shall be applyed , viz. expounded to the intent of the parties , and not otherwise . The intent directs gifts , rather then the words , as 41. E. 3.6 . 16. H. 7.10 . by Fineux , Grantee of annuity pro consilio , hath divers faculties ; yet the Councel shall be given in such a faculty as was intended , 9. E. 4.22 . one bound to pay Recepta & recipienda , shall not pay what he received not , but that which he hath received , because the intent is taken more forcibly then the words . 7. E. 3.7 . Lessee of of a house , which may for his profit make houses there within , may not pull down , or make waste , for the intent was not so .

Sanders , Justice to the same intent with the Plaintiff . Exposition of Deeds shall be reasonable without wrong to the Grantor : as a Grant of Corrody , Estovers , and Common for all Beasts , he shall not have with Goats , and with the largest advantage to the Grantee ; as a Disseisor releases all his right to the Termor he hath for his life , Litl . fol. 108. ( before fol. 140. ) two Tenants in Common grant 20. s. it shall enure as several Grants , 34. ass. fol. 11. Grants totum piscariam salvo stagno molendini sui ; yet the piscarie passes not , for the stagno shall be excepted , and not the piscarie , because he hath a Reversion in the Propriety of the land , and possession of the Ter-Tenancy .

The nature of an habendum , is to give in large , or qualifie Malitiosa juris interpretatio herere in verbis , &c. the words are but witnesses to the contract , reversion includes land by all .

Brown , Justice . To the same intent of the Abbot , and Covent , and of Smith , and his wife was to have the land pass as a Lease after the paticular estate ended , and not otherwise ; and from that hour that their intent was to have the word [ reversion ] enure that way , it seemed to him , That the Law would warrant it , for the land is included in the reversion , for if it was not ; a man by Granting of a reversion , could not have the Land in possession after the particular estate ended .

And a Feoffment of a Carue habendum , the Mannor of D. is good , if the Carue maketh the Mannor . And if land is parcel of an Office , it shall pass by the Grant of the office . Much more he said tending to the effect to make the Lease good , and so the Plaintiff shall recover .

Brook , Chief Justice to the contrary . Estate in lands , includes land it self : land is a generall word and contains Grantor ; and reversion particular words , containing a Decree where one estate onely : intent shall be inclined , and ruled by the Law , and not otherwise ; and intent nevertheless in certainty of words , as 9. H. 6.35 . Renuntiavit communium , and not to whom , void , ( before fol. 122. ) 13. E. 3. Husband and Wife Tenants for life grant reversion of the Land that he holdeth by Homage , Fealty , and Castle gard ; the Lord grants all Services , Castle gard passeth not , because he granted not the Castle . But in Testaments , the intent shall be onely observed , and rule the Law , because the Teastator had not time by presumption to ordain all things according to the Law . In conclusion he agreed that Judgement should be given for the Plaintiff .

Hill against Grange .

A Man maketh a Lease for years of a Messuage , and an hundred acres of land appertaining to it , 3. Mar in Common Pleas in Trespass . &c. by Deed , indented the 6. of August , rendring rent yearly , payable at our Lady day , and Michaelmas , or 10 days after , with clause of re-entry , and after Grants the reversion , and the Grantee the last instant of the 10. day after Michaelmas demands the rent , and enters for not payment , and it was adjudged that the entry was good , for these reasons .

1. Land may not appertain to a Messuage , because both are things corporate simply ; otherwise of Advowsons , waies , &c. which are things incorporate ; but things Corporate , or Incorporate , may pertain , or be parcel of a thing compounded : as a Mannor , Castle , Knights Fees , Honors , Forrests , Monasterie , Rectorie , fol. 170. a. But here the land passes as appurtenant , but by the intent and phrase of the parties ( as they have said ) usually occupied or let , &c. 2. The rent shall be paid at the first Feast of M. for otherwise it cannot be annual , notwithstanding the other feast be first named , 10. E. 3. the Abbot of Osneys case . 3. The demand of the rent the last instant , is good . 4. That the Gantee of a Common person is an Assignee to have benefit of a Condition , or Covenant , fol. 173. a. and shall not be intended of the Pattentee of the King . 5. That the Pattentee of the Heir and Successors of E. 6. shall take benefit of the Condition by equity of the said Stat. and not by the words ,

Things of distinct and several natures , the one is not parcel of , or appendant to the other , as 8. H. 7.1 . by Keeble , a Warren cannot be pertaining to a Leet , nor a Leet to a Hundred , nor one Office to another , nor land to other land ; to a thing Compounded they may , as a Mannor , Knights Fee , Honor , Monastery , Castle , and a Village ; or to words general , as are Oxgang , a yard land , a hide of land , which contains land , meadow , pasture , wood , &c.

Messuage is a single word , consisting of a thing special , and not Compound , nor a general word ; for that 27. H. 6.2 . Land not parcel , or appendant to a house , and by demand of a Messuage in precipe , land shall not be recovered , and therefore pass not by the Grant of a House , by the Serjeants on the part of the Plaintiff .

23. H. 8. and 31 H. 3. by Feoffment of a Messuage with the appurtenances ; Land passes not a Mannor , and things made appertaining to it , are made by usage , and continuance ; So 2. H. 7.28 . land belonging to a Forrest , and Warden of the Fleet , and the house of the Master of the Rolls , and divers farms to the Guardians of the Castle of Colchester , and one Office to another ; as the custos brevium giveth one of the Offices of prothonatories , and use and continuance is cause of it . A man Leases a Messuage , and land rendring rent , be ought to demand the rent at the Messuage , because most worthy , Perk. 166. Meadow appertains to land 3. E. 3. by the Serjeants on the part of the Defendant .

Norwood against Read .

Action upon the case upon assumpsit made by the Testator , 5. Mar ●…n K. Bench. lieth against the Executors , adjudged .

For that the Testator could not gage his Law , otherwise it is where he might gage his Law ; for the ignorance that the Law imputes of it to Executors , and therefore there they ought to Demur ; but if they plead in Bar , which is found against them , they have lost the benefit of the Law , and take Conusance of it , whereof otherwise , their ignorance shall excuse them , 39. H. 6.19 . 12. H. 8.11 . 27. H. 8.23 .

Woodward against the Lord Darcie .

IF the Debtor make the Debtee his Executor , and leaves him assets to satisfie the debt , 5. Mar. Reso . by the Judges of both Courts . and dies , the Debtee may pay himself by way of retainer , by the Court , 12. H. 4 21. according .

And in such case the Action is not utterly exstinct by the Administration ; for that the Law intends that he is satisfied by retainer before ; and so a thing in Action , altered to a thing in possession by Act in Law for satisfaction of the party , which hath no other remedy : but if he hath not sufficient assets for to satisfie the debt , the administration there extinguishes not the Action , because that he cannot retain for parcel , and have his Action against the Heir for the residue , but ought to do the one for the other at his peril .

Wrotesly against Adams .

A Lease for 80. years of a Farm , Tr i El. in Com. Pleas. Ej. firme . the Lessor granted the Reversion of the Farm to a stranger , to have and to hold the Farm for 60. years after the end and expiration of the first Term of years ; the Lessor maketh a Lease for life to the first Lessee for years during the first Term , and the second Lessee Enters , and upon an Ouster , bringeth Ejectione firme and by the Court it well lyeth .

1. By the Law , by a Grant of the reversion of the Farm ; the Farm , and all the Demeasnes of it pass , because it is nomen collectivum , and certain in its self ; and so it was adjudged in the case of Bridges , That by the Demise of the Farm , the reversion and rent incident to it , passeth .

2. That the word [ Reversion ] shall be intended land reverting in the premisses , and the habendum , and not the estate in reverter , which hath his continuance but in respect of the Term ; and during it , it is a Grant of the reversion habendum , the farm , or land , or reversion after the particular estate ended , are all one .

3. That the second Lease for years commencing by any determination of the first Lease , whether it be in Law , or in Deed ; and the expiration refers to the Term , and not to the years ; Term is an estate in or for years , and is finished when the estate is finished , and this may finish when the years remain .

If a man marry with a woman Termor , and the woman dies , her husband shall have the Term , for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death , this is given to the husband by Act in Law , because it is a thing in possession , and not in Action .

The Law is the Common use in Letters , Pleas , and Judgements , and the Common Law is but common use ; by Anthony Brown , fol. 195.

Stradling against Morgan .

EXceptions alleadged in arrest of Judgement , 2 El. Exchequer , debt . upon not guilty pleaded by the Defendant , and found against him .

1. The Plantiff hath shewed in his Declaration , That the Defendant was then receiver , &c. and saith not , That the Mannors were the Queens then , and therefore shall be intended more strong against him , then it should be to a common person , and by consequence the Defendant is Baily to a common person ; by the Court.

2. That no receiver or Baily accomptant of a common person , shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court.

3. That the Action was not maintainable , and the matter well alleadged , lieth in the Queens Courts at Westminster , notwithstanding the Statute of 34. and 35. H. 8. for Wales ; for that they are in the Affirmative , and not in the Negative .

4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer , howbeit that the party hath not cause of priviledge there .

5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count , for that the one is founded upon the other .

6. He ought to shew expresly in his Count , That the Queen was seized , and made him her Bedel .

7. Jeofails remedies not mispleadings in counts adjudged in Moon , and Cliffords case .

In Debt the Plaintiff counts , That whereas he was Bedel , and Collector of certain Mannors ; by vertue of Letters Pattents of H. 8. and had a Fee for it , the Defendant being Receiver of the said Mannor , in 3. and 4. P. and M. took extortion for the payment of his Fee , viz. 4. d. for every pound , against the form of the Statute of 7. E. 6. the Defendant pleads not guilty , and found against him .

And yet judgement given against the Plaintiff , because the Count was incertain to whom he was Receiver , and shall be intended against him , then done to a Common person , and a Receiver of a Common person , is not within 7. E. 6. yet within the words ; for the intent of the makers shall be observed in the exposition of Statutes ; and so acts general in words have been expounded to be but particular , where the benefit hath been particular .

As the King shall not have Wardship of lands which discends to the youngest Son , but of that which discends to the heir general , 12. E. 4. Stamford , fol. 8. yet the Tenant dyed seized of others in Fee , because the Statute of Praerogativa regis , cap. 2. intends where the land is holden of the King , and a Common person discended to the same Heir where one is Heir to the Tenant .

And Praerogativa Regis , cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands , holden of a Common person , yet the words are general ( before fol. 109. ) Stamford Prerogative fol. 13.

So Marlebr . cap. 4. intends , where Signiory and Tenancie are in the same County ; and therefore the Lord may bring a Distress taken in one County , to a Mannor in another County , of which the land is holden , 1. H. 6.3 . 30. E. 3.6 . ( before fol. 18. ) So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor , for that he is Tenant by his own agreement ; and therefore the Disseisee shall not recover Damages against him , which agrees not to a Feoffment made to him , and others by the Disseisor ; yet he is Tenant , but not Tenant by his agreement , Litl . Remitter , fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe , and afterwards abates the Writ for false Latine , or for some other cause apparent , he shall again have another Writ , because there the Court might have abated this without motion .

For W. 2. cap. 49. although general , intends where the Tenant abates the Writ by exception , not apparent , by 25. E. 3. cap. 16. by non-tenure of parcel , no Writ abateable ; but for the quantity intends , if the thing demanded be several , as Acres ; but all the Writ shall abate where the thing demanded is entire , as a Mannor , ( before fol. 109. ) and the intent of the Statute never was contrary to the Text.

By W. 2. cap. 25. if one fail of a Record , he shall be a Disseisor ; yet a woman Covert , shall not be , ( 11. H. 4.50 . ) nor infant , because excepted by the intent , yee in words hath included all . So extenders shall not pay presently according to the words of Acton , Burnel , which ought to answer presently , &c. but shall be debtors presently with the duty , and chargeable with the payment , and daies payable of the rent , or Revenues receiveable .

So by Exposition it seems against the Text of the Statute , and is not , because the intent of the makers guides them to it .

Of the part of the Defendant it was argued , That the Action shall be sued there in Wales , where the receipt is alleadged , although that Wales is united to England , by 27. H. 8. because by the same Statute , Wales is divided into 12. Counties , and by 34. and 35. H. 8. four Justices are appointed for wales , viz. one for every three Counties , and hold plea of all things within their circuit , and one seal appointed for every circuit , and all Actions suable there by the words of the Statute . And when the Statute appoints place , order , and form of suits , and before what person , it shall not be altered .

As by W. 2. cap 11. an Accomptant found in Arrearages , shall be imprisoned in the next Goal , although it be in another County , 27. H. 8. ( before fol. 17. )

So by Westminster 2. cap. 3. Second deliverance shall be sued out of the same Court , where the first Replevin was granted , and not elsewhere .

So 31. E. 3. c. 12. Error in the Exchequer shall be corrected before the Chancellor and Treasurer , and therefore not before others .

So an Affirmative , because general , implies a Negative exclusively ; so all Actions shall be s●ed in Wales , and not elsewhere , is implied here , as by W. 2. cap. 4. he shall vouch in Quo die deforceat , as if he were Tenant , and included , and not otherwise ; and therefore shall not vouch in scire facias , where it is the first Writ , because he cannot vouch there , ( before fo. 113 )

So the issue in Tail shall not be remitted , because he hath the use as a purchaser , by 27. H. 8. for the Statute of 27. executes the possession in the same manner as he had the use ; which implies , and not in any other Mannors , ( before fol. 114. ) So by 31. H. 8. Leases made by Abbots after this Stat. adjudged void , when Abbies came after to the King by dissolution , because the Statute saith , That the King shall have it as it was then , which implies a Negative , and therefore the King shall not have them now in Reversion by making of such Leases , or before he hath them in possession .

On the part of the Plaintiff it was argued to the contrary . And they agreed to the cases of voucher in a Quod ei deforceat of the Execution of the use , and of the committing of an accomptant to the next Gaol ; for where an Act maketh a new thing Affirmative , and gives to them Authority to do that which they could not before , there they shall be in the order limited by the Statute , and not otherwise ; and at the Common Law there was not any voucher by the demandant , nor any coming to the land by the use , nor any power given to Auditors , to commit an Accomptant to prison ; and therefore there , that which is limited by such Stat. ought to be pursued accordingly ; but where the Action , which was before at the Common Law , is given by any Statute in any case where it did not lie before , there this Action is suable in all Courts , therefore used by the Common Law before , if there are not express words to restrain it ; for where one Act affirms a former before , there the last Affirmative destroies not the first , nor takes any thing from the Jurisdiction of the first , but declares That they have power .

So 34. and 35. H. 8. hereby the Affirmative takes not away the Jurisdiction of other Courts given to them , by 27. H. 8. for uniting Wales and England .

Sanders against Freeman .

THe Conusee of a Fine , brings a Quidjuris clamat against Husband and Wife , M. 3. and 4. Eliz. in the C. P. Quid juris clamat . Tenants for life in the right of the Wife , and pleads that they were seized in Tail in the right of the Wife , and shew how , and thereupon are at issue ; the Jury finds a private Verdict for the Defendant , and after in open Court contradicts it , and found for the Plaintiff ; for they were charged openly in Court , and ought to give their Verdict there openly : and the other was but matter of courtesie to ease the Jurors , and not of necessity ; for the Plaintiff could not have been nonsuited upon it ; otherwise upon a verdict given in Court , and by this Plea , the estate for life was at the will of the Plaintiff .

A Verdict secretly given to the Justice out of Court , is not a Verdict , because taken of courtesie , when Jurors agree for their ease , until aptly pronounced in Court ; for at every verdict the Plaintiff is demandable , and then may be nonsuited ; but there he is not , and therefore the last open Verdict shall stand .

Also the Inquest may change their Verdict given in Court if mistaken , or not plain in Law , or for other reasonable cause immediatly perceived ; as to find not guilty , and immediatly guilty , because they may be mistaken , this was received in the Kings Bench.

So 4 H. 4.2 . In Conspiracie , acquit one , and found another guilty , because it was contrary in it self , they may find both guilty , and good .

Dutchie of Lancaster .

HENRY 8. 4. Eliz at Serj. Inn● makes a Lease for one and twentie years , under the great Seal of the Dutchie , and dyeth ; after E. 6. being within age , maketh a new Lease to a stranger , under the same Seal for 21. years after the Determination , Surrender , &c. of the first Lease , and dies ; and by all the Justices , Queen Elizabeth could not avoid this second Lease for the nonage of the King E 6. howbeit he was seized of the Dutchie in his natural body , because he hath the imbecillity of infancie ; yet this is invested , and adorned with the dignity of the body politique of the King , which is utterly void of such imperfections .

A Lease by the King within age of Dutchie land , is good , although he was seized of the Dutchie in his natural body , which hath the imbecillity of infancy , because he hath the natural body invested and adorned with the estate , and dignity Royal , by conjunction of the body politique to it , which is utterly void of such imperfections ; and so when both bodies remain in one person , all the bodies shall have the properties , qualities , and degrees of the body politique , which is the most worthy ; and no Act of the King made as King , shall be defeasable by any disability in his body natural ; and therefore the letters pattents of the King within age , good . So a gift of the King by Thorp , 36. ass. pl. 54. So 6. E. 3.291 . the King shall have right of seisen of his ancestor within age . So the King hath by purchase , or discent , in capacity of his natural body when he is King , or before that he was King , and being given , this within age , good ; and shall pass by the Letters Pattents onely , and without Livery , because he may not make Livery in his natural body , disjoined from the politike body which are in one and the same body , and indivisible , and it is contrary to the dignity Royal , for a King to make livery in proper person ; and Livery is matter in fact , and the King must have his Acts recorded . So the King need not demand rent reserved upon his land by a common ancestor ; but shall not enter if the Condition be broken , until it be found by Office , if he purchases , and sels before he is King , and within age ( if King also , then otherwise it is ; ) yet after he is King , he shall avoid it by his nonage before ; but shall not enter without Office , because his person which had right of entry before , hath now the estate Royall united , which cannot do any thing without Record . And so Acts that the King doth touching things which he hath in his body naturall , require the same circumstances , and order , as things which he hath in his politique body by the union thereof ; for the thing possessed changeth not from the person of the King , but the person ; nor doth the possession change the cause of a thing possessed .

Henry the 4. which was Duke of Lancaster , held his Dutchie annexed to the Crown , as parcel of it by the assumption of the Crown ; and because his Title to the Crown was defeasable , and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown , he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land , and of the Government of it , viz. for the manner of Conveyance , as it was before in the hands of the Duke , as by Livery and Attornment , but not severed from the Crown for the prerogatives of his person , as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland . So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue , and a procedendo with a Clause of not going to judgement Rege inconsulto . So the person of the King for Dutchie land taken to be higher then a Duke , because he shall not have aid untill after issue of the Duke , for that he is a Common person , and shall make a Lease by the name of KING , because it drowns the name of DUKE in his Realm ; & therefore Officers finding that he held of the King as of the Dutchie , and not as of the Duke ; of , and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal , or should be void , to the end that all possessions of it should be distinct used and known from the possessions of the Crown , for the policie aforesaid , because he was the Lineal heir to the Dutchie ; and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown , annexed the Dutchie of Lancaster , and made it to be forfeit to the Crown : and so he altered the course of inheritance of it out of the natural body , into the politick body of the King and his Successors , but not in the manner of Government , name , &c. but separates it from other possessions of the Crown , in conveyance of it by another Seal , and other means , viz. by Livery and Attornment , which are used for the possessions thereof , as 21. E. 4.60 . Land of the Dutchie in the County Palatine , passe by Pattent out of it by Livery , because there he hath it as Duke ; and by the Statute of 1. H. 7. the Dutchie was severed from the Crown , and made inheritable to the natural capacity of the King , as it was in H. 5. because H. 7. discended of the House of Lancaster ; so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine , to be holden in Capite , the Feoffee shall hold in Capite of the Crown , and not as of the Dutchie ; for that the King is not Duke within his Realm , but may be when he is out of the Realm .

Willion against the Lord Berkly .

A Fine was levied to two , and to the Heirs of one , 4. Eliz. in C.P. in an Ej. firme . with Grant and Render to the Conusor in Tail , the Remainder to King Henry the seventh , and to the Heirs Males of his body ingendred , remainder to the right Heirs of the Conusor ; the Conusor dies without issue ; and after H. 7. entred , and died seised ; and H. 8. gave the land to the Queen his Wife , for her life , and died : E. 6. Granted the reversion to one , and his Heirs , and dyed without issue , the right Heir of the Conusor entred , and his entry adjudged lawfull .

So the King shall be in a worse condition then a common person ; for a common person may bind the inheritance by a common Recovery suffered by him , otherwise of the King , by W. 2. cap. 1. after fol. 244. a.

1. That the Writ of Ejectione firme that wanteth words , bona & Cattalla ibidem inventa cepit & asportavit , is good , if the truth of the matter be so , and proces of utlarie lieth in this writ by the Common Law fol. 228.

2. The Entry of King Henry the seventh is lawfull without office ; for that the Law casts the Freehold upon him ; otherwise it is where he taketh an estate by Office , as Ward , Perquisites of villains , &c. and the right Heir may enter without Office , or Ouster le main , by the same reason , ( fol. 229. a. )

3. Where the parties agree upon the matter in deed , and conclude upon the matter in Law , thereupon Nilrefert , but the Court shall adjudge according to the Law , fol. 230.

4 Recitall of one part of a generall Statute is good enough , otherwise it is of a particular Seatute , fol. 232. a.

5. Omission of the date or place of Letters Patents is not materiall in pleading , not Averment . fol. 231.

6. A feoffment pleaded without entry of the Feoffee , is good ; because it is included in the liverry , fol. 232. b ,

7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue ; fol. 233 a.

8. The pleading that H. 7. had issue , and died without issue , is repugnant of his own shewing ; otherwise it is where it cometh on the part of the defendant , fol. 233.

9. The pleading that one enter untill that the Lessor entred upon him , and made the Lease ( is not good there ) without saying , that he custed him , and made the Lease .

The King shall be bound by the Statute of W. 2. of gifts conditional , for that it is in preservation of an inheritance in benefit of the publike good , and restitution of the intent of the donor , and the exposition that the donee might alien after issue , before the Statute of Gifts , conditional , hath been a common error .

As to the matter in Law it was said by the Sergeants of Counsel with the defendant , that the capacity that the King hath in his naturall body after that he is King Remains , and the State Royall confounds not this capacity , as 45. ass. pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle , who exchanged it by a deed for another Mannor , and died without issue , and warranty and assets discended upon Edward the first his heir , he is barred , and therefore the assignee of the party to the exchange had restitution , out of the hands E. 3. who had seised it , and so by this warranty and assets which discended upon the naturall body of the King , was a Bar to the reversion that he demanded in his body politike ; And as a King may take as heir by discent in his naturall body , so may he purchase . As 34. H. 6.34 . and by pleading there H. 6. seized in fee of an Advowson in gross , conveyed it from H. 5. to him who granted it to the plantiff , good ; without shewing in jure Coronae , or how , and there if the King hath Land , parcel of the Crown , and parcell by purchase , and dies , having a son and daughter by one venter , and a son by another , who enters and dies without issue , the daughter shall have the Land purchased , and the son the other . So purchased Lands by the King shall go to the naturall body . So 35. H. 6.28 . by Moyle , ( after fol. 247. ) Land in Gavel-kind given to the King and his heirs , the eldest son being King , shall not have all , because it vests in his naturall body , but perquisites of a villaine the King hath jure Coronae ( as 41. E. 3.21 . ) if a Bishop who hath a villain in the right of his Church enter , he shall hold it in his body politick , and shall be in the right of his Church , because the signiory was ; for a thing in respect , or by reason of another , shal be in the same degree , and right , as the principal was at the Common Law . That an estate of inheritance , viz. Fee-simple , was by the Common Law before the Statute . First absolute when a gift was made to a man and his Heirs . Secondly , conditional , when to him and the Heirs of his body , for that formedon in Reverter at the Common Law , if the Donee dies without issue in Remainder , not ; for a remainder cannot depend upon a Fee Conditional until this Statute , and before this Statute the Donee might alien after issue had , so bar the issue , because they construed the having of issue to be a performance of the Condition , which was implied in the words , and in the intent of the Donee , and after issue , to be as an absolute Fee , because he had such heirs which were limited . But if before the Statute the Donee had issue , he might alien , and good then , here 4 E. 3. and 30. E. 1. which was contrary to the will of the Donor , for which the Statute was made , and then Fines were of great regard ; yet by this Statute , ipso jure sit nullus , ( viz. ) as to the right issue , or Donors , the Kings prerogatives are great ; yet the Common Law so admeasures them , that they take not away any of the inheritances of the subject ; and therefore the King shall pay Toll , though not for things bought , yet Toll Traverse he shall , because it is for going over another Soil , because it toucheth the inheritance to permit a way over his Soil , without paying any thing , 46. E. 3. 23. H. 3. 35. H. 6. 26 , 28 , 29. So for to wave a Demurrer , or issue ; yet may not change one issue into another Term , because then it would be infinite , which should be to the disinheritance of another . 13. E. 4.8 . Statutes general made in preservation of inheritances , or for the publick good , binds the King without naming , as W. 2. c. 5. of usurpations : but by 35. H. 6. good , is not so clear , if an infant upon whom the King usurps , hath by purchase as well as discent . So Merton cap. 5. That ordains , that the Kings Ward shall not pay usury , viz. That the Rent shall not be doubled during the Nonage of the Heir : and therefore in 35. H. 6.60 . by Needham , if the King gives land rendring Rent yearly at Easter , and if he fail to pay at the day , That he shall double the Rent ; the Grantee dies , his Heir within age , he shall not double the Rent against the King : So Merton cap. 6. That a man shall make his Attorney for to follow his suit to the King ; if it be his Lord , or at the Court of another , he shall do it : So the Statute of 5. H. 5. of additions , L. 5. E. 4.32 . of one Law which belongeth to a common person , the King may not defend the Common right , but that every one shall have advantage ; but every general Statute shall not bind the King , without naming of him : As Magna Charta , cap. 12. Communia placita , &c. nor such which have an intent onely between subjects , and to repress disorder between them ; those here which concerneth salvation of inheritance , or publick utility of the Realm . So the Statute of gifts Conditional binds the King , because by Justice , and Act of Parliament , the King hath submitted his will to the Donor .

The King , as Walsh saith , hath in him , First , power to do : Secondly , Justice to enforce him to do it , this is as to others : Thirdly , Mercie to stay him from doing , this is of things touching himself . And because after this Statute , the King may not say that the estate is Fee-simple Conditional , as it was before the Act , the case of the Tenant in Tail attainted of Treason , was alleadged in proof of it , 37. H. 8.7 . 7. H. 4.32 . which proves that the King shall be bound by the said Statute : So by 26. H. 8. cap. 13. because it is some estate of inheritance ; also the Tenant of the King in Capite , gives in Tail Tenendum de capitali domino , the King shall not have Wardship of the issue in Tail , 4. H. 6.19 . because it is not now Fee Conditional , as before the Statute ; and therefore he is not immediate Tenant to the King ; 4. H. 7.16 . The King may receive the Services of the Donor by his hands ; 27. H. 8.26 . ( after fol 249. ) the King may take the Donor , or the Tenant in Tail , for his Tenant , before Licence , or after , but once chosen shall not resort : Also 8. H. 4.9 . Tenant in Tail of a Signioty , aliens it in Mortmain , for default the Signiory revolts to the King , the King seises the Land after escheat , the issue in Tail hath the land by petition against the King , and therefore is not Fee-Conditionall , as to the King , but binds the King , although in these cases the King claims in the right of the Crown , yet here it is very remote from the prerogative , because here it remains vested in the natural body of H. 7.

For the Plaintiff it was said , That the Prerogative of the natural body of the King , because of the union of the politick , as the attainder of H. 7. discharge ipso facto as soon as he came to the Crown , 1. H. 7.4 . So R. 3. being Feoffee to uses , when he was King the use was gone ; because the King in his body politique may not be seised to an use of another , 5. E. 4.7 . and therefore it was enacted , 1. R. 3. cap. 5. Rastal , Uses 3. That the Land should be in Fee to him , to whom the Use was , 43 , E. 3.22 . Franchises extinct by purchase of the King ( yet to him and his Heirs ) of a Mannor to which they were appendant : So the King in his natural body and another purchase , or if the purchase is before that he is King , they are not Joint-Tenants , but Tenants in common , Fitz-nabr . f. 32. G. because no body politick may hold in Joincture : So 44. E. 3.45 . The King may distrain in all others lands for his arrearages , where he hath the signiory in his body politick , and by Bentos , no entry shall be upon the purchaser in his natural body , before he was King or after , for Condition broken by him : So 10. H. 4.47 . The King hath a non omittas in his scirefacias , for Dutchie land , and good , ( before fol. 216. ) Exception in intendment of the Act here , as good as if it had been in words , and Use is of naming of the King , when he shall be restrained .

The King is favored in all exposiitons , because it is intended that he will not assent to prejudice himself ; the liberty and interest that he hath at the Common Law , is not taken away by the Statute , if he is not named , 12. H. 7.21 . proves it , because at the Common Law every Lord may distrain for all Services in every part of the Tenacie , 10. H. 7.10 . and after quia emptores terrar . W. 3. cap. 2. the Lord shall have pro particula , but not more ; yet the King after this Statute if his Tenant aliens part , shall have all Services by the hands of the Feoffee , or Feoffor , Fitzh . nat. br . fol. 235. A. and Westminstere 2. cap. 17. which gives the Wardship to the first Feoffor , binds not the King , for he shall have it , albeit he held of him by posteriority . And so Prerogativa Regis , cap. 2. affirms the Common Law in this point .

The Statute de Religiosis 7. E. 1. For Mortmain binds not the King , nor Marlebridge , cap. 9. which Grans , That the elder percener onely shall do the suit ; yet Fitzh . nat. br. fol. 159. all shall do it to the King . So the King may sue for debt in the Kings Bench , contrary to Magna Charta cap. 11. But 1. H. 5. cap. 5. of additions binds the King , because he is included in the word [ Indictment ] expresse , which is onely the suit by ( Carus ) the King gives in Tail without expressing any service , he shal hold in Capite , 29. H. 8. for the King shall seize for his Fine , if he aliens without licence , 22. E. 3.58 . Ass. fol. 1. and it is not in Capite , if he holds of the King , by reason of a Reversion , or Mannor , and not of his person , W. 2. cap. 3. gives receipt generally to him in Reversion ; yet 25. E. 3.48 . the King shall not be received upon the default of his Tenant , because then the demandant should count anew against the King , but he ought to sue to him by Petition , 14. H. 8.3 . by Fineux , the King shall not abase himself to stand to the defence as Tenant in suit , as a Common person shall .

Weston , Justice . A gift in Tail before W. 2. implies a Condition in Law viz: That it should revert to the Donor , if the Donee did die without issue , & if the words had been expressed in the gift , it had been surplusage , and therefore there it is a condition in Law , and not in Deed ; for a Condition in Deed may be broken during the estate given , but a Condition in Law , as this is , cannot , Conditions in Law are two , the one finishes the estate , as a Lease quam diu , one shall be Abbot , or live sole when he is removed to be Abbot , or taketh Husband , there the estate finisheth ; the other finisheth not the estate untill suit , or entry , as where the Lessee maketh waste , or aliens , or Tenant in Fee Cess , or Disclaims , W. 2. restrains the alienation of the Donee ; now after issue had , if the Gift had been to Husband and Wife , and to the Heirs of their bodies ingendred , and the Wife had survived , that her second Husband , if he had issue by her , should be Tenant by the courtesie , now this is restrained : where the estate of the Donee before the Statute , was Fee-simple , now by the intent of the makers of the Act , the estate is diminished and made Fee-Tail , and the Fee-simple is in the donor , and a reversion made of it ; and now the Fee-simple may be given over in Remainder , and so the estate is divided .

The King hath two capacitles , and cometh to some things meerly as King ; as Treasure , Trove , and Escheats by Treason ( after fol. 322. ) and to some , not as King ; as if Lands discend to him from any of his bodies Politick , are by Pattents of the King ; as Dean and Chapter , Major , &c. cannot purchase in succession by the word [ Heirs , ] but onely by the name of Successors ; the body politick at Common Law , as the King here by the one or the other , the King purchases in his naturall body , yet shall not take by Livery , ( before f. 213. ) for it passes not by Livery , but by Record , and his Grantee thereof shall hold of him by Knights Service in Capite ; and none may distrain for Signiory , or Rents in it , nor have execution of it . And 7. E. 4.17 . The King may not be seised to anothers use , in respect of the Conjunction of the body Royall , to the body natural .

Prerogatives of the King , are by the Common Law , by Custom , and by Statute ; by the Common Law , the Kings Grant is taken most favorably for him , otherwise it is of the Grant of a Common person : As an Advowson passes not by Grant of a Mannor , without mentioning , 2 R. 3.4 . 8. H. 7.1 . 41. E. 3.4 . and Prerogativa Regis , cap. 15. is not , but Common Law in this point ; the King may Grant a thing in action , 2. H. 7.8 . and 32. H 8. an Obligee Utlawed , the King shall have the entire duty 8. E. 4.24 . and 19. H. 6.47 . So the entire Ox ( after fol. 323. ) the King Grantee of the next avoidance , or of all presentments which shall happen within 20. years , and a stranger presents to them all ; yet the King shall have them , and present when he pleaseth ; otherwise , ( fol. 249. ) by . Anthony Brown : Discent taketh not away the right of entry of the King . 37. H. 6.27 . The King may enter after his villain , and alien when he pleaseth , Litl . s . 40. The King Counts of two presentments , it is not double , 43. E. 3.14 , or 12. Matters of Bar the other ought to answer to them , and the King shall take issue upon which he pleaseth , 16. H. 7.12 . by the Court , the King may Traverse a Title , or maintain his Office if he will , 3. H. 7.3 . 13 , 14. 2. H. 7.13 . The King may amend his Declaration the same Term , 13. E. 4.8 . The King may wave his Demurrer , and Traverse the Plea of the other , 28. H. 6.2 . The King shall have a Non omitas in his Writs , notwithstanding any Liberty , That none shal serve his proces but his Ministers ( before fol. 239. ) the King shall not answer in value , without express words , notwithstanding his warranty , ( after f. 334. ) the King shal not demand rent , 2. H. 7.8 . The King makes a Lease , rendring rent to a stranger , good , & the stranger may distrain , or have Debt when it is ended , 35. H. 6.36 . The King may distrain for a rent charge granted to him , or for Rent Service in all the Lands of him which ought to pay it . 13. E. 4.6 . The Title of the King appeareth , yet he is not party , the Court of Office shall adjudge for him , Stamford , cap. 29. fol. 96. Fitzh . nat. br . 38. E. 31. 6. H. 7.12 . and 11. H. 4.71 . by customes ; the custom of London to retain a pledge , cujuscunque fuerit until he pays , binds not the King , 35. H. 6.35 . nonsale in market overt , 35. H. 6.28 . and Doctor , and Student , 40. nor Wreck , Waise , nor Stray , binds not the King , 35. H. 6.26 , 27. Custom , that all distresses taken within his Mannor shall be impounded there , binds not the King , 21. E. 3 , 4. by Statutes which binds not the King where he is not named , yet he shall take advantage of them : As of the Stat of Waste , of 9. R. 2. c. 3. of Error and attaint by him in reversion upon a recovery against Tenant for life . And of W. 2. c. 7. fol. 140. If the King as Heir to his mother , brings asur cui in vita , the Plea shall not be delayed by the Nonage of the Heir ; the King not named , is not restrained by Magna Charta cap. 10. upon which the Ne injuste vexes is founded for to avoid incroachment , That if the King incroach more then he ought , he hath no other remedy then by Petition . The King bringeth a Quare impedit in the Common Pleas , good , notwithstanding Magna Charta , quod communia placita , &c. 31. E. 3.18 . E. 3.22 . ( before fol. 240. ) Plenarty no Plea against the King , 43. E. 3.14 . Non obstante , W. 2. cap. 5.32 . H. 8. cap. 2. Of Limitations , binds not the King : The King may not suffer a Common Recovery for to Dock the Tail , as a common person may , because no precipe or Covenant lieth against him , 12. H 7.12 . by Constable : So the King shall be in a worse condition then a subject , or common person to bar the issue .

Anthony Brown , Justice . The name of King drowns the Sir-name of the King , and includes it , and his proper name also : and this word of substance by it self , may not be omitted in purchases , Pattents , or Writs . Land given to Henry the seventh , omitting King , giveth nothing to him , omitting his name of Baptism : So a gift by him , by these words in the Pattent , Rex concessit , That the name Politick of the King , includes his natural name ; and when this name is conjoyned to his natural person , it altereth the quality and degree of the person natural in the estimation of the Law : So if that he be within age , he shall be adjudged of full age , and his attainder frustrate when he is King , that the greater removes the Imperfection of the Lesser ( before fol. 138. ) the body politick hath the preheminence of the natural body , as Land given to the King by the name of Baptism , and of King also ; as to Henry the King , and to his Heirs , this shall go in succession as the Crown , and if he dieth without issue , the Heir of the part of his mother which hath the Crown , shall have the Land also ; because this name [ King ] being the greater , shall have the greater preheminence in the purchase , and shall draw the land with him : So that his brother of the half bloud being King , shall have it ; yet here the King shall take in such body , and in such estate and condition as the Donor limits , and not otherwise . So if a Gift had been made before the Statute to the King , and the Heirs of his Body , he had taken Fee Conditional , as another Common person , That if he dies without issue the Donor should enter without Office . And if the King before the Stat. giveth to one , and his Heirs of his body , there the King shall not have the Reversion more then a Common person should have , and there his Donee might alien after issue , because the person of the King shall not rule the estate of the land ; but on the contrary , for to make Remitter right , and possession ought to discend to one person , simul and semel , 19. H. 6.59.58 . and 45. before the Statute after Issue ; the Donee might do all acts of a full Fee , because then he had full Fee and inheritance , and not before , 5 , 6 , 7 , and 8. E. 3. And the words in the Statute hath given prius facia non extenditur , intends not the Donees made by the Donors before the Statute , but of alienations made by the Donees before the Statute , and lawfully , and after issue , as a Lease for life , and release of Tenant in Tail before the Statute , good , and barred the issue in Formedon after the Statute , because it was not voidable , neither before , nor after the Act , if it was according to the power that the Common Law permitted to them . 44. E. 3. But the Statute extends as to Alienations after the Statute where the Gift was before . So as to the Alienation before the Statute , if it were not lawfull , as a woman Tenant in Tail , taketh Husband , having issue , they alien before the Statute , the issue shall have a Formedon after the Statute , that is a discontinuance to the wife , because Covert ; and when she dies , a right discends to the issue ; but if they have aliened by Fine , it is good , and bars the issue because there it is duly made , in respect that she is examined , 4. E. 2.12 . H. 4.7 . before the Statute the King might not Alien before issue had , as a Common person might not , because the King could not do wrong , and his Prerogative could not alter his estate , yet the person of the King might alter the course of the thing , as purchase of the King shall discend to the eldest daughter onely ; but if land discend to the King , & another , or Gavel kind to him and his brother , the King shall have but the Moity , but this Moity shall discend to his eldest Son onely , because the quality of the person may alter the discent , not the estate , be it Fee , or Tail . So that the estate shall be in the King , as in another ( before fol. 234. ) and before issue had , the Donee could not alien , after issue he might ; and this mischief , and other Acts of the Donee , the Common Law permitted to Bar issues , and the Donor , until remedied by the Statute . So the Common Law permits other wrongs , as Lessee to make waste . So if one Joynt-Tenant takes all the profits of the land , the other is without remedy at the Common Law , Doctor and Student fol. 32. So if the King kill a man : So disinheriting of another , as here post prolem , is a wrong suffered by the Common Law , which otherwise the issue should have had , and if the issue had not issue , then the Donor ; before the Statute the Donor had not a Reversion , yet the land reverted to him as land escheated to the Lord , neither had he a Reversion after the Statute of W. 2. c. 1. Yet no word in the Act divides the Statute , but the Construction of the Statute ex consequenti divides the estate , for to execute the will of the Donor by the intent of the act , which amounteth to so much , that the precise words and the Statute restrains the estate , and not the person of the Donee .

And the Prerogatives are in respect of the person of the King , and goes in his person , which the King by Prerogative , without other act , cannot enlarge ; but in taking of the estate is restrained with the estate , insomuch that the act saith Dominus , Rex perpendens , &c. It sheweth that the King is named effectually , and so bound ; and when it provides remedy for the mischief , it is not to be presumed that he intended to be at liberty to do the mischief ; every thing which is the intent of the donor , shall be within the Stat as plainly as if it had been expressed as other estates Tail , which are not mentioned in W. 2. Litl . fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King , by Anthony Brown , who said , That it was so adjudged in William Browns case , which was his Father , Puttrel , fol. 240. otherwise , which proves , that the Statute of Donis Conditionalibus binds the King .

Dier , Chief Justice . The King onely is a good name of purchase , and is the highest name of honor , and drowns all other names of honor , and is certain enough , but not so used without his name of Baptism . And the name King , contains both bodies natural and politick ; and Heirs , implies Heirs and Successors , and the adding of Successors is a new devise . The Donor may limit in what capacity the King shall take , and ●ail may be to the King as well as to a Common person . That H. 8. entailed the Crown to him , and the Heirs of his body ; the will of the Donor is the effect of the Statute of West . 2. that every thing which is against his will , is reformed by the Act , and every thing which is his will is made Law by this Act ; and therefore this Tail shall not be forfeit for Felony , Litl . 169. it shall not be charged by the donee , 14. H. 8.7 . by Roo 5. H. 6 14. nor alien , neither shal the second wife be endowed , 46. E. 3.24 nor the second Tenant by the courtesie now , 46. E. 3.5 . and to express those in the Act is superfluous , because included in the proviso quod voluntus , &c. And these three Tails mentioned there , viz. Special , General , and Free Marriage , are but examples , and not as containing all Tails , that his will is a law to limit other Tails , Fee after issue at the Common Law is Tail now , 12 E. 4. and 3. and Fee in the Donor by implication of the Act , because it restrains the Donee to do the Acts of Fee , or no Fee without his properties . And therefore it shall be intended , That the Act would not that the Donee should have Fee , because it would not make an Act of Fee ; and it is no Tail , because the Statute is limitted , Docked or cut off .

The King shall be bound by the Statute of W. 2. de donis conditionalibus , for that it is made in preservation of the inheritance , in benefit of the Common wealth , and in restitution of the observation of the intent and will of the giver ; and in Restitutions the King hath no favor , but the party restored in favor , as an Heir restored to a Mannor shall have the advowson without mentioning of it . So a Bishop to the Temporalties shall have Knights Fees , and Advowson , 5. E. 3.238 . 41. E. 3.5 . and Brian , Townsend , Davers and Vavasor , who took this so , or thought that the King should have but an estate tail , that otherwise the Remainder over will be invailable ; and the Exposition that the Denee might alien after issue before the Statute , is Communis Error .

Dame Hales against Petit.

LEase for years to the Husband and Wife , the Husband drowned himself , M. 4. & 5. El in the ● . P. in Trespass . and so became a felo de se ; the Wife enters , an Office is found , the Q. shall have the whole Term adjudged .

1. The quality of the offence is murther , because that it was upon malice prepenced , otherwise of Homicide , also it was made Nullo sciente , nullo praesente .

2. It is an offence against nature , the Law of God , and to the King , for to kill his Subject , and deprive him of one of his mystical members , whereof he is the head , and by breaking of his peace , and for the ill example given to others .

3. He shall forfeit for this Felony , all Goods , Debts , Chattels real and personal which he had at the time of the Act done , which was the cause of his death , viz. the casting of himself into the water , and the forfeiture shall have relation to this act done in his life , and is an Attainder in Law to that purpose , but not to make Corruption of bloud , forfeit Dower , or make Fee-simples escheat ; by the Court.

4. Although the wife be remitted to the Term by the survivor , yet this is defeated by the office , ex post facto .

5. Where the Bishop maketh a Lease for years , which is not confirmed in his life , it needs not to be averred , in respect it is onely voidable , otherwise of Lessee for life , for that it shall be void by his death .

6. The pleading that Sir James Hales was possessed of two Leases at the time of his death , and the Office found that he had two , without saying at the time of his death , sufficeth , reddendo singula singulis .

7. Lessee for years to commence at Michaelmas , brings Trespass before the Defendant gives colour by the Lease , this is not good ; yet the Plaintiff shall not recover , because he had no Title .

Southcot and Puttrel , Serjeants for the Plaintiff . He that striketh another , after this wound given , giveth his goods to another before the death , the gift is good .

So a Constable 11. H. 4.12 . which arrests him , permits him to escape before the death of the other , is not a Felon ; the finding by the Coroner of his death in this case , countervails an Attainder indeed , because after his death he cannot be Attainted , and he himself is the cause he cannot . A Felon of himself cannot make a Testament , or Executor , nor forfeit any thing , but that which ought to come to his Executor : Instant is the end of one time , and the Commencement of another : in Instant is priority of time in consideration of Law ; Husband and Wife Joynt-Tenants of a Lease for years , there is no Moities between them , but every one of them hath the whole ; and if the Husband charge the land , she after his death shall avoid it , because remitted to the Term , and in by Title Paramount to the Grant , 7. H. 6.1 . So 18. E. 4.5 . Tenant in Tail gives Trees growing , and dies before they are cut down , the Donee shall not cut them , because the Issue and Wife are in by Title Paramount , the gift by Southcot . So 14. H. 4.32 . and Fitzh . nat. br . fol. 14.143 . The Lord shall take his Ward , which is an Apprentice out of the possession of his Master , for that his Title to his body accrued in respect of his signiory , which is more ancient then the Apprentice , 49. E. 3.3 . the Kings Tenant in London Devises to his wife for life , and dies without Heirs , the devise is good , as it seems by the Book , and yet taketh not effect until after the death of the Kings Tenant , and preferred before an Escheat to the King , yet both their Titles comes at one instant , but the Title of the Wife adjudged the elder , because some part of it Commences in the life of the Devisor , albeit it taketh effect after his death ; an Obligee is a Felo de se , the Survivor shall have the Obligation by the better opinion , 8. E. 4.4 .

Walsh , Chomley , Benlos , and Carus for the Defendant . A Dead man cannot have property , for the Forfeiture shall have relation to the ill Act done in his Life when the goods were his ; otherwise the Forfeiture shall be to the prejudice of others , which after his death ought to have the goods , and the law hath respect to the Commencement of the Act , as in 22. E. 3. and Stamford 19. one is Lunatick when he gives himself the mortal wound , he forfeits nothing , and it is not Felony if then he kils another , yet is of Sane memory when he died of the wound . So 33. Ass. 7. Stamford 10. one kils his Master one year after he departed from his service upon malice conceived when he was his servant , adjudged Treason ; Felonies done by others , may be punished in their life time , in person , Goods , Chattels , and Lands .

A Felon of himself hath prevented the death , by Execution and forfeiture of his Land , which Land shall not Escheat without Attainder in Deed for favor of the Free-hold and inheritance ; and the only means to make him forfeit that which he may forteit , viz. his Goods and Chattels is by inquest which ought to be equivalent to the Judgement given in his life , because he took away the means of the Judgement which should have been given against him in his life , as he should have if he had killed another ; and when Judgement by the Law cannot be given , the Law supplies it ; otherwise as 3. E. 3. a Felon flies out of the Sanctuary , and will not render himself , but is killed , he forfeits his Goods , and the King hath the year , day , and waste ; and so an Inquest there shall be equivalent to the Judgement , because he himself is the cause that it cannot be given against him ; by carus , my horse strikes A. I sell him to another ; A. dies , he shall be forfeit .

So the King shall have the Goods of a Villain which gives himself a mortal wound , yet the Lord hath seised them after the wound , and before the death of the Villain . So the Attainder of the Husband in his life , shall be a Forfeiture of the Term of his wife . So this Act here ; and if once Title be given to the King . Nullum tempus occurit Regi , as in 50. E. 3. the Husband Joynt-Lessor for years with the wife , receives money of one Attainted , which by the Attainder belongeth to the King ; the Husband dies , the wife her self holdeth it , this found after , the King hath the Term in Execution for his money , as he should have had in the life of her Husband if it had been found then , and now found by office , shall relate to the life of the Husband .

Curia , this is Murther here and not Homicide , because upon malice prepenced , and is an offence against nature , the Law of God , and King , to kill a Subject , and deprive him of one of his Mystical Members , as Brooks terms it , whereof he is the head , and by the breaking of his peace , and for the ill example given to others ; and therefore Felo de se Forfeits to the King all his Goods , Debts , and Chattels , 8. E. 2.3 . E. 3.301 362.22 . E. 3. ( before f. 259. ) Stamford , fol. 188. I. and Stamford Prerogative , fol. 46. 8. H. 4.2 . by Tilles●…y , and ex consequenti cannot make Executors , nor have Administors , neither shall the Bishop have them , because out of the Church is no cause of Forfeiture , 19. H. 6.63 . by Paston , 8. E. 4.4 . by Needham , and Litl . and 27. H. 8.9 . by Montague , and if he repents he is reconciled , and hath the rights of the Church before his death , yet he shall Forfeit those to the King for this offence .

But a Felo de se Forfeits not Lands , his wives Dower , nor Corrupts his bloud , 3. E. 3. 22. E. 3. ( before fol. 259. ) because those cannot be without attainder in Deed.

Appellee in Battail is killed , he forfeits his land , by Benlos , and Brown , because this killing is equivalent to Judgement and Execution ; but Weston held the contrary without express attainder by Judgement for to favor the inheritance ; and by Dier , because the three Writs of Escheat for attainder , are ( Register the 16. ) pro quo suspensus est , utlagatus , or abjuravit ; if the Appellor vanquish the Appellee in battail , there his land shall Escheat , because there Judgement shall be given after that he shall be hanged , 8. E. 3. the husband adheres to the enemies of the King in Scotland , and dies there , 8. E. 3. fol. 388. or is killed in levying War against the King ; here he forfeits his Lands , the Dower of his Wife , and his bloud is corrupted , for this is an attainder in Law , 7. H. 4.46 . by Markham and Stamford , fol. 198. a. this which causeth the death , ought to be said Feloniously done .

He that refuseth the trial of the Law , forfeits Goods and Chattels , as 3. E. 3. 13. H. 4.13 . 4. H. 7.18 . Stamford , fol. 183. C. he which flies for Felony , Stamford Prerogativae , fol. 46. A. he that challengeth without cause above , 35.40 . E. 3.42 . 20. E. 4.5 . Stamford , fol. 185. he that taketh Clergie if he be found guilty of Felonies , which refuse the Judgement of Law , 14. E. 4.17 . he that stands mute of malice , for those are the Acts of refusal of the Law . And from the time of those which appear of Record , the forfeiture shall have relation to the wound given against the party himself for the forfeiture against a stranger , not for to be Felony , because in the mean between the wound and death , he suffers himself voluntarily to escape ; for if the escape should be Felony , then that escape had been Felony at the time of the escape , by Brown . A. and B. Joynte-Tenants for years , A. Grants to C. That if he paies 10. l. before Michaelmas , then he shall have his Term ; yet he shall not have the Term , because the condition precedes the Grant , as 14. H. 8.22 . by Brudnel , until the 10. l. paid the Joyncture continues , and it is not but a Communication ; but if A. Grant or Lease it from Michaelmas next coming during the Term to C. there C. shall have it against the Survivor , for there the Title is granted in deed in the estate in his life . So here this Act in his life gives Title to the King , and the office by relation executes the Title then , and the Survivor shall not have it from him , because once attached in him ; as the Kings Villain and his wife are Joynt-Tenants for years , the Villain dies , his wife hath the Lease by Survivor ; this found by office , takes away the interest of the wife , as the entry of the King should in the life of the Villain , and upon Cesser thereof , the Kings Title once vested , is not taken away , because Nullum tempus occurit Regi , by Dier ; by Weston , where Titles of the King , and of others concur in one instant , the King shall be preferred ; as Land discends to a villain , his Lord enters after , this found , the Ideot of the King shall have the Land , and laches of entry shall not prejudice the King ; yet both Titles at once in the Lord , because born Villain to the King , because born Ideot by relation of office to it . So if the husband be intituled to be Tenant by the courtesie , and his wife after this found Ideot , this takes away the Title from the Husband for ever , for the Heir shall be in ward , therefore if holden of the King , or shall have it out of the Kings hands , if not holden , because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife , shall take away by relation of the Office the Title of the husband , which before the Office was found , was vested in the husband .

Fish against Brocket .

TEnant in Tail Levies a Fine with Proclamations , M. 4. & 5. El. in the K. Be●ch Error . whereof the one was recorded to be made the seventh day of June , which day was Sunday ; and dies ; the issue brings Error , and Reverses all the Proclamations ; but the Fine remains good at the Common Law , and shall be a Discontinuance adiudged ; and this Proclamation could not be made as it is Recorded , because it is no day in Court , and the Fine and Proclamations are several Records , and might have been avoided by Plea .

Sir Iohn Ratcliffs Case .

IF an Infant be made Knight in the life of his Ancestor , P. 6. El. in the C. of Wards . and the Ancestor dies , he shall not be in Ward for his body , for by this degree he is admitted to be able to do Knights Service , and the wardship is due in respect of imbecility to do it , he shall not pay the value of his marriage , but his land shall be in Ward by the Statute of Magna Charta , c. 4. ( so if he be made Knight being in Ward or before ) the same Law is , if he be made Knight when he is in Ward , 2. E. 6. Brook , Gard , 42. and 72. at the Common Law an Infant made Knight , shall be out of Wardship for land and body .

Say against Smith and Fuller .

LEase for 10. years by indenture from Michaelmas last past , the Lessee Grants , P. 6. El. in C. P. Replevi● That he will pay 1000. Tiles to the Lessor , or a summ in gross at the end of the Term ; the Lessor grants , That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing , That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually , and inconsequently beyond the memory of man , and adjudged good , except onely for the first ten years , for the incertainty of the begining , continuance and ending of the other ten years . For the second ten years begins not until the condition ( which is precedent to it ) be performed , for this cannot ever be performed ; for all the ten years that ever shall be , precedes the payment , and the payment precedes the Lease , and so the Condition impossible . Also he cannot pay the same Tiles that he hath paid at first . Also the payment at a day after the Term ends , is good , because that the Lease Commences from M. and so M. day is not part of the Term.

Every contract to make good a Lease for years , ought to have certainty of begining , continuance , and ending of the Term , all which ought to be known at the begining of the Lease , and if any of them fails , it is not a good Lease , because it wants certainty , by Brown , a Lease Conditional is good untill the Condition broken , because the Estate precedes , and the Condition is subsequent . A condition to have a Lease gains not the thing , until it be performed , as the needle precedes the threads as he ought to marry my daughter before the time limited , otherwise he shall not have the 100. l. which I promised : So 7. E. 3.308 ( before fol. 25. ) if he will hold over eight years to him and his Heirs , shall pay twenty pounds yearly ; Debt lyeth for the Lessor for the Rent within eight years ; because the Lessee hath but a Term ; for the Condition precedes the Fee-simple , by Litl . fol. 81. Lessee for five years upon Condition , That if he doth such a thing within two years , he shall have Fee ; but no law by Dier , because he hath not Fee until the Act done .

Referrence to time certain , is as much as express nomination of the time contained in the reference : as a Lease for ten years , and so from ten to ten during an hundred years , a good Lease for an hundred years , 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly , and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years , because he shall receive 20. l. in 4. years , and so the referrence contains such certainty from the time of the Lease certainly limited ; for the number of years may commence , or determine upon incertainty very well ; as a Lease for 20. years after that the Lessee shall do such an Act , good . So for 20. years , if the Coverture between I. S. and his wife so long continue , good . So 4. E 6 ( before fol. 6. and 13. ) & 14 H. 8 11. A Lease for so many years as I. S. shall name , and he names so many years in my life , good for so many years that my Executor shall name , not because he cannot name in my life , and so it is not a Lease in my life , and the certainty ought to be known in my life . But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof , no good Lease , because Terminus contains certainty , and there it is uncertain how long the Lease will endure : So a Lease for three years , and so from three years to three years during the life of I. S. is good for six years onely , because those onely certain , and the end of the number of years intended , ought to be known at the begining .

So a person Leases for five years , and so from 5. years to 5. years during his life , is good for 10. years onely ; yet he continues person above ten years . Dier said , That he knew it Adjudged .

Graisbrook against Fox .

A Man makes his Executor and dies , the Ordinary before Probat commits the Administration to one which sels the goods , P. 7. El. in C. P. the Executor proves his will , and bringeth Detinue against the Buyer for the Goods , and adjudged lawfull .

For that the Probat disproves , over-reaches , and annihilates the power of the Administrator , and he did not die intestate , and by consequence the property is cast by the Act of Law upon the Executor , and the Omission of the Goods of one that hath made his Testament before refusall , void by relation after probate by seising of the goods , bringing action , or pleading , &c. without Suit in the Spiritual Court ; but otherwise shall it be if the Administrator had imployed the money that he took for the Goods upon the necessary affairs of the Testator , which the Executor was chargeable to do .

Weston , Justice , holdeth the Law with the Defendant . That at the Common Law before W. 2. c. 19. the Ordinary had the goods of the intestate , to dispose in pious uses , because the Law adjudges him the most apt person for it ; and if he give , or aliens his goods , good at the Common Law , because he hath broken only the trust required of him , yet the Common Law maketh not the Ordinary , being a Spiritual Governor , subject to Temporall Suits of Creditors of the intestate , but was defective in this point , 11. H. 7.12 . and 9. E. 4.33 . But now Debt lyeth against him , by W. 2. cap. 19. and those words there Obligati aliquibus in debito , intends all Debts that the Executor is bound to pay , by which the Ordinary shall pay Arrearages upon a Lease for years of an intestate ; but before this Statute nor after , the Ordinary might not sue for Debt , or thing in Action of the intestates , nor release Debts due to the intestate , but onely seize the things in possession of the intestate , and do with them at his will ; and for this mischief 31 E. 3. cap. 11. compelled him to commit the Administration to the next friends , and gave to them an Action of Debt , and not to the Ordinary himself ; and so they were , and might be sued , and should account as Executors , yet before 31. E. 3. the Ordinary might commit , & such Committees should be sued before E 3 by the equity of West . 2. which gave the Action against the Ordinary ; but Committees before E. 3. might not Levy a Debt , nor release a Debt , because they had not to do with things in Action , ( but in possession at their pleasure ) as 7. H. 4.18 . Executor now cannot release a Debt , nor sue for a Debt before probate of the Will ; and it seems to him , That the sale of an administrator is good , because no notice of the Testament is given to him , and the Ordinary , nor cannot be bound to take notice of it , because secret , as 8. H. 7.10 . 22. H. 6.34 . 7. E. 4.28 . and 8. E. 4.12 and 19. H. 8. The Lord may avow upon his ancient Tenant if the Feoffee gives him not notice of his purchase , because he is not bound to take notice . So 2 H 4.21 . he hath paid the assets to another , hanging the writ against him before he had notice of the writ , good plea for an Executor , and shall not be charged therewith to the Plaintiff , 31. E. 3. provides , That the Ordinary shall commit Administration ; where one dies intestate , intends also , where Executors refuse before the Ordinary , or if they die intestate , because there is no Executor that will intermeddle .

Acts by the Administrator shall not be avoided by probate of the Testament , where the Ordinary hath authority to commit Administration in the mean time , because there is no Executor ; as where a man will , That I. S. shall be his Executor , and dies before I. S. or that I. S. shall be his Executor one year after his death , So 4. H. 7.14 . a man maketh an Executor , and enters into Religion , if he after is deraigned , he shall not avoid mean Acts of the Executor .

Walsh and Dier holdeth the Law with the Plaintiff . There are three which have to do with the Goods of the Dead , by Walsh , viz. First the Executor appointed by the Party himself in whom the party hath reposed the properties of his Goods , and confidence of the Executor of his will , and it taketh Commencement by act Temporal , viz. by will , and it's perfection by act Spiritual , viz. probat● , if the party appoint none . Secondly , the King appoints the Ordinary , and he appoints three Administrators for his ease , and in his discharge , and they have their Commencement by Act Spiritual , viz. by Letters of Administration , and have as the Executor hath , authority of the thing Temporal ; but the authority of the Ordinary , or of Administrators , not any , except the dead die intestate ; and here by not gainsaying in his Bar he hath acknowledged the Testament ; and by Dier , if he had died intestate , the property of his goods cometh by the Common Law to the Ordinary , because he had not appointed them to any , and they shall be in some body , and not in suspence , as 9. H. 7.2 . by course of the Common Law ; Free-hold shall be in some one , and not in suspence : the Ordinary by the Common Law was not charged for the debt of the intestate before W. 2. for those words Obligetur de cetero implies the same , after West 2. Ordinary is chargeable , and his Executor 16. E. 2. 11. E 3. after West . 2. and before 31. E. 3. Ordinary may commit Administration ( and he shall be charged in action of Debt . ) so Fitzh . seems nat. br. fol. 120. D. and 19. E. 3. Ordinary pleads , That he had committed the Administration to another before the action brought against him , good ; but the power that the Ordinary himself had , or committed to the Administration of another , not , unless a man dies intestate , but when he makes his will ; by it he hath committed all his goods to his Executor , and the Law favors a Will , for Testaments are of the same antiquity , as properties of Goods are , and is a Testament when the Testator is dead , and from thence executors , are executors , and before Probate ; for it is not but a Confirmation and allowance of that which the Testator hath done . And by the Death , the property of the goods which were in the Testator , is cast and vested in the executors , whereby they may give , or otherwise intermeddle with them , and may be sued before probat , 9. E 4.47 . but shall not sue ( before fol. 178. ) and 36. H. 6 7. Executor commands A. to take the Goods of the Testator out of the possession of B. A. taketh them , afterwards the Executor refuses the administration , and the Ordinary commits it to B. which bringeth Trespass ; for the taking against A. A. may justifie by commandment of the Executor ; for his refusal shall not make the Commandment void nor grieve him which did well at the time of the Act done ; which case argues , That the Executor hath interest in things of the Testators before probat . And by him the Ordinary ought not to suffer the Executor to refuse , after he hath once medled with the Goods of the Testator ; for if before the probat he had released a Debt , and after he proves the Will , this hath made the release good : Walsh probat , maketh the Release of the Executor made before , good , because it is a consummation of the Will , and refers to the death .

Dier , Chief Justice . If the Ordinary commit , and after the Metropolitan commit to another , because the intestate hath Goods of the value of 10 l. in diverse Dioces , 10. H 7.18 . this disproves the authority of the first Administrator , and avoids his mean Acts , and by Keeble , the second Administrator shall have Trespass against the first , for taking of the first Goods , So 7. E. 4.12 . Executor pleads that he hath proved the Testament , the action of the Administrator depending against him , a good Bar , because the power of the Administrator disproved , and mean acts avoided by Probat of the Testament , and the Executor which is made , not knowing of it , if he agree after , good , seems to be 3. H. 7.14 . The Ordinary ought to award Proces against the Executor to come in for to prove the Testament , before he commits the Administration . The Probat here disproves the Administration for ever , and proves the Executor to be full Executor from the death of the Testator , and is not like to the cases ( before fol. 239. ) because the mean time in which no Executor , and this time the Ordinary hath authority . The Seal of the Ordinary put to the administration is but matter in fact , and no estopple , and the executor shall not be inforced to sue in the spiritual Court to recall this , but shall avoid it by Plea , or by matter in fact , as 44. E. 3.16 . A. bringeth Debt against B. as administrator , and sheweth certainly how his Deed was as he ought , B. saith , he and another are executors , Judgement of the Writ , and shew forth the Testament to prove it ; A. offers to aver that he died intestate , B. saith to it , he shall not be received contrary to the Testament proved , and under Seal , to take the Plaintiff from his averment , but that he shall have it , and try it by the Country ; also the taking of Letters of Administration , discharges not a Suit against those which were executors of their own wrong ( before 21. H. 6.8 . 2. R. 3.20 . So 34. H. 6.14 . ) in debt by the Administrator , the Defendant received to avoid Letters of Administration , by saying the dead made an executor , and taking issue upon it .

Chapman against Dalton .

A Man makes a Lease for 21. years by Indenture , and Covenants with his Lessee , Tr. 7. El. in the K. B. Covenant . and his Executors , to make a new Lease for 21. years after the expiration of the first , to the Lessee and his Assignes ; the Lessee dies , and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor , and adjudged , good .

1. That the executor is an Assignee in Law , to whom the Lease ought to be made , and so the executor of an executor by the Common Law .

2. That the Lease ought to be made to the Lessee if he were alive , or to his Assignes in Deed , and if he die Assignee in Deed , then to his executor ; and although that the Covenant be in the Copulative in the Letter , yet it shall be expounded disjunctive in sense , for to avoid absurdity or impossibility .

3. Admitting that the word Assignee were void , or omitted out of the deed , yet this shall be made to the executor ; for that the intent was such , which shall be performed where the words could not .

Baber and Wray , argued for the Defendant , as it is abridged by Ash , fol. 50. Fleetwood , and another apprentice for the Plaintiff . Every Covenant , and Grant shall be taken most strong against the Maker , and most available to the other . And if the words thereof have a double sense , that which is for the benefit of the Grantee shall be taken ; then the word [ Assigned ] here shall be drawn to so effectuall sense for the avail of the Grantee . And if the word [ Assignee ] as the Councel on the part of the Defendant would have it applied to a limitation , viz. in the sense of an Habendum to him and his Assignes for 21. years , it is void and conveys no benefit to the Grantee ; because if I Lease to A. for 21. years , and his Assignes shall have this as largely as I do vest this Lease in him , and his Assignes ; because the Law gives power to him to assign it to another .

Assignee hath two senses ; in the one it signifies the person to whom the thing granted or given , shall be afterwards conveyed by him which hath the thing ; as the Lessor Grants to the Lessee for years , That he or his Assignes shall have twenty Carts of Wood annually in such a Wood , Assignee there hath the sense of the person to whom he shall Assign the Lease .

So one warrants Land to the Feoffee , his Heirs , and assignes , there the second Feoffee shal vouch . So I sell a Horse upon Condition , That if I pay 40 s. to him , or his Assignees , that I shall have the horse again , Assignee there is he to whom he grants the horse ; but such Assignee is not in our case , because he hath not any estate first made , and such a one is Assignee after the thing granted ; in the second it contains the person to whom the thing which is to be made , and is not made , shall be made : as I am bound to make a Feoffment , or give a horse to you , or your Assignee , there the Assignee is such a person which you shall name to me to receive ; and the Assignee in this sense is before the things done or granted , and Assignes in this sense is in the first also .

But with this in the first sense , we have not to do here ; there are Assignes in Deed , and Law ; in Deed , where you name such a one , to whom I shall make the Feoffment , or give the horse ; in Law where you name no man to receive , then the Executor shall have it , because the Law saith , That they are your Assignes to such purpose , and present your person , as to receive any Chattels real or personal .

So 27. H. 8 2. Executor is an Assignee in Law to take a Rental , where the Lessee bound himself to deliver it to the Lessor , or his Assignes at the end of the Term , a true rental , and the Lessor made no Assignee , he is an ill expounder which confounds the Text. And therefore here [ and ] the Copulative shall be taken for [ or ] the Disjunctive ; for otherwise the sense will be absurd , that the Lessee if he had been alive at the end of the first Lease , should not take a new Lease until he names his Asasignee ; or impossible , as joyning his assignee in law with him , because he cannot have an Executor in his life .

So in our Law , a copulative is taken as a disjunctive , and a disjunctive as a copulative for to make words to stand with reason , and with the intent of the parties ; as the Obligee shall pay 10. l. if he infeoff not him , or his Heirs , when he cometh to I. intends ( yet words disjunctive ) in sense , That he shall infeoff him if he be living ; and if dead , then his Heirs ; because he cannot have an Heir during his life ; so here a Covenant to make a Lease at a time to come to him and his Assignes Copulatively , shall be taken disjunctively . viz. to him if he be alive , and to his Assignes if he be dead .

So ( 4. Mar. before 171. ) A. and B. Grants a Rent Charge of 20. s. out of all lands , which they both have , the Grantee shall have several 20. s. out of both their lands , and yet the Grant was out of the lands which were to A. and B. 19. H 6.3 . I release all actions which I have against A. and B. if he hath any actions against either of them , they are gone .

So Arbitrators 2. R. 3.18 . may make Arbitrement of actions joynt and several , where one and two others submit themselves to their arbitrement , because it literally couples them , yet in sense goes to them severally . And so in the Common case in Indenture of bargain and sale , which Covenants to make a sure estate , or deliver evidences to the Bargainee , and his heirs within two moneths , and he dies before he ought to make the estate to his Heirs ; because impossible to be performed literally , viz. joyntly ; for in his life he cannot have Heirs ; that thing which another doth by my authority , is my act .

As if I demise , That I. S. shall sell my land , or authorize my Steward to demise it ; or my Baily to sell my sheep , which doth it ; so it is my alienation , demise , and sale by him . So the second Executor shall be immediate Executor , and in such degree to the first Testator as the first executor was , as chosen by the first executor by force of the Authority given to him by the first Testator , which intends the same ; or otherwise all contracts would be destroyed by the Common Law in a short time , viz. after the death of the first executor ; because administrators could not have actions given to the intestate , untill 31. E. 3. cap. 11. proved by 10. E. 3.2 . the executor of an executor , because executors have not those actions by the Common Law , but by Statute ; and because by equity they were not to be extended to an executor of an executor ; but the action of Debt was put in the Act in 25. E. 3. cap. 5. not of necessity , because the Law gave it to an executor of an executor before ; but for to take away the doubt that some had of it , and so an executor of an executor may have all actions that the Common Law gives to the first executor , and so may have actions of Covenant ; and if not , they should have it by equity of the Statute of 25. E. 3. cap. 5. Admitting that the word [ Assignee ] was void , or omitted out of the Covenant ; yet this Lease here shall be made to the executor , for that the intent which is the chief thing to be considered in every agreement , was such ; which shall be performed so near as may be , or the words shall not be effectual ; and the chief effect of the agreement , was the estate which should be made , not the person to whom : but if the Tenant bind himself , and Covenant to do corporall service to the Lord , he cannot to the Heir or executor , because it must be done to the body of the Lord ; and if I perish , the thing also perisheth .

The intent performed , and not the words , good , as in the cases of Litl . fol. 82. That the Feoffee shall re-infeoff the Feoffor , and his Wife , and the Heirs of their two bodies ( before fol. 6. ) And it is not requisite alwaies , that in agreements every thing ought to be performed according to the words ; for if the Mortgagee accept of another thing in another place , good , ( Litl . f. 79. ) So if the Obligee cometh not to the place at the day appointed to receive his summ , he hath not lost it . 7. E. 4.4 . but 19. H. 8 , 12 , if the Obligee sue for the penalty , the Obligor ought to shew that he was ready at the day and place , and say that he is yet ready . So payment of a lesser summ at another place , ( Perk. fol. 145. ) or before the day 10 H. 7.14 . good . So Litl . fo. 77. upon a Mortgage , the Heir , or Executor of the Feoffer shall pay at a day certain ; and Litl . fol. 76. the Feoffee of the Feoffee pays at the day , good ; because he hath interest in the Land . So 17. E. 3. ass. pl. 2. the Disseisor Grants by Indenture , That if the Disseisee paies unto him 10. l. such a day , that one release which the Disseisee hath made to him , shall be void , and before the day the Disseisor makes a Feoffment , and at the day 10. l. was paid to the Feoffee : Words performed , and not the intent , as it may be in some cases , yet the agreement is not performed , as 21. H 6.10 . ( before fol. 23. ) one binds himself that his Feoffees of the mannor of D. shall Grant out of it 40. s. annual Rent to the Plaintiff , he hath 3. Feoffees , and two Grants , it is nought , because he intended that all should do it ; for there but two parts of the Mannor are charged . So 3. H. 7.4 . one bindes himself to infeoff me of the Mannor of Dale ; he infeoffs an other of parcel , and afterwards me of the Mannor ; he hath performed the words , but not the intent , which was , That I shall have all the Mannor as then it was . So ( before fol. 21. and 23. ) si vellet inhabitare & residens , &c. during the Term , intends all the Term. So 10. E. 4.16 . the words of a verdict true , yet the verdict false , because he brought Annuity as Abbot , and prescribe so without naming of him parson where he had the annuity in right of his Parsonage , as Parson Impersonee , the new Lease here shall be in the Executor of the Executor , to the use of the first Testator , because the Title of Covenant cometh to him derived from the first Testator ; and that which is done in perfermance of the Covenant , ought to be in him in such degree as the Covenant was in him .

So 11. H. 6.11 . An Executor assignes Auditors to one which was an Accomptant to the Testator , and he is found in arrearages ; the Executor shall have Debt in the Detinet onely , because the Debt shall be in him as Executor , and hath a respect to the foundation . So 32 H. 8. and Doctor and Student , 92. One hath a Villain for years as an executor , the Villain purchaseth hands , the executor enters , it shall be to the use of the Testator , and assets in his hands , because the Villain which was the cause of it , was to such use . So here the Covenant , which was the cause of the Lease , cometh to the executors in right of the Testator , and to the same use shall the Lease . The Court increases the costs here .

Osburn against Carden and Jay .

A Woman guardian in Soccage taketh husband , they make a Lease for years of the Land to Commence at Michaelmas ; M. 7. & 8. El. in K. Bench Tr. and before Michaelmas the Lessee maketh a Lease for a lesser Term of years ; the Husband dies , the Wife enters , and being outed , bringeth Trespass , and adjudged lawful .

For that the Lease is voidable by the Wife , because she hath the Wardship to another use ; and by reason of Natural affection presumed by the Law to be the nearest friend for the proximity of bloud , for that the Custody of him cometh not to the executor , Litl . fol. 27. The Custody cannot be given by the Husband , or forfeited by Utlary , or Attainder longer then during the life of the Guardian ; because no such Natural affection there , 33. H. 6.55 . But the husband hath interest in the Custody in the right of his Wife , for to participate with his Wife in all matters of interest and Prerogatives , because they are one person in Law , but looseth his interest when his Wife dies , because Cessante causa cessat effectus . And although Doctor and Student saith , fol. 13. That the Wife cannot avoid the Act of the Husband , as to give , Demise , or sell Chattels , real or personal , which she hath to her own use ; yet here she may , because she hath it in anothers right ; and the Wardship of the body , which is the principal , remains , which shall be maintained with the profits of the Land , and this is in effect the suit of the Ward by the woman .

Caril against Cuddington .

A Woman seised of 2. acres in Fee , the one holden of the Queen by Knights Service onely , M. 7. & 8. El. in the Court of Ward . the other in Soccage , taketh husband , she and her husband levies a Fine sur Conusans come ceo of both ; the Conusee Grants and Renders to the husband and Wife , and the Heirs of their bodies , Remainder in Fee to the right Heirs of the wife ; the Husband and wife die , their issue within the age of 14. years , the Grand-mother on the part of the Mother enters , and the Grand-father on the part of the Father of the infant , sues as next friend in the Court of Wards , because that the Queen hath the Wardship of the acre holden by Knights Service , and of the body : and adjudged that the Grandfather on the part of the father , shall have the wardship of the acre holden in Soccage , as Guardian in Soccage , and not the Grand-mother ; for that the Grand-mother by possibility may have the Land by discent after the estate Tail determined , and the Grand-father cannot ; but they are in equal degrees as to the estate Tail , & the wife here is a purchaser by the Fine of the Fee-simple , and the Law is all one of land only , as if it were of the land , and body also .

Sherington &c. against Stratton .

ANdrew Bainton by Indenture , Covenants and Grants with his brother Edward , M. 7. & 8. El. in K. B. Tr. for the affection that he hath , That the Lands shall discend and come to the Heirs males of their own bodies , and continue in the bloud and name of the Baintons ; and also for brotherly love and good will , That he , his Heirs and Assignes , shall stand seized to the use of himself for his life , and after to the use of Edward Bainton for his life , and after to the Heirs Males of the body of Andrew , and afterwards to the Heirs Males of the body of Edward , and adjudged that every of the considerations by it self , being grounded upon Nature , is sufficient to raise the uses according to the Limitation , although it were without Deed. And so Covenant and Grant , That he will stand seized to another use by Indenture , without any valuable , or natural consideration , is good enough , for that the deed imports consideration in the Will of the Covenantor , by Plowden Quere notwithstanding .

Fleetwood , and Wray for the Plaintiff . An use is a confidence annexed to the estate with which he departs ; An use may be created by the Common Law . First by Transmutation of Possession , as by Feoffment , Fine , or Recovery to the use intended , Secondly , without Transmutation of Possession by one Act done , importing good consideration , which shall make the land subject to the use ; as a bargain and sale , or Covenant , or Grant upon good consideration . First by a new Act done of two parts , 21. H. 7.18 . and 6. E. 6. by bargain and sale , viz. Land for mony , or 36. H. 8. Covenant for marriage , because advancement to the Daughter , and comfort to her parents . Secondly , where of one part onely , as Covenant for Natural affection from the Father to the Daughter , or Brother to Brother , and a desire to have the land continue in his name and posterty . For a new thing to be done by both , is not requisite by the Councel of the Defendant .

But long acquainiance , ancient familiarity , or that they have been Scholars in their youth , no considerations to raise a use , because they are not considerations of value , or recompence ; as if I promise to pay to you 10. l. because you are my Brother or old acquaintance , it is Nudum pactum , and so note that a use was at the Common Law . A new use cannot be Created without consideration , but being created , and in esse , may be granted over without consideration as another Chattel , and Doctor and Student , fol. 99. may be devised .

1. Bromley , and another Aprrentice , with the Defendant ; and they Grant that there are two waies by the Common Law to make a Use without Transmutation of possession , viz. Bargain and Sale , and Covenant upon Consideration , proved by the words of 27. H. 8. cap. 10. and Consideration arising from the one part onely , good ; and it is not requisite to have Consideration , and a new thing done by both the parties .

First Consideration .

It is natural to engender , and nourish after engendred , or otherwise the first is without effect ; the Father shall have the Custody and Education of his Son , for his natural affection to him , Litl . fol. 25.33 . H. 6.55 . and Trespass for taking away his Son , Fitzh . nat. br. fol. 143. and 3. E. 4.12 . And the Son shall have an Appeal of the death of his Father before others for his earnest intent of revenge , and his reciprocal love . So a Feoffment to the Son , a Suit depending , is not Champerty , 6. E 3. cap. 274. yet within the words of Articuli super Chartas , cap. 2. because by all Laws the Son ought to aid his Father , and so out of the intent of the Statute ; and there by Herle , the Son may abet his Mother to bring an appeal of the death of her husband , and shall not answer Damages . And Litl . 8. The Son and Heir apparent endowes his wife ex assensu patru●… , good without Livery , because the wife of his Son is as his own wife , for the love that the Law presumes is between the Father and the Son , and within his Charge .

So Litl . fol. 4. the Donor shall pay Rent untill four degrees past upon a gift in Free-marriage ( upon another gift , not ) because the Daughter advanced ; and the husband from thence forth undertakes to find his wife all necessaries ; I promise 20. l. to one , if he marries my Daughter , he shall have Debt for it in our Law , because the Daughter is advanced , and so consideration proceeding from Nature , is a sufficient Consideration in our Law , 22. E. 3. ass. pl. 70. Fitz. nat. br. fol. 44. a. and 120. r. Doctor and Student 105. And so the Consideration here of A.B. for provision for his issues males good , is a good Consideration to change the use of the land .

Second Consideration .

For the continuance of the Land in the name of the Baintons , good , to raise an Use , and Males continue their Sir names , and Females change them by marriage , and the Male is most Soveraign , 40. E. 3.37 . 2. H. 4.1 . 27 H. 6.8 . and the Female , and all inheritance , is subject to the will of another , 17. E. 4.5 . I promise 10. l. to a laborer , for to repair a high way , or to a Surgeon for to cure such a man , he shall have an action of Debt , because it is Charity . Doctor and Student , 105.

Third Consideration .

The good will , and fraternal love wich he hath to his bloud , and his brothers which is the nearest degree of bloud after Parents and issues , good considerations here ; and so it seems by the better opinion , in 20. H. 7.10 . but is not there adjudged , and they that joyn in bloud by nature , joyn in love ; and therefore if the youngest enter after the death of the Father , the elder shall have no action against him , conrrary to 21. H 6.15 . by Portington because the Law intends that he entred as a friend to preserve the inheritance in his absence , because so near in bloud , the Law intends as near in love . So Littl f. 93. and 40. E. 3.24 . no discent of the Puisne , or any of his issues shall take away the entry of the eldest for the cause aforesaid . So Litl f. 160. Warranty Collateral Bars without assets , because the Law presumes that he will advance him as much as he hath prejudiced him by the Warranty . So no battail between Brothers or Cosens in a Writ of right . But a Nuper obiit lieth against Brothers and Sisters in Gavel-kind , where their ancestor died seized ; or a Wri● De rationabili , part against him which enters into all , which Writs are to try bloud onely . So a Juror is Brother or Cosen to one party , a good challeng in every action ; for the affection which the Law presumes the one hath towards the other , 21. E. 4.33 . And Bromley said , That 11. H. 4.12 . by Tirwit and Cascoigne , by the ancient usage , all the bloud of him which was Murthered , should draw the Felon found guilty , in an appeal of Murther , by a long corde to execution , for the loss which all the bloud had by the Murther of one of them , and for the revengement of his death , and love that they had to him that was killed .

Fourth Consideration .

Consideration was the Marrige had between Edward Bainton , and Agnes his wife ; Remainder upon Natural Consideration , shall preserve the particular estate made without Consideration , which precedes it , ( but not on the contrary ) if the estate upon natural Consideration precede the other estate ; as A. Convenants with B. in Consideration that B. will marrie his Daughter , to stand seized at the time of the Marriage to the use of himself for life , after to the use of I. in Tail , afterwards to the use of B. and his wife , the Daughter of A. is a good use to I. without consideration ; for the Marriage is private , and several Considerations for the estate of B. and his Wife ; because the Remainder to I. precedes the estate to B. and his Wife ; but if the Remainder to I. had been after the estate of B. and his wives , the estate there had been void to I. but money might have been given in Consideration of all the estates . In Mordants case , 21. H. 7.19 . No use was raised there , because the Covenant was in the future Tense , and also incertain ; and therefore was put to his Writ of Covenant there .

Good and sufficient Consideration , raiseth an Use without Deed ; so a Deed raises Uses if there be any Consideration ; for it is made to some effect , or otherwise should be void , because you shall not have an action of Covenant here , because an action of Covenant lieth upon a Covenant only in the preter , or future Tense , and not in the present Tense .

1. Contract , or Agreement for Lands , or Chattels , is by the Law , First , by Writing ; Secondly , by Words .

First , An agreement by writing , without Consideration , is not Nudum ; because a man hath great consideration , and deliberation in passing things by Deed ; and the writing , his sealing , and delivery of it , signifies fully his will , is sufficient consideration , that Land shall pass as his will is , and shall bind the party without thinking what cause he hath to do it . Secondly , an Agreement by word without consideration , is Nudum , and binds not ; because words passes from a man suddenly , and without advisement many times , as 17 E. 4.4 . I promise to give you 20. l. for to make your sale of new , it is Nudum pactum ; if it be by Deed , you may have Action of Debt upon this Deed , and the Consideration there is not examinable , and the cause of the Deed is not inquirable ; for every Deed imports in it self a Consideration without the will of the party which makes the Deed. So 11 H. 4.33 . A Carpenter by word , without writing , undertakes to make a new house , and no consideration for the making of it , is Nude ; if it be by writing , it is good : So 45. E. 3.24 . for that the Plaintiff demanded a Debt upon a contract for marriage money by Deed , an action lies at the Common Law , because there it becometh a Lay Contract by the Deed , in Court Christian , if it had been without Deed , because the marriage which is the consideration , is a thing Spiritual , 14. E. 4.6 . 15. E. 4.32 . which books are against the opinion of Thorp in the said case in 22. ass. before fol. 35. Nudum pactum est ubi nulla subest causa praeter conventionem ; sed ubi subest causa , fit obligatio & parit actionem .

Information for Mines .

THe King shall have all the Mines of Gold and Silver in the Lands of his Subjects , H. 10. El. in the Excheq . by the Prerogative of his Crown , and not by the proprieity of the Soil , although it be not recited in the Treatise of Prerogative ; and albeit the Oar thereof in anothers land , toucheth others Free-holds , and inheritance , which is proved by three reasons ; First for the excellency of the matter , which being more excellent , is appropriated by the Law to the person most excellent , viz. the King . So the King hath by the Common Law , Whales , and Sturgeons , because they are the most excellent fishes that the sea , or water renders .

So that the Treatise of Praerogativa Regis ca. 11. which saith , Rex habebit Balneas & Sturgiones , is but a Declaration of the Common Law before . Secondly , for the necessity of defending his people , and preserving the Common-wealth against forreign hostility . Thirdly , for the commodity of his Subjects , That they by the Coin made thereof ( which the King onely may make ) may have between them mutual Commerce and Traffick ; because if the subject shall have gold or silver found in his own land , he might convert it into Coyn ; for falsifying or counterfeiting money , was Treason at the Common Law ; and for that cause , a woman was burnt , 23. ass. pl. 2. Also it would be inconvenient , That a subject which is proprietor in the land , should have it ; for that he thereby would exceed the King in Treasure , which would be perilous to his estate .

The second proofe was by presidents of three sortes .

First , Commissions , Grants , and Demises , by which the King hath Granted such Mines in others Lands , viz. in Annis 32. E. 3.8 . R. 2.5 . H. 6. 15. E. 4. and primo H. 7. and in some of them the King gave licence to digg in another land without licence of the owner ; and where some of them saith , habita licentia fodiendi , which is intended land subject where they give amends for the digging , or Assign part to the Lord of the Soil ; this is of courtesie and clemencie of the Prince , and not of necessity .

Secondly , Accounts of the Grantees of such Mines .

Thirdly Informations , and Impleading of them which have disturbed the Grantees , or Imported their Oar ; also the King may punish him which taketh Oar in another mans Soil . And so Charters , Accounts , and Pleas against the takers of Gold and Silver in the Soil of another , proves strongly those Mines to belong to the King by his Prerogative ; for the Records of every Court , are the most effectual proofs of Law in matters Treated of in this Court ; and account lies not against an Executor by any , except for the King . Litl . f. 28. The King may seise the Land of his Debtor which he hath , by what means , or whosoevers hands it cometh after the cause of the Debt . Sir William Candish case in the Exchequer .

The 3. proofe is upon authorities of Law , viz. The book called , Exposition of Terms of the Law ; and the reading of Hescot of Charta Forestae ; and the Laws of St. Edward the Confessor , and William the Conqueror : and so those Authorities , and the said presidents , and the reasons aforesaid for the excellency of the Metal , and for the necessity of it , and the publique good , agreeing in one , That the King shall have all Mines , and Oars of Gold and Silver in Land , is Treasure found . Thesauri de terra taken for Gold and Silver in Land , is Trea. sure Trove ; the use and continuance Ratifies this Prerogative by prescription , although that it need not be contained in the Treatise of Praerogativa regis for the King ; the Common Law hath many which are not there recited , as Tenant of the King aliens without Licence ; it was a forfeiture before the Statute of 1. E. 3. cap. 12. 9 E. 3.26 . although it be to the preiudice of another Free-holder ; yet because the Law gives those Mines to the King , it giveth to him all necessary means to have it , by digging with all incidents thereunto : for every Prerogative contains in it self prescription , for it is in usage ; and as prescription and usage will give Title or interest to the King in the Free-hold of another , as by Prerogative the King might enter into the woods of another , and take Trees for to repair his Castles before the Statute of Magna Charta . cap. 22. so he might Afforest another mans woods , before the Statute of Forresta , cap. 2. So 7. H. 3. he might break a Pond , and take the fish for his provision . So 27. ass. pl. 49. The Lord might not take his Villain ( yet is his freehold and inheritance ) in the presence of the King ; for it is a Protection to him for the time . So 13. E. 4.6 . The King may distrain for his Rent Charge in all the other Lands of him which ought to pay it . So the Prerogative of the King , chargeth his other Freehold to the Kings distress .

The King shal have by his Prerogative Mines of Copper , containing Gold or Silver in the Lands of another ; because they are as a thing entire by the Commixture ; & magis dignum trabit ad se minus dignum , as 41. E. 3.32 . 36. H. 6.26 . and 3. H. 7.14 . The Heir shall have the Charters with the Box , if it be sealed : so Carts to which Horses are tyed , if it fall upon a man , the King shall have all . Stamford fol. 20. ( before 243. ) because as one thing they altogether occasion his death . So the King shall have all the Obligations , and Horses where one of the Joynt-Tenants is attainted ; because a thing entire proves that the King shall have all , where Gold or Silver mixt with base mettal , by Commissions 7. E. 3. and 17. R. 2. 7. H. 4. 17. H. 6.30 . and 31. of H. 6. proved also by accounts for Silver and base Mettal ; no Mine of Copper void of Gold or Silver ; no Mine of Tin void of Silver ; and therefore those of Devon and Cornwal , for digging in their Land , and in other Land for Tin , and to have this to their use , derive their power from the Kings of this Realm made unto them , and giving them such liberties as by Charter . 33 E. 1 confirmed by R. 2. but the power given to them for to digg in anothers Land , and to pull down houses of another , was restrained by the Statute of 50. E. 3. Darby shire , and other places prescribes to take lead of Mines steril , which is without Gold or Silver , without paying any thing .

On the part of the Earl against the Queen . The thing of the most in value , is worthiest ; where the Quantity of Copper exceeds the Quantity of Gold yet the lesse is the most precious , Quantity for Quantity ; the Gold or Silver ought to be of more value , then the charges of separating of it from the base Mettal cometh to ; otherwise this aliquid nihil est if he hath lost by it . Wast . of 2. d. is dispunishable , because de minimis non curat Lex . 9. H. 6.36 . 38. E. 3.7 . by this reservation upon the said Demises , it is intended a good quantity of Gold or Silver . Also because the information sheweth not what value of Gold or Silver is to defray the charge which is incertain , and bad ; because this is the Declaration of the King . Also Commissions are not of great estimation , but shew the obedience of Subjects , and are made at their requests for whom they are granted ; and many of the said Commissions and Leases were limited , That the Grantee should make to the owners of Lands in Cornwal , used for the digging of Tin before the said Charter , proves by the words themselves , viz. That for the amendment of our Stannaries , &c. and other words in the Charter ; and albeit the King had some profit of Tin , or Lead in some places , as a toll dish of Oar , that was not in respect of the interest the King had , but for the bearing of the Charges of Officers , as he had of Merchants of some part of their Marchandizes , for the searchers , Controller and Waigher , because he appointed Officers for that purpose .

By those of the Earls Councel it was said , That if the Law were such that the Mines of Copper in the lands of Subjects , shall be the Kings by his Prerogative ; yet here those Mines and Oar in question , pass to the Earl by the Letters Pattents of King Philip , and Queen Mary . For as to the first Plea , they take that the vain wherein the said five hundred thousand weight of Copper was digged , could not be called a Mine at the time of the Letters Pattents granted , nor pass by the name of Mines , for that then the vein was closed ; and therefore pass by the grant of the Soil as parcel of it . And in the second Plea , the vein and Oar pass by the words Omnes & singulas Mineras . &c. which admit no exception , and shall be taken strictly against the King ; for those clauses , viz. De gratia sua speciali , which pretends great favour and bounty towards the Pattentee ex certa scientia , which excludes any suggestion ; and the Great Seal is in witness of Truth , and not impugnable in Credit ; if the King gives a Mannor that he hath by escheat or purchase , as intirely as I.S. held it , there the advowson pass Trinity , 43. E. 3.22 . ( and agreed here ) yet is not taken there but by implication , That the King is knowing of his right ; and so the King here saith by express words .

The King Rents the first Grant by his Predecessor , and saith , Ex certa scientia , ( as we are informed ) concludes not the King to say that such grant was made by Hussey , 9. H. 72. The King Ex mero motu , and Ex certa scientia , pardons to B. Omnia debita & computa , it discharges a debt due by him as Sheriff , because there is a general pardon , 1. H. 7.13 . Incertain Return , and the King deceived , because upon suggestion , made the Charter void . As three Kings usurp presentations , and the King reciting one of the Usurpations , restores the Patronage to him , upon which the Usurpation was , this is a void Charter , but adjudged good , because of Ex cetta scientia , in which case the King shall not say he was deceived or ignorant , 3. H. 7.6 . So 22. E. 4.44 . The King grants de De gratia sua speciali , to the Abbot of Waltham to be discharged of the Collection of Tithes , which shall be granted by the Clergie of England , and Province of Canterbury , Notwithstanding the Grant there , adjudged good ; and that the Abbot shall be discharged . So 36. H. 6.34 . and 37. H. 6.31 . A. Returned upon an Exigent quarto exactus , where he was Outlawed ; after the King pardons him Ex mero motu , and De speciali gratia , all Misprisions , Offences , Contempts , and Deceits , there the Amerciament is released by the general words , because the Law intends that the King is informed of the thing pardoned , as by express words in special . So 41. ass. pl. 19. The King Grants De gratia speciali to S. That he may give the house whereof he was seized in Mortmain , good ; yet recites not the Tenure in Burgage holden of the King , and the house was holden of the King in Free-Burgage .

The third point argued by the Queens Councell .

First by the Kings Grant Ex mero motu , certa scientia , and gratia speciali , Mines of Gold and Silver , or other Mines Royal , will not pass , although that it appeareth , that it was hidden at the time , and appeareth afterwards ; otherwise of base Mines , for those pass , but not Mines Royal which are Collateral things to the Soil , as are hidden Treasure , which passeth not by the gift of the King ; nor Wreck , Straies , Waifs , &c. passe not ; nor do liberties pass by the Grant of a Mannor . As the King gives a mannor within a Forrest which escheats to him ; yet the Donee may not cut his woods within it , without licence of the Justice of the Forrest ; and the Mannor remains subject to the Pasture of Deer ; and wild beasts of the Forrest ; and so thing collateral to the Soil , as are things of Prerogative and liberty , pass not by the gift of the Soil . So Livery to the Heir gives not Right .

The King assignes Dower to his Mother ; but the King shall assign it by his Prerogative , without the Clause ( de salva to the wife her Dower , by the King assignanda ) and upon this reason he put the case of 31. E. 3. Three Coperceners of an Advoson , the one within age , and in the Kings Ward which Grants the ward and Marriage of him , and the Fees and Advowsons appertaining to the Ward . The King shall have all , viz. the presentment of the eldest and middle Sister by his Prerogative , because entire , and his Prerogative takes away the elder and middle Sisters to present . And the King hath three presentments in the Wards right ; and it passeth by his Pattent ; but that to which the King is intituled by his Prerogative , passeth not without express mention . A Pattent Ex gratia speciali , &c. shall be taken favourably to the Pattentee , viz. as to the thing expressed in the Pattent , which the words shew to be intended to pass ; but this will not make another thing to pass not expressed or shewed to be intended by the words of the Pattent to pass . The King had the secret Mine of Copper mixt with Gold and Silver in Land given by his ancestors to the Prior of Wenlock , and there it passeth not by the Grant of the Soil , Ex mero motu , &c. yet it was of the foundation of the King , and Religious favored , Fitzh . nat. br. 332.

Secondly , by the Kings Grant De omnibus & singulis Mineris ex certa scientia , &c. Mines Royal , viz. of Gold and Silver , or of base mettal , containing in it Gold or Silver , passes not ; because the King hath them Ratione Cornnae , not of the land , and because appropriate to his Crown , passeth not without special words ; base Mines here , as those which consist onely of base substance , viz. Copper , Tin , Lead Iron , or Coles , and not having in them Gold or Silver , and Patentees shall have things fit for Subjects ; yet the terms of the Pattent comprehend things annexd to the Crown or of great importance ; but they shall be construed to pass the things of the basest degree , 22. ass. pl. The King Grants to the master of S. Leonard , Omnia catella tenentium suorum Feloniae qualiter cunque damnatorum , and his Tenant kils the Kings Messenger , there he shall not have them , because intended of common Felonies .

So the Kings Grant of the Return of all manner of Writs , the Grantee shall not have the Return of summons of the Exchequer ; because it concerneth the King himself there .

So 2. R. 3.4 . 2. H. 7.7 . The Kings Grantee of Amerciaments of his Tenants , shall not have the amerciament of his Tenant which holdeth of him , and another ; because it is before other Tenants , as well as my Tenant .

Charters of the King taken according to common intent , and other things which have not common intent , shall not pass from the King by his Charters . And therefore 3. E. 3 the King Grants to an Abbot , That he and his Successors shall be quit of repairing of Bridges , Cawseys , and Walls , it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village : but it is good otherwise of a Town to which the King hath Granted Murage , Pannage or Pontage .

So 9. H. 6.56 . ( before fol. 243. ) The Grantee of the King with Warranty , shall not have in value , without precise words , but he may rebutt . So 2. H. 7.6 . The Grantee of the King of all Fines and Amerciaments in such a County , he shall not have Amerciaments if the Sheriff , Coroner , or other great Officer is Amerced , because Royal ; and a Grant shall enure for common things in intendment .

So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall , cum omnibus Wardis , Maritagiis , &c. And one which held of the Dutchie by Knights Service , and which held also of one which was in Ward , because of Ward by Knights Service , dieth , his Heir within age , the Prince shall not have the Wardship of him , but the King ; because a thing pertaining to the Crown passeth not without special words . So the King maketh a County Palatine , and giveth to another , and Jura Regalia , and that Pleas within the County shall be determined there ; yet he himself shall sue at Westminster , his actions arising within the County Palatine , as 3. E. 2. For an advowson in the County Palatine of Durham , the King brings his Quare impedit in the Common Pleas ; the Defendant pleaded to the Jurisdiction of the Court , and was compelled to answer .

So an Abbot by the Kings Grant made to him for the amortizing of Land , or Tenements , may not purchase an Advowson holden of the King in Capite : and this case by Wray , differs from the case in 41. ass. pl. 19. ( before fol. 332. ) for there the Charter names the house , but names not what Lands ; by which it cannot be intended that the King was mistaken in the Tenure , and therefore it is good there , and not for the cause of Ex gratia speciali . So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate . So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words , Ex mer●… motu , &c. will not pass other things then the nature of the words contain . And therefore the King Grants to a man and his Heirs males , excerta scientia , &c. passeth not inheritance . 28. H. 8. A Felon may not wage battail against the King , because dangerous for the King . Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant , 20. E. 3. So if one takes the Kings goods wrongfully , the King may seiz his goods until restitution ; and 8. R 2. if any take Toll of those of the Town of Lynn , they may by the Kings Grant take withernam of those another time within their Jurisdiction . And so the King conveys not from the Prerogative of his person , to the person of another a fortiori ; he may here where the thing is not , but Revenue or profit . These words ad humilem Petitionem Comitis , deminisheth the force of the Pattent by Catline ; by Plowden , if Gold or Silver will not defray charges , the King shall not have it , because no mettal without them ; but because the party shewed it not as our case is , the Queen shall have Judgement . And this point was not put to the Judges to adjudge , because that the Defendant confessed that it contained gold , which is intended to be of good value because the best for the King .

Bret against Rigden .

A Man seized of 10. acres Soccage , Devises all his Lands by writing , Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage , and the Devisee dieth ; the Devisor saith to the Son of the Devisee , That he shall be his Heir , and have all the Land that his Father should have had if he had survived him , and dies : Adjudged that he shall not have the 12. acres .

1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will.

Manwood for the Defendant said , That it shall be presumed that every one knows the Law in acts indifferent ; and that the Will is of no effect until the death of the party ; for ignorance of Law excuses no man , and the date and writing of the Will is not effectual , but the words of the Will shall be construed as they were spoken at the time of his death .

And therefore if a man Deviseth a Mannor in Fee , a Tenancie escheateth , and after the Devisor dieth , the Devisee shall have the Tenancy , because parcel of the Manor at the death of the Devisor when the Will taketh effect ; yet when the will made , not .

A woman Deviseth Land , and after takes husband which dies , the Woman dies , the Devise is good , because she is discovert when it took effect , as she was when she made her will , and marriage cannot countermand it , which was not of effect in her life . Also because it intends no exception for the generality of the words . As if she had Devised all her plate , and after bought plate and died , the Devisee should have all his plate at the time of her death ; for the ampleness of his words declares his intent to be benificially taken for the Devisee .

Lovelas , and all the Justices for the Plaintiff , to the contrary . That Land purchased after the making of the Will , cannot pass by the words , nor intent of the Testator , because he had not the 12. acres at the time of the writing and publication of the Testament ; it is no presumption that afterwards he would have , and is as if he had died when he writ and published the Will ; and therefore cannot have an intent to give it ; and the death which is the Confirmation of the Will , follows the first Acts thereof , viz. the writing and publication of it ; for every Act founded upon discretion , consists of 3. parts .

The first , Inception , which is writing of the Testament here .

The Second , Progression , which is the publishing of the Testament begun .

The Third is Consummation , which is the self same , and continues one through all these parts , or otherwise the Act is void of discretion . And by Lovelas , it is proved , That the Commencement is to be considered in Wills ; because if a woman Covert Devise Land by her Will , and publish it , and her husband dies , and after she dies , the Devise shall be void . So of an infant which maketh his will , publisheth it , and dieth at ful age , it is not of any effect ; because death without good Commencement , giveth not effect . And so the Commencement , and the intent of it is to be considered in every act . So the Disseisee of two acres in Dale , releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed ; the Disseisor before the first of May disseises him of another acre , and the release is delivered the 10. of May , the right as to the 3. acre shall not pass ; because the first livery was void to this intent ; so the consummation of it which is the second livery . So I have a Reversion of two acres that I. S. holdeth for life ; after I purchase the Reversion of another acre which I. S. holdeth for life ; after I. S. Attourns to B. for all three , the third acre passeth not ; for Attornment passeth not more then was contained in the intent of the first Grant . And so here , That which is not in the intent at the begining , Commencement of the grant , shal not be in the intent at the consummation of the same ; but if he had published his will after he had purchased the new Land , there it may be all might pass ; for by the new publication his intent shall be taken , That all that which the words contain at the time of the publication will pass : and by him , if a man Devise a thing by a name certain , as the Mannor of D. or white acre , and after purchase the same , it shall pass ; for it shall be taken that he intended to purchase it , or otherwise the Will shall be void to all intents . 39. H. 6 18. But here when he hath 10. acres , and Devises all his Lands , they are satisfied in passing of the 10. acres ; and there is no meaning by the words for the land purchased after the Will ; because the thing is not named certainly , as the Mannor of Dale , or White-acre . Also he may not Devise the 12. acres , because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will , because it speaks of having Lands which he may Devise , and here he hath not those at the time of the Devise . Quaere of the case where he Devises by special name , and after purchases it , because of the word [ having . ]

Second point , if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor .

Manwood for the Defendant . Because it is more consonant to the will of the Devisor , and reason , That the effect shall take place , and the form perish , rather then both should perish together ; as Devisee for life ( the Remainder over ) dies in the life time of the Devisor , it is a good Remainder , and shall have the immediate possession which is the effect ; yet the form was for to have by Remainder . So if a Dean die , or a woman Covert taketh another husband before their Devisor dies , yet they are especially named ; Land shall vest in the new Dean and his Successors , and in the woman which is now the wise of another , according to the intent , because it cannot according to the words ; and if the intent of a man in Conditions shall be performed , as 4. H. 7. by Joy , he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori ; the intent in Wils shall be observed where the words cannot , and the effect here is that the Heir shall have the Land , and it is the form of the limitation , that he shall have it by discent , 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn , good . And Parson shall take , because it was comprehended in the Devise , although he was not named .

Lovelas , and all the Justices besides Walsh , to the contrary . For by the death of the Devisee , the Devise is countermanded , for that the Devisee is not in rerum natura , when the Devise took effect ; and in all gifts , be they by Devise or otherwise , there ought to be a Donee in esse capable when the thing ought to vest , or otherwise the gift is void , and the word Heirs limits the estate , and not the persons which shall take , and enables the Devisee , as well to alien , as to permit it of Discent ; for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee , and a thing at his pleasure . And things of sequel which ensue if the estate had been vested first , ( as are Discent , Dower , Escheat ) are not good causes to make things vest in others then those to whom limited . And therefore the heir shall not have the land here no more then the woman shall have dower , or Lord Escheat if he had died without heir , which should be so if it had vested in the Devisee . And therefore if a man Devise a Lease or goods to I. S. which dies , and afterwards the Devisor dies , the Executor of I. S. shall not have them .

The speaking to the Son of the Devisee , That he shall be his heir , &c. is void , for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing , and those are sufficient in themselves for to make the thing devised pass , and not regard words without writing , by all the Justices ; but if he had published the Testament of new , the Devisee should have the 12. acres in this case , for that it had been as it were a new Testament but not his heirs .

Delamer against Barnard .

A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail , Remainder to the husband in general Tail , 10 El in K B ●…r . Remainder in Fee to the brother of the husband , and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother , being in Remainder in Fee . 2. E. 6. The brother infeoffs the Defendant , the Husband dies , the heir of the first Feoffee enters to revive the use to the Wife , and adjudged lawfull .

1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use , is drawn out of him , and setled in the second Feoffee , and by consequence all the uses which were created out of the first Fee-simple , are discontinued , and shall not be revived untill a re-entry of the Feoffee after the death of the husband , and that he may enter then , notwithstanding the Feoffment of the Brother .

2. The Feoffment of the Brother in Remainder , is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession , nor in esse , but only a right which he could not grant ; neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of Extinguishment . Also the Statute of 1. R. 3. extends to cestui que use in possession , and not in Remainder , or Reversion where they are derived out of one entire estate created by Feoffment ; for although that the uses are several , yet the estate is entire , which shall not be divided ; but he may make a Lease for years , to commence after the particular estate determined , which is Executory , and divides not the estate ; but where the estate and uses also are several , as a Lease for life to the use of one for life , and the Reversion granted to another for life , to the use of anther for life , &c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates .

Cestui que use by the Common Law cannot meddle with the Land ; for if he doth , the Feoffee may punish him in Trespass . And if the Feoffee will not permit Cestui que use for to receive the profits , he hath no remedy but in the Court of Conscience ; for the land was so fully to the Feoffee by the Common Law , as if no use had been of it . And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment , Lease , &c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life , or in Tail during his life , or the estate Tail , 4. H. 7.18 . And the Feoffment of Cestui que use , or in Tail , or for life , is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute ; for if a woman Covert was Cestui que use , the husband might make a Feoffment , and good during Coverture by the intent of the Law , and the Statute which giveth to the husband during Coverture direction of the things of his wife ; and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife , 6. H. 7.3 . So two joynt Cestui que uses in Fee , the one maketh a Feoffment of the moity of the Land , and good , and binds the Feoffees , yet were not onely seized to the use of him , but by the intent of the Statute hath a moity of the Use presently ; and may give , or Lease the moity of the Land where the estates are several , and uses also , every part granted by the Statute , or several uses issuing out of one estate , the several possessions of several uses , may not divide the estate , because there entire ; yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed , because then the lessor shall have interest in the possession , and the Franck Tenement of the Feoffees shal not be taken away , nor their estate will be divided ; but an estate for life , or greater , he in Remainder cannot make without the dividing of the estate , or taking away of the Free-hold , because it passeth presently , and is not executory as a Lease for years is , if the Feoffees to use makes a Feoffment , upon Consideration , or not , to one which hath notice of the first use ; otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice , or without Consideration and notice , there all the first estate , out of which all the uses do rise , is taken from the Feoffees , and a new estate is made by authority of the Statute , the which new estate shall be to uses newly expressed or intended , and not to the first use ; but by this all the ancient uses are discontinued ; the reason seemeth to be before that one use cannot be raised out of another . The release of Cestui que use to the Disseisor of his Feoffees , good , and bars them of entry , 14. H. 8.7 . and 27. H. 8.29 a Disseisor infeoffs Cestui que use , which infeoffs a stranger ; by this the right of the first feoffees is gone , although that no use was in Cestui que use at the time of the Feoffment , as if Cestui que use had released to the Disseisor : But Plowden saith , That the greater doubt will be here , if the estate Tail was here determined if the first Feoffee might enter , because the right of the use in fee was extinguished by the Feoffment of him in Remainder ; But here for that the particular estate in use continues , which may not be defeated by him in Remainder , this is good without doubt ; by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself , for that it was extinct in the possession of the last Feoffee , as of a rent which he in remainder had in the land before his feoffment ; this shall be extinguished in the Land by his Feoffment ; so of the use , and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor , for that they could not have this at the time of the Feoffment made , because not in esse , but was discontinued at this time by Cestui que use in possession in Tail ; and by Plowden and Bromley , he shall revive the use in Fee to the last Feoffee , for that this passeth to him by the Livery , and the first Feoffee hath nothing in the Land to his own use , but onely to the use of the Feoffor . And it was not his intent that the first Feoffee should have it to his own use , but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law ; for that the last feoffment was by the Common Law , and not Warranted by the Statute of 1. R. 3. for the cause aforesaid , but this point was left at large ; and if before R. 3. Cestui a que use disseises the Feoffees , and infeoff others upon which the first Feoffees to use enter , they shall be seised to the use of the last Feoffees , because Cestui que use had given his interest to them ; and his intent appeareth that they shall have it , and the first Feoffees shall not hold to their own use , because it is a Collaterall thing annexed to the person touching the Land , and not as a Rent issuing out of it : And use is but confidence , that the Feoffees to use shal do for the Feoffor as he would do if himself was seized ; and so it is a difference between a use and a Rent , which Rent is only by reason of the Land , but use also is annexed to the person .

Stowell against Zouch .

DIsseissor Levies a Fine with Proclamations , the Disseissee dies after three years , H. 11. El. in the common Pleas Entry sur Disseise● . and within the five years his Heir being within age , the five years incur after the Heir commeth of full age , and within one year after his full age enters . And adjudged that his Entry is not lawfull : but that he shall be barred by the Fine with Proclamations , and the five years notwithstanding his Infancy , for that the five years are once attached in his Ancestor , and then they ought to incur ; for the pursuit of a Claim within five years , is a Condition in Law which shall bind an Infant .

Those which argued with Stowell for the better intelligence of the Statute of 4. H. 7. ca 24. which gives five years to every stranger , and of the reason of making it , thought the Fines , and their force at the Common Law and the incidents thereof , which consists in three points : 1. The nature of the Fine , and the puissance of it . 2. The preservation of the antient right by Claim . 3. What persons may make the Claims .

1. Fines are as antient as any Court of Record ; and at the Common Law , they bind all strangers but those which have defect , which Enters not or Claim within a year by 17. E. 1. So Non-claim , after the year and day , was peremptory upon a Fine or Recovery in a Writ of Right Executory and not Executed , as is a Fine sur Conusans de droit and Render . 7. E. 3.335 . Because transmutation of Possession gave occasion to a stranger to take notice , and to bring his Action or enter within the year and a day after Recovery in Right , tryed by Battail or great Assise barred a stranger , if he had not defect as Nonage was for the great notice of it , because publike and more notorious then in other Actions : And a Proclamation shall be made before Judgement upon a Recovery in right , by default for to give notice of it : And from thence use is derived to make Proclamation in formedon , as it is in 7. H 4.19 . upon the confessing of the Action . Quaere , by what Law ; and so Fines after Recovery in a Writ of Right was of the greatest force .

2. But the avoyding of a Fine by one , defeats it against all , although their Right was bound before by their Nonclaim , which sets at large all other Rights above them , although they make not claim within the year and day . 16. E. 2. As if the Lord defeats a Fine at the Common Law by deceit , he restoreth the right to him which Levies the Fine . And if the state which passes by the Fine be defeated , the right Paramount is restored ; although it was barred before by Nonclaim . As the Feoffee upon condition if an Abator levies a Fine , one year passeth the Heir , is barred by Nonclaim , the Abator enters upon the condition broken , the Heir now shall have Mort. d' Auncestor against him ; and after the Statute of 4. H. 7. an Action brought within fives years shall defeat the Fine against himself , and all others having right Paramount , although he hath not Judgement and Execution until seven years after Proclamation . Claim is defined by Dyer , to be a Challenge of the Ownership or Property , that he hath not in Possession , but is detained from him by wrong . There are four Claims for defeating of Fines ; whereof two are by Record , ( viz. ) Action Reall , and Entry of the Claim at the foot of the Fine , two by Acts in the Countrey , ( viz. ) by Actuall Entry and by Claim , and so notwithstanding , the Puissance of Fines at the Common Law , the Law hath provided those Claims for to preserve the Ancient right .

3. Those which are strangers to the Fine , and have present right , ought to make Claim , and shall avail all in Remainder or Reversion , & their Non-claim binds all in Remainder and Reversion , because all of them have but one year by the common Law after the Fine levied : And such mischief was a great cause why the Statute of 34. E. 3. ca. 16. which out Nonclaims was made . But before this time , W. 2. ca. 1. 13. E. 1. hath provided for the Donor and Donee , that Nonclaim shall not bind them , as it did before 13. E. 1. as it is like . But an Infant was not bound at a time certain to make Claim by the Common Law . It is proved by Implication of the Statute of W. 2. ca. 1. and 18. E. 1. de modo levandi fines , observe in their Exposition , because he hath not discretion to consider of his right , nor to conceive what Action he shall bring , nor when , or how to Enter , or Claim , or to do Acts which require intelligence ; and in the same degree are Non-sane , a man in prison and beyond Sea . But a woman Covert was bound to make Claim by the Common Law , because she is not mentioned in any of the Acts , and hath a Husband which may make Claim for her . And therefore Infants and such are at large always , and bound to no time for to make their Claim by the Common-Law . And if the Father Disseisee dyeth within a year and day after the Fine Levied , before the Statute of Nonclaim , his Heir within age , he need not make Claim , because he is not bound where the right discends to him , more then he is when he hath a present right when the Fine was levied ; nor Infant in Remainder or Reversion , is not bound by the Nonclaim of the particular Tenant . And so howbeit that Fines at the Common Law were of so great force , yet the former right was considered , and time given for to preserve it , and Infants were exempt out for this time . And after , when Nonclaim was repealed and outed in Fines and to make their Claims , and because the Law was unreasonable that those in Remainder or Reversion should be bound by Nonclaim of particular Tenants ; and the Law of Nonclaim being outed in process of time , Fines became too feeble , and were in effect but Feoffments of Record , whereby the security of Inheritance was taken away , which was cause of great Contention between Subjects ; and therefore the Statute of 4. H. 7. intending to reform three things ;

First , to magnifie Fines againe . Secondly , to preserve the Ancient Right , if it be pursued within a certain time . Thirdly , of not binding of persons of defect , ( nor feme Coverts ) unless they are also parties to the Fines ; but favoured those which had defects untill their impediment removed , and then gave them time sufficient to pursue their right .

That which is excepted out of the Act , is out of the provision of the Act , and there is no Ordinance for it : but is so apparantly exempted out of the Act , as if no Act had ever been made . As a Feoffment of a Mannor except an Acre , or of all Lands in Dale except White Acre , is voyd for those Acres , as if no Feoffment had been made , but a saving goes to them touched and not exexmpt .

The word [ having ] in the Statute of Fines 4. H. 7. shall be expounded of them which have right at the time of the Fine Levied , and Proclamations made , and also of the using of the Action or Claim , &c. And not only at the time of the Action or Entry : The exception goes not but to those before bound ; The ampleness of the Exception is measured by the ampleness of the Purview . And therefore Stowell , if he is bound by the Purview , he is afterwards excepted ; and if he is not bound by the Purview , he needs not to be excepted , and so he is at large and out of the body of the Act , which consists of the Purview and of the Exception . Acts of Parliament are positive Laws , consisting of Letter and sence , which together make the Law . And the Common Law is ancient to all positive Laws ; and this is to be considered to come to the sence of the positive Law , viz. to put such sence to the Letter which excludes all mischiefes and inconvenience . Those which Levie Fines are Parties , their Heirs are Privies , because there is privity of blood between them , ( strangers are they which are not Parties to the Fine nor privies : ) And the Fine excludes now Privies by 4. H. 7. before not Parties here ; and therefore it is no Mystery , that the Letter of the Act will extend to them ; no Laches untill all the time is past : Because they have Election to protract time , untill the last of the five years , or last day ; so that they within five years pursue , intends Heirs : also of those of full age , for such sence stands best with equity & reason , which most avoids rigor and mischief . Things within the Letter , and yet out of the sence and intent of Statutes , as 36. E. 3. and 4. H. 7.7 . Doctor and Student , 148. An Infant named a Disseisor , vouched a Record and failed , he shall not be imprisoned : Notwithstanding , W. ● . ca. 25. Nor an Infant Baily or Receiver found in ar●…rage of account shal not be committed to the next Gaol , Notwithstanding W. 2. ca. 11. Nor an Infant , which is convict of Ravishment of another Ward , shal not be imprisoned for the Kings Fine : notwithstanding Merton , Cap. 6. Not if a woman Infant be Ravished , and consent to the Ravisher , within twelve years , there the Heir shall not enter : notstanding , R. 2. ca. 6. But Infants are bound by Laches for a Title , & favoured for the Inheritance , as Doctor and Student , 148. An Infant shall be bound by Cessavit or Waste , because an injury done by his Act , and he shall purchase , and the Law will presume if he hath policy to get a thing , that he hath reason to defend himself : So if an Infant Lord enter not for Mortmain within the year , or before a Villain hath sold , because he had but Title to the thing , that it was never in him . But Doctor and Student , 29. and 27. Assises , 32. Laches of Entry upon Discent or Warranty , binds not an Infant , because they have favour for Inheritance , for Waife , Stray , Wreck , or for Goods taken from them , and offered to Images , or taken by Enemies , and not retaken before the Sun sets ; or sold in a Market Overt , or Acts an Infant as Executor , 35. E. 3.45 . or as King , before 213 or for necessity , as an Obligation for meat , and drink , Doctor and Student . 104. The Common Law is the foundation of this Act of 4. H. 7. and if the Father dies within a year after the Fine , his Heir Infant is at large , ( fol. 372. otherwise , ) & the imperfections which may happen sometimes within five years are to be considered , as those which are at the time of the Fine or right then : And because that the Statute provides for the Infant in the exception , and in the Fine , it will not be amiss in the middest : And if one which hath a future right dies within five years his Heir within age , shall have five , à fortiori , he which hath a present right ( as here ) because it is of greater estimation then a future . If a stranger to a Fine cometh of Non-sane memory , or is in prison the third year after Proclamations made , and after the five years cometh of Sane memory , or out of prison , he shall not be concluded , because constrained and acts involuntary ; but if he or she taketh Husband , or go beyond Sea in the third year , and after five years is discovert , or within the Land , he shall be bound , because Acts voluntary . An Expounder which adheres only to the Letter of the Statute of 4. H. 7. without adding reasonable sence , will admit many absurdities , as by the Letter of the Statute ; if an Infant which hath present right & is excepted , dies within age , his Unkle being his Heir and of full age shall be barred . So if an Infant by Entry within age avoyd the Fine , & after full age , permit the Conusee to be for five years in possession without Claim , he shall be barred by the Letter , which saith that he shall take Action or Entry within five years after full age . So an Infant being Diseisee in his Mothers belly when the Fine was Levied , is not accepted by the Letter of the Act ( because his age is accounted from the time of his birth , ) by intent of the Act here , for every thing which is within the intent of the makers of the Act , although that it be not within the Letter and intent also ; and of those exceptions , the Letter binds none to five years after full age , which were within age when the Fine was Levied and ingrossed , and many years may be between the one and the other ; yet he that is born after the Fine levied , and is within age when it is ingrossed , goeth not at large , but is bound to five years after full age , as well as he which was born an Infant when the Fine was levied and ingrossed : And if the Disseisee at full age when the Fine is levied , die , before the Proclamations , his Heir within age then , and when all the years pass , is bound by the Letter , because the Letter excepts him which hath right when the Fine is levied . But the intent of the Exception , intended to except those which had ●ight , and are Infants when the five years commence ; so it shall be if the Disseisee cometh of Non-sane Memory , or in prison before the Proclamations , and after five years he cometh to sane-Memory , or forth of Prison , he shall have five years after this by the intent of the Exception .

Two Joint-Tenants Disseises , the one within age , the Disseisor levies a Fine , four years passe after the Proclamations , he of full age dies , the Infant shall have other five years after his full age for all , by Bendlos , and severall five years shall be for severall Titles . As A. disseiseth , a woman sole taketh her to wife and have Issue , A. is disseised and dies after a Fine levied by the Disseisor , and before the Proclamations , the Issue being of full age , after the Mother dies , the fifth year passe , the Issue is bound as Heir to his Father ; because in this respect , he hath but five years together . But as Heir to the Mother he shall have five years to be accounted from the death of the Father ; for notwithstanding it is the self-same Land , he hath severall rights , the one the last as Heir to his Father , and th' other the first right as Heir to his Mother , And in respect of them hath severall times ; So the Husband maketh a Feoffment of the Land of his Wife , upon the condition which is broken , the Feoffee levies a Fine , the Husband dies in the fourth year , after Proclamations having Issue by the Wife , after the Wife dies , and five years passe ; the Heir is barred to enter as Heir to the Father for the Condition , but shall have five years from the death of his Father as Heir to his Mother for her right , for the cause aforesaid , by Saunders . Ireland and Scotland are severall Realms ; But Scotland was holden of the Crown of England , and was within the Fee and ●igniory of the Crown of England ; and he which is in any of the two Realms , shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots , Lunaticks , and they which have the lethargy shall be comprehended in the words of Non-sane-memory , as well as Mad-men .

For Zouch Peace , which is the end of all Law described , and the necessity and benefit thereof ; and those Laws which carrie most peace , are the most estimable . And the Statute which Ousts Nonclaim , was to the universall trouble of all the Realm ; for the avoyding whereof , and to make Fines to have their antient force , the Act of 4. H. 7. was made ; and the Preamble of it is to be considered , because it is a Key to open the minds of the Makers of the Act , and the mischiefs that they intended to remedy ; and the preamble shews that the Makers of the Act were of Opinion , that Fines ought to be of greater force for to avoid contention , then they were before the Statute of Non-claim , and now is used to the contrary , viz. to the universall trouble of the Kings Subjects , and therefore they were Enemies to former rights , because that stirred up many Suits , and made the Purview strongly against it , Et lex si prospiciat majori parti retilis est . All Infants are bound by the generall Purview which containeth them in the Exceptions : As an Infant levies a Fine , Proclamations pass , he shall not have error ; yet within age , for no Infant is excepted : But he that is not Party to the Fine by Southcot and Walsh , he is excepted out of the generall Purview , in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute , for that he had not right at the time of the Fine levied ; but then the right rested in his Ancestor which was disseised ; for the Exception is always an exemption of that which is contained before in the generall words , otherwise could not be excepted : As a Feoffment of a Mannor , except such an Acre which is not parcell of it , or a Lease of all Lands of the part of the Father , except Lands of the part of the Mother , is a void exception , because this exception was not in the Feoffment , nor Demise , or right , or not right , is not the matter ; but claim , or Nonclaim within five years is the matter where a Fine is pleaded to conclude any . And this Tried by issue by the one or the other maketh an end of the matter .

Catline , a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant , shall make void the Fine , and the Tenant shall be restored to the land , because he claims signiory , and services out of the Land , and no right to the Land when the Fine was levyed , and therefore is out of the purview which extends not from whom he claims , or had right in possession , Reversion , or Remainder to the thing comprised within the Fine , when the Fine was Levyed upon matter rising before . The first saving giveth five years after proclamation to those which have right , and their Heirs , with a Condition annexed to it , viz. so that they pursue their Title , Claim . &c. within five years after Proclamations ; and as the saving is general to all Heirs , notwithstanding they have their imperfections of Nonage , Insanity , &c. So is the Condition general , and extends to all Heirs whatsoever they are ; and this was the cause of the Judgement ; for otherwise the saving shall be for all heirs , and the [ So ] shall be of all Heirs within age , and then the [ So ] is not so large as the saving . And so the Heir within age is bound to the Condition of the first saving , as well as he is saved in the same , because general tranquillity is more favored then an Infant , and no time shall be gained by exposition or equity , beyond the words of the act , where the Act as here , to strains all men to a time certain for the common tranquillity of the people ; and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there : And therefore if one of the Terms limited by 4. H. 7. be adjourned ( because the Statute saith , then next ensuing ) all the Proclamations before are void , until the Statute of 1. Mar. cap. 7. Rastall , Fines , 12. because time limited by the act , ought to be pursued , and once attached in part , ought to be continued . So the 5. County upon Exigent ought to be the next to the fourth , or it is discontinuance , and Allocatur Comitatus shall not aid , but is error . And therefore an Infant at the Common law shall be bound to year and day ( otherwise f. 365. ) where by the Statute of 4. H. 7. The five years Commence in the father , being of full age , Non-claim within the time limited by the Common Law , shall lose right , and infancy there shall not aid the party , as 7. H. 6.32 . Nonclaim by the Lord of his villain by a year and day , which hath fled into ancient Demeasne . So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire . So wood of another within a Forrest of the Kings , seised into the Kings hand , shall be forfeited by Nonclaim within the year and day ( before fol. 57. ) So if a Bastard die seised , and Mulier claims not . So 2. H. 7.10 . one shall lose his appeal of Murther if he bringeth it not within the year and day . So by the custom of some Mannor , one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori ; time shall be peremptory where it is limited by the Statute for the common repose of the Realm , which shall be more favored then the private profit of any single person , be he Infant of non sane memory . &c. by Carus and Dier , the right of a Mulier within age , is bound by discent of the bastard , because the Law in this case is a binding Law , by Southcot and Sanders contrary , because infancy shall excuse Laches of entry , 31. ass. 18. & 22.36 . ass. 2. & 33. E. 3.

The second saving giveth new 5. years to other persons , and hore Stowel is the same person which had five years with his ancestor by the first saving , because the saving , and the [ so ] is in the Copulative , and the word [ others ] is exclusive of those comprised in the first saving , and the exception . And because he is heir , and so within the first saving , he is excluded out of the second saving by the word [ other ] , by Walsh and others ; if a Tenant for the life of another , the Remainder to B , for his life , the Remainder to A. in Fee is Disseised , the Disseisor levies a Fine , and five years pass after proclamations , if he for whose life and the Remainder for life dies , he shall have new five years , because it is another estate , and the first remains to him ; but by Weston and Catline otherwise , because not another person ; also this right which first Discends to Stowell here , is not such a right as the Statute intends to give new five years by the second saving for a new right , for it was once right in the Ancestor , and given to him before . And the word [ first ] is of great purpose put into the act , and this word [ joyn ] as it ought to every of the words subsequent , viz. Accrue , Remain , Discend , or Come , excludes Stowel of the benefit of the second saving , and 1. R. 2. cap 7. touching Fines hath all the words of 4. H. 7. touching the purview and body of the Act , but the word [ First ] which is added to 4. H. 7. as a thing thought very necessary , and so he that wil take benefit of the second saving , ought to prove four things , 1. That he is another person . Secondly , That the right first came to him . Thirdly , and that it came after the Fine ingrossed , and Proclamations made . Fourthly , That his right is before the Fine levyed , as where right or Title shall first accrue . And therefore if the elder brother be professed when the Father died seised , and the youngest is Disseised at the levying of the Fine with Proclamations , and five years pass , and after is deraigned , he shall be aided by the second saving for the cause aforesaid . So if the Dissesor of a Mortgagee levies a Fine with Proclamations , & five years pass , & after the Mortgagor pay or tender the Money , he shall have years after his payment or tender , because his Title first accrued after the Proclamations by the payment or tender by matter before , viz. the condition ; Plowden s●ems , that he is at large , and not bound to five years , because at the time of the Fine levied no wrong was done to him , nor to the estate which he claims . So a husband levies a Fine with Proclamations , and after the five years past dies , and from thence by this second saving , his wife shall have five years to sue out her Writ of Dowe● for her Title accrued by the death of her husband , upon cause before the Fine , viz. their inter-marriage , and seisin of her husband , by Plowden she is at large and not bound to five years , because it was a real wrong done to her at the time of the Fine , or before , because her Title accrued after the Fine , viz. by the death of her husband . So Tenant cess one year before the Fine , and another year after the Proclamations , the Lord is at large to have his cessavit 20. years after , for it is not within the purview of the Act , because he had not Title at the time of the levying of the Fine ; but it accrued afterwards , viz. to the end of the two years where first it should remain as to the Donee , & to his heirs Females of his body ( Remainder to his Son in Fee ) Levy a Fine with Proclamations , and die , then the Son shall have five years . So Tenant for life , Remainder in Fee Levies a Fine with Proclamations , and dies , then the Son shall have five years . So Tenant for life , Remainder in Fee is Desseised , the Disseisor Levies a Fine , and five years pass , and Tenant for life dies , he in Remainder shall have new five years : Tenant for life , and Feoffee Levies a Fine , five years pass , entry for Forfeiture is gone ; but there by Walsh he shall have a Formedon after the death of the Tenant for life if he sues it within five years , ( by Catline otherwise ) because his right accrues not first , or Remain after the death of the Tenant for life , because he might have entred before , and therefore is excluded from the benefit of the second saving . Tenant for years by Statute , or Elegit , is ousted , and a Fine with Proclamations levied , and five years pass now , none may enter , nor he in Reversion , nor particular Tenant , and shall not be aided by the second saving , for both might have entred before the Proclamations pass , because they all are comprised in the first saving ; and therefore he in Reversion shall not have years after the Term ended , as he shall have where the particular estate was Free-hold , and a Termor is bound by this Statute of 4. H. 7. by the word ( Interest ) in the saving , which word may comprehend Term ; First it shall Discend , as by Dier ; Discontinuance of Tenant in Tail Levy a Fine with Proclamations , and five years pass , Tenant in Tail dies , the issue in Tail shall have five new years ; but by him and Catline , if the Disseisor of Tenant in Tail Levy a Fine , &c. the issue is bound there for ever , because the right was present to the Tenant in Tail when the Fine was Levied , and he , and the heirs in Tail comprised within the first saving , and therefore barred , because they pursued their right within five years according to the first saving , by Southcot , but Weston contrary ; and by them every issue in Tail shall have a new five years , but by the said Chief Justice the word ( first ) added ( as it ought to be ) to it shall discend , will not admit every discent to have five years , the Remainder or Reversion in Tail upon an estate for life discends to his issue , there the issue shall have five years by the second saving after the death of Tenant for life , by Weston , and Dier ; if the Son purchase , and dies , the Daughter enters and is Disseised , the Disseisor Levies a Fine , five years pass , the Son born after shall have new five years by the second saving , because it is he to whom the right first Discended after the Fine and Proclamations . So if the Feoffee of Non sane memory Levies a Fine , and dies , from thence his Heir shall have five years for the reason aforesaid ; First shall come , as Tenant in Tail Levy a Fine , five years pass , and then dies without issue ; from thence the Donor shall have five years for to bring his form●don in Revertor , because aided by the second saving , because it is him to whom the right first cometh after the Fine , and Proclamations ; and in all those cases there is a new right or Title accrued , Discended remains or comes after the Proclamations , which was not in any other before , upon cause made before the fine ; And disseisen here is no such cause which shall make Stowel to have such right , which was not in any other but first in himself , and so it is not here , because the right was first in his grand father , which is saved in him and his heirs by the first saving , and therefore shall not be saved by the second : And ths makers of the Act intended not to aide them by the second saving which were aided by the first , nor on the contrary . But to comprehend by the one saving those which were out of the other saving and therefore Stowell is not saved by the second saving , because he entred not by his own right , nor the right Discended , ( Discended is such ) not such matter before the Fine , that the makers of the Act intended , and he shall not be aided by equity , for no equity here , because universality is more regarded then particularity ; one hath two defects as to present right , or when future right happeneth , all ought to be removed from him before the five years commence , and if it happeneth within a moneth after in any of the defects again , and so continue all the five years , or to the end of the first moneth of the five years , his heir dying within age before the five years Commence , they do proceed , and the not claim within the five years shall bind the party , and his Heirs as well as if they had been void of all defects during all the five years , if they had no defect when the Fine was Levyed , but had before the last Proclamation , and so continued ; when all the Proclamations incurred , he shal not be bound to five years next after the last Proclamation ; but shall have new five years after all defects removed ; by Plowden , Successors shall not be bound , by 4. H. 7. by Fine , or negligence of their predecessor , as Bendlos would have it .

Sir Henry Nevils Case .

THe Arch Bishop of Canterbury Grants the Office of the keeping of a Park , ● . 2 . Elia Exch upon a Petition . with a Rent charge of three pounds per annum for the exercising of it to Sir Edward Nevil , the Father , and Sir Henry the Son ; and after Sir Edward the Father was attainted of Treason , and the Park , and the Mannor out of which the rent was Granted , cometh to the King ; and Sir Henry being Survivor , exhibits his Petition to the Exchequer for the Arrearages of the Rent incurred before , and to be paid the Rent from this time forward , and had Judgement according to his Petition in the Exchequer , without suing to the person of the Queen .

1. If an Office of skill and confidence , which requires diligence and attendance , be granted to one for life , as the Custodie of a Park , Stewardship , Bailywick , &c. he may not Grant this over , 21. E. 4.20 . nor forfeit this to the King for Felony nor Treason ; otherwise it is if it be granted to one and his Heirs , in Fee , 1 H. 7.28 . there he may grant this over , because it is so intended by the generalty of the estate ; but where it is granted for life onely , there no other is comprehended in the Grant , but the Grantee himself ; so that he cannot make a Deputy without words , and therefore much less may he Grant this over ; but if such Grantee for life be attainted of Felony , or Treason , or imprisoned , or go over the Sea , or becomes of Non compos mentis , &c. so that the Grantor hath prejudice by his absence or default of attendance , this is a Forfeiture to the Grantor for the not doing or misdoing , notwithstanding that he be pardoned after , or the other defects removed ; but if the Grantor hath not any prejudice by his absence , or default of attendance , the Grantee shall have the Office again after his Pardon , amp ; c. but otherwise it is of the Kings Grantee in such case ; for the Office , Cesse , and the person of the Officer , was once discharged by the attainder , and the King may grant the Office to another , and he being the first Grantor , shall not be kept out by his Officer by such Grant , but otherwise it is in the case of a common person , for the Queen shall be unknown of her Officer by such Grant of the Kings , and then the confidence , and other causes of the first Grant shall be broken by it , which would be inconvenient .

2. If one Office of skill and confidence be Granted to two for their lives , and the one is Attainted of Treason , this is not a Forfeiture of the Office , but that the other shall keep it presently , and the Fee also .

But admitting that the King shall have it during his life , which is Convicted of Treason , yet after his death the Survivor shall have it Adjudged ; but if the King Grant such Office to two , and the one committeth Felony , or Treason , there the King shall have the entire Office by Forfeiture , for that it shall be extinct in him , and goes by way of discharge , and is a thing entire ; but in the other case it is but a Transmutation from one to the other , and the one shall not prejudice the other for his Free-hold .

3. The King shall have an Office of service of an estate of inheritance by Forfeiture , for that he may Grant this over , although that he himself cannot use it ; but otherwise it is of an estate for life , 1. H. 7.28 .

The Fee here shall not be Forfeited , for that the Office shall not be Forfeit to him , to whom it is appropriated ; for the Office is appropriate to the peeson , and the Fee to the Office ; and so the Office and Fee are Concommitant , as Estovers to be burned in such a house , or Common granted in such a place to one for his Cattle Levant , and Couchant in his farm of D. are made appurtenant ; and Estovers cannot be severed from the house , 5. H. 7.7 . Nor the Common from the Farm , except by extinguishment , 26. H. 8.4 . Annuity pro consilio impendendo , because it is a thing by reason of the person .

Annuity granted by reason of an Office , is Determinable with the Office , and continues with the Office as an incident , and inseparable , yet the estate in the Annuity is one and the other in the Office , 7. E. 4.22 . ( before fol. 161. ) if an Annuitty pro concilio , &c. be Granted to two , and the one of them be attainted , the other shall have the Annuity , because it cannot be Forfeited .

Empsons Case , if the King Grants the Office of Sheriff to two , and one of them is Attainted , the entire Office is Forfeited , and the Survivor shall not have any thing , because the Patent , and the Office are entire , and may not be severed ; and the King shall make it to extinct the Patent , and to make a new Officer , for he cannot be an Officer , adjudged Breretons case .

The Earl of Leicesters Case .

THE Earl of Leicester was indicted before eight , Tr. 1● . El. in K.B. Tr. against Haydon . upon a Commission awarded to 15. and after a new Commission was awarded to the Major of London and others , to send for the indictment taken before the 15. whereas in truth it was taken before 8. of those onely , and thereupon arraign the said Earl ; and moreover the second Commission recites . That he was indicted before the said 15. of divers Treasons , and express none in certain , and ex illa causa and causis , to proceed against him according to the Law , whereupon he was arraigned , and condemned thereupon accordingly ; and after the said attainder was confirmed by Act of Parliament , which recites the said attainder , and confirms it , and besides ordains , That the said attainted persons , shall be attainted of high Treason , &c. And the attainder upon the indictment and the confirmation by Parliament , were adjudged void .

1. For that the Indictment taken before 15. is not an Indictment taken before 8. for the lesser number will not include the greater , but the contrary ; and there may be two Indictments , one taken before 15. and the other before 8. and for that the number is exprest , there is certaintie what Indictment the Queen intended for misprision of time , place , and number , shall make the thing void , when they are limited for certainty , and take away incertainty , as of the time of 7. E. 3.26 . one brings a Writ , and Recites that it is contained in the Articles , made in the time of King Edward Father of the King Edward the Third , that no Sheriffe should put into Inquests , &c. and declare over according to the Statute , & the Writ was abated by Award , for that the Articles , that is to say , Articuli super Chartas , cap. 9. was made in the time of Edward the First , and not in the time of King Edward the Second , which was Father to King Edward the Third . So E. 3.25 . a Statute Merchant was made to pay , 16. E. 3. and the party sued Execution and the Writ supposed the summe to be paid , 14. E. 3. and by the suite the Feoffee was ousted , and sued his Writ of Errour in the Kings Bench ; for the Kings Bench , because it is the highest Court. shall revers Error upon suits in the Chancery , according to the order of the Common Law : So a defeasans which ●…tes a Statute to be made the 10. day of May , where it was the first , is void , because time certain , and that to which Acts are referred is materiall , because there may be two Statutes , the one the first , the other the tenth day . Misprision of the place , as 38. H. 6.34 . one pleads Letters Patents dated at Westminster , where it did beare date at another place , Naught ; because the place is materiall , and is circumstance and witnesse of verity and certainty . So by Commission to arraign one upon an Indictment at Dale in the County of C. where he was Indicted at another place in the same County there , may not be arraigned by this authority , for the reason aforesaid . Misprision of number , as 23. Assises placit . 7. Writ of Redisseis●n abate , because the Sheriffe tooke with him but one Coronor , where Merton , cap. 3. appoint two at the least . So in a Precipe there ought to be twelve Summoners . So 8. H. 7. pla. ultima , the number limited by the Act , 3. H. 7. cap. 1. concerning the Star-Chamber ought to be observed : So an accountant found in arrearages , shall not be committed to Prison , if there be not two Auditors , because W. 2. cap. 12. saith , auditorum . So 2. E. 3.8 . A Writ of Attaint supposed that the Verdict passed before 4. Justices , and the Record proves that before 2. there is no Warrant to take this Attaint . But 31. E. in the Booke of Assises , pl. 1. a Procedendo , supposed that the Assise was arraigned before 2. where it was before 3. good , because no falsity there , because the greater comprehends the lesse , not on the contrary .

2. By Anderson which was of Counsell for the Defendant , and which in part confessed that the arraignment was not duly made ; yet said , that it was not void , but voidable : See there the Office of Justices for Treason , and their Authority for judgement given , where the due circumstances of Law are not observed , is not void , but voidable by Error ; as 7. E. 4.3.11 . H. 7.4 . and 2. Mar. 1. Judgement given upon a Plea of Land , 21. H. 6. and 21. E. 4.4 . and 62. where a Fine levied without Originall , is voidable by Error , and by him , and Lovelace this Writ of Error is taken away here , because a thing defeasable confirmed by Parliament , is made indefeasable .

The counsell of the Earle to the contrary clearly , that the Authority given to the Mayor , and the others by the second Commission , is to proceed upon one Indictment , and he proceeds upon another , and so exceeds his Authority , and therefore shall be void : Also they are no Justices of the Treason expressed in it ; And there is not any such Indictment , and no Treason in certain is expressed in their Commission : But the Relation is generall to treasons contained in the Indictment , where in truth there is not any such Indictment , and so the relation of a thing incertain in it self , to a thing which is not done ; the thing referred is void , ( otherwise it is of a thing certain ) as before , fol. 169. ) A Lease of all his Lands in D. which he hath by his Mother , where 2. E. 4.27 . before fol. 191. ) releases all his right in them , and hath no Land there by the Mother ; but by purchase with his Father , this Lease and Release are void for the cause aforesaid : But otherwise , it is where he leases and releaseth all his right in White acre in Dale , which he hath by his Mother , or hath by his Father ; or Purchase , because the saying there which he hath by his Mother is surplusage , because it was certain enough before ; all the parts of the Commission shall be considered together , and fulfilled as of every other Deede : As for the last part of the Letter of Atturney , although as well to deliver seisen , as to take by the words of the first part . So here because they have authority to arraigne the Plaintiffe upon the Indictment , onely taken before fifteen , and he was arraigned by Indictment before eight of them , all is void , and Coram non Judice , And it is not resemblable to the Cases put by Anderson , fol. 349. ) because there they have authority upon the Cause , and the Cause was within the Jurisdiction of the Court , and the Order is misused , in which Case the Acts shall not be void , but voidable : But where one is assigned to doe one thing , and he doth another , ( as here , ) this other is meerly void , and without Authotity ; as 9. E. 44. by Choke , He who Arbitrates another thing then is committed to him , makes such Arbitrement void .

Anderson and Lovelace for the Defendant , the Plaintiffe shall be taken by this Statute , to be attainted , or at least concluded to say otherwise , because the recitall of the Act is an Estoppell to all ; because every Subject is party , and ptivy to an Act of Parliament , and the Statute shall not be void to all intents : And the Expounder ought not to make Exposition for to confound the Text , by 27. H. 8. c. 10. A woman may refuse her Joincture , if assigned after Marriage , implies that if it were assigned before Marriage , that she shall not refuse , 9. H. 6.9 . Recitall of an Indenture of defeasans , concludes the party to deny the Deed.

By the Counsell of the Plaintiffe , the Act of Parliament cannot enure as a Confirmation of an Attainder , and as a new Attainder also , ( for then a man shall be twice convict of one Crime which shall be superfluous ; yet 1. H. 5.5 . One attainted of Fellony may be arraigned of Treason , because it is a higher offence , and shall forfeit Lands of whomsoever holden , if the Treason is committed before the Fellony ; but where offences are equall he shall not be twice attainted , for one Deed shall not be a Confirmation and Grant of one same thing . As the King recites by his Letters Patents , that he hath made J. a Denison , or hath manumissed him being his villain , and confirm it : and besides grants that he shall be a Denison or Free , all this is but a confirmation , because the Kings Patents shall not enure to two intents , and therefore cannot plead the second Patent for his Legitimation , or Manumission . But the first Patent so 9. H. 7.2 . before fol. 156. ) and 7. H. 7.14 . The King grants Land by his Letters Patents , and reciting them , confirmes the Estate of the Patentee by the second Letters Patents , by authority of Parliament ; and saith further , that he gives and grants the same Land to the Patentee ; he shall plead the second by way of Confirmation , because the Land pass by the first Patent , not by the second , if he doth not shew that the Land came again to the Kings hands after the first Patent : But if the King grants Pasture for two Oxen in his Land , and by the second Patent reciting his first Grant confirmes it ; and moreover giveth and granteth Pasture for two Oxen to the first Grantee , there it shall enure as a Grant , and confirmation also : And the Grantee shall have Pasture for foure Oxen , because they are severall things which are mentioned in the Confirmation , and in the Grant . And in the other Cases before , it is one same thing mentioned in both , and not severall : Also the Statute recites none but persons therere cited to be attainted , but the Plaintiffe was not attainted before , for the reasons aforesaid ; therefore he is not attainted by the Statute , as the King recites by name , that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll , &c. that will take the benefit of it , they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also , and the Defendant will plead this , so then his plea shall be double , because he hath pleaded an attainder by the Common Law , and also by the Statute . But here it is not double , because it is not a new attainder , but a Confirmation : And because he cannot plead the Confirmation without the thing that was Confirmed . Also the Recitall and Confirmation by the Statute is not taken , but pro ut : And also the recitall being false , shall be intended to be upon Information : And therefore an averment lies against this recitall . So a License to alien Lands holden of the King , ut dicitur , there he which hath the Lisence is not Estopped , to say that it is holden of another then the King , because the Tenure in Capite is not precisely affirmed , but ut dicitur , which taketh away all absolute affirmance , 29. Ass. 38. Also the Statute refers to an Attainder had before : And so to a thing which is not inre● veritate , for the cause aforesaid . and therefore shall be void ; but if the things was before , and wanteth force and effect , then this shall be made good by the Statute , and there the Act is good , and hath power as to the thing , 29. E. 3. 24. Grants , Fitzh. 100. The King reciting an Attainder by Parliament of one Mattravers , by his Charter of Pardon reverseth the same , and restores him , and after this , all is recited in another Parliament , and Confirmed by the same Parliament , and good for the Cause aforesaid : So 38. H. 6.33 . Parliament confirmes the first Letters Patents this enures ; according to the Effect and Purport of the first grant , and shall not take away the Condition , if any such be : the King gives Land to J. S. the Parliament Confirmes , it s a good grant : And so when the Parliament Confirmes a thing which is defective , it shall give power to it , if it be Confirmed . ( as here the Act shall be void to all purposes , as 5. E. 4.40 . and 41. ) If one Village hath Customes which is against the Law , and Reason , and no others , and the Parliament Confirmes their Customes , it is void because they had not Customes ; for things used meerly against the Law and Reason are not Customes , notwithstanding such usage . And if the branch of one Act recites another Act , be it in the Commencement , or Continuance , it is void , as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it ; this Statute excepts imb●sselling of goods by servants , made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February , and continuing untill the 24. of Aprill , whereas it finished the fourteenth of Aprill , and so Statutes which misrecite things , and are referred to them , should be void and conclude no man . And so here the Statute which recites that the Plaintiffe was attainted , and confirmes it , whereas indeed he was not attainted , shall be void .

Coles Case .

IF one gives to another a mortall wound , 13. Eli. whereof he languish , the 12. of February , and the Queen by a generall Pardon by Parliament , Pardon all misdemeanors , &c. the 20. day of February , and after the party dies . Now this murther is Pardoned ; Adjudged for that the wound was a Misdemeanor , and the cause of death , and then by consequence all that which ensueth the Cause is also pardoned .

The end of the first Book .

Newis and his Wife , against Larke and others .

A Man devise his Lands to his eldest Son in tayle , M. 13. & 14. El. in the Common Pleas. Remainder to his youngest Son in tayle , the Remainder to the heires of his body , the Remainder over in Fee , and moreover his Will was , that if any of his entaylees , do wrong , vex , or molest any other of them , for the sayd Lands ; or should Mortgage , bargaine , and sell , &c. the sayd Lands , or otherwise incumber it , other then to Lease it to them , that from thenceforth every such person and his heires that shal so doe , shall be excluded and dismissed , touching the said intaile ; and that the conveyance of the intaile of the said Lands , against him or them , shall be of no force : But that it shall descend and come to the party next in tayl to him , as if such disorderous person had never bin mentioned in the sayd Testament . And after the eldest Son levies a Fine , and after he and the youngest Brother suffer a common Recovery , and their Sister enter ; and by the Court her entry is lawfull : But the Writ was abated for that it was Coram Justiciariis predictis , whereas there were no Justices named before .

1. That the Fine and Recovery are such acts , bargaines , and incumbrances which make a forfeiture .

2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate , Ipso facto , without making any discondtinuance thereof by the Alienation , and is not a condition by the intent of the Testator ; and hereby the determination of the est●…e the Fee and Frank-tenement is cast upon him in the next remainder ( that shall not alien ) without Entrie , as upon an Escheat , or dying without issue , and hath the intent as if it were devised , untill he shall alien .

The entry of Scholastica the wife of Newis ( becaus I. and F. C. her brothers , levied a Fine & suffered a common Recovery ) by the Court is lawfull : ( But the Writ was abared , for that it was coram Justic' predict . where no Justices were named before , ) because the Fine and Recovery are such Acts , Bargains , and Incumbrances , which make a forfeiture ; for that they give title and occasion to defeat the estates taile limitted , to I. and F. C. For by the Fine with Proclamations , the estate of I. is barrable , and by the Recovery , the Taile of him and F. is defeated , and so within the words , and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture , is not a condition by the intent of the Testator , which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession , or any in remainder shall defeat all estates , and put him which enters in of such an estate as he had before the condition made , as 29. Ass. pl. 7. Brooke Conditions inwords in a Will , lik unto a condition , shal not make a Condition , because the intent of the party appears not to be to defeat all the state ( scilicet ) of him in remainder there , also it is not a condition here , because then he breaks it which enters for the condition : But this is a limitation which determines the estate , Ipso facto , without making any discontinuance , of it by the alienation , and hereby the determination of the estate the Fee and , Franck Tenement is cast upon him in the next remainder ( which aliened not ) without entry , as upon an Escheator dying without issue , and hath the intent as was devised quo usque he shall alien or incumber . So land given to I. in tail , so long as I.S. hath issue of his body , which dieth without issue , there it shall revest presently without entrie for words named in a Will , if they are not apt shall be drawn to the intent , and the Law submits it self to the Will , as to the Parliament , as Dyer termed it in matter , order , and form : So a gift of Land so long as such a one is Abbot , or during coverture , is a limitation : So Matrimonii prolocuti , there the estate shall be defeated by the intent without expresse Condition in Deed , Fitzh . nra.br ' . 201. E. A man devises to a woman in London , upon condition that if she marrie , the land shall remain to his sonne in taile , with remainder , over the woman marries , the sonne shall have ex gravi querela , by Fitzh . by Dier he may enter : So it shall be taken as a limitation , yet it sounds as a Condition . And by Dier a condition in deed , in a conveyance made . By Fitz-James 28. H. 8. was taken by limitation a fortiori , where it is by last Will , where the intent shall rule the words , and the words not the intent , and the intent shall be observed in the exposition of Wills , and of the Testator in making of his Will , hath a Power like to an Act of Parliament , by Dier , and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts , as a Remainder is good without an Estate precedent . So where the particular , Tenant entailed disagrees , see 34. E. 3. where it depends upon condition , so upon a devise to the sonne , after the death of his wife , there she takes an estate for life , although it be not given to her ; so 10. H. 7.20 . Cestuy que vse , devises that a woman his Executrix shall sell the land , she sells it to her second husband , good . So a devise to a man and his heires males which hath issue , a daughter , who hath issue a sonne , he shall inherit , 28. H. 8. by Dier otherwise .

Bracebridge against Cooke .

LEssee for yeares grant his terme to the wife of the Lessor , Tr. 14. El. in the Kings Bench in E : Firme . and a stranger ; the wife dies , the stranger shall have the whol terme and land by survivor . Adjudged .

1. For that the interest of the husband by reason of the coverture severs not the Joincture● , nor alters the possession of the terme or other chattells , realls of the wife , but is possessed of them in the right of his wife ; so that if a stranger outs them , the wife ought to joyn with the husband in Ei . firme , and she shall have judgement as well as the husband ; and therefore if the husband charges it , or if he devise the terme and dies , the devise is void , because he had the Estate in him at the time , and before the time of his death : But the property of Chattells personalls is devested out of the wife and vests in the husband , because of the coverture ; and therefore if one gives goods to a Fem covert and a stranger , the joyncture is presently severed by the Law , and she and the stranger shall be Tenants in common .

2. The immediate Fee and frank Tenement that the husband hath in his owne right , shall not drown the terme which he , hath in the right of his wife where she is sole Lessee , nor the moitie of the terme where she is joint Lessee , as here , and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another ; namely , in Chattells Realls , which are things of continuance , because the husband by expresse act , hath not given nor altered it as he may by making of a Feoffment of the land , or new Leas , &c. But hath left it to the judgement of the Law . The Law preserves the estate of the wife , which estate as to the wife is disjoint from the Freehold and Fee-simple , but a rent granted to the terrenant and a stranger ; the Tenant dies , the other shall not have all , because the Moity drownes in the land , and therefore that was not in joyncture at the time of the death of him which first died ; and the other shall not have all as survivor : But the rent here shall be apportioned ; because of the occupation that every one hath per my et tout of the profits . But husband and wife here cannot joyn in E : firme with the stranger : But the Husband shall use his reall action upon an Ouster during the coverture , because by this he continues all his estate , but that part of the State taken from him by the disseisin by the Eiectione Firme : And the stranger may have Eiectione Firme for his Moity ( as two ) oyntenants for life , and to the heires of one of them looses by default , the one shall have right , and the other a Quod ci deforceat ) and the Moity of the terme is not suspended , for then it shall not survive . Parson , Patron , and Ordinary , make a Lease for yeares of Gleeb-land , the Parson dyes , the Lessee is made Parson and dyes , his Executors shall not have the residue of the terme , because the terme was extinct by the freehold of the Land , which the Parson had in him , because both in his owne right , and to his owne use ; yet in severall capacities : But by Dier it shall not be extinct , because he hath the terme in his owne right , and in Capacity of his naturall body , and the Inheritance as Parson , which is another Capacity : But where the Lessor hath the terme of yeares , as Executor to the Lessee , it is not extinct ; but the terme when the Lessor dyes shall be revived .

Bracebridge against Clouse .

A Man seized in Fee of a Mannor , maketh a Lease of forty Acres , parcell of the Mannor for forty yeares , if the Lessee shall live so long , and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares : J. S. grants his terme to the Wife of the Lessor , and a stranger ; the Husband makes a Feoffment in fee by Indenture of the Mannor ; and moreover grants by it , all his other Lands and Tenements in the same Village to the Feoffee and his heires , and this Feoffment was to the use of the Feoffor and his heires , and dyed , his Wife dies the first Lessee for yeares dyed within the forty yeares ; the stranger entred into the whole forty Acres , and upon an Ouster by the heire of the Lessor brought E. Firme : And adjudged that he shall recover for his owne moity , and shall be barred for the moity of the Wife .

1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee , yet is without Deed ( for that the Lessor in respect of his Reversion in fee , may contract with another for any estate to be derived out of the Reversion ) and shall take effect then , and not stay untill the forty yeares are extinct be effluction of time ; for the Condition , if he shall live so long , is a limitation which determines the estate , otherwise it is of a Collaterall Condition , for although that the terme be finished by it , or by surrender or forfeiture ; the second terme shall not commence untill the terme be incurred , for that hee had not power to contract for the possession during the first terme , in respect of any such possibility of the breach of Condition , surrender , forfeiture , &c. As upon a Lease for life , for the incertainty of the determination of the estate by his death , and for the possibility which was at the time of the Contract , that the Lease shall be executed before the death of Tenant for life by his surrender , forfeiture , &c. As the Lessor maketh a Lease for life , and after maketh a Lease to another for one and twenty yeares to commence presently ; Tenant for life dyes , or surrenders , the second Lease shall commence presently : But if one make a Lease for forty yeares by word defeasible , upon Condition to be performed by the Lessor , and incontinently makes a new Lease for forty yeares by word , this is void ; yet the first Lease is avoided by performance of the Condition , or is surrendered because there is no possibility that it will be executed , in respect of the Collaterall Condition : But if the second Lease be by Indenture it is good by Estoppell : And if it be by Deed Poll with Attornement , the Reversion will passe .

2. By the first Lease of forty yeares , the forty Acres were severed from the Mannor for a time , for that the Lease was executed by entry , but the Reversion and Francktenement is parcell of the Mannor ; but the Lease for seventy yeares not , nor may be executed by entry during the first Lease , but is executory after this determined , then of this Lease for seventy yeares the Lessor hath not any Reversion ; then this is not severed from the Mannor , but continues parcell of it , because it is executory , and not executed by entry , and then when the Lessor maketh a Feoffment of the Mannor , the Reversion which depends upon the Lease for forty yeares , passe as parcell of the Mannor , which Reversion may be parcell of a thing in possession ( But not contrary ) discharge the moity of the terme for seventy yeares , which is extinct by the Livery that gave the possession ; otherwise it were , if the terme had beene executed at the time of the Livery , except the Husband made Livery in this Land leased , for the Land is severed by the Lease , and here the execution of the possession to the use in an instant shall not revive the terme , which was extinct before by the Livery : Lessee for yeares before entry hath not possession , so that a Release to him before entry is not good , but he hath onely an Interest and right , which is grantable or forfeitable before entry , the Lessor shall not have Rent untill he hath waved the possession , or the Lessee enters , because presently the Lessor is adjudged occupier , 28. H. 8.14 .

3. The grant of all his Lands and Tenements shall passe the terme , because it is his Land for the time , and for that hee had not any other Land there , or otherwise the words would be void ; and therefore the opinion of Brook was denyed to be Law . 7. E. 6. which is contrary : but if he had other Lands there , then it may be that the terme will not passe .

4. He had Judgement for one Moity , and was barred for the other , where he demanded the whole , which is not good b● Plowden , but should have been barred for all ( if exception had been taken to it ) for that he might have had a better Writ for the Moity .

Vernon against Manners .

CHallenge of the Array , because the Sheriffe which made it is Cosen to the Tenant in the ninth degree . M. 14. & 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen , 21. E. 4.75 . And notwithstanding the Tenant be seized in right of his Wife , to whom the Sheriffe is not inheritable , for by reason of Cosenage , it shall be intended favourable , and although that he cannot inherite the Land demanded , yet he may inherite other Land , as he ire to the Tenant .

Smith against Stapleton .

LEase for life to Husband and Wife , P. 15. El. in the Kings Bench. Replevin . Remainder in tayle to N. T. their Son , a stranger levies a Fine , Sur Conusans de droit come ceo que il ad de son done a● . N.T. the Son , which grants and renders the Land to him for fifty foure yeares , rendring Rent , hath issue and dyes before any Proclamation made , and after the Proclamations passe , and after the Husband and Wife dyes ; Adjudged that the Lease is good against the issue of N. in tayle , by reason of the Rent , otherwise it were , if the Rent had not been reserved .

First , The Lease had not been voyd against N. T. the Father himselfe if he had survived the Husband and Wife , if it were by words , notwithstanding it be a present contract , because it depends upon an estate for life , which is uncertaine when it shall determine ; otherwise it is , if the first had been a Lease for yeares , which containe certainty , there the second Lease shall be voyd for the first terme except that it be by Deed poll ( with Attournment ) in which case it shall enure by way of a grant of the Reversion , if the party will use it so , or by Indenture or Fine , which are matters of Estoppell .

Secondly , The Lease is but voidable against the issue , because of the Rent which is a recompence ; otherwise it is of a charge , for it shall be voyd by the Remitter : and inasmuch as this contingent Lease is not avoided , but continues during the Proclamations , the Statute of 32. H. 8. maketh this a barr against the issue during the terme .

Thirdly , A Lease by word made by the Husband and Wife , is the Lease of the Husband onely , and not of the Wife ; possession without title is sufficient to make an Advowry for dammage feasant , protection pleaded for part , and Inter alia , good by the Rule of the Court . A Fine pleaded by way , De finalie Concordia facta fuil , and not that he levied a Fine , and also pleaded that it was acknowledged in the Kings Court , without saying in the Common pleas , is good : and 22. H. 6.13 . A Fine is a Record , although it be not ingrossed , and shall be executed .

Fourthly , How , and in what degree this Lease passe at the beginning by the Fine .

The estate of N. not altered by the Fine of a stranger which had not any right or Estate in the Land ; but is Estopped for his life to say otherwise , but that he receives fee simple by the Fine .

Leases by word , by Deed Poll , by Indenture , are to be considered how they shall enure : As if a Lease be made by words , without Deed of Lands by one that hath see simple for one and twenty years to commence presently , rendring a rent , and after the same day maketh a new Lease by Paroll to another for the same terme , or for a lessor terme , the second Lease is void , although that the first Lessee surrenders or forfeits ; because at the time of the first Lease he hath not but a Reversion and no interest in him to contract for the possession : And he that will by contract make another possessor of the thing , ought to be proprietor of the same himself : As if one sells a Horse upon condition that the Vendee shall pay him forty shillings at Easter , and after he sells the Horse to a stranger , and after the first Vendee payes not the forty shillings at Easter , and the Vendor reseiseth the Horse , the second Vendee shall not have the Horse , because the Vendor had him not at the time of the sale ; the Condition only inables him not to contract for the property and possession , which he then had not ; but if the Lessee for one and twenty years be , and the Lessor the same day grant the Reversion by Deed for twenty one years to commence presently , it is good with Attournment and he shall have the Reversion during the first Lease , and the Rent as incident thereunto , because it is another thing then the possession : So a Lease by word for years to commence after the first year , is good , because it is of another thing then the first Lessee had , because the second Lessee is to have the possession after the first possession and interest expired . A man leases for one and twenty years in possession , and presently maks a Lease of it for one and thirty years by word , this is good for the last ten years , and Executory for it , for a Lease for years is Executory , and severall for every yeare and day , and is as to execution as severall contracts : And therefore such contract may be good in part , and void in part . So if he Leases for 21. years , to commence 10. years after , and he maketh a Lease for 31. years to commence presently , it is good for the first 10. years , and void for the last 21. years , for that he had contracted before and was certain although that the first Lease were forfeited or surrendred : otherwise it is if the first Lease had bin incertain , as a Lease for life ; there the second Lease had bin good after the Tenants life , not during his life although he surrendred or forfeited , unlesse it had bin by Fine or Indenture ; because Estoppels , if the second Lease for the same years be by Deed Poll , there the reversion with the rent pass by Attornment by the demise of the land , by the name of Land ; if the possession cannot ( as a Reversion upon an Estate for life , passeth by bargaine and sale of the land by Deed inrolled ) and the Grantee may use his Deed as he pleaseth ; and therefore may use it as a Grant of a Reversion with attornment , otherwise it is , if it be by word , because the Reversion for years cannot be granted by word . But if Lessee for years will use a Leas Poll as a present Leas where he hath not attornment the Leas is void , although the first surrendred or forfeited as it is if it were by word , because a contract by Deed Poll passeth not that which another then injoyes .

But if the second Lease were by Fine or Indenture , and the first surrendred or forfeited it is good ; for if one leases land to me which he hath not at the time by Fine or Indenture , and after purchase it , or it desends to him , I may enter and occupy by Estoppell , and I shall be compelled by Estoppell to pay the Rent , because every one is concluded to say , but that the land passeth in possession for fourty five yeares by Estoppell , and shall be good in estate to have the other yeares , because they are not incurred in the life time of the Tenants for life : for if the Lease for fourtie five yeares had been by word , and the particular Tenant for life had died , the Lessee should have it against the Lessor .

If the estate given by the Fine is defeated , the Fine shall be void , although the Proclamations passe after : for the Fine is the Principall , and the Proclamations but accessary to the Fine , as Tenants in taile disseised , levies a Fine to the disseisor : Sur conusans de droit , or sur release and dies , there the issue if he enters before , all the Proclamations are passed is remitted and is not harred , for that 32. H. 8. which saith that Fines after Proclamations bars tayle , intends of Fines remaining in force until after the Proclamations , that then it shall barr tayl , because otherwise the Proclamations are in vain for to give notice of the Fine , if the party cannot defeat the Fine before all the Proclamations ended , by Entrie , Claim , or Action . Tenant in tayle of land grants a Rent , by the render of a Fine , or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land , and levies a Fine of the land , and Proclamations passe ; this is no barr to the issue , because the Fine was not levied of the thing intayled by Thorneton : but if Tenant in tayl of a Rent , Advowson , Tithes , Common , &c. levies a Fine and dies , and after the Proclamations passe , the issue is barred by the Statute , yet the Fine was not a discontinuance , because things which lie in grant , but there he may claim ( where entrie lieth not , ) and good for to defeat the Fine and Proclamations , and to save the tayle : But if Proclamations passe , a Formedon , depending , the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action , because 32. H. 8. favours not estates tayle , and is stricter against them , then 4. H. 7. against a stranger , because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares , 32. H. 8. before the Proclamations incurred , nor without recovery also . Lease executory grante by the render of a Fine by tenant in tayle , shall be good against his issue after Proclamations incurred after the death of the father . If a man makes a Lease for 21 yeares or for life to one , and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine , rendring Rent , the Lessor shall have an Action of debt for the Rent , by reason of the Estoppell for every one is Estopped against the other , to say that the possession passeth not ; but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar , against the Lessor in an Action of debt . And so rent by Estoppell avoyded by entry and expulsion . Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent , and the next day dies , the issue enters and infeoffs I.S. within the ten years , and after the ten years the Feoffee waves the possession , and Lessee enters , and payes the rent to the Feoffee , which accepts it : Now he hath made the Lease good , for by the Feoffment the Lease was not avoided ; because it was an Act indifferent and Eligible , and he could not make his Election before his time , and then this Election affirms or disaffirms a voidable Lease ; And if one entry of the issue avoids not a Lease executory , A forlior● , a descent of the Remainder where entry fails , shall not avoid it ; but a rent charge he shall , because there the issue hath not Quid pro quo , and to his disadvantage , the entry of the issue and Feoffment , over dischargeth the Rent charge granted by his Father , 14. Ass. pl. 4. So one Statute , 9. E. 3. contrary , but no Law by Plowden and Bromley ; for that the Remitter dischargeth the Execution as well as the Rent charge . Trees sold by Tenant in tayl , and not severed in his life ; the bargainee shall not have them 18. E. 4.6 . If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it , the judgement shall not be entered without the order of Court .

Davies against Pepys .

THe obligee may charge the Heire or Executor at his Election where they both have assets , P. 15. El. in the common Pleas. Debt . but not doubly ; for if he be satisfied by the one , the other shall be discharged by Audita querela

The King untill 33. H. 8. could not touch the Land or Heire of his debtor , if he had goods sufficient by Magna Charta , cap. 8. but other persons were left at large , Advowson and other Lands were extended for this debt : Debt upon an Obligation against one as Heire in the debet & detinet ; adjudged good , otherwise it is against Executors , for Executors are debtors , and have their assets in one anothers right , ( scilicet ) in the right of the said Testator , but the Heire hath the Land to him discended in his own right , and so the property which he hath in the assets maketh the debt his proper debt . And therefore if he dies , his Executors shall be charged with the debt of his Father , and not his Heire , notwithstanding he hath the Land by discent for that he claimes it from his Father , and not from his Grandfather which was debtor , as it seemeth by the Booke of Entries , fol. 171. title Debt . Yet inquire by Plowdon : And if the Heire cometh not in and confesse the action and the truth of the Asserts discended , then he shall be charged as for his own debt , by Capias ad satisfaciendum , fieri facias , or elegit : So if he be condemned upon default , nihil dicit , false plea , or demurrer , as Greensmiths Case is 15. El. or upon nihil dicit , as Killegrewes Case is , 3. Eliz. or upon any other Plea , or not pleading , &c. otherwise of Executors which are debtors : but in anothers right , there Execution shall be of the goods of the deceased onely , and not of their proper goods , and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law , and in no other Case .

Wast by cleer Haddon against Brook .

IF a man purchase Lands , and die without Issue and without Heire on the part of his Father , P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him , and not the Heire on the part of his own Father . Adjudged For the Heire on the part of the Grandmother on the part of his father ( which conveys by the Father which is a Male ) is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female , and not by a Male ; But if both agree in equall dignity of blood , there the neerest Heire shall be preferred , as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father ; for he is nearest , and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males , from whence such blood is once derived by a Male to the Purchasor by the whole Court : land purchased by the Father discends , never resorting to the blood of the Mother of his Sonne , because strangers to the blood of the Father , 39. E. 3.29 . No woman after the Wife of the Father purchasor , shall have the Land when once discended , because it ought to touch this blood alwayes . But then Heires of the Wife of the Father purchasor shall have it , if others fail , because Wives by the marriage after the purchase are of Aliance to the blood , and not of the blood of the Purchasor , otherwise it is of marriage which precedes the Purchase . And so no marriage is to be regarded , but that of the Father and Mother of the Purchasor , and no marriage after shall make a man inheritable to this Land : By the Court Wast assigned in digging of Gravell , suffering Houses to bee uncovered , whereby the Timber rotted , and permitting a wall of stone to fall to ruine , and a Meadow to lie continually overflowne , and covered with water .

Sir Thomas Wrothes Case .

KIng Henry the eight , granted and Annuitie of 20 l. to Sir Thomas Wroth for his life , Tr. 15. El. in the Excheq . Petition . to be Usher of the Privy Chamber to the Prince Edward his Sonne , without the words , Pro nobis heredibus & successoribus nostris ; And dies , and after E. 6. dies . The question was , if the Annuity should be determined by it , or if notwithstanding it , the Annuity shall have his continuance . And it was adjudged that the Annuity continues during his owne life , and he shall have the arrerages .

1. If the King reciting a thing executed , which is not materiall , as for the good service which he hath done , grants an Annuity , &c. there the party in pleading shall not take averment of it by 21. E. 4.48 . and 26. H. 8.1 . But otherwise it is if the thing be materiall and executory as that he hath released , there he ought to averre that he hath released it , which is in benefit of the King .

2. The not doing of the service here to the Prince , shall cesse the Annuity as well as if the service had bin appointed to the grantor himself , as an Annuity granted by the King , to a Physician , or Schoolmaster , for to give Physick or teach a Stranger , shall determine by not doing of it which is the cause of the grant and executory as the Annuitie it self is .

3. The discent of the Crowne and State Royall to the Prince , makes him King , and alters the degree of his Person , because another Majestie there , and requires Officers of greater Honour to doe service to his politicke body : And therefore by this Act of God , the Law discharges Sir Thomas Wroth from his service , and therefore without averment , that he had served King Edward all his life time , is not to purpose , otherwise if the service be feaseable to his naturall body onely , as Physick , Surgery , Musick , Grammer , &c. for the naturall body alters not by assumption of the Royall estate from its infirmities .

4. That the death of the King E. the 6. hath not determined the Annuity , although that the service be discharged by the death of the Person to whom it is to be done . For this discharge cometh by the Act of God , otherwise it were if by the Act of the Party , as if he had withdrawn himself from the Princes service , when he was Prince . So of an Annuity granted for life , pro consilio impendendo , to the Grantee which dyeth ; yet the Annuity remains ; but shall cesse by refusall of the Grantee for to give when he is required , because his default , and the Grantor hath not means by Law to compell him to give counsell .

5. The Grantee of the Annuity is good , although that it wanteth these words ( his Heirs and Successours ) for that it is granted in the body Politick , and charges this body which never dies , but alwayes hath continuance as a Grant of an Annuitie or Obligation made by the Abbot and Covent , is good without successor , because the Corporation charged which alwayes continues , otherwise it is of a naturall body , for there the Heire shall not be charged ( if he is not named and hath asserts ) as by Obligatton of his Father , grant of Annuity or warranty , because as the body naturall which grants is taken away by death ; so shall his charge be ; if the King without words , heires and successors , grant to one licence to Alien , and die , the Grantee cannot Alien in the time of another King , 2. E. 3. and 3. E. 3.29 . For that it is a licence onely ; otherwise of a licence which implies an interest as to an Abbot of a Purchasor in Mortmaine , for there the King gives his Signiory upon the matter as it seemeth 2. H. 7.6 . Inheritance of the King , or a thing in which he is intituled of Common right , as Lands , Conusans of Pleas out of the Kings Courts , or account by a Sheriffe , shall not passe against the Heires and Successors of the King without speciall words , Heires and Successors ; as the grant of a County , Absque compoto nobis reddendo ; yet he shall account to the Successor , because it is Executory , of Common right to the Crowne , otherwise of a thing newly created , or a grant which is executed presently in the party ; yet the perception is Executory , as a grant of a Faire , Market , Warren , &c. without words , Heires and successors , good . Pension or Annuity granted by the King untill he be promoted by us are spoken in the politick body , by which the Heire may promote , and then the Pension is extinct by Sanders , cheif Baron , who said as Plowden reported , was resolved by the Sages of the Law , 1. Mar. that Patents without words ; pro nobis hered. & successoribus nostris , granted for the corporall exercise of an Office or service , are ordered to be good .

Eiston against Studd .

A Woman Tenant in fee , P. 16. El. in the Common Pleas , Eiect. firme . taketh Husband , and the Husband and Wife levies a Fine Sur Conusans de droit come ceo , the Conusee grants and renders the Land to the Husband and Wife , and the heires of their bodies , the remainder in fee to the right heires of the Wife , the Husband hath issue by the Wife and dyes , the Wife taketh a second Husband , and they leavy a Fine to their owne uses , for the terme of their lives without impeachment of wast , the remainder to the Husband and his heires for sixty yeares , Remainder in tayle to their issue , the remainder in fee to the right heires of the Wife , and the issue of the first Husband enters for the forfeiture made by this second Fine , by the Statute of 11. H. 7. Cap. 20. And adjudged no forfeiture ; and yet is directly within the words but not within the intent , for that the Joincture and advancement came not originally from the Husband , or any of his Ancestors , to the Wife , but on the contrary from the Wife to the Husband ; yet the Land shall be chargable to Statutes and Recognisances which the Conusee had acknowledged before , and to the dower of the Wife of the Conusee which grants and renders it : But yet is not within the intent of the Statute , because the advancement cometh not from the Husband nor his Ancestors , and therefore to restraine Women to dispose of their inheritance after the death of their Husbands , is contrary to the intent of the Statute , and the intent ought to be thought on ( because the Purviewe , extends not further then the intent of the makers of the Statute ) as the Wife infeoffs the Father of him with whom she intends to marry for to regive the Land to them after their intermarriage for lives , or remainder in tayle to the Wife , the Father doth so , they have issue , the Wife after the death of the Husband levies a Fine to other uses , their issue may not enter ; yet it is with in the words of the Act of 11. H. 7. because the Father gave it to them . But this cometh from the Wife her selfe by circumstance ; And the Father was but as an Instrument of it , and therefore out of the intent of 11. H. 7. which restraineth the generalty of the letter of the Statute , and maketh the Cases within the words out of the penalty of the Statute , by the intent of the Makers : As Infants and mad Men are excepted out of the Cases of Fellonies made by any Statute ; so neither those nor a Fem covert shall be concluded in the intent of the Statute , which maketh them accessary , which shall give them Meat , Drink , or other ayde to them which shall commit such an Act. So if a bargaine for Land be made , before a Writ brought against him and the suite depending , Livery and Seisen is made : It is not Champarty , 19. R. 2. because he ought to performe the bargaine made upon just consideration , notwithstanding , W. 2. Cap. 49. and Articul . super Chart. Cap. 11. So a barr fee is within the letter , but not the intent of the Statute of 32. H. 6. cap. 10. because appointed to the Sheriffe in the beginning by the order and discretion of the Court for his labour and attendance , when the Prisoners are brought to their delivery , 21. H. 7.16 . So Wreck if a Man , Dog , or Car , escapes alive , shall be kept , that the party may have his goods if he claimes within the yeare , by W. 1. cap. 4. is intended of such things which will endure so long , and not perish in the meane time , as are Lemans , Oringes , &c. So a rent granted by tenant in tayle , for a release of right in other Lands , is good , 44. E. 3.21 . because for the benefit of the estate tayle : And W. 2. De donis , &c. intends not to restraine that which amends the estate tayle , So Parsonages and Vicarages are within the words , but out of the sense and intent of 1. E. 6. cap. 14. which inlargeth the words of the Statute , and maketh that Cases within the like mischeife , shall be within the Purview by equity ; as by the Book of entrys , fol. 406. a man shall recover double damages for costs sustained with force , by equity of 4. H. 4. cap. 8. which gives this for disseisen of the Land : So that Executor which cometh first by distresse shall answer by equity of 9. E. 3. cap. 5. which speaketh of Executors by equity of Gloucester , the Lessor shall have wast against the Lessee for half a yeare , or for twenty weeks , which pleads yeares . So 1. E. 6. cap. 12. which takes away Clergy for stealing Horses , takes it away also for one Horse , because included in the Plurall Number ; and therefore Plowden disallows 2. E. 6. cap. 33. which taketh away Clergy for the stealing of one Horse , as a superfluous Statute , and was made in vaine ; And so 1. E. 6 cannot of Law but morall vertue which reforme the Law , and the other equity is , Quasi equality , because in the like reason , in the like Law .

Sobye against Molins .

TIthes shall be payd for the Boughs of Hornebeame , H. 17. El. in the Kings Bench. Attachment upon prohibition . Hasell , Sallows , Maple , and such Trees which are not fit for building , and so of the Trees themselves , although that the Trees and Boughs are above the age of one and twenty yeares ; for they are not great Trees which are exempted and priviledged of Tithes , by the Statute of 45. E. 3. cap. 3. or rather by the Common Law , in affirmance of which this Statute was made , as appeareth , 50. E. 3.10 . But Tithes shall not be payd for Ashes , Oaks , and Elmes , Beech , and such like Trees which are fit for building , and of the age of twenty yeares , nor for the Branches of them which are of the age of twenty yeares ; Quere , if the Branches are within such age as the Timber trees which use to be lopped and lopt if Tithe shal be payd for them ; and it seemeth Tithes shall be payd of them by the Book .

The use at this day is upon suggestion to have a prohibition , that the party shall be bound by Obligation , or Recognisans to the King , to preferr a Bill of attachment against the party which sues in the spirituall Court , if he requires it , and upon it to declare and joine issue , or demurr upon the right of Tithes , and award consultation , which Plowden held vicious : First , for that the Defendant is not Actor , and therefore may not have consultation upon such proceedings : Secondly , For that the Judgement upon the Attachment ought to be to acquit or attaint the party of the Contempt , and not proceed upon the right of Tithes : Thirdly , For that the Plaintiffe cometh into the Court voluntarily ( Scilicet ) by his Recognisans ) to exhibit his Attachment , where he ought to be brought in voluntarily by Process : Fourthly , Because the suggestion of the Attachment is false : Fifthly , For that if the Plaintiffe will not proceed , the Defendant hath no remedy , but a Recognisance forfeited to the King ; But Plowden held it to be the best course after the prohibition , that the Defendant sues out a Scire facias against the Plaintiffe , Quare consultatio concedi non debeat : And upon this the Plaintiffe may declare , and the matter shall be tryed , and the Defendant may have consultation ; and then he will be an Actor .

Sanders and Archers Case .

ARcher gave Poison to Sanders to Poison his Wife , H. 18. El. the Report of the opinions of Dyer , Cheife Justice , and Barham , Justices of Assises in Warw. and Sanders gives this to his Wife in a roasted Apple , which did eate part of it , and gave the residue to their daughter , being an Infant , and after the Wife recovers , and the Infant dyes , and it was adjudged Murder in Sanders , for which he was hanged , but not in Archer for he was acquit to be no accessary to this Murder .

First , For that Sanders had an evill intent of Murder at the beginning of his Act to kill his Wife ; and therefore the consequent of his Act by which the Daughter dyes , shall be adjudged according to the commencement ; So if a man shoots at one , and kills another , or lyeth in waite to kill one , and kills another ; otherwise it is where he hath no ill intent of killing any , as to lay poyson to kill Rats , and one eates of it and dyeth .

Secondly , The consent of Archer to kill the Woman , may not bee conjectured further then he gave it ; and therefore shall not extend to the death of the daughter which is another distinct Act ; Otherwise it is if one had followed the other in one person : As if I command you to rob J. S. and he resists , and you kill him . So if I command you to beat him , and he dies of the battery : So if I command you to burn the House of J. S. and you doe it , and by the fire the House of J. D. is burnt , I am accessary to both , because the commandement reacheth to all the sequell thereof , and is the cause of it ; and therefore I shall be partaker of what ensues this ill Act commanded by me ; otherwise it is if I command you to robb J S. as he is going to Sturbridge Faire , and you rob his House in Cheapside , for this is another manner of Fellony , and there are severall Acts : As if I command you to steale a white Horse , and you steale a bay Horse , or an Oxe , or burne the House of J. whereas I commanded you to burne the House of B. there I am not accessary ; for that my assent may not be lyable to it , because it is a thing distinct and contrary to my commandement directly : But if I command you to kill J. and you kill him by another meane or Instrument another day or place then I command , there I am accessary , because the death is the principall matter , and the others onely the manner and forme , and the variance in the manner and forme of his commandement discharges not me to be accessary : But if I countermand this before you kill , I am not accessary , for the minde of the accessary ought to continue to doe evill at the time of the act done .

If one be pardoned of Murder , and the wife of the dead sue an appeale , and a stranger receives him , and gives him Meate and Drinke , knowing of the Murder and Pardon , he is accessary to the Fellony against the Wife , although that he is not against the King , because this Fellony is discharged against the King , but remaines as to the Wife , per Catlin : But Popham held otherwise , because that at the time of the receipt , there is not any offence continuing against the Crowne and Dignity of the King , for that he was pardoned before , and one cannot be accessary without offence to the Crowne . But Plowden held , that if the Goaler suffer him to escape after the Pardon , this is Fellony in him , because he suffers a Fellon to escape ; for that he was in for Fellony , for he was detained in Prison at the suite of the Wife appellant .

Nicholls against Nicholls .

THE Lord Lovell , M. 17. & 18. El. in trespas . 18. E. 4. Lease for life to Thomas Wtright , and moreover grants that if he dyes without issue , that then the Lessee shall have fee : And the Lord was attainted of high Treason by Parliament , 1. H. 7. and all his Land forfeit to the King : saving to every stranger such right , title , and interest , which they had , as if the Statute had not been ever made ; and after the Lord dyed without issue , and in 11. El. an Office was found . The question was , whether the Lessee should have the Fee by the Condition and the saving . And adjudged that he should have the Fee .

1. That all the Fee Simple passeth not out of the Lord Lovell , but continues alwayes in him untill the Condition which is precedent to the estate be performed . 14. H. 8.17 . Wheelers Case 10. Assi . 15.6 . R. 2. Plessingtons Case and 12. R. 2. That Action shall be brought against Lessee for years , upon condition to have Fee and the Lessor together , a Condition precedent shall have relation to the Livery for to avoid incumbrances for vesting the Fee which was at the time of the performance : Husband and Wife may not take by Moities , yet they shall vouch upon a Feoffment made to them before the Coverture , because that although they were sole when the Warrant was made ; yet were Covert when the Recovery was . So a Reversion is granted when they are sole ; and when they have intermarried , the tenant attornes to them , they have not distinct Moities , because then the Reversion settles in them , not to grant when sole ; and so time in which the thing vests is specially to be considered .

2. That the estate in Fee appointed by the Condition , nor Reversion , because it commenceth at a day to come , nor a Remainder , because in its vesting it drowns the particular Estate ; but shall enure by way of inlargement of his Estate .

3. That the Freehold in Deede or in Law , ( but a right or Title onely ) is not vested by the word ( Forfeiture ) in this Statute without an Office to finde the certainty of the Land which the party attainted had ; as in 4. E. 4.22 . the Lord Hungerfords Case , for then the Statute of 33. H. 8. cap. 20. which now giveth Actuall possession to the King ; for Treason without Office should be made in vaine and goe to attainders , hapning after this Statute of 33. not to those before as our Case is . And if one be attainted of Treason , the Freehold and Fee remaineth in him and shall not be in the King untill Office found by the course of the common Law ; for if he hath capacitie to take by new purchase , so he shall retain the antient , and shall be Tenant to the Precipe ; out when he dieth the Land cannot descend to his Heire , because the blood is corrupted but it shall Escheat to the Lord , if it be holden of a common person , or to the King in the nature of a common Escheat if it be holden of him , and not as an Escheat by Treason , untill Office by Barham and Dier . To the first Objection it was said , That the Condition performed which is a reall agreement , shall divest the state in Fee out of any stranger which hath the Reversion without privity as by grant , Escheat , &c. For that the Land is charged with this agreement reall , in whose hands soever it cometh , and therefore the Fee shall vest in the Lessee by the performance of the Condition discharged of all incumbrances made after the Condition , and the previty there is destroyed by the Act of the Lessor , So 6. R. 2. Plessingtons Case , where a man leases for yeares upon Condition performed to have Fee , after levies a Fine ; the Lessee performes the Condition , he shall have Fee of the Conusee , but by Belknap there he shall have the moneys which the Lessee by his Condition ought to pay : otherwise it is if the privity be destroyed by the Act of the Lessee , as where the Lessee grants his Estate , there the Fee shall not vest in him nor his assignee 4. ( fol. 483. )

5. For answer to the second Objection , it was said that the Condition shall be saved by the words which shall extend to all Conditions , Rents , Profits , or other things out of , or in Land , and the saving of the right of him which hath not offended shall be taken beneficiall . By some , right is where a thing is taken away from another by wrong Title , is where a man hath cause to have the thing which another hath , and hath not Action . Condition is a possibilitie to have Title . Action is a suite given by the Law . Interest is part of the Estate of the Land , as a Lease for yeares : or execution by Statute , ( fol. 484. )

6. The answer to the third Objection , The Lessee ought not to shew in pleading that he is not excepted in the Statute , for that he gains not any new thing , but will retain the old ; and also because the Statute is to his disadvantage , but that he shall take benefit of a Statute shewing it .

7. For answer to the fourth Objection , it was said , that admitting that the Fee here shall be forfeited to the King without Office , yet the Condition shall draw it out of him without Petition , or Monstrans de droit , by some , but Quere thereof ; for otherwise it shall not vest at the time of the death of the Lord Lovell , it shall not vest at all , for it is appointed to him , as if the Lessee here had entered into Religion , and the Lessor without being attainted , had died without issue , after the Lessee is deraigned he shall not have the Fee , because it may not vest in him at the time of the Condition performed . So if he was disseised at that time ; And so here for to avoid the inconveniency by the operation of the Law or former agreement , a thing shall be devested out of tho King at the instant of the Condition performed without any such circumstance , As Tenant in Taile discontinues ; the Discontinuee infeoffs the King by Deed inrolled , the King Leases to the Tenant in Taile for life , with the Remainder to his Issue for life , the Lessee dies , the Issue , is remitted by the remainder falling to him , and the Fee devests out of the King without any circumstance . And so a Remitter shall defeat the Estate of the King , and an Office of the King shall defeat the Remitter , ( fol. 488. ) as 3. E. 4.25 . in the Earle of Northumberlands Case , by relation or if the Disseisee enters after the Attainder of his Disseisor . Possession of the King by Office , shall not be removed without Petition ; but if he enter before his Disseisor be attainted , he shall be removed without Petition , because the Title of the King there is more antient , and the Office shall have relation to the Attainder onely for the profits , although it relate to the time of the Treason for to avoid mean Acts and Incumbrances . So Tenant in Capite maketh a Lease for life , rendring Rent with clause of Re-entry for not payment , and dies , his Heire within age enters for the Rent arere : An Office is found , the entry of the Heire for the Condition broken is avoyded by Lovelace for the possession of the Heire , by force of which he entered , is utterly defeated by Relation , which intitles the King to the Grant . And so the entry of the Heire for a thing not due to him , shall be adjudged Tortius by relation . So if Trespasse , 19. E. 4.2 . where for things coming of the Land , as Grasse , &c. Office avoids the punishment against those which doe the wrongs and takes it away by relation of the Office ( which Intitles the King , because of the Escheat before the Trespasse ) an Action once good : But for the entry into the Land , or breaking his Fences , which ariseth not from the Revenue of the Land , the Action is not gone by the Office .

If an Office , virtute Commissionis , be pleaded , he ought to shew the authority given by it , and the execution thereof accordingly ; because persons appointed by Commission , have not any other then what is appointed to them by the Commission : otherwise it is of an Inquisition taken , virtute Officii , before the Escheator , Sheriffe , Steward of a Leete , &c. for that their authority appeareth to the Court judicially , because it is known by the Law ; for that they are Officers of the Common Law .

A Remainder ought to vest when it is appointed , otherwise it shall never vest . The Kings Pardon shall not excuse any man for the repairing of a Bridge which ought to do it , because it shall not take away the Interest that the Subjects take therein . So a man pledgeth a Jewell for ten pound and after is attainted , the King shall have it without paying of the ten pound . So 13. R. 2. the Earle of Kent had return of certain Cattell in Replegiari and the Proprietor of them is attainted , the Earle shall keep them against the King , untill he be satisfied of the thing ; because the Prerogative will not give any prejudice to another .

Ludford against Gretton .

A Warrant to make Letters Patents , M. 18. & 19. El. in the Kings Bench , Trespas . was directed by H. 8. to the Chancellor , which entered not the day of the Receit of the Watrant in the Record according to the Purview of the Statute of 18. H. 6. cap. 1. And yet the Letters Patents made thereupon were adjudged good . For that the Purviewe of the Statute maketh Letters Patents void onely , for the variance between the date of the Patent , and the day of the entery of the Warrant . And the Court held three manner of Patents good upon the Statute .

1. If no Warrant be made at all , it is good by the Common Law , and not void by the Statute , because there is not any variance . 2. If there be a Warrant , and the day of the delivery of the Warrant be not entered , as in the Principall Case . 3. If the day of the delivery of the Warrant be entered , and the Patent dated after the day of the delivery , for this variance is out of the mischief of the Purview , which was in antedating of Patents before the delivery of the Warrant , and not after dating , and yet is within the words , but out of the intent of the Act.

Records shall have Relation to their date , and cannot be averred contrary to the date , not to vary from it , because it tends to the discredit of an Officer of Record . Deeds relates to the Livery , and date in Deeds concludes not any to aver the contrary .

Grendon against the Bishop of Lincolne .

HENRY the eighth , being seised of an Advowson in the right of his Crown , P. 19. El. in the Common Pleas. Quare Impedit . presents J. S. and dies , E. 6. by his Letters Patents , grants the advowson to the Dean and Chapter of L. and their Successors in Fee ; and also grants to them License and Liberty , virtute authoritatis sue Regiae supremae & Ecclesiae qua fungimur , that they shall retain the said Advowson , and all the Profits thereof for ever to their proper uses , whensoever the said Church shall become void . And after the death of the said Incombent , the said King E. 6. present his Clerk to the said Church , which was Admitted , Instituted , and Inducted ; and adjudged no usurpation , which shall put the Dean and Chapter out of possession .

If the Plaintiffe alledge matter effectuall , as discent , &c. and the Defendant shew a matter in Law , which upon the Law discussed , proves the said matter alledged by Plaintiste , true or false , there he ought not to take a traverse , for then the Jury shall try this matter in Law , which properly belongeth to the Court to discusse , Per Curiam .

1. Appropriation of an Advowson ought alwayes to be made to a body Politicke , or Corporation Spirituall , being Patron of the said Advowson , and such Parson onely is capable of an Appropriation , and no other ; and by the Law such Parson in Parsonee may not grant over his Incumbency , no more then an Incumbent of a Parsonage presentable at this day , nor any other shall have it , because it is appropriate to his Parson , 3. E. 3.1 . The Case of the Templers , that by their dissolution , the Appropriation was dissolved , And yet was first ordained , when such Parsons by incroachment and sufferance were made Parsons in Parsonees , which could not say Service , nor Administer the Sacraments , as Deane , and Chapter , Nuns , Abottesles , &c. which was a thing horrible by the Lord Dyer .

2. Every Appropriation shall be made by the King , for the losse which he may have , otherwise as King , by reason of the Tenure , and by the or dinary Supreame , or Inferiour for the interest , that they ought to have in seeing the Cure served , & by the Patron to whom the Appropriation shall be made ; and those three are Actors in the Play , as Dyer said , : But here the Appropriation made by the King , which is also Supreame ordinary by the Statute of 25. Hen. 8. which transfers to him the Authority of the Pope , is good . As the Deane of Wells Assigne to the King good by the Court ; because he is Supreame ordinary by the Statute of 25. Hen. 8. in Sir John Pollards Case against Waldron , and here the King doth three things . First , he grants the Advowson . Secondly , he maketh the Appropriation as Supreame Ordinary . Thirdly , he giveth his consent as King , fol. 501. if time of Lapps be devolved to the King , hee shall present as Supreame Patron , in respect that the Advowson is holden of him mediately , or immediately .

If the Appropriation be made without License of the King ( be the Advowson holden of him , or of a common Parson ) the King shall seise the Advowson , and shall have the Presentments , untill hee be satisfied of the Fine by his Prerogative , and as in the name of a distresse . 21. E. 3.5 . And there it is said , That the Appropriation is not Mortmaine , because it is not any transmutation of the possession , nor Substraction of Services , but the Tenure remaineth , as it was before .

3. The Appropriation may be made by words future when the Church is full , although that the Incumbent hath the Fee and Inheritance of the Church , and none shall medle with it which is his in his life ; but otherwise , it is of present words , and the proper time to appropriate it , is , when the Church is void , because then it may be executed presently : But the Patron cannot present when it is full , by future words ( scilicet ) that he shall be incumbent , when the Church shall be void : For that he hath not Title to Present before the avoydance . If the King presents to an Advowson , and appropriate the Church to a Deane and Chapter which maketh a Lease for yeares in the life of the Incumbent ; this is a voide Lease after the death of the Incumbent , by Plowden , for that at the time of the making of it , they had nothing in the Rectory , and the Appropriation was not executed untill after the avoydance .

4. An Usurpation may not be upon a Parson in Parsonee , for that he is perpetuall Incumbent , and two Incumbents cannot be in one Church , 38. H. 14.39 . H. 6.21 . and 27. and there cannot be ousted by wrong , nor have right of Advowson , for he is not out of Possession , and if one presents to such an Advowson Appropriate , and the Clerk is admitted , Instituted , and Inducted , by six moneths , yet the Church is not become Presentative , nor by any other Act , except onely where the Parson in Parsonee himselfe presents ; for there , volemi non sit injuria , by Manwood , and Dyer the dissolution of the Corporation , to which the Advowson is Appropriate , is a disappropriation of the Advowson , and the Lord , of whom it is holden may Present . If a Deane and Chapter seised of a Mannor , to which an Advowson is Appendent , and the Church is Appropriate to them , and after they make a Feoffement of the Mannor , with the Appurtenances , this disappropriates the Advowson ; for by some it passeth Appendent by the common Law , because the Appropriation destroyes not the Appendency : But now by the Statute which maketh lay Persons capable of Parsonages Appropriate , they are severed from Mannors by the intent of the Act , and by the grant of the Parsonage Appropriate , which now may be granted to a common Parson , and the Advowson shall passe .

Foure answers to the foure exceptions of the Plea .

First , The first exception is because the Patent is not pleaded with a Non obstante , of the Statute of Mortmaine , and therefore not good by Dyer .

But Plowden held the contrary , for that the Grant is good untill Office found , and then hee may well pleade a licence for that time ; also the Patent is Excerta scientia , which countervailes the clause of Non obstante , for that implies that the King was knowing of the Law ; for ignorance indeed may be allowed in the King , ignorance in Law not : So if the King grant Lands to his Villain , the Land passeth untill Office ; but it is no infranchisement , because if he was his Villain or not , is a forrain matter , and not apparent to the King . And the Kings Grant shall not enure to two intents , where one is forraine matter . The clause of Non obstante , is requisite in a Patent , to be Sheriffe for life , 2. H. 7. because the Statute saith by precise words , That he shall not be Sheriffe above one yeare . So a Patent to a Murtherer for pardon ; and that he shall not finde sureties , for his good behaviour ought to have a Non obstante , 10. E. 3. because this Statute avoided the Patent by precise words , without such surety ; But the Statute of Mortmaine doth not so here , but giveth entry or seisure for a paine , admitting the Grant to be good .

The second exception was , that the Patent made not them Parson by expresse words by Dyer .

The second exception was answered by Plowden , who said , because the words amounted to as much , and for that the Kings appeared to be so , that it should not be void , because Ex gratia & mero motu .

The third exception made by Dyer , was , that they did not plead that they entred .

But Plowden answered that , because the Patent granted them power to retaine , &c. And also they pleaded that they were seised , which implies an entrie , and in the Common Pleas , use upon possession executory shall say seised onely , without saying , that he entred and was seised .

The fourth exception that was made by Dyer , was , for that they pleaded that they were seised of the Rectory of the Parsonage of the Deane , in the right of their Cathedrall Church of Worcester , whereas it should be in the right of the Church of the Deane .

Plowden answered the fourth exception thus , That they plead the seisen of all the intire thing , otherwise if it were of parcell of it ; or things pertaining to it , for there they should plead that they were seised of it in the right of the Church of the Deane .

But Judgement was given for the Bishop .

Eare against Snow and others .

TEnant in taile and his Wise ( which had nothing in the Land ) suffer a common Recovery in 23. Hen. 8. to his owne use in Fee , H. 20. El. in the Kings Beuch . Fiect . firme . the Husband by his Will in writing , deviseth the Land to J. S. and after the Statute of 27. H. 8. is made , and after that he publisheth his Testament of new , and dies , the issue in taile enters , J. S. dies , his heire within age , the issue in taile dies , the heire of J. S. enters upon the Son of the issue in taile : And adjudged lawfull . And no Remitter , but that the estate taile shall be barred by the Recovery , notwithstanding the overliving of the Wife ; for the Wife was named onely to be barred of her dower , and forasmuch as she had not any estate , nor no losse , she shall not recover any estate , nor any recompence ; and besides , the estate recovered is an estate taile , as the estate lost was , to which the Wife was a stranger , and although she shall have the recompence in value ; yet the issue in taile might enter and out her , because the losse is his and not to the Wise , and he shall not be estopped by conclusion of his Ancestors by joining his Wife in the Voucher , and besides it is uncertaine what estate the Wife shall have in the recompence .

Welkden against Elkington .

LEssee for yeares devise that his Wife shall have and occupie the terme for so many yeares as she shall live , H. 20. El. in the Common Pleas. Trespas . and after her death he gave and bequeathed the residue of the said yeares of the said Lease , then not expired , to his Son , and his assignes , and made his said Wife his sole Executrix , and dyed , the Wife entred , agreeing to the Legacie , and after aliened the terme , and the alienee granted it againe to the Wife , and the Wife died within the terme : And adjudged that the Son or his Administrator shall have the residue of the terme .

Assent to the particular estate shall reach to the Remainder also , but an assent to the devise of a rent shall not extend to the devise of the terme , and the devise is made of a rent , or common out of the terme , and after of the Land it selse ; payment of the rent by the Executor or his sufferance for the Devisee to use the common , is not execution of the terme , because the terme is one thing , and the profit out of it is another ; but where soure yeares of a terme is devised to one , and the remainder to another ; there otherwise it is because all is of one same thing , fol. 621.524 . so the same fol. 541.

First , The devise to the Wife for her life is not an absolute devise of the intire terme , but conditionally , or upon limitation ( if she lives so long ) for if she dies , her Interest is determined by the limitation , and devise to him for his life by implication ( because the residue of the terme is devised to the Son after the death of the Wife , in which is implied that the Wife shall have it for her life ) and also determinable by the limitation as above said , and the devise to the Son shall be expounded to precede the devise of the Wife , and so both shall stand , fol. 522.523 . & 624.

Secondly , The devise to the Wife and Son is of one same thing ( setlicet ) Of the Land it selfe , and the Wife shall have the Collaterall occupation onely of the Land by the devise ; but the very Interest and terme of the Land , she shall have conditionally , and so two parties of one terme , the one to the Wife , and the other to the Son , and then the execution of the devise in the Wife shall be execution of the Legacie to the Son .

Thirdly , The Alienation of the Wife hath not devested the interest of the Son , which is accrued to him by the Condition or limitation , nor extinct the Condition or limitation which shall transferr the interest to him .

Executor being legatory of a terme by the devise of the Testator enters generally , he is possessed as Executor , because it is his first title , untill he maketh election to agree to the devise . A Termor grants his terme to one for life , the Grantee shall have the intire terme by Popham , because for life which is a greater time then for yeares : But Quere , if he dies , if the Grant be determined . As Lessee for yeares grants a rent to one for his life , he shall have the rent during all the yeares if he shall so long live , which time of life includes all the years which is a lessor terme ; yet if he dies , the rent shall be determined by Plowden , fol. 525. and the Grantee hath but a Chattell in the rent , for he may not have freehold out of a Chattell . Lessee for yeares grants all his terme which shall be arreare after his death , this is voide for the uncertainty ; for by the reservation of the terme for his life , he hath reserved all the terme , and therefore the Grant which is but one sentence without any Habendum , is voide , 7. E. 6. ( by devise good ) otherwise if he had granted his terme habendum , after his death , there the Grant is good , and passeth the terme presently , and the habendum is void for the Repugnancy : But fol. 156. it is void , 9. H. 58. A man maketh a Lease for ten years , after maketh another Lease for six , to commence the same day , the second is void , and he shall not maintaine an action of debt against his Lessee , although the Lessee for ten yeares upon render , because during the ten yeares he may not contract with another , for a Lease to take effect during this time . Implication in a devise giveth an estate for life to the Wife , 13. H. 7.17 . profit to be taken out of the Land is a distinct thing from the interest of the estate . Execution of an occupation of a thing not of property it selfe , as in a devise of a Book to use , as 37. H. 6.30 . Condition or possibility goes in privity , and cannot be limitted to a stranger . Circum locution in a devise , or Lease , is equivalent to a direct Grant , as to have from day to day during life , is all one . Intent shall be observed in the Exposition of Wills , as if one devise his Land by the premises to one , and after deviseth the rent to another out of the same Land , by the sayd Will this is a good devise of the Rent first , and after of the Land in sense , and so by exposition the words shall be altered , and so marshaled , that the intent may take effect : So a termor deviseth all his terme to his Son , neverthelesse his Will is , that his Wife shall have it for her life , holden a good devise to both by conversion of the words . So a Remainder to the Church of Saint Andrew in Holborne , good by devise , 21. R. 2. although the Devisee is not capable , because the Testator intended that the Parson shall have it . Cestuy que use , at this day devise that his Feoffees shall be seised to the use of one A. in fee , this is a good devise of the Land : Adjudged in the Case of Lingen : ( yet after 27. H. 8. he cannot have Feoffees to his use , because the intent was , that he should have the Land : So the Executor shall not sell the Land according to the devise , but take the profits for two years to his owne use , the heire may enter , because the intent of the Testator maketh this a Condition , 38. Ass. 31.

Incertainty in Contracts reduceable to certainty by contingent , standeth good : As if I lease to one habendum , from the death of J. untill such a Feast , which shall be in the year , 1620. good , if J. dye before that , otherwise it is void . Two properties of a terme , as where Lessee for yeares which grants over his terme , enters for not payment of Rent , and retaineth untill he be paid his Arrerages thereof : So of a Conusee of a Statute , which hath the Land extended , so upon a Lease for yeares of a Mill , except the Profits to the Lessor , for his life , and adjudged a good Exception : And if the Lessor enters , he hath a property incertain , and the Lessee another , 39. H. 6.37.8 . So it is of Sheepe letten for to compester , or a Chain of Gold pledged , 5. H. 71. they have one Property , and the owner another .

Cestuy que use devise the Profits and Issues of his Lands , fol. 509. b ( Cestui que use , before the Statute of 27. H. 8. Devise his Land , and after the Statute , publishes his Testament of new , the Land passeth by the Statute of 32. H. 8. See fol. 514. yet he was once countermanded by the Statute . Cestuy que use , devises that his Feoffees shall stand seized to the use of himselfe for life , with remainder over , this is a good Declaration of the use during his life , yet the Will cannot take effect untill his death , Quere of this Case , fol. 508. b.

Bransbie , against Grantham .

AN Executor having a Terme , P. 20. El. in the Kings Bench E. firme . as Executor devises the Terme to a stranger , and maketh his Sonne Executor and dies , the stranger enters into the Land by the Assent and Consent of the Executor . And after the Executor enters : And adjudged that his Entry was lawfull , and the devise voide : And by consequence , the assent given to a voide thing , shall be also void , and shall not enure as a new grant ; but onely and assent to the thing devised .

1. Because that the Executor cannot devise any thing which he hath as Executor .

2. For that the Executor hath the Terme here , to the use of the Testator , and no man can make a devise of any thing , except that he hath it to his owne use : And therefore the Husband cannot devise the Terme of his Wife ; And then when the Executor dies , his Executor hath it by Title before the devise as Executor of the first Testator , and the property that the Devisor , had as Executor is determined by the determination of his Office of Executorship , which is ended by his death ; and the last Executor hath it by Relation , as immediate Executor of the first Testator : ( So an Executor cannot devise the goods of his Testator ) and therefore the goods of the first Testator in the hands of the last Executor shall not be taken in execution for the debt of the last Testator , because the last Executor hath them as immediate Executor to the first Testator , and to his use , as if they never had been in the last Testator by Relation .

Hare against Bickley .

A Prebendary after Admission and Institution , and before Induction and Installation , grants an Annuity for him and his Successors : The Bishop confirmes it , and after the Prebendary is Installed , and on the same day of the Installation , the Dean and Chapter conconfirmes also , and after the Prebendary dieth , and the Grantee bringeth a Writ of Annuity against the Successor of the Prebend ; and Adjudged , that it lyeth not , because the Grant before Induction was voide .

Induction giveth to the Probendary the possession Temporall , and Freehold , ( and the Confirmation is nothing without the Possession : ) And therefore without Induction , a man shall not have a Writ of Right nor Spoliation , Trespasse nor Assise ; otherwise , it is of a Quare Impedit . For in the first he alledges Esplees , but not in the last , 26. H. 8.3 . But by the Admission and Institution he hath care of Soules , and is inabled to administer the Sacraments , &c. And the Arch-Deacon shall make Induction to the Parson and Vicar , but shall not make Installation to a Prebendary ; but the Deane and Chapter shall doe it . No Plenarty against the King before Induction , for that it is corporall seisen and possession , 38. E. 3.10 . So the King confirmes to the Collatee of a Bishop , before he is inducted the Confirmation is voide , 11. H. 4.7.1 . H. 5.1 . He which hath the Nomination is Patron , and he that presents is his servant , Induction is triable by the Countrey . So if Parson or not , and it shall be tried where the Church is , 21. E. 4.7 . and 33. A woman recovers in Dower , she cannot enter , but ought to have seisen delivered to her by the Sheriffe ; as a Copyholder ought to be admitted by the Lord of the Mannor , if it discends to him , before he shall have seisen in judgement of Law : So a Prebendary , Parson , or Vicar , before he is Inducted , or Installed , hath not seisen , nor is full Incumbent for to charge the Possessions of the Prebond , Parsonage , or Vicaridge .

Crosse against Howell .

THe Cookes of London were interrupted in 22. E. 4. Tr. 20. El. in the Kings Bench E. firme . by the name of two Masters and Governors of the Communalty of the Mystery of the Cookes of London , and in the 21. H. 8. they bargain and sell certain Land by the name of A , B , C , and D. Master and Wardens of the Craft , or Mystery of the Cookes of London , to R. D. for money without naming his Heires , and the Barganee enters and levies a Fine , with Proclamations , and five yeares passe . And adjudged that the Corporation shall be bound by the Fine , and Nonclaime ; and therefore the entry and delivery of the Deede of their Lease to the Plaintiffe as their Deed , by him which had their Letter of Attorney so to doe , is meerly void .

1. The bargain and sale was made for the variance of the Indenture from their name of Corporation , for they were incorporate Masters , and the Indenture is Master . And in the Indenture foure are named and their Charter Warrants but two Masters . Also the Charter is Masters or Governors , and the Indenture Masters and Guardians . So it varies in Guardians for Governors , and in ( et ) for ( or ) and the words , Craft and mystery are surplusage , and therefore void words , and do not prejudice the Deed ; but for the other variance the Deed was adjudged void . And therefore the bargainee , by his entry is a disseisor .

2. The Fine with Proclamations and five yeares barres this Corporation , and all other Corporations , as Major and Communalty , Deane and Chapter , Colledges , &c. Which have absolute Estates in their owne right , and their Successors for ever , by equity of the Statute of 4. H. 7. Notwithstanding , that the Statute speakes onely of Men and their Heires , for that this Statute is taken largely for possessions of Lands by the Fine , and strictly against the ancient right , if they be remisse in their claime for five yeares , and the Act ought to remedy all the mischief ; otherwise , it is of Corporations which have not any absolute Estate without others , as Bishop , Deane , Parson , Vicar , and Prebendary , &c. But every one of them shall be barred by Nonclaim by five years , and every Successor shall have new five years : So every Officer who hath Land appertaining to his Office , as a Parker , Forrester , Keeper of a Gaole , &c. shall be barred of Nonclaime after a Fine levied by his disseisor , and five year past after Proclamations , his Successor not , if he doe not also permit 5. yeares Passe in his time .

3. A Corporation cannot be seised to another use , but onely a Naturall body , because they are not imprisonable to be compelled to perform the confidence , and a body Naturall shall not be imprisoned for the offence of their body Corporate , which is another body .

4. A bargain and sale without words , Heires shall give a Fee simple : But upon those two Points the Court was not resolved , because that the other two made an end of the Case .

An authority given by a Corporation to enter into Land , and claime it to their use , and after to make a Lease of it in their name is good , fol. 535. b.

Paramor against Yardley .

A Termer devises all his Terme to his Sonne , H. 21. El. in the King● Bench. Trespasse . and besides saith , that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne , to the intent that she with the Profits of it shall educate his children , and see his Will performed , and made his Wife his Executrix , and dies ; the Wife proves the Testament , and educates his Infants accordingly , after sells the Terme to one , to whom the Testator was indebted , having then sufficient of the Goods and Chattells of the Testator to pay all his debts , besides the said Lease , and after she dies , the Sonne at his full age enters , and his Entry was adjudged lawfull , and his grant to the Plaintiffe good .

1. Because that the devise to the Wife is good during the Minority of the Sonne , and by the exposition of the Court , shall be intended to precede the devise to the Sonne in sense and intent , and the devise to the Sonne , to succeed . 540 . 5●…1 . a.

2. For that the devise of the Profits and Occupation of the Land , is a devise of the Land it self , for that is the benefit and fruit of the Land ; otherwise it is of the use of a Chattell personall as of a Looking-glasse , Mappe , Globe , or Booke ; for there the use is a distinct thing from the property , fol. 541. b. and 541. a.

3. For that the Terme shall be executed in the Wife as a Legacy certain , untill she disagrees to it , because it is more for her benefit , and she may not have an occasion against her self as another may , otherwise it is of a Legacy certain .

1. The Common Law to make the intent of the Parties take effect , puts order to words contained in deeds without order , as the Releafe of the Disseisor , and Disseisee to the Less●e , for yeares of the Disseisor , shall be first , or the Disseisor , and after the Disseisee , otherwise it wonteth previty between him and the Lessee . So Tenant for life , Houses for yeares , and he , and him in Reversion cons●…mes the Estate of Lessee for yeares , habendum in Fee : The Law adjudgeth the Estate of the Tenant first to passe for to make previtie , upon which Release that of him in the Reversion may enure to enlarge the Estate . So a Termor for thirty yeares , and his Lessee in Possession for ten yeares , by himselfe may not surrender for want of previty : And therefore his surrender shall be taken to succeed the other . Land is devised to one in Fee after a Rent out of it to another in Fee , good . So fol. 523. because it shall be taken first devised , although it be subsequent in words . As the Will repeales the first , so the last part of the Will repeales to the first part of the Will which is contrary to it , because he had such Intent last , As a devise of Land to one in Fee in the premises , and in the end of the Will to another in Fee : But here is not any such contrariety .

2. By grant of the Lease , land passeth during the Terme , because the Lease contains the Land it selfe , and time in it : words equivalent to words usuall shall have the sense and force of words usuall , as 5. H. 7.1 . Licence to enter and occupy Land for one moneth is a Lease , and so shall be pleaded . So that Land shall return redibit , or discend , or to a stranger after the death of Tenant for life , shall be pleaded as a Remainder . So a grant of the nomination of the Advowson is in substence , a grant of the Advowson ; because the profit of it rests in the Nomination . So here words of Nomination , and Profits of the Lease , is as much as the Lease it selfe for the time , and not of distinct Profits to take also , because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it ; and for this Legacy , she hath no remedy in the Spirituall Court , because she cannot sue her selfe there ; also the Estate it selfe of the Terme shall be in the Wife , because the Sonne shall not have it untill fu●l age , and then might drown his Profit , if she hath but profit to loose .

3. Alteration made by Operation of Law , where the Party hath not any , against whom to bring in his action , which is equivalent to a Suite , and Execution given to a Stranger , as of a Remitter : So a Debtor of twenty pound is made Executor , he may pay himselfe by way of Retainer , and hath property in the debt it selfe presently ; because he cannot sue himselfe , and the Law giveth to him the like advantage as a Suite should be , which performes the charge of the thing thereby , he claimes the commodity annexed to the charge , as to keep Court of a Steward is a disseisen of his Fee : For the doing of matter of labour is a claime of the Commodity for his paines : So an Executor which hath a Terme devised to him , upon Condition that he pay 10 l. to a Stranger , payes the 10 l. this is consent and execution of the Legacy . So the educating of the Children here determines her Election , that she taketh the Terme as a Legacy , and her grant after reproves it not , but argues her inconstancy . If a Termer be indebted to one in a hundred pounds , and maketh his Will , and by it devise his Terme to his Sonne , and leaves assets to pay the debt , the Executor cannot sell the Terme to pay the debt , but shall pay it with the assets that he hath in his hands : Adjudged , because he ought to perform all the Will ( scilicet ) Debts and Legacies , if there are assets . If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor , as of 20 l. and the Testator oweth 40 l. and dies , having Plate , Oxen , Horses , of every of them to the value of 20 l. this is not executed untill 40 l. paid , for he may Alien which of them he will , and the others have no remedy , if there be no more assetts ; and may pay , and carve to himself before any other , as it is in 12. H. 4.21 . because he is neerest to himself , And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others , nor Lease given to his Executor , ought to be sold , and then in Legacies it is reason that Executor shall have preferment . A gift to his Executor of all his goods for performance of his Will is no devise , and a void gift , because the Law giveth them without these words : As if a Man devise in Fee his Land to his Son , and Heire , it is voyd , because he shall have it without the devise by discent : So for to prescribe , for to distrain for Rent service voyd , because he may distrain without prescription ; A devise of Fee tayle to his Heire is good , because it is another Estate then he should have by discent : So here the Estate devised to the Wife , which is but percell of the Estate ( scilicet ) during the Nonage of the Heire is good , because severed from that , which the Law would have given to him , and the Clause for educating his Children , is not a thing Testamentory , nor Legecy to the Children , but is an intent annexed to the devise made to the Wife , by which she by her entry hath the Estate devised to her as Legatory ; And the Execution to the Wife is also to the Son , because a devise , although the Estates are severall , and is of the same effect , as if her Estate had bin devised to another , with the Remainder to her Son , and agreement or assent shall not be apportioned , as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder . So notice given by Tenant for life to the Lord , shall serve to him in Remainder in Fee , to compell the Lord to avow upon him after the death of the Tenant for life ; So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over .

An Intruder , cannot gain such Possession against the King , upon which he may maintain an Action of Trespasse , because the King may punish him , 19. E. 4.2 . and be shall not be doubly punished ; but against the Lessee of the King , one may gain such Possession , that he may punish a Stranger trespassor , yet he shall not gain no Estate from the Crowne for the Freehold , which irremoveablely rests in the Crowne ; And the King shall not alleadge Intrusion with a continuando , but divers dayes & vicibus ; because he gaineth not any Possession by wrong , ( scilicet ) by the Intiusion against the King .

Walsinghams Case .

H. 15. El. in the Excheq Intrusion . TEnant in tayle of the Kings gift , maketh a Feoffurent in fee to a stranger , and after is attainted of Treason , and executed , having issue , and after this attainder is confirmed by Parliament with severall rights and interests of Strangers : And it was adjudged that the Feoffee continuing his estate by the Feoffment , after the attainder shall be an Intruder , and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber ; But the contrary was adjudged in the Common Pleas , 17. El. between Conway and Moulton , that tenant in tayl shall not forfeit any thing .

First , That the Feoffment of tenant in tayl had not discontinued , nor devested the estate of fee in Reversion out of the King , because it is but a matter in Deed , which is tortious , otherwise it is of a rightfull matter of Record , as a Recovery upon a good title or rightfull matter in Deed , as a Remitter or Condition performed ; As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled , which regives to the first tenant in tayle which dyes , the issue euters , it is a Remitter , and therefore the Reversion in fee is devested out of the King , and restored to the first doner , because a former right ; matter in Deed and in Law concurr together : So Lessee for life to have fee if he doth such an act , after the Lessor grants by Deed inrolled , the Reversion to the King , the Lessee for life performes the Condition , which is older then the title of the King ; this older title , matter in Deed , and operation in Law thereupon , shall take the Reversion out of the King , without other Suit or Circumstance , because bound with the Condition , and the fee simple ought to vest in him at the same instant that he performes the Condition or never . But no tortious act , as Disseisen , Intrusion , &c. may take the Reversion out of the King .

Secondly , That by the Feoffment he hath not given the fee determinable , because he had it not , nor an estate for life of the Feoffee , but onely an estate for his owne life , and so the Reversion in tayle continues in him , which shall be forfeit by the Attainder , and by consequence the estate of the Feoffee determines by the death of the Feoffor ; but the Feoffee hath an estate for the life of the Feoffor discendable , and his heire shall be a speciall occupant of this estate in base fee simple .

Thirdly , That the King shall have the estate tayle in point of Reverter , for that he had the pure fee before , and two fees of one thing cannot be together in one person ( otherwise in severall persons ) and then the King shall have the Land discharged of the estate tayle , and by consequence of all estates , charges , and incumbrances , derived out of it , as Leases warranted by the Statute , and then the laving in the Statute for a thing before determined is void , as of a Lease voidable , made by such tenant in tayle , which the issue hath made good by the acceptance of the rent , and after of the estate tayle Escheated for Treason , or is determined for default of issue : So that the King hath in point of Reverter there , the Release shall be void , and he hath nothing by the saving of the Statute : Adjudged in Austins Case , otherwise it is when the King hath it in point of forfeiture , as if the Reversion be to a stranger , fol. 559. b.

What Livery and Seisen is , and the validity of it , fol. 554. a.

Estate tayle shall not be in abeyance , nor any thing which another cannot have , for abeyance is onely for the benefit of a stranger , because it cannot vest immediately , 556. a. 562. a.

Estates in fee are three : First , Pure fee : Secondly , Fee determinable : thirdly , Base fee , which shall be in one when the pure fee is in another , fol. 557. a.

An estate tayle shall not be to anothers use , fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled , the Bargainee shall have see , executed by the Statute of 27. H. 8. which cannot be , except the use shall be raised first out of the estate taile , and so the estate tayle shall be to another use , fol. 557. b.

A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift , gaines not , except the estate for life of tenant in tayle , and therefore if he dye seised , the issue in tayle shall enter upon this discent , as I beleeve , fol. 558. a.

The Father maketh a Lease for life to his Son , the Remainder for life to her which shall be his Wife at the time of his death , this is a good Remainder , and shall be in abeyance untill the Wife be knowne , fol. 562. a.

Saving in a Statute contrary to the Explanation is voide , Puton and Hides Case , and Austins Case of a Lease , and the Duke of Norfolks Case , fol. 564. a.

The possession shall be awarded upon a Bill of Intrusion , which is but Trespas in its nature , 561. a.

Tenant in tayle grants his estate , there waste is dispunishable , during the life of tenant in tayle , because it is not but onely a priviledge annexed to it . Estates passe to the Grantee , and amount to words of dispunishable of waste , and not because he hath a greater estate then for the life of tenant in tayle . So 42. H. 3.21 . waste dispunishable in tenant for life ( because the Lestor released all his right that he had in the same Land , and that he or his heires would not demand any right in the same , nor claime , nor challenge for the terme of the life of the tenant ) for that it amounts unto a Lease without impeachmeat of waste , fol. 556.

A Writ of Error abated by the death of the Lord Chancellour , because his Christian name and Sir-name , and Keeper of the great Seale , were put into the Writ , fol. 564. b.

FINIS .