The compleat lawyer, or, A treatise concerning [brace] tenures and estates in lands of inheritance for life and for yeares of chattels, reall and personall, and how any of them may be conveyed in a legall forme, by fine, recovery, deed or word, as the case shall require / per Guliel. Noy ... Noy, William, 1577-1634. This text is an enriched version of the TCP digital transcription B43541 of text R181121 in the English Short Title Catalog. Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 153KB of XML-encoded text transcribed from 68 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 B43541 318212033 ocn 318212033 Wing N1443

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 eng Real property -- Great Britain -- Early works to 1800. Land tenure -- Great Britain -- Early works to 1800. Conveyancing -- Great Britain -- Early works to 1800. eebo The compleat lawyer, or, A treatise concerning [brace] tenures and estates in lands of inheritance for life and for yeares :of chattels, reall and per Noy, William, 1577-1634. 1651 133 27292 16 0 0 0 0 0 5.86 B The rate of 5.86 defects per 10,000 words puts this text in the B category of texts with fewer than 10 defects per 10,000 words. 2014-06 Keyed and coded from ProQuest page images 2014-08 Sampled and proofread 2014-08 Text and markup reviewed and edited 2015-03 Batch review (QC) and XML conversion

The Compleat LAWYER . OR A TREATISE Concerning TENURES AND ESTATES

In Lands of Inheritance for Life , and for Yeares : Of Chattels Reall and Personall , and how any of them may be conveyed in a Legall Forme , by Fine , Recovery , Deed , or Word , as the Case shall require .

Per GULIEL . NOY , Armigerum , nuper Attournatum Generalem CAROLI Regis defunctum .

LONDON , Printed for D. Pakeman , and are to be sold at his Shop , at the Signe of the Rainebow , neer the Inner-Temple-gate in Fleetstreet . 1651.

The Compleat Lawyer . OR , A Treatise concerning Tenures and Estates in Lands of Inheritance for Life , &c.

Question . HOw were the multitudes of people at the first divided ?

Answer . Into Families , Common-wealthes , and Kingdomes .

Q. To what end ?

A. To live godly , peaceably , and quietly together .

Q. How is that performed ?

A. By keeping the Law of God , which we call Religion , and by executing vertue , and punishing vice , by which vertue and good manners doe spring .

Q. What doth best uphold and maintaine these things ?

A. The Law .

Q. How manifold is that ?

A. Two fold , viz. The Law of Nature , and the Law written .

Q. What is the Law written ?

A. It is either Divine or Civill .

Q. What doth the Civill Law worke ?

A. A defence and encouragement to the good , and a bridling and punishment to the evill .

Q. What else doth it worke ?

A. A security to the life of man , and quiet enjoying of Meum and Tuum .

Q. How came in Meum and Tuum ?

A. By the Law of Jus gentium , whereby right and property to Lands , Tenements , goods and Chattells , are belonging to men .

Q. How doth every Subject in England claime and hold his lands and goods .

A. By Estates in Law .

Q. How many Estates in Law are there in Lands and Tenements .

A. Three , viz. Estates of Inheritance , Francktenement , and Chattells realls

Q. How are Estates of Inheritance divided ?

A. Into Fee Simples , and Fee Tayle .

Q. How are Fee Simples divided ?

A. Into Fee Simples absolute , and Fee Simple Conditionall .

Q. What is an absolute Fee Simple ?

A. When lands are given to me , and to my heires for ever .

Q. What is a Fee Simple Conditionall ?

A. When Lands are given to me and to my heires for ever , upon Condition I doe such or such a thing , &c.

Q. How are Estates Tayle-divided ?

A. Into tayles generall and speciall , and into Tenant in tayle after possibilitie of issue extinct .

Q. What is an an intayle generall ?

A. When lands or tenements are given to I S. And to the heires of his body lawfully begotten or to be begotten .

Q. What is an intaile speciall ?

A. When lands or tenements are given to a man , and to his wife , and to the heires of their two bodyes between them lawfully begotten .

Q. How is tenant in tayle after possibilitie of issue extinct ?

A. When lands are given to a man and his wife , and to the heires of their two bodyes between them lawfully begotten , if the man or wife die without issue betweene them , the Survivor is Tenant in tayle after possibility &c.

Q. Is such a Tenant punishable of wast or noe ?

A. Noe , hee is not punishable of wast , yet hee may forfeit his Estate by granting a greater Estate to another then he hath himselfe .

Q. May other Tenants intayle forfeit their Estates ?

A. Noe , unlesse they commit Treason .

Q. How is Francktenement divided ?

A. Into foure parts , viz. tenant by Curtesie , tenant in Dower , tenant for his owne life , and tenant for another mans life .

Q. How are chattells divided ?

A. Into reall and personall .

Q. What is a chattell reall ?

A. A terme for yeares , the ward of lands , and tenant at will .

Q. What are Chattells personall ?

A. All manner of Goods , Corne , Cattell , Housholdstuffe , and vtensills whatsoever .

Q. How doth a Fee simple in lands or Tenements passe from one to another ?

A. It may passe by a Fine , or by Deed , in raysing of a vse upon valuable considerations , or by deede with Livery of seisin , or or by a will in writing sealed since the Statute of Wills , or by a Deed without livery , inrolled within sixe Moneths after the date therof by the Statute in the 34 yeare of H. 8 and by a Reversion in fee by Atturnement . But of things incorporate , there can be no Actuall livery , but they passe by grant in writing onely , or by lineall discent .

Q. May Tennant in fee Simple convey his lands and tenements from his wife and heire ?

A. Yey that he may , to whom and by what Estate hee will , except it bee in mortmaine , contra statutum in the seventh of Edward the first , and excepting such right & Dower as his wife hath in the said lands .

Q. May be charge these lands ?

A. Yes , either by a yearly Rent with Clause of distresse , which is called a Rent-charge , or by an Annuity , or by statute , and also if he dye , these lands shall bee assetts to pay his debts .

Q. Is there no forfeiture of these lands ?

A. None , except hee commit felony or treason .

Q May they any way escheate ?

A. Yes , if the tenant die without heire generall or speciall , then the Lord of whom they are holden shall have the same by escheate .

Q. What is the law sithence the statute in such cases .

A. If at this day there bee Lord and Tenant in fee Simple by Chivalrie and twenty pence rent , If the Tenant enfeoffe and Estranger of the said land , the Estranger shall hold of the Lord by the said services and rents as the Tenant did hold , and the Feoffer or seller , shall bee excluded , and be not meant at all .

Q. What if the said Tenant maketh a Feoffement of the said land to another without expressing to whose use ?

A. Then it shall bee to the use of the Feoffer and his heires , except a valuable consideration bee given for the land , then it shall bee to the use of the Feoffees .

Q. What if the Tenant sithence that statute doth enfeoffe a stranger of part of the land ?

A. Then the stranger shall hold of the Lord per paticular Morum , viz. the Rent shall be apportionated .

As if there be twentie Acres of land , and twenty shillings Rent , the Purchasor shall hold by three shillings Rent for three Acres .

But if there be an entire service , that cannot be apportionated , as a horse , a hawke &c. The Lord shall have the whole .

Q. What if the purchase be of the moyetie of of the whole land ?

A. There shalI bee noe apportionallment of the Rent &c.

Q. What if the Lord sithence that statute purchase parcell of the tenencie ?

A. By that purchase all the entire annuall services be extinct , except it be for the profit of the Comonwealth , then it remaineth , otherwise it is extinct . For that purchase read Bruertons case in the sixt part de lo : Cooke .

Q. What if the Lord purchase parcell of the land where the Rents and services are apportionated .

A. Then the rents and services shall be apportionated .

Q. Put a Case thereof ?

A. If there be Lord and Tenant of six Acres of land by six pence rent , and suite of Court , if the Lord purchase two Acres , the Rent shall bee apportionated ; but otherwise if the rent and services be entire , as suit of Court , homage &c. Extinct .

Q. What if these entire services come to the Lord of part of the land by the meere Act of God , or of the law ?

A. Then the intire services shall remaine to the Lord .

Q. Put a Case of that ?

A. If there bee Lord and Tenant of foure Acres of land , by a Hawke , homage , suit of Court , and herriot , in this case , if one of these Acres discend to the Lord , the whole services remaine .

But if the Lord had purchased the said Acre , or released to the Tenant the services of the said Acre , all the services alwaies are extinct .

Also in this case , if the Tenant doth enfeoffe any Estranger of one of those Acres , the Feoffee shall hold the whole services .

But otherwise if the services may bee apportionated , as of Rent , Common , or Perper , &c. And thereupon are great diversities betweene Rent-service and Rent charge

Q. What apportionallment is there of Rent-Charge ?

A. Rent Charge is now at this day as Rent service was before the statute . That if the partie that hath the Rent , purchase any part of the land charged , the whole Rent is extinct .

Q. May a tenure be reserved upon a gift in tayle sithence the said statute ?

A. Yes , looke how a Tenure may be created and reserved upon lands and tenements in fee Simple before the statute , so it may be of lands given in the tayle sithence the said statute .

Q. What if the Donor reserveth noe service upon the guift in tayle ?

A. Then the Donee shall hold by such services as the Donor holdeth over .

Q. How is this to bee understood ?

A. Where the Reversion in fee Simple remaineth in the Donor .

Q. What if the Reversion be granted over ?

A. Then the Grantee thereof shall hold his Reversion of the chiefe Lord .

Q. Is the King tyed by the statute of Quia emptores terrarum ?

A. Noe , the King is not Subject to that statute .

Q. Vpon what things may a tenure bee reserved ?

A. Properly upon a Feoffement , or gift in tayle , in lands or Tenements , and of Corporate things , into which may be an Entrie or manuall occupation .

Q. Of what things may noe tenure bee reserved ?

A. Vpon incorporate things , as Courts , Rents , Wayes , Piscaries and such like .

Q. Of what things in nature must the tenure bee ?

A. Of things which are either profitable to the Feoffer or Donor , or to the commonwealth .

Q. May the service upon the tenure be reserved to be done by an estranger ?

A. They cannot properly be so reserved .

Q. Can the Tenant hold his land by two tenures ?

A. Noe , one parcell of land cannot bee holden by severall tenures .

Q. What tenure and service may be reserved upon an Estate of franktenement ?

A. Commonly upon an Estate of franktenement nothing is reserved but Rent , and to that Rent fealtie is incident by proper Right .

Q. What is Franktenement ?

A. In estate for ones life , or for another mans life .

Q. How doth it passe ?

A. Either by writing , or by paroll , and upon the same generally there must be a livery of seisin .

Q. How many maner of Estates for life are there .

A. There are foure , Tennant for his owne life , for another Mans life , Tenant in Dower , and by Courtesie .

Q. Have these like power as the other Tennants have .

A. Noe , the said Tenants for life , and tenants for yeares , may not grant a greater estate to another of the said lands , then he hath himselfe , nor may not commit wast , nor charge , nor incumber the said lands , longer then they have estate therein .

Q. What doe you call wast .

A. Wast is properly any thing that is done , or committed in the said land to the disinheriting of the lessor , or of him in the reversion .

Q. Who shall punnish wast or forfeyures .

A. He that is next in reversion or remainder in the said land of an Estate of inheritance .

Q. By what law .

A. Tenant in Dower and Tenant by the Curtesie , before the statute of Gloucester , and the rest by the Estatutes .

Q. What call you a Reversion or Remainder ?

A. The estate that dependeth , and is to come in possession after these particular Estates ended .

Q. How doth a Reversion passe , sithence there can be noe livery of seisin without licence of the Terre tenant ?

A. It doth passe properly by deed in writing , and Atturneyment of the particular Tenant , or by fine , &c.

Q. How doth a Remainder passe ?

A. Alwaies it beginneth with the particular Estate , and dependeth upon the same , otherwise it is commonly not good , unlesse it be by devise , or will , and it must begin when the particular Estate endeth ; or or else it is naught .

Q. Put me a case upon that point ?

A. If a lease be made to I. S. of Certaine lands for life , the Remainder thereof to the right heires of I. N. this is a contingent Remainder , for if I. S. dye in the life of I. N : the Reversion thereof is void , otherwise if I.N. dye in the life of I S : and hath an heire , then the remainder is good .

Q. What difference is there between a Reversion and remainder ?

A. Great difference , The Reversion is the remnant of the Estate , that the Donor or leasor reserveth in himselfe , and passeth not with the particular Estate .

But the Remainder alwaies passeth with the particular Estate at the first Creation thereof , but being created , may passe as a Reversion without the particular Estate . Also he that cometh to lands by Remainder , cometh in as a Purchasor , and shall not bee in ward , but the other in reversion may be in ward .

Q. What other Estates are there unmentioned .

A. There is Tenant by the statute Marchant of the staple , Tenant by Elegit , Tenant for yeares , Tenant at will , and Tenant by Sufferance .

Q. Doth an action of wast lye against these Tenants .

A. Noe , but onely against tenant for yeares , and he is subiect unto the like law , as tenant for life is .

Q. May an estate of Remainder depend upon an Estate for yeares ?

A. Yes , very well , and then if the Remainder be for one life or more , there must be livery of seisin made to the tenant for yeares at his first entrie .

Q. If Tenant for yeares dye , who shall have his terme .

A. If he doe not grant it in his life , nor devise it by his will , his Executors or administrators shall have the same .

Q. How may it passe .

A. Either by writing , or by paroll , and it shall be assetts to pay the owners debts if he dye possessed thereof .

Q. What doe you call assetts ?

There is assetts intermaines which is goods and Chattells of the Decedent , and there is assets per discent , which is land in fee Simple , and both these shall be liable to pay debts so farr as they will goe .

Q. What doe you meane by devise or will ?

A. When lands , goods , and Chattells , are devised or given by the last will and testament of any .

Q. May lands be so given without licence ?

A. Yes they may , sithence the Statute of wills . 32. H. 8.

Q. How was the Law before that Statute ?

No man before that Statute could give Lands or Tenements by his Will in writing , to make an Estate of franke tenement or upwards , unlesse the same were in use , viz. in the hands of the Feoffees .

Q. How is the Law sithence that Statute ?

A. Sithence that Statute a man may devise all his lands in soccage , and two parts of his lands holden in Knights service .

Q. Why may hee not devise the other third part ?

A. Because it ought to descend , that the lord be not defrauded of his Tenure , viz. Ward , Marriage , &c.

Q. How be Wills made ?

A. Either in writing , or else without writing , and then it is a Nuncupative Will ; but no Estate in Lands for life , or upwards will passe by a Will Nuncupative , which is without writing .

Q. What generall learning is else of wills ?

A. The last Will is alwaies of force , Quia voluntas est ambulatoria & non consummatur vsque ad mortem Testatoris , and then the intent of the devisor shall be much taken therin , as far as the words will extend .

Q. What doe you meane by the words use ?

A. I distinguish it thus , That before the Statute of 27. H. 8. one man might have the lands , and another the use of the same lands .

Q. What did invent those vses ?

A. Two things , viz. feare and fraud ; feare in the time of War and troubles , and fraud to defeate the lords of the fee and Creditors .

Q. How many manner of vses are there ?

A. Two viz. in Esse , and to come in contingencie .

Q. How in Esse ?

A. Either in possession , or reversion , or remainder .

Q. How in contingencie ?

A. Uses which may come and after be in possession , reversion , or remainder , if they be not cut off or barred .

Q. What things are incident to those vses ?

A. Confidence in the persons enfeoffed and purity in estate .

Q. Did they good or harme in Common Law ?

A. They did more harme then good , whereupon diverse Statutes were enacted , as 1o R. 2. the 4. H. 4. 1o H. 7. the 11. H. 7. and 1o R. 3. were ordained to suppresse the mischiefes that vses brought in .

Q. Were those mischiefes remedied by those Statutes ?

A. No , they were not , untill the Statute of 27. H. 8. by which statute uses were transferred into possession , so that now upon creating of an use , it is presently turned into possession , and the the Feoffees are but conduit pipes to leade the uses .

Q. How was it before that statute ?

A. Before that statute , he that had the possession , viz. the Feoffes might sell the land from Cestui que use , and he had but his remed in the Chancerie .

Q. Are there any uses now in law .

A. Yes , but they are transferred ipso facto into possession , & hereupon the Feoffee is excluded .

Q. Why are they used .

A. Properly to estate wives , for the husband cannot enfeoffe or grant Immediately to his wife , because they are but one person in the law .

Q. How must such an Estate be made ?

A. The husband must enfeoffe two or three to the use of his wife for life , or otherwise .

Q. Why must he infeoffe two at the least ?

A. Otherwise one Feoffee hath such an estate thereby , that his wife cannot have her Dower .

Q. May not the subject hold lands of ●… he King ?

A. Yes , all the lands of England are holden either mediately or immediately from the King as Lord Paramount ▪

Q How may they bee holden of the King ?

A. By Knights service in Capite , by soccage in Capite , by Knights service won in Capite , by soccage won in Capite by grand serjeantie , and by pettie Serjeantie .

Q. What difference is there in these Tenures ?

A. Many great differences . All lands holden in Capite in Chivalry , doe draw ward , Marriage , and reliefe , viz. a Knights fee is fiue pound , and so ratably , and it causeth all other lands holden of measne Lords to be in ward . Also the tenant cannot grant these lands for life , or for any other higher estate without license of the King , nor his wife cannot marry without license , and if they doe , they shall answer the King measne profitts . And if a Tenant enter , and sell without license , he must pay for his licence one yeares profit thereof . But to have a license before he enter , and sell , is but the third part of one yeares profit . Also the heire having been in ward , when when he cometh to full age , must sue livery , which will cost him one yeares profit . And if he be at full Age at the death of his Ancestor , then he must have a primer seisin , which is of like charge .

Q. What if it bee holden in soccage in Capite ?

A. That draweth not ward &c. nor any other lands , and the Reliefe is one yeares rent , but the tenant must sue his livery or primer seisin of those lands onely .

Q. What of lands in Knights service onely ?

A. That draweth onely ward , Marriage and reliefe , onely for that land , in case of a common person , but that the King must have his Prerogative without Prioritie or posterioritie .

Q. What doe you meane by prioritie ?

A. That if a common person holdeth severall lands of two Lords by Knights service , the eldest tenure , viz. he that made the first Feoffement , which is not so in the Kings case .

Q. How may one otherwise hold of the King ?

A. He may hold by grand Serjeantie , and by pettie Serjeantie .

Q. How doe they differ ?

A. Grand Serjeantie is Knights service and more , for the reliefe thereof is the value of the land by yeare , and Pettie Serjeantie is soccage in nature .

Q. Put a case thereof ?

A. He that holdeth of the King to find a man to serve in the warrs by forty daies at his own cost , holdeth by grand serjeantie ; But he that is to find a horse , or such a thing , to serve as aforesaid , that is pettie serjeantie , because it ●… s not to be done by a mans body .

Also the tenant may hold of the King , or of a common person by Escu●… ge , Homage , Ancest . Or by homage , feal●… ie , and suit of Court .

Q. What is the meaning thereof ?

Put me a case thereof ?

A. Escuage uncertaine is Knights service , and Escuage certaine is soccage . Homage Ancest . is alwaies between the Feoffor and Feoffee and their heires ; the other Homage is sometimes joyned to Knights service , and sometimes to soccage . And fealtie is alwaies incident to all manner of Tenures and Estates .

Q. Of what nature are these services ?

A. Some of them are valuable , and some not .

Q. Upon what cause were they reserved ?

A. To keepe a knowledge between the Lord and tenant in liew and recompence of the land .

Q. What remedy is there if the tenant doth not his service ?

A. The Lord may of common right distraine for them , and if the tenant die without heire generall or speciall , or be attainted , the Lord shall have the land by Escheate , as having noe tenant to doe his service . And thus much briefly of Estates , tenures , and service .

Q. Why hath the Lord the ward of the t●e body and lands of the heire being not twenty one yeares of age ?

A. Because if the land be given to the tenant to doe service of Chivalrie , and when the tenant dyeth , his heire being within age , for that such a tenant cannot doe the service , the Lord will have the body and land untill he come to age .

Q. When shall such an heire he said to be in ward ?

A. When the Father dyeth seised of lands holden in Knights service and his heire being a sonne , and within the age of one and twenty yeares , and if it be a daughter , within the Age of fourteen yeares , the Lord shall have the ward untill sixteen yeares by the statute law .

Q. Why if the Father die seised but of a Reversion of the said land , an estate for life or yeares then being on foot ?

A. The heire shall be in ward for his body .

Q. Is it so if the Father die seised of a Remainder ?

A. Noe , the heire there shall not be in ward , if the tenant for life be living .

Q. What other difference are t●ere ?

A. If lands holden in Knights service come to the heire by discent , hee shall be in ward , but if it come by purchase , he shall not be in ward .

Q. Put a case thereof ?

A. If the Father and Sonne purchase lands , holden as aforesaid , to them , and to the heires of the Father , and the Father dyeth , the Sonne within age shall be said to bee in by purchase , and not by discent , and shall not bee in Ward . But by the Statute in the 30th . of Hen . 8. If it be holden by the King , hee shall be in Ward .

Q. When shall the heire be said to be out of ward ?

A. If it be a Male , when hee accomplisheth the age of twenty yeares ; if it be a Female , she must be full fourteene yeares at the death of her Ancestor , otherwise the Lord will have her Ward untill she be sixteen by the Statute .

And also , if the heire being in Ward , and within age , be made a Knight , then he shall be out of Ward : But otherwise if he be made a Knight in the life of his Father .

Q. What is the Lord to have by his Tenant when hee cometh to full age ?

A. He is to have the value of his Marriage , if hee doth not take a wife during his Nonage , and the double value of his Marriage , if hee take a wife during his Nonage , and the double value of his Marriage , if hee take a wife during his Nonage , if the Lord tender him a wife without disparagement . But note that the first tender is not materiall .

Q. How shall that value be tryed ?

A. By a Jury , sworn to try and value the same .

Q. Shall the heire in Soccage within age be in ward ?

A. Yes , untill hee come unto the age of fourteene yeares , and then the Guardian is to account unto him for the profits of the said lands , and after the age of fourteene yeares , hee is to take the profits of his lands by his Procheni amie . But the Guardian in Chivalry is not so to doe , but to have the Ward of Body and Land to his owne use untill the age aforesaid .

Q. Who ought to have the wardship of the heire in Soccage ?

A. If his Lands doe descend unto him by the fathers side , his next Uncle or friend on the Mothers side , to whom the Land may not descend ; Et sic è converso .

Q. What is the reliefe of lands in Soccage ?

Ans. The value of one yeares rent .

Q. What if a man bee disseised of his lands and tenements , or dispossessed of his goods and chattels , what remedy hath hee in Law ?

A. His remedy is either to enter into the Lands and Tenements , if his Entrie be congeable , as if there bee no discontinuance nor discent cast ; or else to bring his Action , and so to recover the same by course of the Law , upon every which Action there is a proper and speciall Writ ordained .

Q. How many manner of Actions are there ?

A. There bee Actions reall , and Actions personall , and Actions mixt .

Q. What doe you call Actions reall ?

A. Some are possessory , and some are ancester , the first being where the plaintiffe hath been seised , and is disseised , and the other where the plaintiffe was never seised , but some of his Ancestors , whose next heire he is .

Q. What shall the plaintiffe recover in reall Actions ?

A. In a reall Action the Plaintiffe shall recover the thing in demand .

Q. For whom , and against whom doe these Actions lye by Law ?

A. Alwaies by , or against Tenant for life .

Q. Shall the Plantiffe in these reall Actions alwaies recover Costs and Damages ?

A. In some of these Actions he shall , in some not .

Q. How shall he know what Action doth lie properly for every demandant ?

A. That is great learning , and a long discourse .

Q. Let me somewhat understand it in generall .

A. First you must note that there are some Writs onely for Tenant in Fee Simple , as a Writ of Right , of Ayel , Besaiel , Cozenage , nuper obiit , and such , like as Natura brevium will shew thee .

Also , there are some Writs onely for Tenant in taile , and the Donor , as a Formedon in remainder , discender , & in reverter .

The first for Tenant or heire in tayle , the second for him in the Remainder , when there is noe heire , and the intayled land ought to come unto him by his Remainder .

And for the Donor , when both the other doe faile , and for want of heire or remainder , the land ought to revert or come back to the Donor .

And some other wtitts doe lye for Tenant for life , against Tenant for terme of life , and the writt of Novell Disseisin , and all the writts of Entrie in degree as the case lyeth , viz. that the writt of Entrie sur disseisin , the writ of of Entrie in the Per , Cui , and Post , and in all these damages are to be recovered , and not commonly in the former .

Q. How are these and the former to be tryed ?

A. The writt of Right being the highest writ in nature , lyeth where all the rest fayle , and is to be tryed by battle and grand Assise ; and the issue is by joyning the mise upon the meere right , and the rest are to be tryed by verdict of twelve men , unto which the parties may have their due Challenge .

Q. What is the nature of actions personalls ?

A. It is for the most part to recover Costs and damages for the thing in demand , and are to be tryed by verdict as aforesaid .

Q. Recite some of these writts for actions personall ?

A. There are many , as a writ of trespasse , of debt , Accompt , Deceipt , Detynue , Covenant &c. vide Natura brevium .

Q. How else doe the reall and personall actions differ ?

A. In reall actions , the land must be summoned and the view taken . But in personall Actions , the person of the Defendant must be summoned .

Q. What are actions mixt ?

A. They are part in realtie , and part in personaltie .

Q. Recite one thereof ?

A. There is the Action of wast , in which the place wasted , shall be recovered and treble damages .

Q. How and by whom are these trialls to be executed in law ?

A. They are executed two wayes , either by Judges , which ought to be twelve , or by Iurors lay men , which ought to be twelve and Freeholders .

Q. When by the Judges ?

A. When the Councell in law of both sides doe demurre in law , that is , resteth upon a meere point in law , that shall be tryed by Judges .

Q. When by a Iurie .

A. When the said Lawyers joyne upon an issue in fait which must be tryed juxta probatum & allegatum , viz. by evidence and witnesses .

Q. Where shall the tryall in fait bee ?

A. In that County where the Iurors may take best notice of the matter ; nam ibi semper debet fieri triatio ubi Iuratores Meliorem possunt habere notitiam .

Q. How is that meant ?

A. As when one is robbed in one Countie , and the goods are found in another Countie , or wounded in one Countie , and dyeth in another Countie , sometimes the Counties shall joyne together if they may .

Q. You have reasonably satisfied mee in this matter , perceiving thereby that the law is the life and sinewes of every Common-wealth . But what doth your law consist of ?

A. It consisteth of a positive law , of Custome , and of statute .

Q. What doe you call the positive law ?

A. That which was the first law , before Customes or statutes did alter the same .

Q. Shew me some example of your positive law ?

A. There is a positive law in England , that a discent doth toll an Entrie , that between some Tenants the survivor shall have the whole , if noe act be made to the contrary , that the eldest sonne shall inherit , and all the daughters by equall portions . Et sic de ceteris .

Q. What doe you call Custome ?

A. Custome may be in free land or in Coppiold land .

Q. How in the one and how in the other ?

A. By the Custome in certaine Burroughs which is called Burrough English , the yongest some shall inherit . And in Gavelkind all the sonnes , & sic de ceteris .

And in Copyhold land the words sibi et suis doe create an estate of inheritance , and the wife of a Copyholder that dyeth seised of his Copyhold lands shall have her free Bench during her widdowhood .

Q. How are these customes maintained ?

A. The life of a Custome is use and continuance , so that it be not altogether against reason .

Q. What doe you call your Statutes ?

A. Acts and Lawes , which are established by Act of Parliament , by the King , the assent of the Lords Spirituall and Temporall , and the Commons of the Realme .

Q. To what end are they made ?

A. They are made generally either to abridge the power of the Common-Law , or else to enlarge the same .

Q. Was the Common-Law defective before these Statutes ?

A. No , not altogether defective , but the Law hath been by great wisdome altered , or at least increased , or abridged , according to the offences of the Subjects growing and increasing from time to time .

Q Shew me some examples thereof ?

A. At the Common-Law , the counterfeiting of the great Seale of this Realme was Felony , and now by Statute it is Treason . So the cutting of a purse was but Trespasse , and afterwards the losing of his thumbe , and now Felony , and so of divers other things .

Q. Have these Statute Laws amended or paired the Common Law ?

A. Where it hath not altered the positive Law , but hath onely increased or decreased the punishment thereof , it hath done great good , but where it hath altered the Common Law in substance , it hath done great harme .

Q. Shew me an example where a Statute hath altered the Common Law ?

A. Amongst others , I will speak only of the Statute of Westm . the second , of Entailes .

Q. Did that Statute good or harme ?

A. In my opinion much more harme then good to the Common-wealth and Subjects .

Q. Shew me some of the conveniences , and inconveniences .

A. The first cause of that Statute was to continue lands in the issue in taile , or in him in remainder secundum voluntatem Donatoris , which now may be cut off by fine and recovery .

Secondly , if the Father dye farre in debt , these lands will not bee liable to pay his debts , and thus sometimes the Creditor is undone , and many times defrauded .

Thirdly noe man can take any good Estate from the Tenant in Tayle contrary to the statute of 2. H. 8. But he must be at the charges of a fine and Recovery , whereby the estates of poore men are defeated .

Fourthly , if the Father commit felony , the sonne shall have the lands ' which is an encouragement to evill .

All which as it standeth in my opinion , hath brought more harme then good , as Purchasors defeated , leases evicted , Estates and grants upon good considerations avoyded , Creditors defrauded , offendors emboldened , and divers other inconveniences .

Q. I understand this , and the law in the same sort in the rest . But how may estates in tayle be cut off contra voluntatem Donatoris , and I will trouble them no more ?

A. Alwaies the donee in tayle in possession , by a gift in tayle by his Ancestor , by a fine duly executed may cut off that intayle , and conclude parties and parties viz. those who are parties to the same fine , and their heires .

If it be with Remainder over to persons named in the deed , then there needeth a fine with Recovery to make it sure , yet the fine is good as long as the first Donee hath issue living , and doth binde him in the remainder , if he maketh not his claime within five years after his title accrued .

But by a Recovery with a fine it is barred presently after the perfecting .

Q. How must this fine and recovery bee sued out ?

A. First there must be a Recognition of the Sellor , which is the Conizor by Dedimus potestatem , or in the Common Pleas before the Judges to the Buyer called the Cognizee , of the nature and quantity of the land , and then finished accordingly to make him Tenant of the land . Then take a Praecipe quod reddat , or a Writ of Entrie in the Post , must be brought by two strangers against the said Tenant , and he must vouch the Conizor , viz. the Tenant in taile , and hee must appeare by Atturney or in person , and vouch the common voucher , and so the Tenant to hold in quiet possession , and the Conizor , or tenant in taile to recover over so much land , and this recovery over ( so pursued ) is the reason of the Law , & called the double Recoverie .

Q. What is the single Recovery ?

A. Such a Praecipe or Writ of Entry in the Post must be brought against the Tenant in taile , and hee must vouch the common vouchee , which must appeare as aforesaid , and confesse the warrantie .

Q. Why is this not so good as the other ?

A. Because it behoveth there the tenant in tayle to be seised of the state taile at the time of the Recovery ; for if he be seised of any other estate at the time of the Recovery ; as if hee first discontinue the taile , and so bee seised of a Fee Simple at the time of the Recovery , then the Recovery is voyd .

Also a Collaterall warrantie from the Ancestor of the Tenant in taile , which Ancestor dying without issue , and the said warrantie descending upon the said issue in tayle , is a bar also of the tayle , if he maketh not his claime in the life of his said Ancestor .

Q. If the Remainder aforesaid be in the King , shall the King bee barred as aforesaid ?

A. This was somewhat doubtfull before the Statute of 34 & 35 Hen . 8. But sithence that Statute it is no discontinuance of the tayle , nor bar to the Tenant in tayle , nor to the King in Remainder ; yet the Law maketh a difference at this day , if the King give lands in tayle , with the Remainder or Reversion in the King , a Fine or Recovery will not bar that Entayle .

But if a common person give lands in tayle without a Reversion or Remainder in the King , that entayle may be cut off by a Fine and Recovery . And so the difference is , when the gift is from the King , and when from a meane person . And thus much generally of entayled lands .

Q. I pray you put me some more difference between the Prerogative and grant of the King , and of a meane person ; and first touching his person ?

A. First the Kings Majesty hath two bodyes , viz. a Naturall and a Politique body .

Q. Where , and when hath he a Politique body ?

A. For three causes , viz. Causa Majestatis , necessitatis , & utilitatis .

In the first hee cannot give , nor take , nor grant but by matter of Record .

Secondly to avoid inter-Regnum and Nonage , &c. That body cannot dye .

Thirdly , to take lands by discent , and in that case the halfe blood cannot hurt . Vide Cooke , Calvins case .

Q. What is the meaning of all this ?

A. That the King or Queen of England in their politique bodies cannot be disabled , as by death , Nonage , Marriage , or any such like , as a common person may be .

Q. What of his naturall body ?

A. He may have lands by discent and purchase as a common person may doe by way of Remainder or matter of Record .

Q. What is his Prerogative in grants made unto him , and in grants made by him ?

A. It is a ground in Law , quod nemo potest plus juris ad alium transferre quam in ipso est . And further , nothing can passe from the King , nor for the most part to the King , but by matter of Record , viz. by Letters Patents under the great Seale , and that the King cannot passe any thing by livery of seisin , nor by matter in fait , nor cannot disseise , nor be disseised .

Also it is a Maxime in Law , quod nullum tempus occurrit Regi , that there shall be no Laches nor Estopples in the King for any right or title contrary to his expresse grant .

Q. Then it seemeth that grants made from the King shall be taken strictly ?

A. Yes , the King must not bee deceived in his grant , and the thing must bee named , and expressely set downe ; for things not named will not passe by this word Appurtenances , and the grant shall not bee taken strictly against the King , nor largest for the Grantee , as in a common persons case .

Q. What things in a common persons case will passe by this word Appurtenances ?

A. An Advowson appendant , common appendant , or appurtenant , and by reason of Vicinage , wayes , and such like .

Q. What things may passe by the grant of another thing , as incident thereunto ?

A. Many things may passe by the grant of another thing without speciall naming of the same .

As a Rent by the grant of the Reversion . By grant of a Mannor , the Hundred Court or Leete , and the services . By grant of a Faire , the Court of Pypowder , and many things ese in the same nature .

Q. Which be things corporate and incorporate ?

A. Things Corporate are whereof there may be an Actuall possession , and entrie there unto , as of a Mannor , a house , lands , tenements , and such like .

Q. Which be things incorporate ?

A. Things incorporate are rents , Courts , services , Common , and such like , and these may be appendent , appurtenant , or belonging to corporate things , as lands and such like .

Q , What doe you call Common ?

A. It is the depasturing of one mans Cattle in the lands of another man , in which the commoner hath no estate , but it is according to the nature of the common claymed .

Q. How many sorts of commons are there ?

A. Fower , Common appendent , appurtenant , ingrosse , and by reason of vicinage .

Q. How doe they differ ?

A. Many wayes , Common appendant and by reason of vicinage cannot be but by Prescription , time out of minde , but the other two may begin at this day .

Also Common appendant belongeth properly to arrable land , or to meadow , or pasture that was anciently arrable land , and it must be used with such Cattle as are levant and couchant upon the same lands , viz. the same both in summer and winter , and with such Cattle as may hide and gaine the lands , viz. eare and muck the said lands , and not with hoggs , goates or geese .

But if the Commoner purchase any part of that land , or the tenant sell any part thereof , the common shall be apportioned ; But if the commoner buy alI the said lands by an equall estate , with the commoner , the common is drowned , and common appendent cannot be severed or granted from the land , otherwise of appurtenant . But if the Commoner appurtenant purchase any part of that land , the whole common is extinct , because it is against common right , and common appurtenant may belong to any , and for all manner of Cattle sans nombre , so as the usage and clayme of either of these commons sheweth and declareth what manner of common that is .

Common ingrosse may be by grant or prescription to have common in another mans lands with twelve oxen , or or twelve kine or lesse , to a certaine number ; and that may be granted over to another .

Common by reason of vicinage is when two Seignories or Lordshipps , and the Tenants thereof have used time out of mind to common together in in their commons or feilds in the fallow or common time , by reason of their adjoyning , and want of inclosure , and this common is of the nature as common appendant , and the one Seignorie or Lordshipp ; may inclose from the other , and drive or keepe the ones cattle out of the others Seignorie or Lordship ; but the one may not not staffe-drive their cattle into the others Seignorie or Towneship , and the one cannot have an action of trespasse against the other , if the ones cattle wander or voluntarily goe and depasture the others Seignorie or Lordship .

Quaere if the one may inclose part of their said lands from the other , and leave part thereof for common ; vide Tyrinhams case in Cooke . Also none of these commoners can have an action of Trespasse against an estranger which shall doe trespasse there , nor is to take his common otherwise then with the mouth of his cattle . Quaere if the Commoner may trench the ground to loose out the water that hurteth the said land , Stat. 12 H. 8.

Q. Make me I pray you better to understand briefly what Tenant in Dower is ?

A. Dower is such an Estate for the third foote during the wifes life , in all such lands and tenements , as her husband was at any time seized of an estate of inheritance during the coverture .

Q. Is the wife to have a third during her life of all such lands and tenements ?

A. No , he must be sole seized thereof , and not in joynt tenancy .

Secondly hee must have the Francktenement and the inheritance of the said land in the said Baronie , simul & semel during the Coverture .

And thirdly he must be seized of such an Estate in the Coverture , that the child that hee shall beget of the said wife , may by possibility inherit the said lands .

Q. Of what age ought such a wife to be at the death of her husband ?

A. Of the age of nine years .

Q. May the husband by his act any way bar the wife of her Dower ?

A. Yes , in committing of Treason , but not of Felony , by the Statute in the first of E. 6. by laches , entry , suite , and pleading .

Q. May tenants in Dower forfeit their Estates ?

A. Yes , diverse wayes , as other Tenants for life may , and also by elopment from her husband in his life without reconciliation .

Q. May the wife of him that holdeth lands of the King in Capite be endowed by the heire or any other common person ?

A. No , she ought to come into the Chancery , and there make an oath , that she will not marry without the Kings license , whereupon a Writ shall bee directed to the Escheator to endow her .

Q. May the wife have Dower , and also Joynture of her husbands lands ?

A. Noe , unlesse it bee in especiall cases .

Q. When may the wife be at her Election ?

A. If the Joynture be made during the Coverture , then at the decease of her husband , she may chuse the one , or the other , but if it bee made before the Coverture , then shee must be tyed to her Ioynture onely .

Q. Was it so at the Common law ?

A. Noe , but is now so by the statute of 27. H. 7. vide Vernons case in the fourth part of the Lord Cookes reports .

Q. Is tenant in Dower punishable of wast .

A. Tenant in Dower and by the curtesie were punishable of wast by the Common law , and the other particular Tenant by the statute of Marlebridge .

Q. How many Ages of women are there to be observed in law ?

Q. Eight , First seaven yeares in ayde pur fil marrier . Next nine yeares to bee endowed of her husband , if her husband be seven yeares of age or upwards at his death , ten yeares upon ravishment , twelve to consent to marriage , full foureteen to be free from ward untill the age of sixteene , seaventeen to be an Executor , twenty and one to doe all actes .

Q. What doe you call Tenant by the courtesie ?

A. It is when the husband after the death of his wife , is to have an estate for life in the lands of the wife , and whereof she dyed seised of an Estate of Inheritance .

Q. What Estate ought the wife to have in the said lands whereof the husband may be tenant by the curtesie ?

A. She ought to have such an estate as the husband is to have by whom she claymeth Dower as aforesaid . And besides the wife must thereof have a possession in fait , and not onely in law , except it be of an Advowson , or of a rent , but otherwise in Dower .

Q. What else is requisite to make him Tenant by ●h● curtesie ?

A. He must have a child by his wife during the Coverture , that is borne alive

Q. May he forfeit his Estate ?

A. Yes , as tenant in Dower may .

Q. May his wife hurt his estate , or possibilitie of Estate ?

A. Yes , if the wife commit felony before he is intituled to be tenant by the Curtesie , viz. having noe issue , he shall not be tenant by the Curtesie , but otherwise after issue .

Q. What other particular Estates are there ?

A. There is tenant by elegit , statute Merchant of the staple .

Q. What is tenant by Elegit ?

A. It is the Creditor or debtee that hath the moytie of all the lands of the debtor delivered unto him by way of Extent , with all the goods of the said debtor untill the debt be levyed by the statute of Westm . The second .

Q. What is tenant by statute or Recognizance ?

A. It is such a creditor which hath all the lands and tenements of the debtor delivered unto him by Extent , untill the said debts be paid by the yearely value thereof .

Q. What if the land extended grow better and of more yearly profit ?

A. Then the debtor may have an Audita quaerela , and thereupon shorten the Extent and time of payment .

Q. What if the Cognizee purchase part of the said land ?

A. If the Cognizee purchase any part of the said land after the execution & extent , the whole is discharged ; But if it be before the execution , & after the statute acknowledged , it is a discharge for the other Feoffees of the said land . And also if the Cognizor repurchase the said land of the Cognizee , an extent may be sued thereof .

Q. What if divers strangers be severally enfeoffed of the said Land , and an extent be sued against one onely ?

A. He shall have an Audita quaerela to have contribution of the rest . But if the Conizor reserve any part upon such a Feoffement , and an extent be sued onely against him , hee shall have a Contribution . Quaere if his heire shall have Contribution .

Q. What difference is there between these Statutes and an Obligation ?

A. These Statutes binde the land from the time of the acknowledgement , and maketh it liable in whose hands soever it be to pay the Debts . But the Obligation bindeth not the lands nor goods but from the time of the Judgement .

Q. Doth a writ of waste lye against such a tenant ?

A. No Action of waste lyeth against such a tenant , but an action of accompt .

Q. Besides these grounds of Law , and matters before rehearsed , what is the generall learning of making and dissolving of Contracts ?

A. First , it is a generall learning , that there must be in every Contract quid pro quo , viz. Some valuable consideration between the parties to be payed or performed , either presently , or at a day to come , or else some earnest to bee given presently , otherwise the Contract is void ; for ex nudo pacto non oritur actio . And some doubt whether a consideration past , doe make a contract good . Another learning is , that in an Action of Trespasse , quod actio personalis moritur cum persona , and the heire or executor shall not be charged therewith .

Q. You have reasonably satisfied me in generall concerning grants to men , and from men ; Now shew me a little how such Contracts and grants may be discharged and avoyded by the Law by parties consent , and I will make an end ?

A. First , it is a generall ground , Quod nihil est tam conveniens naturali aequitati quam unumquodque dissolvi eo ligamine quo ligatur .

Q. VUhat doe you meane by that ?

A. As there are matters of Record , and in fait , and some matters in fait by writing , and sometime by paroll , the matter of Record generally must be defeated by the like matter , and the matter in writing by matter in writing , and not by paroll , except it be in few cases .

Q. Put me a case thereof ?

A If I enter into a Bond to pay six pounds at a day , I may plead Payment thereof by paroll and witnesses , but otherwise of a Bond without condition .

Also every lease or estate of Franktenement or for yeares , may be drowned by taking an higher estate in the same land at any time after . Also these lesser estates may be surrendred into greater Estates , and the lesser so drowned .

Q. Put me a case thereof ?

A. A lease is made to one for life , the Remainder to another for life , the Remainder to the third in tayle , if he that hath the first estate for life surrender to him in tayle , or in fee , the surrender is voyd , because of the meane Estate for life .

Q. How by Releases ?

A. There it behoveth that he that releaseth hath an Estate in Esse at the time of the Release made , and that he to whom the Release is made hath a Franktenement in the land , or in fait .

Q. Somewhat let me understand the nature of Tythes , and what you call them ?

A. It is commonly the tenth part of the yearely profits which the lay man pays to the spirituall man out of his lands , tenements , and hereditaments .

Q. How many manner of Tythes are there ?

A. Three , viz. temporall , prediall , and mixt .

Q. When began these tythes ?

A. Abraham gave the first tithes to Melchisedeck ?

Q. Did Abraham then give the tenth of his increase ?

A. Many doubt whether it was more or lesse .

Q. May the spirituall man take all those tithes without deliverie ?

A. Noe , although they be severed the ninth from the tenth , but must be set out by the lay man , for Melchisedeck did not take his Tythes , but Abraham gave his tithes .

Q. What remedy had the spirituall man if the lay man would not give his tythes ?

A. He had noe remedie before the statute in 2. E. 6. but to sue for the same in the spirituall Court , for by that statute treble damage are given to the spirituall man , upon wrongfull deteyning or taking away the said Tythes .

Q. Who may prescribe to have tythes or not to pay Tythes ?

A. Noe lay man except the King , or the Patron ought to have Tythes in their owne right , or prescribe to pay tythe . Vide Cooke le second part del Report Ca : Levesque de Winchester .

Q. Are tythes alwayes to be payed proprio genere .

A. Noe lay man can prescribe in non decimando , but in modo decimandi ?

Q. Of what things are tythes properly to be payd ?

A. Out of such things as doe increase and bring a yearely profit , as of Corne , grasse , wood , Cattle , Silva cedua , wooll , calves , and such like .

Q. What Tythes are to be paid in cutting downe of great trees ?

A. None at all , because it is a destruction of the stock , and so it seemeth of all wood above twenty yeares growth .

Q. Where are those tythes to be recovered ?

A. If the right of tythe be in question , in the spirituall Court ; but if the lay man prescribe in modo Decimandi , then upon the libel , he is to sue a Prohibition , alleaging his manner of tithing , and shall be tryed at the common law by a Iury , for the spirituall Court will allow noe such plea , but in proprio genere .

Q. To what Spirituall man is the Lay man to pay his Tythes ?

A. Most commonly to the Parson or Vicar of the Parish .

Q. What ? was it alwaies so ?

A. No , before the Councell of Latecan , the Lay man might have pay d his Tythes to any Spirituall man whatsoever that would take cure of his soule .

Q. Are all payed at this day to the Parson or Vicar of the Parish ?

A. No , some were given out of houses of Religion , as to Abbies , Priories , Nunneries , Chaunteries , and such like .

Q. How happeneth it that Lay men have , and enjoy Tythes contrary to the Law ?

A. That beganne upon Appropriations .

Q. What meane you by that Sir ?

A. It is a Maxime in Law , that the Fee Simple as well of Tythes , as of all other Lands and Tenements , is such in some parsonas the fee simple of tithes in the Ordinary , Patron , or Incumbent , which three together may grant or charge the said Tythes at their pleasures .

Q. What meane you by that ?

A. I meane that the Spiritualit heretofore abounding in Livings , wer content with the Patron for gaine or favour to grant a great part of the Tythes to any Lay man .

Q. What did they usually grant ?

A. Most commonly the Rectory or Parsonage either in Fee simple , or for a long terme , and for a small rent .

Q. How was the Cure then served and discharged ?

A. By that means a poore Vicaridge was hatched out of a great Parsonage , which Vicar in these daies dischargeth the cure , and the Lay man holdeth the residue of the Parsonage .

Q. May such Leases bee made at this day ?

A. No , divers Statutes have abridged their power in such case , and especially the Statute in 13 Eliz . So that they can make no good Lease but for three lives , or one and twenty yeares , according to the Statute .

Q. Now lastly a word or two concerning the quantity of Lands and Tenements , and their speciall names and tearmes in Law , and of all manner of Reliefs , &c. due for the same , and then I shall fully make an end ?

A. First you must note , that two Fardells of Land make a Nooke of Land , and two Nookes make halfe a Yard of Land , and two halfe Yards make a Yard Land , and four Yard Lands make a Hide of Land , and foure , and some say eight Hides make a Knights Fee , the Reliefe whereof is 5.l . and so ratably . And every Knights Living or Revenue heretofore was , or ought to have been 20.l . per annum . And the yearely Revenue of every Baron was , or ought to have been foure hundred Markes . And the yearely Revenue of every Count or Earl 400.l . whereas the Reliefe of a Baron was , and is 100. Marks , of an Earle or Count 100.l . and of every Duke 800.l . So you may note , that the Knights Revenue at the first being 20.l . per annum , the Baron at the first was to have thirteene Knights Fees , and a quarter of a Fee . And the Earle or Count twenty Knights Fees , and the Dukes forty Knights Fees , by which proportion the Reliefes aforesaid were rated , as before is mentioned ; which is the reason that Noblemen ought not to be arrested or attached by their bodies , because the Law doth presume that they have sufficient Lands and Tenements to discharge any Suite .

And they have these Dignities given them by the King for two purposes , viz. ad consulend . Regi tempore pacis , & ad defendend . Regem tempore belli ; in token whereof they are adorned with a Cap of honour on their heads , and with a sword by their sides .

Also there is another reliefe due after the death of the Tenant that holdeth by Grand Serjeantie , and likewise after the death of the Tenant that holdeth in So cage , whereof I have made mention before . And the Reliefe for lands in Soccage is due to the Lord immediately after the decease of the Tenant , of what age soever the heire is . But of the rest , when the heire hath not been in Ward , and is of full age , at the death of his Ancestor , such a Reliefe is due presently after the death of his said Ancestor , being tenant of any such lands , or of any such Estate , as before is mentioned .

Vale . Quicquid agas prudenter agas , & respice finem , Lex plus laudatur quando ratione probatur .

A BRIEFE TREATISE Concerning TENURES & ESTATES in Lands and other Hereditaments , and of Chattells reall and personall .

And how any of them may be conveyed in a legall forme by Fine , Recovery , Deed● or Word , as the Case shall require .

By the former Author W. Noy .

LONDON , Printed in the Yeare , 1651.

A BRIEFE TREATISE Concerning Tenants and Estates in Lands , &c. Hereditaments and Chattells .

THe most part of all such things which the Kings Majestie or any of his Subjects doth or may enjoy , are , according to the tearmes used in the lawes of England , either Hereditaments or Chattells , wee call such things Hereditaments , which are Hereditary , and in a naturall body may discend from Ancestor to heire , Hereditaments Naturall and Politicall . and from heire to heire for ever , or which in a body politique may successively or otherwise have a perpetuall continuance , as Honours , Messuages , Dignities , Priviledges , Liberties and such like . And to some purpose it maketh no matter what estate or interest the party hath which enjoyeth any such thing , for although hee hath therein the basest or meanest estate that may be , yet the name of an hereditament in a thing enjoyed in a natural sence remayneth , because it is in his kind hereditary , and an estate of inheritance hath therein alwaies his beeing in some person , except by some accident in some speciall case it happen to be for a time suspended , or for ever extinguished , as shall afterwards appeare . Grant the interest of all the hereditaments which one occupieth and enjoyeth , doth grant Chattells for yeares also . And therefore he that hath but a tearme of yeares in Lands , granteth his interest in all the hereditaments which hee occupieth or enjoyeth , his interest in the lands is thereby granted ; but yet neverthelesse hee that hath therein but a terme for certaine yeares , hath but a Chattell , and in regard thereof , in common sence it looseth the name of an hereditament of that , in the most usuall and proper sence it retaineth the name of an hereditament onely in such person as hath therein an estate of Free-hold or inheritance . And therefore if a man seised of certaine lands in Fee , and possessed also of other lands for tearme of yeares , doth demise all his hereditaments , to another for certaine years , the lands , wherein the Leassor had but a terme doe not passe thereby no more then they should passe in the same case if the Leassor had demised all his Tenements : and yet in a naturall sence Lands reteine the name of a Tenement and Hereditament , as well in a Termor , as it doth in him that hath therein a Freehold or Inheritance .

Also every Hereditament is either Locall , Transitory , or , Mixt .

1. Locall , Locall . as Messuages , which are vulgarly called houses or lands , be they Arrable Meadow or Pasture , &c.

2. Transitory , Transitory . as Dignities , Priviledges , Liberties , Rents , Services , and such like .

3. Mixt , Mixt . as Honours , or Mannors , which consist of Messuages , Lands , Services , Priviledges , &c.

Rectories or Parsonages when they consist of things Locall and Transitory , as Land , and Tythes , and such like . But a Rectory when it consists onely of Tithes ( as some doth ) is a Transitory Hereditament , and the observation of this difference is very materiall in matter of Conveyance , as shall be hereafter declared . But it seemeth that such things , whereof no estate of Inheritance is , or ever was in being , are not to bee termed Hereditaments . Also if a man seized of lands in Fee simple , granteth out of the same a yearely rent , or common of pasture for life , or for yeares , this rent or common ( as to me seemeth ) is not properly any Hereditament ; because no estate of inheritance is , or ever was thereof in being . But if a man seised of Fee in lands , doth by sufficient conveyance in the Law demise the same to another for terme of his life , & limiteth the remainder thereof to the right heires of a man that is living at the time of such demise , no estate of inheritance is thereof in being in any person whatsoever ; for by the Law the estate of inheritance passeth out of the Leassor presently , and yet it cannot bee in such heire to whom it is so limited , untill the death of his Ancestor ; for untill his death he can have no heire , but the person which is likely to be his next heire , is in the meane time onely termed his heire apparent . Also if J. S. seised of a Rent in Fee , doth by sufficient conveyance grant the same to another for life or for yeares , and after the same I. S. doth release or grant the rent unto him that is Tenant in Fee Simple of the land out of which it is issuing , and to his heires , in which case the inheritance of the rent is extinct in the land ; yet in a common and proper sence during the said estate for life , in the same , and in a naturall sence , during the said estate for yeares , it reteineth the name of an Hereditament : For in both these cases , an estate of Inheritance in the thing demised or granted , had once his being ; albeit by matter Ex post facto in the said case of Remainder , it remaineth in suspence and abeyance for a time , and in the other case extinguished for ever . And in that which followeth , when I speake generally of things Hereditary , or Hereditaments , I meane thereby Hereditaments according to the common sence : Chattels are such things as are not hereditary , but testamentary , as moveable goods , Leases for years , Wardship of lands and body , and such like ▪ And they are called testamentary , as well because by the course of the common Law , things onely of that nature , Diversity . and not hereditaments ( as shall be hereafter declared ) might bee disposed by Will and Testament . As also because after the death of such Testator , the Law doth transferre the same to the Executor of his last Will and Testament for the payment of his debts and legacies ; for untill a Statute made 32 H. 8. Hereditaments were not disposeable by Will , if the Testator had therein any greater Estate than for yeares , except such use as is aforesaid , and Hereditaments that were devisable by Will , by a speciall Custome , and not by the common Law . And the cause whereof an estate of Inheritance of a use was Testamentary by the Common Law , did arise of the same estimation which the Law then had thereof , being lesse than of a Chattell ; for a Chattell was protected by Law against wrongs , but so was not a use apt remedy by Law , being for the one ordained , and not for the other . But it is to bee noted , that albeit other Hereditaments were not Testamentary by the course of the common Law ; yet by especiall custome in some Cities and Burroughs , the Lands and Tenements therein scituate were alwaies Testamentary , in regard of their own nature ; as Chattels were , but sub modo by a speciall custome .

Of Chattels , some are Reall , and some are Personall : Reall , or Personall . Chattells Reall are properly such as doe savour of the Realtie ( viz. ) do consist of such things as are in their nature Hereditary , Wardships of Lands , or of other Hereditaments , Leases , or Interest for yeares , or at will derived out of any thing whereof an Estate of Freehold or Inheritance hath or had a being : Chattells personall are goods moveable , as Goods , Plate , Money , Oxen , Kine , &c. Without life or living . And hereby it appeareth that some Chattels personall are without life , and some living : But it is to bee observed yet , that living Creatures ferae naturae , as Deere , Conies , Hares , and such like , are not Goods or Chattells , except they are made tame . Also Characters or Deeds of any estate of Inheritance or Freehold , albeit they be moveable , are not Chattels . Also Chattels reall , are either Locall , Local . Transitory , Transitory . or Mixt , Mixt . in such cases as is before observed of Hereditaments ; for albeit they are termed chattels , in regard of the feeblenesse of their estates , yet the things enjoyned by force of such interests , are for the most part by nature Hereditaments ; and of these differences in Chattells reall , some profitable use may be made , as hereafter shall also appeare . And it is to be noted that some interests for years are derived neither from any Inheritance or Freehold , but onely from a mans person : As if a man doth by deed create an Annuity for years , without limiting it to Issue , out of any Land or Tenement , the same is derived onely from the person which granted it , who in his life time , and his Executors or Administrators that represent his person after his death , shall bee onely charged therewith ; and therefore as well such interest in an Annuity , as also a Wardship of the body of an Infant , which consisteth of a person , may in a strained sence be termed personall . But albeit the words Gaard . de Terre . in the division of Possessions in the beginning of Mr. Littletons Tenures , doe seem to imply , that Wardship of Body is not to be reckoned in the number of chattels reall ; yet it appeareth by other expresse bookes , that Wardship of Body is no lesse reall then the Wardship of Lands : And therfore such implication as aforesaid , is no proofe , that it is to be reckoned in the number of chattels personall otherwise then in a strained sence ; or things Transitory or Moveable , consisting of any estate ( As Wardships consisting of a terme during the minority of the Ward , or a terme in an annuity , villeine , &c. ) are not properly called chattels personal , but real . Furthermore , because some things which may be enjoyed in forme aforesaid , are neither Hereditaments nor Chattels , It is therefore meet to consider , in what generall those things are comprised : And as to that it is to be observed , that not one-those things which are neither Hereditaments nor Chattels , but also all Hereditaments whatsoever , in every such person that hath therein any greater estate than for yeares , are vouched under the generall name of Freehold , as in the Chapter next following it doth more at large appear .

Franctenement .

WHat is a Freehold , and what is a Chattell , is very lively set forth in the beginning of Littletons Tenures , by the said figure of division of Possessions : whereby it appeareth , that al manner of estates of inheritance , or for life ( bee they estates according to the Common Law , or according to the custome , are comprised in the name of Franctenement ) That is to say , every of them is aptly termed a Freehold within Judgement of Law , is greater than any estate for yeares , though it be made for many thousand yeares , in regard of any probable presumption that estate for life may be more perdurable , than such estate for yeares : but in regard a Freehold , which is proper as well to any estate of inheritance , as to an estate for life , in accompt of Law hath alwaies been had in greater estimation than any estate for yeares ; and for this onely cause a Terme for yeares is subject to a forfeiture by an Utlary in a persosonall action for an offence , wherein the offender is felo de se , Felo de se forfeiteth all Chattels . and such like , but no estate of Freehold ( unlesse it be by some speciall custome ) is subject to any forfeiture of that kinde . The difference between a Franctenement and Chattels being so discovered as is aforesaid ; It seemeth fit to proceed to the consideration of Estates . An Estate is that which in Latine wee call Status ; Diversities . and it may aptly be thus defined , viz. The definition of an estate . An estate is a permanent abode or Continuance for for a time or for ever , in a thing of such nature as either is , may , or might be hereditary , as Mannors , Mills , Lands , Tenements , Rents , Services , Commons , Dignities , Liberties , Franchises , Priviledges , Offices , and such like ; but no estate can be proper to Chattells personall . And for that cause a gift thereof for a momentary time is of like force as if if it were given for ever . But it may be objected that so it may be said of a of a terme for yeares in lands or other hereditaments ( that is to say ) if such a terme be given or granted for an houre ; it is of like force , as if it were given or granted for ever , yet such terme therein is properly called an estate . To which objection I answer , that although the lawe be so in a grant of a terme , which is as much to say , his whole interest in the thing , wherein he is so interessed ( viz. ) his land , and not his terme therein for one houre ; the Grantee shall enjoy it no longer then for the time so lymitted , but otherwise it is of such gift or grant of Chattells personall ; but herein a difference Difference . is to be observed , betweene such a gift or grant of goods moveable , and a demise thereof ; for although a grante for yeares of things properly devisable doth enure as a demise or lease thereof , yet such grant hath not the like operation in a thing devisable ; only in an unproper or borrowed sence .

And therefore albeit a grant of goods moveable for a time , doth alter the property for ever ; yet a demise therof for a time shall only enure as a disposition of the proffits thereby arising during that time . As for example . If a stock of sheepe or kine be leten for certaine yeares , the Leassee hath not thereby the generall property thereof , but onely a speciall interest or property therein , by force whereof he may take the proffit thereof during the terme ; but such interest therein is not properly an estate . And albeit it be vulgarly called a lease of such Kine or sheepe , yet it is not so to be termed , otherwise then in a borrowed sence ; For if a man so interessed therein is likewise possessed of other leases of lands , and granteth all his leases to another , his interest in these Chattells personall , or the profits thereof , will not passe thereby . 1 Generall Of Estates some are Generall , and some Particular , 2 Particular as hereafter appeareth .

Generall Estates .

A Generall Estate is that which wee terme an Estate in Fee Simple , which is the greatest and largest Estate that may be ; and it is divided by Littleton in his first Chapter of his first booke according to the Etymology of the words Fee Simple , which in Latine are called Feodum simplex , quia feodum idem est quod Hereditas , & simplex idem est quod legitimum vel purum , & sic Feodum simplex idem est quod hereditas legitima vel hereditas pura ; and it received the name of a generall estate , not onely because it was the most common and usuall of all other estates ; but also for that in regard of the amplenesse thereof it is exempted from the number of all particular estates .

But yet it is further to be observed , that there be three kindes of Fee Simple ; The first a Fee Simple without any other addition . The second a Fee Simple determinable . The third a base Fee Simple .

The first of these is more generall and common than any of the residue , and it can never perish so long as the substance , whereof the estate ariseth , hath any being . And therefore albeit that hee , which is seised of such estate , happen to to dye without heire , yet the same estate is not extinguished but by act in Law , in some other degree transferred to the Lord , of whom the said Lands were holden by way of Escheate , because the land wherein the Tenant hath such estate , doth still continue ; but if a man seised in Fee of a rent charg , or rent seck , dyeth without heire , this Fee simple , Absolute Conditionall . although it be of the first sort , doth perish , because the rent , wherein hee hath estate , being transitory , is by such dying without heire , quite swallowed up and drowned in the land , out of which it did issue . And albeit a Fee simple of this kinde is sometimes absolute , sometimes conditionall , yet the condition thereunto annexed , doth not alter the same in nature or kinde , but onely in the accidentall quality .

Secondly , a Fee simple determinable is such as may be determined by a speciall limitation before the efluction of the time comprised in the generall and proper limitation .

Thirdly a base Fee-simple is when two Fee-simples in one thing are in being at one time , the one being in nature more worthy then the other . In which case that that is the least worthy , is called a base Fee-simple , because it is base in respect of the other .

There is a generall rule in the law , that none can have an estate lively , but the Donee ; which is the party to whom it is given , or the heires of his body . Every estate of inheritance is either fee-simple or fee-tayle . And it is further to be observed , that every estate of inheritance is either Fee-simple , or Fee-taile ; of the one hath been sufficiently spoken for this time : For the other , some further touch shall be given in the Chapter next following .

Particular Estates .

A particular estate is such as is derived from a generall estate by separation of one from the other ; As if a man seised in Fee simple of lands or Tenements , doth thereof Create by gift , or grant an estate Tayle , or by demise , a lease for life , or any estate for yeares , these are in the Donee or Leassee particular estates in possession , derived and separated from the Fee simple in the Donor or Leasor , in reversion . Also if lands be demised to A. and the estate tayle lymitted to B. these are particular estates derived ut supra , and separated in interest from the Fee simple in remainder given to C. albeit the same remainder doth depend upon those particular estates . And of particular estates , some are Created by agreement betweene the parties , as the particular estates before specified ; and some by the act of law , as the state of tenant entayle , apres possibility , d ' issue extinct , Estates by the Curtesy of England , Dower and wardshipp . For albeit an estate in Dower be not compleate , untill it be assigned , which oftentimes is is done by assent and agreement betweene parties ; yet because the party , that so assigneth the same , is compellable so to doe by course of law ; that estate is also said to be only created by law . Also an estate at will is a kinde of particular estate , but yet not such as maketh any division of th' estate of the Leasor , for notwithstanding such estate , the Leasor is seised of the lands in his demeasne , as of Fee in possession , and not in reversion : Also an estate at will is not such a particular estate , whereupon remainder may depend . But of all the states before mentioned many fruitfull rules and observations are both generally and particularly so lively set forth by the said Mr. Littleton in the 1. 2. 4. 5. 6. 7. and 8th . chapters of his first booke , which is extant aswell in English as in French ; whereunto I refer you .

Possession .

IT is further to be observed , that all estates that have their being are in possession , reversion , remainder , or in right , but of all these possession is the principall , for that it is the full fruition of all the fruite of the estate . There are two degrees of possession , The first and Chiefest possession in fait , Two degrees of possession 1 possession in fait . 2 possession enley . the other possession in law . Possession in fait or deede is such as is before spoken of , and that is most proper to an estate which is present and immediate , but such possession of immediate estate , if it be no greater then a terme ; doth operate and endure to make the like possession of the Free-hold , or Reversson . When a man is said to have a terme , it is to be intended a terme of yeares ; when it is said , a man to have the Fee of Lands , it is also to be intended a Fee simple ; possession in Law , is that possession which the Law it selfe casteth upon a man before any entry or perancy of profits . As if there be a Father and Sonne , and the Father dyeth seised of lands in Fee , and the same doe descend to his sonne as his next heire , in this case before any entry , the sonne hath a possession in Law . So it is also for a Reversion expectant , or a Remainder dependant upon a particular estate for life ; In which case , if Tenant for life die , he in reversion or remainder before his entry , hath onely possession in Law . All manner of possessions , that are not possessions en fait , are onely possessions in Law ; and it is to bee observed , That if a man have a greater estate in Lands than for years , the proper phrase of speech is , that he is thereof seised ; but if for yeares onely , then he is thereof possessed ; but yet neverthelesse the substantive possession is proper , as well to the one as the other .

Reversion .

A Reversion is properly an Estate which the Law reserveth to the Donor , Grantor , Leassor , or such like , when he doth dispose a Lease , or other estate in Law , then that whereof he was seised at the time of such disposition . As if a man seised of lands in Fee , doth give the same to another , and the heires of his body , or if hee doe demise the same for life or yeares , in this case the Law reverteth the reversion thereof in Fee to the Donor , or Leassor , or his heires , because hee departed not with his whole estate , but onely with a particular estate , which is lesse than his estate in Fee : And such reversion is said to be expectant upon the particular estate also , if he that is but a Tenant for life of land by deed or parol , giveth the same to I.S. in tayle , or for terme of his life , which is a greater estate than he may lawfully dispose ; in this case the Law reserveth a reversion in Fee in such Donor , though he were formerly but Tenant for life . And the reason thereof is , for that by such unlawfull disposition , which by deed or word cannot be without livery and seisin , he doth by wrong pluck out the rightfull estate in Fee , that was thereof formerly seised in reversion or remainder , and by force thereof , by a priority of time gained in an instant , he was seised of a Fee simple at the time of the execution thereof . But if a man seised of lands in Fee simple , giveth the same unto A. and his heires untill B. do dye , without heire of his body ; in this case the Law reserveth no reversion in the Donor , because the state so disposed to A. is a Fee simple , which though it be a Fee simple determinable , is in nature so great , as the state which the Donor had at the time of such gift , and consequently he departed thereby with all his estate . And thereby an apparent difference is between a gift made to A. and the heires of his own body , and a gift made to him and his heires untill B. dye without heire of his body ; for in the one case the Donee hath but an estate taile , in the other a Fee simple determinable ; A. hath a possession of reversion ; for if B. dye without heire of his body , then whether A. be living or dead , the land shall revert to the Donor . But such possibilitie of Reversion is much differing from the nature and property of a Reversion ; for he that hath but such a possibility , hath no estate , nor hath hee power to give his possibility ; but in the other case , the Donor hath estate in Fee , and therefore hee hath power to dispose thereof at his pleasure .

Remainder .

A Remainder is a remnant of an estate disposed to another at the time of creation of such particular estate whereupon it doth depend . As if I. S. seised of lands in fee , demiseth the same to B. for life , the Remainder to C. and the heires of his body , the remainder to D. and his heires ; In this case B. hath a particular estate for life , and the remnant of the estate of the Leassor is then also disposed to C. and D. ut supra whereby B. hath an estate for life : C. A remainder in tayle : and D. a remainder in Fee depending in order upon the particular estate in possession ; and in every remainder five things are requisite . 5 things Required in a remainder .

1. That it depend on some particular estate .

2. That it passe out of the Donor grantor or leassor at the time of Creation of the particular estate , whereupon it must depend .

3. That it vest during the particular estate , or at the instant time of the determination thereof .

4. That when the particular estate is created , there be a remnant of an estate left in the Donor to be given by way of remainder .

5. That the person or body , to whom the remainder is limitted , be either capable at the time of the limitation thereof , or else Potentia propinqua to be thereof capable during the particular estate ; If lands be given to I. S. and his heires the remainder for default of such heire , to I D. and his heirs , that remainder is voyd because it doth not depend upon any particular estate . But if land be given to I D. and his heires during the life of I , N. the remainder to I B. this remainder is good ,

No remainder can depend upon a Fee simple .

But upon a particular estate descendable . Nota .

for it is not limitted to depend upon a Fee-simple , but upon a particular estate , which is only called an estate for life of I B. discendable . If lands be given to B. For twelve yeares , if C. Doe so long live , the remainder after the death of C. to D in Fee , the remainder is voyd , for in that case it cannot passe out of the Leor . al temps dl Creation dl perticuler estate pr . ans . But if a lease be made to B. for life , the remainder to the heires of C. who is then living , this remainder is good up-a contingency , That if C. Dye in the life of B. For this remainder may well passe ount of the Leasor , presently in abayance , without any inconvenience , becuse only the inheritance is separated from the Freehold as in abayance .

If lands be given for life with a reremainder to the right heires of I S. and the tenant for life dieth in the life of I S. This remainder is void , because it did not vest or settle either during the particular estate , or at the time of the determination thereof ; for untill I S. dye , no person is thereof , capable by the name of his heires ; but if lands be given to I. S. for terme of his life , the remainder to his right heire in the singular number , and the heires of his body ; and after I. S. hath issue a son and dyeth , this is a good Remainder , and the sonne hath thereby an estate tayle ; for although it were unpossible , that such remainder should vest during the particular estate ; because during his life none could be his heire ; yet it might vest at the instant of his death , which was at the time of his determination of the particular estate . Concerning a fourth thing , if a man seised of lands in Fee , granteth out of the same rent or common of pasture , or such like thing ( which before the grant had no being ) to I. S. for terme of his life , the remainder to I. D. in Fee , this remainder is voyd ; because of this thing granted , there was no remainder in the grantor to dispose . And whereas some heretofore have been of opinion , that albeit the same can take no effect as a remainder , yet it shall take effect as another grant of a new rent or common , ut res magis valeat quam pereat .

There is a rule of Law , that all things enjoyed in a superior degree , A Maxim . should not passe under the name of a thing in an inferior degree : and therefore if lands be given to two persons , and unto the heirs of one of them , or unto the husband and wife , and the heires of the husband , and he that hath the estate of inheritance granteth the reversion of the same land to another in Fee , such grant is voyd , because the grantor thereof was seised in a superiour degree , viz. in possession , and not in reversion , as appeareth 12o . Edw . 4. 12 & 13 Edw . 3. Brooke , Title of Grants . And concerning the fift and last thing ; If a Lease be made of Land for terme of life , the Remainder to the Major and Commonaltie of D. whereas there is no such Corporation then in being , this Remainder is meerly voyd ; albeit the Kings Majesty by his Letters Patents doe create such Corporation during the particular estate , at the time of such grant the Remainder was voyd , because then there was no such body Corporate thereof capable , or in potentia propinqua to bee created or made capable thereof during the particular estate ; but the possibility thereof was then forraigne , and not prabably intended . The like law is if a Remainder bee limited to Io : the Sonne of T. H. who had then no Sonne , and afterwards during the particular estate , a sonne is born , who is named Iohn , yet this Remainder is voyd ; for at the time of such grant , it was not probably to bee intended that T. H. should have any sonne of that name . Also before the dissolution of Abbies , if a lease of lands were made to I. S. for life , the Remainder to one that then was a Monk , such Remainder was voyd , for the cause before alleadged , albeit he were deraigned during the particular estate : but if such Remainder had been limited to the first begotten Sonne of I. S. it had been good , and should accordingly have vested in such sonne afterwards born during the particular estate .

Rights .

A twofold Right . A Right in Law is either cloathed , or naked . A Right cloathed is when it is wrapped in a Possession , Reversion , or Remainder . A naked Right , which is also most commonly called a Right , is when the same is separated from the possession or remainder by disseisin , discontinuance , or other devesting and separating of the possession from it . As for example , if a lease of land be made for life to I. S. the remainder to I. D. in Fee ; in this case I. S. hath a Right cloathed with a possession , and I. D. clothed with a remainder ; but if a stranger that hath no right or title , doth in the same case enter into the land by wrong , & put I. S. forth of possession , such entry by wrong , is called a disseisin : & therefore the possession is moved from the right ; for by reason thereof , the disseisor is seised of the land , and I. D. hath also the like naked right to the Remainder by such disseisin , is likewise devested and plucked out of him , and cannot be revested in him during the right of such particular estate , unlesse the possession of the particular Tenant be therewith revested , which must bee by his entry , or recovery by action , and by such entry of the particular Tenant , or by his recovery with execution , the Remainder shall be revested as well as the particular estate . Also there is a Right in Goods and Chattels , as well as in Lands , Tenements and Hereditaments , which is also clothed with a possession , so long as the rightfull proprietor hath the same , but if another doth take them from him by wrong , he now hath onely a naked Right to the same , which cannot be by him granted for the cause before alleadged ; but yet he may release his right therein to him that is thereof possessed ; for the same reason it is before alleadged of a release of Right in Land , and if such right happen to be forfeited to the King , his Highnesse may grant the same by his Prerogative .

Common Recoveries .

A Common Recovery is such as is suffered and recovered by the assent of both parties to the same of any Mannors , Lands , Tenements , Advowsons , Rents , Services , or other Hereditaments for such estate thereof , and to such use or uses as are between them agreed upon ; and it is most commonly suffered by the Writ of Entry sur disseisin in le post . the nature of which Writ is sufficiently set forth by Justice Fitz-Herb . in his book of Natura Brevium , albeit sometimes it hath been , & may be also u-in other actions . And such common recovery is usuall by single , double , or treble voucher , as the cause doth require . And for the better understanding hereof , it is requisite to observe the terms of Law used therein . The immediate party that recovereth , is called the Recoveror ; and the party against whom the Recovery is had , is called the Recoveree ; but in the proceeding therein , hee that is to recover is called the Demandant , and the party against whom the immediate recovery is to be had , is called Tenant ; for it is to be noted , that he must be Tenant of the Freehold , or else the Recovery cannot be a good and sufficient assurance in the Law . A voucher is the calling into the Court of some other person to warrant the land ; and he that first voucheth ( viz. ) he that calleth another to warranty , is the Tenant , and the party vouched termed the Vouchee or Tenant by the warrantie . And in a Recovery with a single voucher , are included two Recoveries , viz. one at the suite of the Demandant against the Tenant , and another at the suite of the Tenant against the Vouchee . And if it be with a double Voucher there are included in it , three Recoveries , one by the demand against the Tenant , one other by the Tenant against the Vouchee , and the third by the first Vouchee against the second Vouchee . And in a Recovery with a treble Voucher , are included foure Recoveries , whereof three are such as are last mention●d & a fourth is a Recovery by the second Vouchee against the third ; and in these Reveries the Demandant hath Judgement to recover the land against the Tenant , and the Tenant hath likewise Judgment to recover in value against the Vouchee ; and if it be with a double Voucher , the first Voucher hath also the like Judgement to recover in value against the second ; and if it be with a treble Voucher , the second Vouchee hath the like Judgement against the third . And the Record also maketh mention of the execution of the Judgement against the Tenant by Entry , or Writ of Habere fac seisinam accordingly . And when such Recovery is so executed , the uses agreed upon , do forthwith arise out of the Lands , Tenements , &c. so recovered accotding to the mutuall agreement of the parties . Recoveries with single voucher . The scope of a common Recovery , with a single Voucher , is to barre the Tenant and his heires of such onely estate taile which then is in him , to barre others of such estates as they have in any Reversion expectant , or remainder dependant upon the same . And of all Leases and Incumbrances derived out of such Reversions or Remainders . The scope of a common Recovery with a double Voucher , Recovery with double vouchcr . is to barre the first Voucher and his heires of every such estate as at any time was in the same Voucher , or any of his Ancestors , whose heire hee is of such estate ; and all other persons of such right to a Reversion or Remainder , as were thereupon at any time expectant or dependant ; and of all Leases , Charges , and Incumbrances derived out of any such reversion or Remainder , and that will be also a perpetual bar of such estate whereof the Tenant was then seised of in reversion or remainder expectant , or dependant upon the same , &c. Recovcry with treble voucher . The scope of a common recovery with a treble Voucher , is to make a perpetuall barre of the Estata of the Tenant , and of every such estate of inheritance as at any time had been in the first or second vouchee , or any of them , or either of their Ancestors , whose heires he , or they are of such estate , and as well of every Reversion thereon dependant , as also of all Leases , Estates , Charges , and Incumbrances derived out of any such Reversion or Remainder .

The Law doth so protect the Kings Possessions , that they cannot be devested or taken from him by any faigned Recovery , Disseisin ; and such protection thereof doth also support and preserve the remote reversion and remainder pursuing the same , that they cannot bee devested by a faigned recovery suffered by Tenant in taile in possession , or by his Feoffement , or by any disseisin of the Freehold ; but yet such Recovery will be sufficient of the particular estate taile , of the Recoveree or Vouchee , and of such Reversion there upon dependant as are in esse between his estate and Remainder in the King , unlesse the estate taile of the Recoveree or Vouchee were created by Letters Patents of his Highnesse , or of some of his Progenitors , or by his , or some of their provision .

Fines .

AS a common Recovery is an assurance of the greatest force to barre such reversions and remainders as are aforesaid in the precedent Chapter , so to another purpose , that is to say , to Conclude strangers of their right , if they doe not make their claime according to the forme of the Satutes in that behalfe made ' a Fine , is before all other assurances to be preferred , and it receiveth the name of a Fine , Quia finis finem legibus imponit . In every fine there are two severall parties , the Commissor , and the Commissee ; the party levying the Fine is called the Commissor , and he to whom it is levyed , is called the Commissee . A fine is partly said to be levyed , when it is knowledged , in the Court , or when it being knowledged else where , is certified into the Court , and received to be there ingossed and recorded . There are two sorts of Fines , the one at common law , the other levyed and proclaymed according to the statute . Two severall statutes are chiefly to be considered in fine levyed , and proclaymed according to the forme of a statute , the one of them is the statute of 1. R. 3. chap. 7. 1. R. 3. cap . 7. 4. H. 7 cap . 24. 32. H. 8. cap . 36. The other is the statute of 4. H. 7. chap. 24. being in some thing afterwards explained by a statute made in Anno 32. H. 8. chap. 36. the number of these proclamations are foure : and to be made at foure severall termes , and a fine levyed , and proclaimed , in the Kings Majesties Court , before his Justices of the common Pleas : of any lands , or hereditaments is ordeyned to be a finall end , and to conclude as well privies as strangers to the same , except such strangers as are women , Covert persons then being within age viz. the age of 21. yeares , in person , or out of this Realme , or not of whole minde , at the time of such fine levyed . But this exception is conditionall , viv . that they or their heires , inheritable to the same lands &c. doe take their action or lawfull entry according to their right and title , within five yeares next after they be of full age of 21. yeares , out of prison , uncovert , within this Realme , and of whole mind , and the same actions sue , or their lawfull entries take and pursue according to the law . Concerning fines with proclamations , five things are to be observed . First the time of levying and proclaiming the same . 5 things are to be observed concerning fines with proclamations . Secondly the place where , and before whom it is to be levyed . Thirdly of what things it be levyed . Fourthly what ceremonies are therein to be observed . Fiftly the severall times are to be observed and considered ; First that the fine be levyed after the feast of Easter , which was in the yeare of Lord God , 1496. For all fines levyed before that time are out of the compasse of this statute 4. H. 7. 4 , H. 7. As by the letter of the same statute it appeareth ; 2. that the proclamation must be made in time of the terme ; and therfore if any of those proclamations doe happen to be made either before the beginning or after the end of any terme , or on a Sunday , or other Festivall day exempted from the terme , as on the feast day on of the Purificatioa of St. Mary the virgin , Ascention day , all Saints , All Souls or on the feast day , of St. Iohn Baptist , if it happen on any other day then on the friday next after Trinity Sunday and to be recorded accordingly , 23. Eliz . cap . 3. then if it be not holpen by the statute 23. Eliz . cap . 3. All the proclamations are reversable , by a writ of error , or by Plea , as it appeareth in Finches case Plow : com . 266. 267. and then the fine will be of no other natur or force , Plow . Com . 266. 267. then a fine without proclamations And although in truth , the procalmations were all made within the termes , according to the forme of the statute , yet if the record or records , doe purport the contrary , they are reversable by error , or avoydable by Plea , if it be not holpen by the said statute ; for a record is of that credit in law , that no averment may be admitted to the contrary .

It is to be considered who are privies , and who are strangers to a fine ; according to the statute , there are three privities only . 1. privity in bloud only . 2. privity in estate ( tantum ) 3. privity in bloud and estate . There are three kindes of privities . 1. in bloud tantum . 1. One is when a man is heire to to his late Ancestor , and yet hath nothing by discent from him . As for example , if a father seised of lands in fee , doth thereof infeoffe a stranger and his heires , or if he by his last will and Testament in writing did dispose the same , being holden in Soccage to another in Fee , and hath issue and dyeth , in such case , sch issue is privy in bloud , having nothing by discent . 2. One other kinde of privity in bloud is , when something is descended unto him , as heire unto his Ancestor and yet he claymeth the same by some other right , and not as heire , to such Ancestor . As for example , if there be a father and sonne , and the sonne purchaseth lands of a stranger in fee , and is thereof disseissed by his father , who dieth thereof seised , and the same descend to his sonne as heire , in this case the sonne is privy also in blood , but not in estate ; for although the possession of the same land came to him by discent as heir to his father , yet he was therein remitted forthwith to his former estate . 3. And a third kinde of privity in blood tantum , is where a man in some respect is privy in blood and estate , and in another respect privy in blood tantum . As for example , if there bee two brothers , and the eldest purchaseth lands in Fee , and is thereof disseised by his younger brother , afterwards disseised by a stranger , and that stranger dyeth thereof seised , the younger brother being within age , and afterwards the elder brother dyeth without issue , the younger sonne hath two manner of rights to the land ; the one is a right of Entry against such heire as is in by descent during his minority ; but that right is onely in respect of his former possession which he obtained by disseisin , and not as heire to his brother , and in this respect he is privy in blood to his eldest brother , but not privy in estate . The other right that is now in the younger brother , is onely a right in Action , and not a right of Entry , and this is in him as heire to his brother , whose entry was taken away by the said discent , in respect of his right , he is privy in blood and estate to his brother . Privity in estate tantum , is where a man claimeth an estate in land , as assignee to another ; as if A. infeoffe B. in this case B. and his heires are privy in estate to A. Privity in blood and in estates are of two sorts , whereof the one may properly be called a privity of blood and estate , the other is so called unproperly , and in a borrowed sence . That which is properly called a privity in blood and estate , is when both privities do accrew by discent , by or from one Ancestor . The other is , when the one of them accreweth by one manner of title , and the other by title of another kinde ; As for example : If there be a father and a sonne , and the father purchaseth lands , and dieth thereof seised , and the same doth descend to his sonne , hee is to his father in a proper sence privy in blood and estate ; because both those privities do to him accrew , by one discent from one Ancestor .

It is to be noted , that such privyes as the statute meaneth , are after the ingrossing de le fine et proclamation made according to the forme of the statute , absolutely barred without hope of recovery or restraint , by any claime ; but such as are strangers are barred only conditionally , if they or their heirs doe not claime according to the forme of the statute within the times therein prescribed . It is a rule in law , that no error in the fault of the Judge can be assigned to reverse a Judgement , unlesse it be so apparant , that it may be tried by viewe of the record , or by inspection of the person : for if it should , many grave Iudgments would be overthrowne by corrupt tryalls , of false surmises to the subversion of Iustice and maintenance of vice . But if the Judge give judgment for the one party upon the matter appearing of record , whereas he ought to give Iudgment for the other party , this is reversable by error , because such a faulte of the Iudge through ignorance of the law is apparant by the view of the record . Also a fine levyed by a feme covert is not erroneous , & therefore it is not reversable by error , but avoydable by her . Also a fine levyed by a feme covert at the common law is avoydable by the entry of the husband ; yet since a fine levyed at this day and proclamation according to the forme of the said statute of 4. H. 7. or 31. Eliz . Cannot be avoyded by the entry of the husband , of the commissor , as to the estate of inheritance , but only to the Franktenement during the coverture , and so long afterwards as he shal be tenant by the curtefy , if he had issue by his said wife , before the fine levyed . And in that case albeit the husband doe enter within five yeares or before proclamations had and made , the Feme and her heires are barred as privyes to the fine , the words of the said statute of 4 H. 7. be the fine to be a finall end , and conclude as well privies as strangers , and yet all strangers shall not be barred by such fine , the Kinge is no such stranger as is comprized in the said act ; for if the law-makers had meant to conclude the King thereby of his right , then it is not to be doubted ( his greatnes being such as it could not be forgotten ) but they would have made some provision for his claime , which thing they have not done , because they never intended to conclude him ; but others , being bodyes corporate of things that goe by way of succession , are comprized in this word ( strangers ) in the body of the act . And yet they are not conteyned in the letter of exception , or of any of the savings which doe save rights , to men and their heires , speaking nothing of corporations or successions , or of any thing in succession .

There be two kindes of liveries ; Livery twofold 1 en fait 2. in law the one called a livery en fait which is a ceremony used in the execution of a Feeoffment in Fee , or a lease for life , by delivery of the ring of the doore of the house , or a clod of the land conteined in the Feoffment , in the name of the house and other hereditaments therein comprised . The other is called a Livery in Law , or a livery within the view , with the like ceremony in other forme used in the execution of such Feoffement , or Lease pur vie ; but that is not alway made upon the land , but onely in the view thereof , that is to say , in a place where the parties doe see and behold the land ; and the Feoffer so beholding the same saith to the Feoffee , I make livery to you of this land according to the purport of the Deed ( if it be a Feoffement by Deed ) if it be without Deed , then the words are to this effect ( viz. ) I doe deliver to you seisin of this land ; or , if I doe make livery and seisin of this land to you and your heires , or if it be for terme of life , to you for terme of your life . This being done , the Feoffee or Leassee , must enter , and before such entry the livery within the view is not compleate ; for if the Feoffer happen to dye before an entry made by the Feoffee , such livery within the view is voyd , and cannot be good by any entry afterwards made .

Conveyances and Assurances by Deede poll , or by Paroll .

A Conveyance or Assurance by Deede poll , is when it is made by a single Deed which is not indented , and albeit many Conveyances may be by Indenture , which could not be good by Law , if they were made by Deede poll , or by Paroll ; yet è converso all Conveyances and Assurances that may be sufficient by Deede poll , or by Paroll , may also without all question bee good by Indenture . Also what thing soever may be conveyed by paroll , may be also conveyed by Deede poll , but è converso , many things may be conveyed by Deed poll , which may not be conveyed by paroll . Therefore it seemeth fit now to consider what things in respect of their nature and kinde may be conveyed by Deed poll , and not by paroll ; and as touching Hereditaments transitory , or things transitory , which doe passe properly , or arise by grant , not by Livery , Reversions , and Remainders expectant , or dependant upon a particular estate in any Hereditaments whatsoever , may by apt conveyance , passe , or be created by Deed poll , but not by paroll : and hereupon ariseth the generall rule , that those things which do lie in grant , and not in livery , cannot passe by paroll , but by deede . But such things as doe lie in livery may passe without Deedes ; Feoffements of Messuages , Lands , Houses , Mannors , or Rectories , and such like , are Good without Deed ; and so are Leases for yeares thereof made ; because the Freehold thereof will passe by Livery ; otherwise it is of grants of Seignori●s in grosse Rents , Services , Commons , Advowsons , Wasts , Liberties , Franchises , and such like , being transitory , or of such Remainders or Reversions as are aforesaid . It is to be noted , that Lands , Tenements , or Hereditaments , or any estate therein , or any estate in a thing issuing thereof , cannot be conveyed to the King without matter of Record , as by Fine or Recovery , Record , as by Deed inrolled , and therefore a Grant , or any other Conveyance of such thing by Deed , is not sufficient , unlesse the same deed be inrolled . And if a Lease of Land be made for life to I. S. the remainder to I. S. in Fee taile , the remainder to the King in fee , this remainder to his Majesty cannot be good , unlesse the same be by deed inrolled : But a Deed poll thereof inrolled will be no lesse sufficient to this purpose than an Indenture inrolled . And to the enrolment therof , the King is tyed so no time certain , so that an enrolment thereof at any time during his Majesties life will be good in Law ; but if it be not inrolled in his life time , then nothing can thereby be in the King . And if the King grant the same to another before Inrolement , the grant is voyd , and cannot bee made good by the enrolement thereof afterwards .

There are two sorts of conveyances by deed . The one doth enure by transmutation of possession , transferring of a naked right . Conveyances by deed that doe enure by way of transmutation of possession , are of divers sorts ; whereof some do enure by way of removing of a possession , and creating of an estate , some by creating both of an estate and possession ; some by extinguishment , some by suspension hereof ; and some by remoion of the possession , and drowning of the estate . Conveyances by transmutation of a possession , that do enure by removing both of the estate and possession , are such whereby an estate and possession formerly setled in the one party , are removed to the other party . Conveyances that do enure by removing of a possession and creating of an estate , are such , whereby a possession formerly setled in one party , is removed to another by creation of a new estate other then such as was in the party from whom it was derived . A conveyance that doth enure by creation of an estate and possession , is when the thing conveyed had no being before the making of such conveyance . A conveyance by transferring of a possession , is said to enure by way of extinguishment , when the thing and the estate conveyed are thereby extinguished . A conveyance doth enure by remotion of the possession , and a drowning of the estate . When a surrender is made of a particular estate for life , or for yeares to him that hath the Reversion or Remainder thereof , in which case the possession of the land is removed , but the estate is drowned ; for he to whom the surrender is made is not seised of the particular estate , but of such estate wherein the same is drowned ; and such surrender , of an estate which might have beene created without deede , or matter of record , may be surrendred by paroll .

Note that a surrender to any person of a particular estate which could not be created without deede , matter of record cannot be good by Paroll .

Conveyances by will .

A Conveyance by will is common-called a devise , the party that giveth or bequeathes a thing by will is commonly called the devisor , and he to whom it is bequeathed the devisee ; of devises generall there be three sorts , 1. a devise by the common law , 2. a devise by custome 3. by force of the statutes of 32. and 34. H. 8. By the common law no manner of hereditaments , wherein the Testator had any greater estate then for yeares ( except an estate in a use of lands or Tenements ) was devisable by will , but he that had such use in Fee , or for another mans life , might before the statute . 27. H. 8. de usibus in possessionem transferendis , have devised the same by will as he might doe of a terme in use . For the better discerning what devise is good by the common law , and what not : fix things are meet to be observed . 1. That the devisor be a person able to devise . 2. that the devisee be capable of the thing devised , 3. That the things are devisable by law , 4. That the purport thereof being no other in effect , then such as might stand good in law , in a conveyance by act executed in the life of the devisor , 5. That the devise be not impossible , 6. that it be certaine .

Concerning the first of these forasmuch as every will doth take effect by the death of the Testator , therefore without the death of such Testator , there can be no will , and without a will there can be no devise , and consequently all kinde of corporations are unable to devise any thing by will , because they never dye . A Maior and commonalty , Provost & fellowes of a colledge , Wardens and commonalty of a company , cannot devise any thing by wil ; no more can a Bishop , Deane , Parson , or Vicar , devise any thing devisable , which they have not in their politique capacity , ( viz ) which he hath in right of his Bishoprick , Deanry , Parsonage , or Vicarage , but every of them may devise such thinges devisable at they have in their naturall capacity ; for in rerespect thereof every of them must dye , but there are some naturall persons which have no power nor ability in law to devise any thing by wil ; as persons not of whole minde and Ideots ; But an infant of 14. yeares of age may make a will , and thereby make an executor of his goods . The husband may devise goods or chattells to the wife , albeit they are one person in law ; A woman covert hath no power to give any goods by will , for without the consent of her husband , she cannot by law make a will , either of any of her husbands goods , or of such chattles in possession , or in right of action , as are in her husband in his right , or her selfe in her right . 12. H. 7 Fol. 24. A man outlawed in a personall action , or a person attainted of felony or treason , cannot devise any chattells personall or reall ; for if it were devisable or grantable , the property thereof is in the King , as aforesaid by such outlary or Attainder .

Concerning the second thing to be observed , not only persons of full age , women sole , and persons of discretion and whole minde , but also infants feme , coverts , Ideots , and mad men are capable of a devise , because it tendeth to their benefit , and not to their prejudice ; but yet such capacity of a woman covert is subject to a condition in law ( viz. ) if her husband doe not disagree to the same ; for if at any time during the coverture he doth disagree thereunto , the devise is void in law , unles before such disagreement he did formerly agree to the same ; but if he doe once agree to it , his disagreement afterwards is of no effect . Also persons outlawed in a personall action , or convict or attainted of fellony or treason , are capable of a devise ; but in such case , if the devise be of a chattell , the King shall have the thing devised , as a chattell forfeited by the outlawry , conviction , or attainder ; and if the devise be of an estate in Free-hold , or Inheritance in lands or Tenements , then in some case the King , and in some case the Lord , of whom the same is holden , as the case may require , shall be intitled thereunto ; Also a devise made to a childe in his mothers womb is good in law .

Of the third observation , for the better discovering what thing is devisable by the common law , and what not , a difference is to be observed , betwixt an estate to the use of another created by law ; and an estate made or conveyed to the use of another by agreement of parties ; for where it is created by law to the use of another ; there it is not devisable by will , but if it be made or conveyed by agreement , it is other wise ; as for example ; If a man seised in Fee of lands holden in soccage , hath issue a sonne and dyeth , the sonne being under 14. yeares of age , in this case the law appointeth the care and custody of such issue , and of the same lands , which came to him by discent from his father , unto his mother ( if she be living ) as Guardian in soccage , untill he be of the age of discretion viz. 14. yeares ; but this wardship in soccage , so to her accrewing by by law , is to the only use and proffit of the Infant , and therefore it cannot be devisable by will , neither shall it goe to the Executor or administrator of the mother after her death , but to the next Ancestor of the Infant of the mothers side , as it appeareth , Plowden fol. 239. and 294. in the case between Osborne and Joye .

Concerning the fourth if cestique use in Fee of Land before the said Statute of 27 H. 8. had devised the same to I. S. and his heires , and for default of such heires to remaine to I. D. or if hee had devised the same to I S. and his heires , untill I. N. doe happen to die without issue of his body , the remainder to I. D and his heires , this devise of such Remainder had been voyd ; because by the rules of Law , a Remainder could not be limitted to depend upon an estate in Fee simple , so that such a Remainder could not have been created by conveyance executed in a mans life .

Concerning the fifth observation ; if a man be possessed of a terme determinable by his death , doth devise the same by will to another , the devise is voyd , because it is unpossible that it should take any effect . Also a devise to I. the sonne of T. S. of D. whereas the same of T. S. hath onely issue W. is voyd , because there is no such person in rerum natura . So it is also , if a terme be devised to the Executors of I. D. whereas I. D. died Intestate .

Concerning the sixt observation , if any having issue many children , doth by Will give or bequeath a cup of silver , a horse , or any other thing devisable , to one of his sonnes , this devise is voyd , because it is uncertaine which of his sonnes should have it ; so it is also , if the like devise be made dis-junctively to I. S. or I. D. but a devise to one of his sonnes , at the choice of his Executors , is good , because the uncertainety may be reduced to a certainety by the election of the Executors . So also if a man be possessed of a terme in lands for 60. years , and by his Will devise to I. D. such and so many years of his said terme , as shall be nominated or appointed by his Executors , this devise is good , causa qua supra : and yet a gift or grant thereof in that form made by conveyance , executed in his life , could not be good , the reason thereof is , because he can have no Executors in his life time , by reason whereof it is impossible to reduce such Gift or Grant unto a certainety before his death ; and a conveyance executed in a mans life must be reduced to a certainty before his death , or else it can be of no effect in Law But that reason ceased in a devise ( which taketh no effect untill his death ) and therefore the Law is therein differing accordingly . Also it is to be observed , that a devise of Chattels may be good , either by will nuncupative , or by writing .

Concerning a use , it is to bee observed , that a man seised of Lands or Tenements in Fee , to the use of him and his heires , could not by the common Law devise the use thereof by Will , unlesse the same Lands or Tenements were devisable by custome . But if I. S. seised of certaine Lands in Fee , had infeoffed certaine persons thereof to the use of himselfe and his heires , this use so severed from the possession , was deviseable by the Common Law , albeit the Lands out of which it riseth were not devisable .

Conveyances by Will of Lands devisable by Custome .

IT is to be noted , that albeit by the rule of the Common Law no Hereditaments ( other then a Use ) was devisable by Will ; yet by particular Customes in divers Cities , Burroughs , Lands and Tenements therein scituate have alwaies been devisable by Testament , so that the custome doth therein alter course of the Common Law . But in every such devise , six things are especially to be observed .

1. That the thing devised ●ee comprized within the Custome . 2. That the devise be pursuant to the custome . 3. That the power of the Devisor be not restrained by Statute . 4 That the Custome be lawfull and reasonable . 5. That the intent of the Devisor be certaine , lawfull , and not unpossible . 6. That the Will bee not countermanded .

Concerning the first of these , the observation is double .

1. That the thing devised be as well in nature and kinde , as also in continuance , such as is warranted by the custome .

2. That it be contained within the bounds and limits thereof . As to the first part , if by custome all the tenements within a certaine City or Burrough bee devisable by Will ; A rent charge , and rent seck which had continuance time out of minde , are in nature , kinde , and continuance , such as bee comprised within the custome , and therefore are by force of such custome devisable . As to the sec●●d part of the observation ; If a man seised of rent in fee , which time out of memory hath had a continuance , the same rent is issuing as well out of lands within the limits of such custome , as aforesaid , as also out of Lands not contained within the precincts , this Rent is not devisable by the said Custome , because the same or any part thereof is not contained within the precincts thereof , which must bee taken strictly .

The second observation hath three branches , one concerning the person devising , another touching the persons to whom the devise is made ; And the third granteth the devise it self .

1. As to the first branch , a devise made by a Forraigner , to any person of lands or tenements scituate within the City of London . — to the Custome of London , as appeareth M. 8. & 9. Elix . fol. 255. But yet some persons comprised within the generall custome are by the rule of the common Law exempt from the same , as a devise made by a person lunatique , an Ideot , an Infant , and a man seised onely in the right of his wife , is voyd , this custome notwithstanding .

As to the second branch ; Citizens and Freemen of London may by the custome of the said City , without the Kings license , lawfully devise lands in London , whereof they are seised in Fee , to Guilds or Corporations , as appeareth by 5. H. 7. 10. 19. But if hee bee only a Freeman , and no Citizen , or only Citizen and no Freeman , hee cannot without the Kings speciall license lawfully devise in Mortmaine .

As to the third branch ; if the custome be , that lands and tenements within a certaine Citie be devisable in Fee taile for such estate , West . 2. was a Fee simple ; also it seemeth probable , that by force of a custome , that maketh lands and tenements devisable , a man may devise those things that are therein growing as trees , grasse , and such like . But if a devise of a rent , or common out of lands devisable , is not pursuant to the custom , because they had no being at the time of the devise , and though they had any beginning , yet they were created within the time of memory , they are not devisable for the cause aforesaid . If a house be onely erected upon devisable lands by custome , a devise thereof is pursuant to the custome ; albeit in that place there was never any house before , because the house doth reteine the nature of the land , whereupon it was built as a principall part , whereof it doth consist , the change of the name notwithstanding .

Concerning the third observation ; it is to be noted , that albeit the custome hath beene to devise lands to any person or body pollitique , yet the same may not by force of such custome be devised at this day in mortmaine , upon paine of forfeiture , according to divers statutes , unlesse the licence of the King , with the consent of the Lords mediate and immediate , be first therin had and obtained ; for such custome is in that behalfe qualified and retrained upon the paine aforesaid by the statutes of mortmaine ( viz. ) Magna Charta . A custome that beganne onely since the statute , cannot be good ; for every custome that may evidently appeare to have his beginning since the time of R. 1. is voyd in law , as appeareth by 33. H. 6. 27. 9. H. 6. et . Littleton 38. yet neverthelesse the customes to devise mortmaine are not abrogated by any of the said statutes ; for the devise , or other forme of alienation in mortmaine is not by any of the said statutes made voyd , but it is only in advantage of the the Lords , who might susteine losse thereby , prohibited upon paine of such forfeiture to them accrewing , as thereby appeareth ; so that by licence & consent as aforesaid , a devise in mortmaine by force of a custome may stand good in law , without danger of the penalty of forfeiture .

Concerning the fourth observation ; if the custome be not lawfull and reasonable it is voyde ; so that a devise by vertue thereof cannot be of any force in law . And therefore if an alien doe purchase and devise lands lying within a certain Borough by force of a custome that lands and tenements within the same Borrough are devisable to aliens in Fee to their owne use , and by them devisable by testament , this devise is void , for such custome against the Kings prerogative is unlawfull ; albeit his highnesse cannot be thereunto entitled without office or other matter of Record , yet meane betweene such purchase and office found &c. I take the Alien to be pernour of the profits , and that the estate purchased is forthwith in consideration of the same lands , untill the kings title doe apeare by office or other matter of record Also it is to be observed , that a custome to devise a Right , separated , from the possession , cannot be lawfull , because it savoureth of maintenance . As touching unreasonable customes , if the custome within any Citty or Burrough be , that Tenements therein situate are devisable by Infants , Ideots , or mad men , it is unreasonable , and therefore void . But a custome that the same be devisable by children of 14 , years is good .

Concerning the fifth observation ; if the intent of the devisor be uncertain , unlawfull , or impossible , the devise will be of no force in law . The intent of devisor may be uncertaine , either in the person to whom he doth devise , or in the thing devised , or in the estate that should passe thereby . And first concerning the person it appeareth 49. E. 3. 3. one Iorden did devise certain Tenements in London to one for life , so that after his decease the same should remaine unto 2. of the better sort of the fraternity of London , this remainder was agreed to be void for want of certaintie , which persons of the fraternity should have the same . Secondly , as as concerning the certainty in the thing devised ; as for example ; if a man seised of lands or tenements devisable ; doth by wilbequeath a portion therof to I.S. this devise is void because it doth not appeare , what or how great a portion thereof the devisee should have by foree of the said will . 3. Albeit the intent of the devisor doth certainly appeare , and the persons to whom the devise is made , and in the lands and tenements devised , yet if the estate therein lymitted be so uncairten , that neither by matter expressed or implyed in the will , nor by a common Intendement it cannot be reduced into a certainty , the devise will be void in law . And therefore if a man seised of lands devisable as well by will nuncupative as by writing , doth by will in writing amongst other things bequeath the same to I. S. for such estate as is specified in a schedule thereunto annexed , and then the devisor dyeth without annexing any schedule to the said will , or other declaration of the certainty of the state , this devise is void in law . Now it is be considered , that albeit the intent of the devisor be certaine in all things , that neverthelesse though it be unlawfull , the same will be no force . And therefore it is also needfull to discerne , where and in what case the intent of the devisor is unlawfull , and where not ; and the intent of the devisor is unlawfull , when it is so repugnant to the rules of the law , as that by any counsell learned in the law , it could take no effect by conveyance executed in his life time ; as for example ; a devise of a naked right , or possibility of a remainder to depend upon an estate in the simple thereby bequeathed , is said to be unlawfull ; for as no such remainder could be bequeathed , id est conveyed by any act executed in a mans life , so also no bare right could be conveyed by the like act executed in his life to any person , other then such as were seised , or to be seised of the free hold of the same lands at the instant of the execution of the conveyance , and that only by way of the extinguishment . And hereupon it followeth , that a man having right to lands devisable being by defeisable title in the possession of I.S. cannot devise the same by will to I. D. So also the Lord , of whom the lands devisable are imediately holden by Knights service , cannot devise his possibility of Escheates or wardship , that may thereof accrew to him , when his Tenant shall happen to die without heires , or the possibility of wards , when the heires shall be within age .

Concerning an intent impossible , wee terme that an impossible intent , which by no probable and common possibility can be accomplished , and of such impossible intents , there are 3. sorts . 1 , Impossible both at the time of the making of the will , and also at the death of the devisor . 2. Impossible only at the time of the devise , and not at the time of the decease of the testator . 3. Impossible at the time of the making of the devise . And as to first sort of lands devisable by will , bequeathed to the heires of S. who was attainted of fellony or treason , unreversed at the time of the devise , or death of the devisor : or if in time of Romish religion , such devise was made to one that was a Monk , being not deraigned at the time of the devise , or death of the testator ; or if the same be devised to the heires of I. D. who was then dead without heire ; or to a corporation that had noe being at the time of the will , or death of the testator ; Or if a man by his will doe devise a certain house in a Borrough , wherein at the time of his devise and death , he had nothing : Or if lands be devised to the executors of I.S. who died intestate , in every of these cases , the intent of the devisor was impossible , both at the time of the devise and death of the devisor ; and for such impossibillity , the devises are absolutely voide .

Concerning the 2. sort ; if lands were devised to a Monk , who at the time of the death of the testator was deraigned , or to the heirs of one is that attainted of &c. which is afterwards reversed before his death , or to a Corporation that hath a being at the time of his death , but not created at the time of the devise , in these cases , the intent of the devisor , was onely impossible at the time of the devise , but not at the time of the decease of the testator . And yet I take the Law , that those devises be also voyd , nam quod ab initio non valet id tractu temporis non convalescit .

The sixt observation is , that the devise be not countermanded ; for it is a cleere case , that it is countermandable at the pleasure of the Devisor , or thereby the devise will bee of no force in Law . And it is to be noted , that there are two kindes of Countermands , the one is a countermand in deed , the other a countermand in Law . A countermand in deed , is when a Testator doth expresly revoke his Will formerly made , or any part thereof ; and this countermand by word is of no lesse force then if it were by writing ; for albeit the Will containe , amongst other things devises of Lands , bee it in writing as an effectuall part thereof , in case where the custome or law doth so require it ; yet neverthelesse an expresse countermand by word of the will , or of any devise of lands therein comprised , will be sufficient in Law to controle the same , as it appeareth by Reits case , 14 El. Also , if after the making of the Wil , the Testator doth cause a devise therein made to one man to be quite stricken out ; this is also a countermand in deed of that devise , and the will standeth good for all the residue . A countermand which in Law is that which neither by word nor deede is expressed , but onely in those other acts implyed . As for example , the making of another will doth imply a revocation of the former , and therefore it is a countermand in Law thereof . So likewise if lands be devised by will , and afterwards the devisor infeoffeth a stranger in Fee thereof , this Feoffement doth imply a revocation of the devise of the land , and therefore it is in that part a countermand in Law , albeit he afterwards repurchase the same . 44. Ed. 3. 33. And although lands devisable by a custome may be executed by a Writ of ex grm . querela , yet if there be no speciall custome to the contrary , the devisee may ( if he please ) execute the same by Entry as it appeareth by 35 Asss. plit . 12. 40. Asss. p. 2. 27. Asss. p. 60 And in every such case the possession in Law of the thing devised is immediately after the decease of the Testator no lesse cast upon the Devisee , then it should have been cast upon the heire , if no devise had been thereof made , as appeareth Brookes title devise , 490.

Conveyances by Will , by force of the Statute of 32 & 34. H. 8.

ALthough Lands and Tenements , wherein a man had any greater estate than for years , were not devisable by the Common Law 〈◇〉 until● the making of the Statute 27 H. 8. cap . 10. de vsubus in possessionem transferendis , men did commonly put their lands in use ; ( viz. ) they did enfeoffe others in Fee , to the use of themselves & their heirs , to the end that they might devise the same use , and by force thereof after the decease of the Testator , the Feoffees did at the request of such devisee , make and execute to them an estate in the land according to the use devised , and if the Feoffees did refuse so to doe , the devisee might thereunto compell him by suite in the Chancery . And so by such subtill invention the devisee obteined the effect of a devise of the same Lands or Tenements which were not then devisable by Law .

The Table .
A. APportionalment of Rent Charge . pag . 9 Assets , what they are called . pag . 13 Actions Reall and Personall . pag . 24
C. Chattels divided . pag . 4 Custome why so called , and how they are maintained . pag . 29 Common why so called . pag . 39 Contracts and Grants . pag . 47 Common Recoveries . pag . 84 Conveyances and Assurances by Deed poll , or Paroll . pag . 99 Conveyances by Will . pag . 103 Conveyances by Will , of Lands devisable by custome . pag . 121 Conveyances by Will , by force of the Statute of 32 & 34 H. 8. pag . 123
D. Devise or Will defined . pag . 14
E. Estates in Law how many . pag . 2 Estates of inheritance divided . pag . 3
F. Fee simple how it passeth . pag . 5 Franctenement what it is . pag . 10 Fines and Recovery how sued out . pag . 33 Franctenement . pag . 65 Fines . pag . 89
G. Grants . pag . 35 Generall Estates . pag . 69
H. Hereditaments and Chattels .
L. Law how defined . pag . 2 Lands and Goods how held . pag . 2 Lands and Tenements their quantity and termes . pag . 57
P. Priority , the meaning of the word . pag . 19 Particular Estates . pag . 72 Possession . pag . 74
R. Reversion and Remainder , what difference between them . pag . 11 Recovery single what it is : pag . 33 Reversion . pag . 73 Rights . pag . 82 Remainder . pag . 76
S. Soccage in Capite . pag . 18 Statutes what they are , and to what end made . pag . 30
T. Tenures and Services . pag . 20 Tryals how executed . pag . 27 Things corporate and Incorporate what they are . pag . 38 Tenant in Dower . pag . 41 Tenant by curtesy . pag . 44 Tenant by Elegit . pag . 45 Tythes the nature and manner of them . pag . 49
V. Vse , the meaning of the word , &c. pag . 15
W. Wast why so called . pag . 11 Ward and Wardship . pag . 21 Writs for Actions personall . pag . 27
FINIS .