The touch-stone of common assurances. Or, A plain and familiar treatise, opening the learning of the common assurances or conveyances of the kingdome. By VVilliam Sheppard Esquire, sometimes of the Middle Temple.

Author: Sheppard, William, d. 1675?1648

THE TOVCH-STONE OF Common Assurances. OR, A PLAIN AND FAMILIAR Treatise, opening the learning of the Common Assurances or Conveyances of the KINGDOME.

BY VVILLIAM SHEPPARD Esquire, sometimes of the Middle Temple.

LONDON, Printed by M. F. for W. Lee, M. Walbancke, D. Pakeman, and G. Bedell. 1648.

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TO THE RIGHT VVORSHIPFULL the Benchers of the Middle Temple, and to the rest of the Gentlemen of that SOCIETY.

GENTLEMEN.

I May perhaps have been so long out of your sight that I may be also by this time out of your minde. Neverthelesse it is not out of my mind, that I having received the seed and growth of that little knowledge in the lawes of this kingdome which God hath given me in the seed-plot of your ancient and honorable Society, doe no lesse (by a naturall equity) owe the fruit thereof to you then the Rivers doe their tribute to the Ocean, and the trees their fruit to the planters and pruners. This therefore (such as it is) although unworthy of so great a name, I am bold to dedicate to you, and put forth under the shelter of your favourable wings; beseeching you to accept thereof, and my well meaning therein, and to honour it with your patronage and countenance. And it shall much oblige,

(Gentlemen,)

Your most humble Servant W. S.

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To the READER.

COurteous Reader, I doe desire in all plainnesse to bee understoo, that having in the time of my study of the Lawes of this Realme, collected some confused Notes and Observations out of the same: And being afterwards willing (for God knows, I had no further end or aim at first in them) for mine own private help and better readinesse to digest them into some order and method, such as my understanding could best contrive. The which things thus prepared and lying by me, came by chance to the view of some more learned then my selfe, who seemed to give some good approbation thereunto. Whereupon I first of all began to bethink my self of making some part thereof publique. And having to that purpose advised with some of my more judicious friends, and being encouraged by some, and not discouraged by others, I did at last resolve to attempt to publish and p [...]t in print the same. And calling to mind that the Common Assurances and Conveyances of the Kingdome (being that whereupon the whole estates, and consequently the livelihoods of very many depend) are matters of great importance and that concern most men; and that therefore the legall learning thereof must needs be of great and daily use. And considering withall the mischief arising every where by the rash adventures of sundry ignorant men that meddle so much in these weighty matters, there being now almost in every Parish an unlearned, and yet confident Pragmaticall Atturney (not that I thinke them all to be such) or a lawlesse Scrivener, that may perhaps have some Law Books in their houses, but never read more Law then is on the backside of Littleton, or an ignorant Vicar, or it may be a Blacksmith, Carpenter, or Weaver, that have no [Page] more books of Law in their houses, then they have Law in their heads, and yet as apt and able (if you will beleeve themselves) either to judge of a Conveyance, and by the rules of Law (of all which they are utterly ignorant) to determine of the strength and goodnesse of a title or estate already made, or to make a Conveyance to transferre the property of things from man to man, as the most learned and best Counsellour of them all; and therefore undertake with great confidence, and dispatch without any scruple any businesse whatsoever offered to their hands: wherein they deale with men in their estates, as many that are called Physitians (but in truth Empericks) deal with men in their bodies (an evill fit for the consideration of a Parliament). How they come to this their supposed dexterity and skill is a wonder, except that saying be false, Namo nascitur artifex. Either it must be born with them, or they must have it by education, or they must not have it at all. But if they will tell me they have good presidents, I will tell them that a good Conveyancer must be as well able to judge of the validity of the title, and primitive estate of him that is to convey (which a man can never doe without knowledge of the rules of Law, no more then a blind man can judge of colours) as to make a derivative estate and conveyance by a good president; for scire est per causas scire, as the Philosopher speaks. And as well, for ought I know, may a man be an able Physitian by certain medicines onely that never read so much as the grounds of Physick, as such men be able Conveyancers by their Presidents only, that never read so much as the maximes of Law: Nullum medicamentum idem est in omnibus. For my part I must ingenuously professe that I can scarce look into a Title or meddle with a conveyance of weight wherein I cannot make and move more doubts and questions, then I am able to resolve and answer; and therefore these men have gotten the start of mee much. And yet (much marvel it is to see) how these Empericks of the Law (if I may so call them) are sought unto and made use of, and that not only in lesser, but oft-times in greater and more weighty businesses, and that without the assistance of any others more able and sufficient; the which is not for lack of opportunity of finding more learned men in the Law, for there [Page] is a sufficient store of them in all places: nor doe those that employ these Empericks of the Law always save (if they think it saved) mony hereby, for besides the great mischief which is oft-times done to themselves by the unskilfulnesse of these workmen, some of them by reason of their much custome are grown more chargeable then an ordinary Counsellor, whose fee is certain and known. But of these Empericks of the Law and those that make use of them, I might say as sometimes our blessed Saviour said, Let them alone the blind leaders of the blind. Howbeit being now called (as I conceive hereunto) I chuse rather to admonish them and to tell the first sort, That I conceive them to be usurpers upon, and intruders into other mens callings, and that they thrust their sickles into other mens harvest, & that they have not yet learned that rule of Divinity, To abide in the calling wherin they are called, but exercise themselves in things too high for them; nor yet have they learned this, Ne sutor ultra crepidam, Let not the Cobler goe beyond his last; nor have they learned that, In quo quisque norit in hoc se exerceat. And let me tell the latter sort, That they heed not enough this saying, Caveat Emptor; nor beleeve that saying, Cuicunque in arte sua credendum, that every man is to be beleeved in his own art. But if you will say to me, That these men doe their work well, and their work doth succeed well: I will say to you, that the blinde man may happily hit the mark, and it may fall out that sometimes they doe their work well, and it doth succeed well, but oft-times wofull experience sheweth the contrary, and that many men have been much mischieved every where by the ignorance of these men. Wherfore I wish both sorts of them to doubt more and to be well advised in these affairs, as the Law doth presume every one will be; for therefore is it indeed that a Will hath a more favourable interpretation then a Deed, because mens Wils are oft-times made in hast, and it is presumed men take who they can to make them; but men for the making of their Deeds are not put upon those straits, but they take advise of learned men therein. And the more to move men herein and to redresse the evill before discovered, I have herein set forth under certain generall Titles or Common Places, the greatest part of the Judgements, Statutes, Resolutions, and Cases [Page] that doe contain or concern the learning of the Common Assurances of the Kingdome, so as I think I may truly say, under reformation, that there are few materiall things as touching this subject to be found any where dispersed in the Volumes of the Law, but they are to be found somewhere herein, and that there shall not happen one Case of a hundred but a hundred to one the diligent Reader may here finde the Case it self, or some Case that by good inference may be applied to it. Not that I would have men now to rest upon this help, and be lesse carefull and more carelesse to take advice of the Lawyer then heretofore (for this is the disease I labour to cure), for howbeit it may be that hereby these matters are made in some measure conspicuous, yet to say the very truth, besides that the subject matter of Law is somewhat transcendent, and too high for ordinary capacities, the manner of putting of Cases is so concise, the distinctions and differences of Law are so many, that it is hard for any man not well read in the Laws in generall, to judge or make use of any part of them in particular, and rightly and fully to apprehend and apply the things herein set forth: and therefore I dare not advise men to rest altogether hereupon, nor can I forbear to tell them it is very dangerous so to doe. But my aim and ends being also the uses and commodities I expect and looke after from this work, is first of all, that such men before spoken of, may see by the view of the infinite variety of Cases, Points, and Questions, as touching these matters, discovering also so many by-ways wherein men conversant therein may walk, how much there goes to making up of an able Conveyancer, and that it is not so easie a matter to judge of a Title, give advice upon a Conveyance, and make these Common Assurances as men dream of, and that therefore men learn more to suspect themselves and others herein; and to these it may serve as a light in a dark place. Secondly, that by this the Lawyer and Student may in some measure readily finde together what he desires touching these matters; and to him it may serve for a Table or Remembrancer. And lastly, that every man may be the better able by the help hereof to understand, open, & put his own case to his Lawyer, and to move more pertinent questions to him: and other uses I would have no man to make [Page] of it. In the use of this work therefore I must give thee two Advertisements or Caveats. First, that if thou desire to find any thing in particular therein contained, that thou read the whole Chapter, or at least the whole Question and Division of the Chapter wherein that thing is contained. And secondly, that thou doest not confidently build and rely upon any thing therein alone without advice from the learned Lawyer also, or at the least without a serious and judicious perusall of the Authorities & Books themselves to which thou art therein referred: Melius est petere fontes quam sectari rivulos. Some other things there are also herein inserted as falling aptly under the Title, albeit it bee not altogether pertinent to the subject matter. And all these sweet flowers of the Law growing sparsim in the great fields of the Volumes of the Common and Statute Laws have I thus painfully gathered, bound up, & commended to thy charitable censure: no doubt but in my desire to grasp and take up so much, I have taken and bound up some grasse withall, which I hope shall not offend. If so be that I finde it have a fragrant smell with thee, I shall think I have recompence enough for my pains. But if any man think me too presumptuous to attempt this enterprise; let him know first, that there is nothing mine in it, but the method, (and that not mine neither altogether) the matter thereof being nothing else but the Judgements, Resolutions, and Opinions of the Judges of the Law in succeeding times: and then as I have not trusted my selfe, so they shall not trust me altogether in these things. For I doe freely acknowledge mine own weaknesse and want of judgement, and that I am the unmeetest and unworthiest of all men to undertake such a work, not one of a thousand, but the meanest of ten thousand. And this I have done is a poor something sufficient onely to give them that are more learned occasion to doe something more exactly in this kind. If any man dislike the publishing of it in the English tongue, and think perhaps it may make the Law to be the more despised, and the Practitioner of the Law the lesse regarded and used: I doe wonder at the dislike of such a man; for to me there appears no more reason why to keep the Lawes in an unknown languange that they may be kept from the knowledge of the people, then Papists [Page] have to keep the Scriptures and their prayers in a language unknown to the people; these being the Laws by which the people are to be governed, and the Law being the best inheritance of the Subject. The wisdome of the Parliament hath thought to commend all the Statute Laws to the people in English, and to appoint that the pleadings should be in English. And have we not many Books of Law in English already, as Littletons Tenures, Doctor and Student, Finches Law, Justice Dodridge Treatises, Coke upon Littleton, the Womans Lawyer, and many others? and are not these usefull and profitable? And besides the greatest part of the proceedings in Chancery (the Court of greatest employment within the Kingdome) are in English. And if it be meet any part of the Law be in the native tongue, it should seeme it is meet this part should be so, because it concerneth so many men, and them also so much, that they may see and understand somewhat in their own Evidences. And therefore as we have turned their Deeds from Latine to English, so let us also turne some of the Law touching these Deeds out of French into English. Bonum quo communius eo melius. And I see no more reason why in Law more then in Physick the discovery of the Art should make the Art or Artist the lesse regarded. But (under correction) I should rather think that it will rather make them both the more esteemed as a jewell whose properties are known, and that it will make them the more, and other men we have before spoken of the lesse to be used and employed in their affairs, for the more men know, the lesse they think they know, and the more they doubt, and nothing moves men to be so bold and confident in these matters as their ignorance, according to the Proverb, Who so bold as blind Bayard? And for further answer to this, I wish men to see the Preface to the Lord Coke upon Littleton. And if any man have any thing else to object and except (for some there are that will neither put forth their own strength to doe good, nor bear with others that doe so) I wish them to undertake the same subject, and to perfect and supply my defects. And so committing thee to God, and this work to thy favourable censure, I am

Thy true friend W. S.

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THE CHIEFE CONTENTS of this Book.

OF Common Assurances in generall, Ch. 1. Fol. 1
Of a Fine, ch. 2. 2
Of a Common Recovery, ch. 3. 37
Of a Deed, ch. 4. 50
Exposition of Deeds, ch. 5. 75
Of a Condition, ch. 6. 117
Of a Covenant, ch. 7. 160
Of a Warranty, ch. 8. 181
Of a Feoffment, ch. 9. 203
Of a Bargain and Sale, ch. 10. 221
Of a Gift, ch. 11. 227
Of a Grant, ch. 12. 228
[Page]Of an Atturnment, ch. 13. 253
Of a Lease, ch. 14. 266
Of a Feoffment, Gift, Grant, and Lease, ch. 15. 284
Of an Exchange, ch. 16. 289
Of a Surrender, ch. 17. 300
Of a Confirmation, ch. 18. 311
Of a Release, ch. 19. 320
Of a Statute, ch. 20. 353
Of an Obligation, ch. 21. 367
Of a Defeasance, ch. 22. 396
Of a Testament, ch. 23. 399
Of an Ʋse, ch. 24. 501

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THE TOVCH-STONE OF Common Assurances.

CHAP. I. Of Common Assurances in generall.

THe Common or Generall Assurances or Conveyances of the Kingdome (being that by which commonly the property of things is made or changed) are of two sorts, or are made two manner of waies, viz, either by matter of Record, or by matter of Deed. Those that are made by matter of Record also are made either by matter of Record of a more high nature and extraordinary way, or by matter of Record of a more low nature and ordinary way. Those Assurances that are made by matter of Record of a more high nature are such as are made by Act of Parliament, of which we intend not to treat at all, neither doe we intend to meddle with those Assurances that are made by the King unto his Subjects, as being matters more transcendent and intricate; but those we intend to treat of are onely the common Assurances or Conveyances that are made between Subject and Subject, and are of ordinary and daily use for the transferring of the property of lands, tenements and hereditaments from one man to another. And of these there are observed to bee tenne kinds, two whereof are made by matter of Record, as a Fine, which is said to be a feoffment of Record, and a common recovery, which is in the nature also of a feoffement of Record: and the rest are by matter of Deed, as First, by feoffement. Secondly, by Grant. Thirdly, by Bargain and Sale by deed indented and inrolled. Fourthyly by Lease. Fiftly, by Exchange. Sixthly, by Surrender▪ Seventhly, by [Page 2] Release or Confirmation, both which are in nature of Grants. Eightly, by Devise, or by last Will and Testament. And some of these also serve to transferre the property of other things as well as of lands, and some of them also have other operations and uses, as well as to change and alter property and passe things from one man to another, as will appear in their proper places. And the first thing we shall beginne upon shall be the learning of a Fine and Common Recovery, and first of a Fine.

CHAP. II. Of a Fine.

THis word is ambiguously taken in our Law, for sometimes it is Termes of [...] the law, tit. Fine Co. upon Lit. 126, 127. 120 Plow. 357. West. Symb. part 2. chap. 1. Fine, quid. taken for a summe of money or mulct imposed or laid upon an offender for some offence done, and then also it is called a ransome. And sometimes it is taken for an Income or a summe of money paid at the entrance of a tenant into his land. And sometimes it is taken for a finall agreement or conveyance upon Record for the setling and securing of lands and tenements. And in this sense it is taken here; and so it is defined by some to be, An acknowledgement in the Kings Court of the land or other thing to bee his right that doth complain. And by others, A Covenant made between parties & recorded by the Justices. And by others, A friendly, reall and finall agreement amongst parties concerning any land or rent or other thing whereof any suit or writ is hanging bteween them in any Court. And by others more fully, An instrument of Record of an agreement concerning lands, tenements or hereditaments, duly made by the Kings license and knowledged by the parties to the same, upon a writ of covenant, writ of right, or such like, before the Justices of the Common Pleas or others thereunto authorised, and ingrossed of Record in the same Court, to end all controversies thereof both between themselves which be parties and privies to the same, and al strangers not suing or claiming in due time. And in every Fine there is a suit supposed, wherein the party that is to have the thing is called the Plaintiffe, & sometimes also in another respect the conusee Gonusee or Recognisee. Conusor or Recognisor Deforceant. or Recognisee, & the other that doth depart with the thing is called the Deforceant, & sometimes in another respect the Conusor or Recognisor. And it is therefore said to be Finalis c [...]cordia, quia [...]inem ponit negotio adeó ut neutra pars litigantium ab eo de caetero possit recedere. And it was anciently the end of a suit indeed, for after there had been some contention about the thing by suit, the parties became agreed who should have it, and so a fine was levyed of it, and there was an end of the matter; and hence it is said to be fructus or effectus legis, [Page 3] because it gives a man the fruit or effect of his suit. And to this day therefore a writ doth alwaies goe forth before a fine can be levyed, and this is now one of the common Assurances of the Kingdome.

There are five essentiall parts of a Fine. First, the originall writ The parts of it. Co. 5. 38. 43. Stat. 5 H. 4 ch. 14. taken out against the conusor, for without this a fine cannot be levyed. Secondly, the Kings license for the levying of the fine, and for this the King is to have a fine or summe of money, which is called Kings silver, for this is properly that money which is due to the King, Kings silver. Quid. in the Court of Common Pleas, in respect of a license there granted to any man for passing a fine. And this is part of the revenues of the Crown. Thirdly, the Conusance or Concord it selfe which is the very agreement between the parties that intend the levying of the Concord Quid. fine how and in what manner the thing shall passe, and doth begin thus; Et est Concordia talis, &c. And this is the foundation or substance of the fine, for if upon this the Kings silver be entred, albeit the Conusor die afterwards, yet the fine is good, and the note or foot of the fine are but abstracts out of this. Fourthly, the note of the Note of the Fine. Quid. fine, which is an abstract of the originall Contract or Concord, and doth beginne thus. Inter A. querentem et B. et C. deforcientes, &c. Fifthly, the foot of the fine, which doth begin thus. Haec est finalis Concordia, &c. and containeth all the matter, the day, yeere, and Foot of the Fine. Quid. place, and before what Justices it was levied, which is therefore called the Foot of the fine because it is the last part of it, and when this is done all is done. And of this there are indentures made by the Chirographer and delivered to the party to whom the Conusance is F. N. B. 147. a. Co. 5. 39. made, which is called the Ingrossing of a fine, for then a fine is said Ingrossing of the Fine. Quid. to be ingrossed when the Chirographer makes the indentures of the fine, and doth deliver them to the party to whom the Conusance is made.

A Fine is either without Proclamations, which is also called a fine Quotuplex. at the common law, and this is such a fine as is levyed after such manner West. Symb. part 2. Sect. 19. Dyer. 216. Plowed. 265. Stat. 4 H. 7. chap. 24. 1. R. 3. ch. 7. Co. 3. 86. Stat. 32. H. 8. chap. 36. and forme as fines were usually levyed before 4 H. 7. upon which no Proclamations were made, which fine doth still remain of the same force as it was at the common law to discontinue the estate of the Cognisor if it be executed. Or it is with Proclamations, which is also called a fine according to the Statute, and which is such a fine as is levyed with Proclamations after the forme and manner ordained by the Statute of 4 H. 7. chap. 24. (and such a fine shall every fine that is pleaded intended to bee if it bee not shewed what fine it is, and of this sort were and are most fines since 4 H. 7. as being the best kind of fine of all; and it is in the election of him that sueth out the fine as long as he liveth to have it with, or without Proclamations. A fine also whether with or without Proclamations, is either executed, which is such a fine as if his owne force giveth a present possession (or at the least in law) unto the cognisee, so [Page 4] that he needeth no writ of Habere facias seisinam or other means for the execution thereof; but he may enter: of which sort is a fine Sur cognisance de droit come ceo que il ad de son done, which is in very deed the best and surest kind of fine of all, and is thus, Et est concordia talis, scilicet quod praedict' A. recognoverit tenementa praedict' cum pertinen' esse jus ipsius B. ut ill'quae idem B. habet de dono praedict' A. & ill'remisit, &c. And this kind of fine doth alwaies suppose a feoffement, Co. 7. 3 [...]. or gift precedent of the same thing whereof the fine is had, which the fine is to corroborate and strengthen. Or it is executory, which is such a fine as of his own force doth not execute the possession in the cognisee, and of this sort is a fine Sur cognisance de droit tantum, when the party that doth levy the fine is seised of the thing, and hee to whom the fine is levyed hath no freehold therein but it passeth by the fine: and a fine Sur Done, Grant, Release, ou Confirmation, which is after this manner. Et est concordia talis sc. quod praedict' A. concessit et reddidit tenementa praedicta cum pertin' praefat' B [...]et haered'suis durante vita ipsius A. Et praedict' A. warrant' praed'cum pertin' praefat' B. & haered'suis totavita ipsius A. Or thus, Et est, &c. quod praed A. concessit praed' Videinfra. B. tenementa, &c. Habend'eidem B. pro termino vitae suae. Or thus, Et est, &c. quod praed A. recognoverit tenementa praedict' cum pertinen' esse jus ipsius B. & ille ei reddidit in eadem curia habend &c. Or a fine Sur Done, ou Grant et Render. Which is thus, Et est concordia talis, sc. quod praedict' A. recognoverit, &c. ut ill'quae idem B. habet de dono praedict' A. et ill'remisit, &c. Et pro hac praedict' B. concessit tenementa praedict' cum pertinen' praefat' A. Et ill'ei reddidit in eadem Curia habendum et tenend', &c. And if these kinde of fines be not levied or such Render made unto them that be in possession at the time of the fines levyed, the Cognisees must enter or have writs of Habere facias seisinam, according to their severall Cases for the obtaining of their possessions. But if at the time of levying of such an executory fine the party unto whom the estate is limited be in possession of the lands passed, he shall not need any writ of execution to put him in possession, for then the fine will enure by way of extinguishment of right, and doth not alter the estate or possession of the Cognisee, however perchance it doth better it. The fine Sur conusance de droit tantum, also doth serve sometimes to make a surrender, and then it is therein recited that the Conusor hath an estate for life, and the conusee the reversion: and sometimes it doth serve to grant a Reversion, and then the particular estate is recited to be in another, and that the Conusor willeth that the other shall have the reversion, or that the land shall remain to the other after the particular estate spent: a fine also is either single, which is such a fine by which an estate is granted to the Cognisee and nothing granted or rendred back again to the Cognisor by the Cognisee. Or it is double, which is such a fine as doth contain a grant, and render back again either of the land [Page 5] it selfe, or of some rent, common, or other thing out of it to the Cognisor for some estate, limiting thereby many times remainders to strangers which be not named in the writ of covenant, which also is sometimes with reservation of rent, clause of distresse, and grant of the same over.

The manner and order of suing out or levying of a fine is thus. Experientia. Stat. de modo levandi Fines 18 E. 1 West Simb. ut supra. 1 H. 7. 9. Broo. Fine 116. First, there is an originall writ sued out, and this may be a writ of 4. The manner & order of levying of a Fine. Mesne, Warrantia cartae, de consuetudinibus et servitiis, or any writ of right (for upon these or any other writ whereby land is demanded or may be recovered, a fine may bee levyed) but the most usuall writ whereupon a fine is levyed is a writ of covenant. And whiles this writ is depending, for howsoever it be the common practise to take out a Dedimus potestatem, and have the conusance of a fine before any originall writ be sued forth, yet the originall writ is alwaies supposed in law to precede the Dedimus potestatem, and therefore doth and must evermore beare Teste before it, or else it is erroneous. After the originall writ sued forth, thre is a Precipe, which is the tituling of the writ whereupon the fine is levyed, and the concord and agreement of the parties, both which are fairly written (and that most commonly in parchment:) after this, the partie or parties that is or are to knowledge and levy the fine is or are to come in person before him or them that have power to take the same conusance; who are to take notice of the persons, that if there be any woman that hath a husband amongst the conusors in the fine, they doe examine her whether she be willing and doe it freely without compulsion of her husband. After this, all the parties that are to levy the fine are to declare themselves before the Judges or Commissioners (having power to take the same conusance) to be willing to passe their right in the lands according to the agreement, and to subscribe their names or markes to the concord: and if it be taken by a speciall Dedimus potestatem, it is to be returned and certifyed under the hands and Seales of the Commissioners into the Court of Common Pleas, that it may be there recorded and finished. And there the party Conusee is first to compound with the King for his license, for which he is to pay the Kings silver, and thereof he is to have an entry on the back of his writ of Covenant, and then he is to have it inrolled by the Custos brevium, and upon this roll the Proclamations are to be indorsed: after this, it is to be brought to the Chirographers, who is first to make that Note thereof that is called the Note of the fine: and hereupon if it be a Remainder, Reversion, Rent or Seigniorie whereof the fine is levyed the writ of Quid juris clamat, Per quae servitia, Quem redditum reddit, as the case requireth, must be sued forth. And after this, the Chirographer is to enter the fine of record to ingrosse it, and to make and to deliver the Indentures thereof unto the Conusee, and if it be a fine with Proclamations, it is [Page 6] to be proclaimed openly in the Court of Common Pleas once every one of the four termes next after the ingrossing of it, (and it was to be proclaimed within the County where the land did lye at every assises and sessions the next yeere after the ingrossing of it, but this it seemes is not necessary now) and the next terme after the ingrossing of it the contents thereof are to be recorded in a Table (made for that purpose) to be set up in the court of Common Pleas at Westminster in an open place all the terme time, and so also at every assises, the fine may also be inrolled and exemplifyed.

A Fine is a Record as of great antiquity, so of a high nature, great Statute of Fines 18 E. 1. Co. 1. 3. Plow. 358. 265. 5. The nature, use, and fruit of a Fine. force, and much credit and esteem; and it is now become and serves for a formall conveyance of land, and one of the common assurances of the kingdome, for by this meanes a man may convey his land to another in fee simple, fee taile, for life or yeers, with reservation of rent also. It is therefore called a Feoffement of record, for it doth countervaile a feoffement with livery of sesin in the country, and it includeth all that the feoffement doth; and worketh further of his own nature, and it is indeed for many purposes the best and most excellent assurance of all others, for by the ancient common law it was so high a barre, and of so great force, and of so strong a nature in it selfe, that it did conclude and barre not onely such as were parties and privies thereto and their heirs, but all others of full age, out of prison, of good memory, and within the four Seas the day of the fine levyed, if they did not make their claim within a yeer and a day. And it is still of that force, albeit it be somewhat enfeebled by some Statutes, that either it passeth all the right and interest of the Conusor to the conusee, or else it worketh by way of extinguishment and estoppell, and doth perpetually barre the Conusor and his heires of all present and future right and possibility of right or other collaterall benefit to the thing whereof the fine is levyed. And if it be a fine with Proclamations it doth in time become a perpetuall barre to all others also, that have right, except they doe take care to prevent the barre by their claime, action, or entry, within five yeers after the proclamations ended. And it barreth Intailes peremptorily whether the heire do claim within five yeeres or not, if he make his claime by him that levyed the fine.

Any person male or female, body sole, or corporate, that hath capacity 6. What shall be said a good Fine, or not: and how. 1. In respect of the persons thereunto and their capacity. And by, or to, whō a Fine may be levied, & who West. Symb. in his Tract of Fines. 17 E. 3. 52. 17 Ass. pl. 17 Litt. Sect 731. Perk. Sect 24. Fitz. Fines 120. See in grant infra chap 12. Numb. 4. to grant, or is able to be a grant or by a deed, may levy a fine and be a conusor therein, but there are certain persons prohibited by law, which the Judges or Commissioners that take the conusance of fines ought not to admit or receive, and yet if they doe admit them, and a fine be levyed by such persons, the fine is good and unavoidable, Fieri non debet sed factum valet: and of this sort are mad men, lunatikes, villaines, Ideots, men that have the Lethargy, doting old persons that want discretion, drunken men, and men that are forced to [Page 7] it by threatning, imprisonment or the like, also such as are born blind, may be conusors or conusees. And by what names. deafe and dumbe, but a man that becomes so accidentally may be received and ought not to be refused. Also persons attainted of felony or treason ought not to bee received to levy a fine, but such persons being admitted to levy a fine, the fine will be good against all Persons attaint. persons but the King and the Lord of whom their lands whereof the Non san [...] memoriae. fine is levyed, are held for their times: but persons waived or outlawed in personall actions onely ought not to be refused. 17 E. 3. 52. Cromp. Jur. 37. 10. E. 4. 13. Also Infants Infants. ought not to be received to levy a fine, and y et if an Infant be admitted to levy a fine, and he doe not avoid it by writ of error during his minority (as he may if it be not a fine Sur Grant & Render in taile or for life, the fine will be good for ever against him and all others. Perk. Sect. 19. Dyer 220. et per Just: Bridgmans opinion in private. And if he die during his nonage, before he hath avoided it, it seemes his heire can never avoid it, and yet upon this point the Judges of the Common Please have been divided on a solemn argument, and of this Just. Dod. in 17 Iac. made a Quere. 17 E. 3. 52. 30 E. 3. 5. 27 Ass. pl. 53. Perk. Sect. 19, 20. Co. 7. 8. Also women that have Women covert. husbands ought not to be admitted alone without their husbands to levy fines, and yet if such a woman alone levy a fine of her own land she hath in fee simple, and her husband doe not avoid it (as he may if he will) by writ of Ertor, entry, or otherwise during her life, or after her death during his own life, if he be tenant by the Curtesie, this is now a good fine, and will bind her and her heires for ever, except she be an Infant at the time of the fine levyed, and her husband happen to die during her minority, for then in that Case, if it be not a fine Sur Grant & Render to her in taile or for life, she may avoid it during her minority, but if the coverture continue untill her full age, in that Case she cannot avoid it except her husband joyn with her in it, but the husband and wife ought to be received together to levy any fine of her land. If such persons as are civilly dead, as Fryars, Corporations. West. Symb. part 2. Sect. 9. Plow. 538. 575. Co. 11. 78. 1. in Magdalen College case. Monkes, and the like, be admitted to levy a fine, the fine is void. But such civill bodies as have absolute estate in their possessions, as Maior and Commonalty, Dean and Chapter, Colleges, and other Societies corporate may levy fines of the lands they hold in common, even by the Common Law, and such fines are good, but Ecclesiasticall persons, as Biships, Deanes, Masters of Hospitals, Parsons, Vicars, Prebends, and such like, are by divers Statutes restrained to levy fines of their spirituall inheritances.

Any person that hath capacity to take by grant, or may be a grantee by deed, may take by fine and be a conusee therein, as any person 3 H. 6. 42. 41 E. 3. 7. 50 E. 3. 9. 24 E. 3. 62. male or female, of full age or under age, whether it be a Feme Covert, madde person, lunatike, Ideot, any person in prison, or beyond the Sea, also any person attainted of felony or treason, or outlawed in any personall action, a Bastard, Clark convict, or Alien, may be conusee in a fine, and a fine levyed to such persons is good. 5 H. 7. 25. 19 H. 6. 25. Dyer 188. Also Corporations spirituall and temporall may be conusees in fines, and fines [Page 8] levyed to them are good, but before the ingrossing of such fines there goeth alwaies a writ to the Justices of the Common Pleas, Quod permittant [...]inem illum levari. But such persons as are civilly dead, as Fryers, Monkes and the like, cannot be conusees in a fine, and therefore a fine levyed to such persons is void.

The names of Cognisors and Cognisees in fines must bee West. Simb. in his Tract of Fines. certainly set downe, and they must for the most part bee deseribed by their right names of Baptism and Surname, whether they be King, Princes, D [...]kes, Marquesses, Earles, Vicounts, Barons, Lords, or Knights, which be names of dignity, but some of these are sometimes described without their Surname, as Georg' Comes Salop. Iohannes Dux Lancastr. or whether they be Esquires or Gentlemen, which be names of worship and honour. But these additions of names of dignity and honour given to such persons or any others, as Bishops and the like, are used in fines rather of curtesie then of necessity, for they are not needfull in fines. But in case where there bee two of one name it is safe to make some addition by way of distinction, as Senior and Junior and the like.

If a woman living her first husband, take a second husband and 7 H. 4. 22. with him and by his name knowledge a fine, it seemes this is void because of this mistake, but if a woman with her right husband, by a wrong Christian name, levy a fine she is concluded by it, and cannot avoid it during her life. 1 Ass. pl. 11. And yet if a fine be levyed to a man and his wife by a wrong name, as to A. and Sybill his wife, when her name is Isabell, this is holden to be void. F. N. B. 97. a Litt. Broo. Sect. 344. But if a fine be levyed by a woman by the name of Margery when her name is Margaret, or by the name of Agnes, when her name is Anne, it seemes this fine is a good fine.

The Persons or Judges before whom a fine is to be levyed are of West. Simb. ubi supra. 2. In respect of the persons before whom it is acknowledged, and the persons & place before whom and where it is recorded. And what persons may take conusance of fines or record them. And where. And how, & the duty of such persons therein. two sorts, for some are Judges onely at the time of the Cognisance, and Certifieate thereof, and others are Judges to whom the Cognisance is to be certifyed, and before whom it is to be recorded. The first sort are such as have power to take such cognisance, either ex officio, and by virtue of their offices, or by some commission generall or speciall granted unto them by the King out of Chancery; Stat. 15. E 2. Stat. de Carlil. as all or any two of the Justices of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office. Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court, and certify the same without any writ of Dedimus Potestatem: Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest: or one of them with a Knight (but this is not usual at this day.) Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take & certify cognisances of fines without any special Dedimus Potestatem, but at this day they doe not use to certify them without [Page 9] a speciall writ of Dedimus potestatem. And fines have been levyed before Justices Errants.

Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem, quid. Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem, whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile, and by this writ upon such a surmise, power may be given to any Serjant at law alone, or to any Knight and Gentleman together to take the conusance of such persons, and they may by virtue thereof take the same Curia 39. & 40 E. l. 17. either of all or some of the parties; Dyer. 220. and that (as it seems) in any place accordingly: 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself. And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same, and whom they doe admit to make such conusances before them. 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors, that they suffer not one man to make a conusance in another mans name, and that they doe not take any conusance from any person prohibited by law, for misdemeanors by such persons herein are punishable in the Star-Chamber. 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance, the Iudges or Commissioners must take care they doe examine her whether she be willing, and doe part with her right in the land willingly or by compulsion of her husband, for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done. Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly, and the day and yeare when it was taken, Dyer 220. Cromp. Iur. 92. and not another time (for this may be a misdemeanor punishable in Starre-Chamber) and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance, at the farthest. Regist. or. 68. F. N. B. 147. b. And if they refuse to return or certify it, the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody, or his executor or administrator if he be dead, to certify it. Dyer 246. But if any of the cognisors happen to die before it be certifyed, then it cannot be certifyed at all, for it cannot now be made a good fine. [...] 1 H. 7. 9. Broo. Fines 124. And so also (as some hold) if the King die. Dyer. 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis, quid. in paper or upon the back of the writ of covenant (as the use is) and the party die after this, in this case the fine may goe on and will be a good fine notwithstanding the death of the party.

And Judges for the recording of fines be the Justices of the com̄on Pleas onely, and therefore all cognisances of fines must be certifyed thither, for in that Court onely and not in any other of the Courts [Page 10] of Record at Westminster, or in other inferiour Court, or ancient demesne, are fines to be levyed. 50 Ass. pl. 9. But by speciall grant a fine may be levied in a base Court. Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester, county Palatine of Lancaster, and county Palatine of Duresme, of lands lying within those places. And if any persons doe take conusance of fines other then such as before that have power, or any other persons or Judges shall record fines, or they shall be levyed in any other Court or place then as before, such fines are void.

A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West. Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds in [...]ra. Numb. 3. In respect of the thing whereof the Fine is levied, & of what things a Fine may be levyed or not, and by what names. lyeth, and of all things which are inheritable and in esse at the time of the fine levyed, whether the thing be Ecclesiasticall and made temporall or temporall. As of an Honor, Manor, Island, Barony, Castle, Messuage, Cottage, Mill, Toft. Curtilage, Dove-house, Garden, Orchard, Land, Meadow, Pasture, Wood, Underwood, Chappell, River, Chauntry, Corrody, Office, Fishing, Warren, Fair, Rectory, Mines, a view of Franke pledge, Waife, Estray, Felons goods, Deodands, Hospitall, Furzes, Heath, Moore, Rent, Common, Advowson, Hundred, Way, Ferry, Franchise, Seigniorie, Reversion, Toll, Tallage, Pickage, Pontage, Aquitaile, Services, Portion of tithes, Oblations, or the like. And therefore fines De honore de S. or De Manerio de S. or De Castro, or De Castello de S. cum pertinen' are good. So fines De uno mesuagio, uno cottagio, uno molendino, without Aquatico or Granatico annexed are good. So fines De uno T of to, uno Curtilag. uno Columbario, uno gardino, uno pomario, decem acris terrae, decem acris prati, decem acris pasturae, decem acris bosci, decem acris subbosci, de Balliva sive officio Ballivat' de D. de Custod. sive officio custod, de B. de custod. parci & forrestae de D. de officio senescalciae de S. cum pertinen', decem acris bruerae, decem acris morae, decemacris uncariae, decemacris marisci, decem acris alneti, decem acris ruscariae, are good. Also fines may be De vis. Fran' pleg. libertate & franchesiis in D. Wardis, Maritagiis, Eschaet. catall. felonum, waviat. extrahur. de catall. fugitivorum, utlagat. attinct. de feriis, Mercat. Wrecco maris, Or, de rectoria Ecclesiae parochialis de M. or, De decimis granorum, garbarum et soeni eidem Rectoriae spectan' &c. Or, cum omnibus decimis granorum, garbarum, et foeni eidem rectoriae spectan'. Or, de decimis garbarū ad ecclesiā de M. qualitercunque spectan. or de omnibus & omnimod oblationibus, decimis granorū, garbarū, foeni, lanae, lini, canabis, porcellorum, aucarum, agell. or, &c. & aliis emolumentis quibuscun (que) spectan', crescen', sive existen' cum pertinen' in D. Also fines may bee De cilio Salium, plumbarum, aquae salsae puteo. Or, de theolonio, stallagio, picagio, pontagio, infra Burgum de D. Or, de quodam corrodio unius panis, unius lagenae cervisiae pro omnibus hominibus in D. Or, de chiminio de piscaria, or de libera warrenna, or de frankfold, de franchesia, or de nundinis de D. singulis annis ad festa de M. ibidem tenend'. [Page 11] Mercat' de D. Quiet. five libero passagio ultra aquam de D. Or, de communia, or de pastura pro omnibus animalibus, or pro omnibus averiis, or de pastura pro decem ovibus, or pro decem bovibus, equis, vaccis, porcis, spadonibus, &c. or de communia pasturae quod praedict' M. B. habet & habere solebat pro omnibus averiis suis in centum acris terrae ipsius I. A. in D. or de advocatione ecclesiae de D. or de advocatione tertiae partis ecclesiae, &c. or de rectoria de D. or de advocat. praesentat. donat. libera dispositione, & Iure patronatus Ecclesiae de D. or de Patronagio cum advocatione vicariae Ecclesiae de D. & capell. eidē rectoriae annex', or de tertia parte advocationis ecclesiae, &c. or de medietat' advocat. Ecclesiae, or de advocatione medietatis Ecclesiae, or de medietate, or de tertia parte messuagii, decem acris terrae, or the like, and these fines are good. Also a fine may be de homagio, or de feod militis, or de uno feod milit' in D. or de servitio unius paris calcarium deauratorum, or de servitio inveniendi hominem equitem or peditem ad eundem vel ad equitandum with the cognisee in exercitu Walliae &c. or de minera plumbi & cujuscunque generis metalli, or de proficuis officii, or de proficuo molendini, or de gurgite, or cursu aquae currend. à loco vocat' H. infra & per terr' voc' K. ad molend. vocat' B. or de wera sive veda in D. And fines of all these and such like things are good, but a fine that is levyed of a thing not certain, as de tenemento or de hereditamento, or the like, is void.

A Fine may be of a rent charge which had no being before, or of a chief rent or other rent which had a being before, but not of annuity, 21 E. 3. 44. 18 E. 4. 22. West. Symb. ibid. and a rent will passe by the number of the things to be rendred, as De decem librat. decem marcat. sex denar' or quinque solidor', or uno obolario. As Precipe A. quod reddat B. con. &c. de 4 librat' reddit. & red dimid unius librae piperis, ac reddit, unius paris chirothecarum, sagittae barbatae, unius par' calceorū, unius vomeris, 1. lib. cerae, 1 lib. piperis, 1 lib. cumini, 1 Clavi Gariophylli, 1 rosae rubae, 1 acus & Fili, 1 quarterii frumenti, unius quarterii hordei, 2 Bracei caponum, 40 Gallorum, 20 Gallinarum, mille ovorum et aucarum. An Honor may passe by the name of a Manor, or by his own proper name, as De honore de Tickhill, or de manerio de Tickhill: so other things may most of them passe by their own proper names, as de castro vicecomitatus de S. Insula de D. Hundred. de D. Burgo de D.

A Manor may passe by his proper name without naming of the town or place, townes are places wherein it doth lie, as de manerio 19 E. 4. 9. de D. cum pertinen.

Other things may passe in fines by the same names they are granted in deeds, as de scit. ambit' et precinct' nuper Monasterii de D. Scit. Manerii de D. Grangia de D. Parco de D. praebend de D.

A Castle or Hundred may be parcell of a Manor and passe by the name of the Manor whereof they be parcell, and one Manor may be 26 Ass. p. 54. 2 E. 3. 36. 1 E. 3, 4. 27 H. 6. 2. parcell of another Manor, and passe by the name of that Manor, or [Page 12] a castle may passe by his own proper name, as de castello de S. cum pertin', so also may a hundred passe by his own name, as de hundredo de S.

A view of franke pledge and such like things may also passe by West. ubi supra. their own names, as De vis. frank' pleg' bonorum et catallorum, waiviarum, felon' fugitivorum, utlagat. in exigen' positorum, felon' de se, deodand. thesaur' invent' ac extrahur' cum pertinen' in M.

By the name of a messuage may passe a house, a curtilage, a garden, Plow. 169. 171. an orchard, a dove-house, a shop, a mill as parcell of the same. The like of a cottage, a toft, a chamber, a cellar, &c. Yet these may passe by their own single names also, as De uno messuagio, uno curtilagio, &c.

A Chappell or an Hospitall must be demanded in a fine, and may 13 Ass. pl. 2. passe by the name of a messuage.

A Reversion of land may passe by the name of a Reversion, or by 43 E. 3. B1. the name of the land it selfe.

A Foldage may passe by the name of De libertate unius Faldagii West. ubi supra. et cursu ovium cum pertinen' in F. or de libero Faldagio ovium cum pertinen' in F. or de libera Falda.

Land, Meadow, or Pasture, Wood and the like, may passe by a 16 Ass. 9. certain number of acres, or by the certain measure of the superficiall quantity thereof, as De Hida, Carucata, bovata, Virgata, Acra, Roda, Furlingo terrae, House-boot, Hay-boot, and Plowboot may passe by the name of Estovers, as De rationabili estoverio in boscis, West. Symbubi supra. viz. in decem acris bosci ipsius A. in D. And a fishing may passe by the name of Separali piscar' in aqua de S.

And High-wood and Underwood may passe by the name of wood, as de 20. acris bosci, &c.

Parsonages, Rectories, Advowsons, Vicarages, or Tithes impropriate West. Symb. ubi supra. passe not by the names de advocatione Ecclesiae, but de Rectoria ecclesiae de S. cum pertinen'. But when the fine is but of a presentation to a Church onely, it must be de advocatione ecclesiae de S. and not cum pertinen', and of all Vicarages endowed the writ must be de advocatione vicariae ecclesiae de S. and not cum pertinen', and where no vicarage is indowed, it must passe under these words, de advocatione ecclesiae de S. &c.

If part of an entire thing passe, it must passe by these words, de medietate, tertia parte, quarta parte, &c. as the Case is, as de duabus partibus in tres partes dividend. 8. acr. terrae, or de medietate omnium decimarum, granorum et foeni de ter' vocat' le Blacklands cum pertinea, in H. But if an entire thing as a Manor or Messuage be parted, as if the Manor of S. be divided into two parts, (if the division be so made that the Manor of that part be not extinct) and a fine be to be levied of a part of it, it must passe by the name of the whole, as de manerio de S. So if a Messuage and 23. acres be parted, the part divided shall passe by the name of one Messuage and 10 acres of [Page 13] land, and not by the name de medietate unius messuagii et viginti acr' ter'. And if things be otherwise named then as before, sometimes the fine will thereby lose his force in all and sometimes in part. But if a thing be twice named in a writ of covenant, as a Manor, and a Hundred parcell of the same, this will not hurt the fine.

The things that do passe by the fine must be named to lye in the Broo. Fines 44. 91. 9 E. 46. Shire, Town, Parish, or Hamlet, where it doth lie, for a fine is good, albeit it name the lands to lie in a Hamlet, or in a town decayed; but it is good to name the town wherein the Hamlet is, and that with addition for distinction if there be divers towns, of the same name in that county. And if a Manor extend into divers Towns as into A. B. and C. it is good to expresse all or none, as de Manerio de S. in A. B. and C. For if any of the towns be omitted, none of the Manor in that town will passe, but if the fine be of the Manor of S. cum pertinen' and say not where it lieth, this fine will cary the whole Manor. And if there be divers Manors of one name, as South S. & North S. or the like, it is safe to set down in the writ for the fine w^ch Manor is intended to be passed, howsoever the fine may be good of the Manor intended to be passed without the distinction.

The order of placing things in fines is, First, to set down the most 7 H. 6. 39. Plow. 163. Regist. 2. worthy things before things lesse worthy, as a Manor before a Messuage, a Castle before a Manor, a House before land, arable land before meddow, meddow before pasture, &c. Secondly, to set down things generall before things speciall, as land (being the Genus of meddow, Pasture, wood, &c.) before them, wood (being the Genus to wood grounds, as alnetum, salicetum) before them. Thirdly, to set down entire things before parts of things, as de Manerio de S. & medietate Manerii de B. Fourthly, to set down particular things after this manner.

suagium, tum, lendinum, umbare dinum, ra, tum, tura cus, ra Mes, Tof, Mol, Col, Gar, Ter, Pra, Pas, Bos, Brue, Mora, ria, cus, tum caria, ditus, Iunea, Maris, alne, rus, red, Sectare priora.

And yet if this order be not observed, but the things be otherwise placed in the writ, if it be suffered to passe, the Fine will be good enough.

If either the Cognisor or Cognisee at the time of the Fine levied 4. In respect of the estate of the parties thereunto. Stat. 27 E. 1. ch. 1. 41 E. 3. 14. 44 E. 3. 36. 39 E. 3. 16. 17 E. 3. 62. 24 E. 3. 26. be seised of any estate of freehold in fee simple, fee taile, or for life, n possession, reversion, or remainder, whether the same be by right [...]or wrong, the fine will bee a good fine in this respect. And therefore if one that is seised of land in fee simple, or fee taile, generall or speciall, levy a fine of this land to a stranger, this is a good fine. So if a Strangere levy a fine to him of this land, this is a good fine. So also a fine levyed by, or to, a tenant for life of the land he doth so [Page 14] hold is good in this respect. But hee must take heed of a forfeiture in this case, for if tenant for life levy a fine Sur Cognisanc' de droit Forfeiture. come ceo, &c. to a stranger, or levy a fine sur Grant & Release to a stranger, to hold to the cognisee for a longer time then for the life of the tenant for life, howsoever in this case the fine be a good fine, yet this is a forfeiture of the estate of the tenant for life, whereof he in reversion or remainder may take present advantage. And yet if such a tenant for life levy a fine sur Grant et Release, to hold to the cognisee for the life of the tenant for life, or grant his estate by such a fine to him in reversion or remainder or by fine, or grant a rent out of the land for longer time then for his own life, in these cases the fine is good, & 1 H. 7. 22. Co. 2. 56. 9. 106. there is no forfeiture of the state of the tenant for life. So likewise if a fine be levyed to a tenant for life by a stranger, who doth thereby acknowledg all his right to be in the tenant for life, & release and quite claim to him & his heirs, & go no further, this is a good fine, & no forfeiture of the estate of the tenant for life, for his estate is not changed thereby, and it may enure to him in reversion, but if the stranger say further in the fine Come ceo que il ad de son done, this is a forfeiture.

But if neither the cognisor nor cognisee be seised of any estate of freehold in possession or reversion of the lands whereof the fine is Co. 5. 123. 3. 88. 90. Super Lit. 251. 3 H. 7. 9. 5 H. 7. 41. 3. H. 6. 21. 27 H. 8. 4. levyed at the time of the levying of the same, but have only a lease for yeares, or not so much, the fine is void and of no force as to any estranger, howsoever it may be good between the parties by way of Estoppell. Estoppell. And therefore if a lessee for yeers, or a disseisee, or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land, this fine is void, or at least voidable as to, and by any stranger thereunto, and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed, and that Partes finis nihil habuerunt tempore levationis finis. And by this avoid it. And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant, but not to a stranger. And a disseifor may levy a fine to a stranger that hath nothing in the land, and this is a good fine, for he hath the fee simple by wrong in him. Also the issue in taile may be barred by way of Estoppell, by a fine levyed by Ancester being tenant in taile, albeit neither conusor nor conusee have any estate of freehold in the land. a 26 H. 8. 9. Dyer 334. 69. Plow. 375. 338. E. 4. 13. 11 E. 4. 68. A Joint-tenant, tenant in Common or Coparcenour, may levy a fine of his part to a stranger, and this will be a good fine. And so also as it seemes may one Goparcenour or tenant in common to another.

One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation, as the Maior or Master of a College cannot levy a fine without the communalty, or his fellows, &c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die:

[Page 15]

Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches, houses, &c. as Bishops, Deanes, and Chapters, Prebends, Parsons and the like; may not levy a fine of such lands, for if they doe it will not bind the successor.

He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her, and if he doe, shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch. 36. Co. 5. 3. 4. Stat. 1 H; 7. chap. 20. and her heires may avoid it after his death. Also he that hath an estate of lands given in taile by the King, or by the provision of the King, ought not to levy a fine of this land, for it is void as against the issue in taile and the King. Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land. Also she that hath an estate of lands of her husband, or of any of his ancestors assured to her for her Jointure, Dower, or in taile by the meanes of her husband or any of his ancestors, may not levy a fine of this land, for if she grant a greater estate then for her own life this worketh a present forfeiture.

In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it. And what concord or agreement may bee made by Fine or not. West. Symb. ubi supra. Sect. 30. Co. 5: 38. manner and forme, and some things in the matter and substance. First, when a fine is levyed to divers Cognisees the right shall be limited to one of them. As if a fine be levyed by A. to B. and C. it shall say, Quod praedict' A. recognoverit tenementa praedict' esse jus ipsius B. ut ill'quae iidem B. et C. habent, &c. But the Kings tenant may acknowledge the right to be in divers. Secondly, the state shall be limited to his heires onely to whom the right is limited, and not to the heires of all the cognisees, as thus, Quod praedict' A. cognoverit tent' praed &c. esse jus ipsius B. ut ill quaeiidem B. & C. habent de dono praedict' A. & ill'remisit & quiete clam' de se & haered suis praefat' B. et C. et haered ipsius B. &c. The release and warrantie must be from the heirs of one of the Cognisors, where there be more then one, for in a fine from divers the fee is supposed to be in one onely. And therefore it must be thus. Quod praedict' A. & B. cogn' & ill'remisit &c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro s [...] et haered ipsius A. quod ipsi war' tenementa &c. si contra se et haereredes ipsius A. imperpetuum. But if the fine be of lands in Gavel kind contra. Fourthly, the Concord need not to rehearse all the speciall names of the things contained in the writ, but it is sufficient to say Tenementa praedicta, as quod praedict' recognoverit tenementa praedicta, &c. Fifthly, as a Concord cannot be without an originall writ, so it must pursue the originall writ and cannot be of any forain thing. 1. such a thing as is not contained in the writ, except it be consequent thereunto, as when the writ is of land, there may be in the concord of a rent out of this land, but there may be more things in the Precipe then are named in the Concord. And a Concord may be with an exception of some part, but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein, [Page 16] must be certainly named, & must succeed the things out of which they be excepted, as Precipe A. B. quod teneat C. D. conven [...] &c. de manerio de D. cum pertine [...] in C. (except▪ uno messuagio, duabus acris terrae, et advocatione Ecclesiae de C. &c. Et est concordia, &c. quod praed A. cogn' tenementa praedict' cum pertinen' (except▪ praeexcept.) And in all these and such like cases, as before where the concord is not formall, the Judges ought not to receive the fine nor suffer it to passe, but if they doe and the fine be finished, it cannot afterwards be avoided by writ or error or otherwise for these faults.

The Concord and agreement may be made of an estate in fee simple, See in West. Symb. divers examples, Perk. Sect. 629. Broo. Fines 108. fee taile, for life, or for yeeres, it may be also of divers remainders, and that to them that are no parties but strangers to the fine. It may be also single or double, with a render back again of some estate in the same land or some rent out of it, so as a Concord may have in it a reservation of rent, a clause of distresse, or Nomine penae, and a warrantie. Broo. Fines 106, 118. Co. 6. 33. Plow. 435. Dyer. 279. Co. 1, 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo, &c. And B. by the same Concord doe grant and render the land back again to A. for life without impeachment of wast, the remainder to C. the wife of A. for her life, the remainder to A. and his heires, this is a good Concord and by this devise a Jointure may be and is oftentimes made to a woman. And if a [...]nture. man would have a lease for life or yeers made of land by fine, the Lease. less [...]e must by the concord acknowledge the lands to be the right of the lessor (who is seised of the land) as that, &c. And then the lessor must grant and render the same land back again to the lessee (the conusor in the fine) for life, life, or for a certain number of yeers as the agreement is, reserving a rent with clause of distresse, and this is a good fine, and a common devise for this purpose. But if the lessor be tenant in taile, it seems this fine will not bind the issue in taile. And yet if A. tenant in taile, and N. doe by fine acknowledge the land to be the right of a stranger, as that, &c. and then the stranger that is cognisee doth grant and render the land again to N. for life, or yeers with clause of distresse, &c. and then grant and render the reversion to the tenant in taile, this is a good fine, and will barre the issue in taile also, and will likewise passe the rent and the reversion to the tenant in taile. So if a Stranger that hath nothing in the land levy a fine Sur cognisance de droit come ceo que il ad, &c. To him in remainder in taile depending upon an estate for life, and the cognisee by the same fine render to the cognisor for tenne yeers to begin at Michaelmas following and dieth, and all the proclamations are made after his death, and the tenant for life dyeth after the time the lease is to begin; this is a good fine, and so a good lease to barre the issue in taile.

If A. B. and C. levy a fine to D. and D. render the land back again West. Sym. ubi supra. Co. 7. 38. to A. for life, the remainder to B. in taile, the remainder to C. [Page 17] in taile, and the remainder to a stranger in fee, this or any such like concord as this is good. And if A and B joyne in a fine of a mesuage to C and D and to the heires of C, who do grant and render a charg of 30l. out of the land to A for his life, to begin after the death B, to be paid at the feasts of, &c. Proviso semper quod pred concessio pred annualis reddit' 30l. non aliqualit' se extendat ad on erand personas dict' C & D, sed tantummodo ad oner and dict' mesuag' tota vita ipsius A. and then they grant and render the mesuage to A during the life of H. the remainder to be in taile, the remainder to the right heires of B, this is a good fine. But in such a fine sur grant & render, these things must be heeded. 1. None may take the first estate 1] 24. Ed. 3. 27. Bro. Fines 108. by the Concord, but the Cognisors or one of them. And therefore if A knowledge a fine to B, and B render and grant the land to A. Habendum sibi & E. uxori ejus and the heires of their bodies. So if the husband levie a fine of his wives land, and the Cognisee grant and render the land to the husband and wife, this is not a good Concord. 2. The render of the Rent must be to one of the 2] Co. 2. in the Lord Cromwels case. 3] 24 Ed. 3. 26. 14 H. 4. 31. Dyer 69. 33, 34.] parties to the fine, and not to astranger. 3. A man cannot reserve a lesse estate to himselfe then fee; And therefore if A knowledge a fine to B, and B render to A in taile, the remainder to himself for life, this remainder is void. So if A by fine knowledge lands to B, and B grant and render the land to the Conusor in taile, the remainde, to B in taile the remainder to B in fee, the limitation of this estate in taile to B is void, and he can never have execution of it. So if A knowledge the lands to B, and B doth grant and render to A 4] Co. 6. 33. for life. 4. The agreement must bee possible and sensible, for if there be three Conusors in a fine, and the Conusee render to one of them for life or yeares a rent, and grant the reversion to another of them for life or yeares rendring a rent, and grant the reversion in fee or in taile to the third, this is not a good Concord. 5. There 5] 44. Ed. 3. 22. 27 H. 8. 24. can be no condition or clause of re-entrie for not payment of rent inserted into the Concord, and yet some hold a fine levied to one in taile upon a condition with a remainder over is good. Co. 3. 5. super Lit. 353. 5. 38. And such Concords as these of the last sort before ought not to be received, and if they be received, the fine in most cases may be avoyded for these [...]aults, but if a fine bee received with a condition inserted into the Concord, this is a good fine and not avoidable by writ of Error or otherwise.

No single fine can be with a remainder over to any other person contained in it, but it must be to the Conusee and his heirs only. Plow. 248. 2. No rent can bee reserved upon a fine that is Sur Conusance de 2] 50. E. 3. 9 3]. Co. 5. 38. droit come ceo, &c. but upon a fine sur grant & render, or sur concessit: only, for if one levie a fine sur conusance, &c. rendring rent, this reservation is void. 3. No single or double fine shall be received with any covenants or other agreements then are before mentioned, [Page 18] but in all these cases also when the fine is received and levied it seemes it is good and unavoidable, and that only the remainder in the first case, the rent in the second, and the Covenants in the last, are void, and the fine good for the residue.

A particular tenant, as for life, &c. cannot surrender his terme 44 Ed. 3. 36. to him in reversion or remainder by fine, but he may grant and release it to him by fine.

One may grant his tenements which H doth hold for life, and 44 Ed. 3. 45. which after the death of H. ought to remaine to him, to H. for life, rendring rent with clause of distresse, saving the reversion, and a fine of this forme is good.

The manors and tenements contained in the writ may bee divided, 44 Ed. 3. 11: 45 Ed. 3. 12. as if a fine be levyed betweene A and B of two Manors, and B doth acknowledge all his right of the said two Manors to be the right of the said A, as that which, &c. for which A doth grant and render one Manor to B for life, with two parts of the other Manor which N holdeth in dower, to have the one Manor and two parts of the other Manor to B for life, the remainder after his death to A in taile, and that after the death of N the third part shall remaine to another. So if a fine be levied of the Manor of G with 44. Ass. Plo. 11. Bro. Fines 11 [...]. the appurtenances by A unto C, which A knowledgeth the right in C, as that &c. and C granteth and rendreth the same to A, in taile, the remainder of the fourth part of the Manor towards the West to the said A and her heires, the remainder of another fourth part towards the East to I. in fee, and so of the other two fourth parts. Or incertainly by 3. third parts in remainder to A, B and C in remainder severally, and these are good Concords.

If T and E his wife levie a fine to R, D and T C of divers Co. 5. 38. Manors and lands in A, B and C, and in the fine there are divers, grants and renders, and one grant and render is of the Manors of A and B and the lands therein to T and E, and the heirs of T, and in another render 100. acres parcell of one of the same Manors is granted to E in taile, the remainder to the right heires of a stranger, notwithstanding this repugnancy, the Concord and consequently the whole fine is good.

The fine must bee levied and sued forth in that manner and order See before. [...]. In respect of the manner and order of levying it, and other matters. as before is set forth, for if it be not so, but that there want an Originall writ, or if there be one, it doth beare Teste after the Dedimus Potestatem, or the like, it will be a defective fine, and either ipso facto void, or at least voidable by writ of Error.

If any one of the Conusors die before the Conusance be certified Dyer 220: 254▪ Crom, Jur. 92. Dyer 246, after it is acknowledged and taken, the fine cannot now bee made a good fine, and yet if the Commissioners shall certifie this Conusance with an antedate, and so the fine be finished, this may be a good fine at the common Law, but perhaps may bee avoided by sentence in [Page 19] the Starre-Chamber. But if the Conusance bee certified and the Kings silver paid to the King before the death of the Conusor, the fine may be ingrossed and finished after his death well enough, and it will bee a good fine. And if a feme sole make a Conusance of a fine; and before it be certified and ingrossed shee take a husband, this will not let but the fine may be finished, and albeit it be recorded and sued out in her name as sole, whereas in truth she is covert and of another name, yet is the fine a good fine, however in this case it is not amisse to get a release of Errors from her husband.

Lands that are bought of divers persons may passe by one fine, West. Sym. ubi sup [...]a. and then the writ of covenant must be brought by all the vendees against all the vendors, and they must every one of them warrant for himselfe and his heires, and such a fine is good.

If lands lye in divers shires, it may be contained in one Concord Dyer 227. 15 Ed. 4. 33. and good enough, but there must be severall writs of Covenant in every County, else the fine will not be good.

If a fine be levied of Covin by a lessee for yeares, or life, or a Copiholder Co. 3. 78. 8. 9. 105. of purpose, and with an intent to barre him in reversion Covin. Recovery. or the Lord of his inheritance, this is of no force, and therefore non-claime within five years will not hurt in this case. So that it seems Co. 3. 80. 16 H. 7. 5. See infra in Deed. Nu. a fine or recovery may be covinous and avoidable for Covin as well as a deed, and therefore that a fine or recovery levied or suffered of fraud to deceive Purchasors or Creditors will be void as to them as well as any other conveyance. So also a fine or recovery levied or Usury. suffered in execution or pursuit of an usurious contract may bee void by the Statutes of usury as well as a feoffment or other conveyance by deed. But a fine or recovery shall not be said to be levied Duresse. or suffered per duresse, and avoided for that cause.

The Conusance of a Fine, and a Grant and Render therein shall 7. How the concord of a Fine shall be expounded and taken. Co. 5. 38. See in exposition of Deeds infra be expounded and taken as a Charter or other conveyance between party and party, because it is a conveyance upon Record, and not as a writ or judgment upon Record. And therefore if A and B by fine knowledge the Manors of S, T and W to be the right of C, and C doth render the Manors of S and T to A by one render, and after by another render limit 100. Acres, parcell of the Manor of S to B, this shall be a good Concord, and be expounded according to the intent of the parties. viz. That B shall have the 100. acres, and A all the residue of the Manor.

If a fine bee levied to two men & heredibus, without the word 37 H. 6. 5. [Suis] this is void for incertainty in a fine as it is in a deed. Deed.

If a fine believed, come ceo que il ad de son done, hereby a fee-simple Recovery. Co. super Lit. 9. Frederick versus Wakefields case. Trin. 36 Eliz. Co. B. will passe without any word of heires. And so also it is in case of a common recovery.

If the lands be limited in the Concord of a fine to B for life, and after to the children of C begotten, and C hath at the time of the [Page 20] fine levied two daughters only; in this case the sonnes and daughters that are borne after shall take nothing by this fine. And no averment of intent will help in these cases. And yet an averment Averment. lieth upon a fine of the uses thereof and of no other matters as upon a deed.

A fine at the common Law, or a fine without Proclamations was Stat. 18 Ed. 1. de [...]in [...]bus Stat. 34 Ed. 3. 16. Plow. 373. Stat. 4. H. 7. ch. 24. 1 R. 3. ch. 7. 32 H. 8. ch. 36. 8. What persons shall be barred by a Fine, or a Fine and Non-claime. And in what time. Or not. And how. once a perpetuall bar to all persons that had right and no impediment at the time of the fine levied, and that did not claime within a yeare and a day after the execution of the fine by possession; but now this Law is changed, and this kind of fine will barre none but such as are parties and privies thereunto. But a fine by the Statute, or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was, for by the Statute of 4 H. 7. it is provided, That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme, and the three next following Tearmes, foure severall daies in every Tearme; which Proclamations so made, the fine shall conclude all parties privies and strangers, except women covert, persons within 21. yeares of age, in prison, out of the Realme, or of non sane memorie, (being no parties to the fine) so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed. Saving to all persons and their heires (other then parties) the right claime and interest which they have at the time of the fine, so as they pursue it by action or entrie within five yeares after the Proclamations. And saving to all other persons such right, title, claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine, so as they make their claime or entrie within five yeares after the same grow due, or if at that time there be any impediment as aforesaid, within five yeares after the impediment removed. And by the Statute of 32 H. 8. (which is an exposition of this Statute) it is provided, That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land, &c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession, reversion, remainder, or use, immediately after Proclamations had shall be a barre against him and his heires, claiming only by force of any such entaile, and against all others claiming only to the use of him or any heire of his body. By which Statute it doth appeare that all the parties, to the fine Conusors and Conusees, whether they be femes Covert, men de non sane memorie, or others, (Infants only excepted, who during minority may avoyd it) and whether they have a naturall or civill capacity: & privies, viz. privies in bloud, as heires, whether they be lineall or collaterall, or privies in representation, as executors and administrators: and all strangers also, viz. all others besides parties & privies that have or pretend any present right [Page 21] or title (except women covert, and the rest that have impediment that doe make their entrie or claime, or bring their action within 5. years after Proclamations had, and those persons excepted also if they make not their claime, &c. within five yeares after the impediment removed) all these are concluded. i. so shut and closed up together, for their right is so extinct hereby, as they can never open their mouthes or lift up a finger against it. Saving to all others. i. such as have no present right at the time of the fine levied, and were excepted before such right, title, claim or interest as shal accrew to them after the Proclamations upon any trust, gift in taile, or other cause, before the fine levyed, so as they make their claime, &c. within five years after their right first accrewed if they have then no impediment, or if they have, within five yeares after the impediment removed.

For a more full understanding of which Statutes and this matter, these things in generall must first be observed. 1. That the persons to be barred by a fine are, 1 Parties. 2 Privies. 3 Estrangers. The parties if they be of the age of 21. years, are bound for ever by the fine, and shall have no time to claim to preserve their right. The privies also, being heires and executors to the parties and voyd of impediment at the time of the fine levied, or not, if they claim by the same title that their Ancestor had that levied the fine, are barred for ever by the fine, and shall have no time to claime to preserve their right. Dyer 3. pasche, 7. Jac. B. R. And therefore if my father disseise my Grandfather of land, and then levie a fine of the land, and then my Grandfather die, and after my Father die, by this fine I am barred of the land for ever. And here note, Trin. 21 Jac. Com. B. Curia in in Will. Godfreys case. that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso. And that privies or heires in estate and bloud, as he that is heire to whom the land doth or should descend are within these Statutes, and shall be barred by the fine of their Ancestor of that land. And so also shall privies in estate that are not privies in bloud, as where one hath land in burrow English, and levie a fine of it, hereby the youngest sonne is barred. So if one bee tenant in taile to him and the heires females of his body, and he levie a fine, having a sonne and daughter, hereby the issue female is barred, and yet she is not the heire of his bloud. But he that is privie in bloud only, and not in estate also, is not within these Statutes, neither shall he be barred by the fine, and therefore if lands be given to a man, and the heires females of his body, and he hath a sonne and a daughter, and the son levie a fine and die without issue, this is no barre to the daughter, for howsoever she be heire of his bloud, yet she is not heire to the estate, nor shall need to make her conveyance to it by him. The strangers that are to be concluded by the fine, are either, 1. Such as have present right and no impediment, and these are barred within [Page 22] five yeares if they make not their claime within five yeares after the Proclamations. 2. Such as have present right, but have impediment of infancy, &c. and these are barred if they doe not make their claime within five yeares after the impediment removed. 3. Such as have no present but future right upon cause precedent, and they are either without impediment, and then they are barred if they claime not within five yeares after their right doth acrew; or they have impediments, and then they are barred if they claime not within five yeares after the impediment removed. 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine, but whose right groweth either entirely after, or partly before, and partly after the fine, and these are not barred at all by the fine, but they may make their claime, &c. when they will. And parties, privies, and strangers to Plow. 538. 337, 375, 378. fines that are barred thereby, are such as have naturall capacities or civill, for both these are barred. And therefore it is held, if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof, as Major and Communalty, Deane and Chapter, &c. levie a fine of their lands, they and their successors are barred presently, but if a Bishop, Deane, or Prebend, without assent of the Deane and Chapter, or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine, this would not have barred the successor; neither will it barre now with their assent, for they are restrained by divers Statutes. So also such persons are barred by the fines that are levied by others if they make not their claime in time, as if one disseise a Corporation aggregate of land belonging to their Corporation, and after levie a fine of it with Proclamations, and they doe not make their claime, &c. within five years, hereby they are barred. 2. Where the Ancestor is barred by the fine, there for Co. 9. 105. the most part the heire is barred also. And therefore if tenant in taile be disseised, and the disseisor levie a fine with Proclamations, and the tenant in taile suffer five yeares to passe without claime, &c. hereby he and his issues are barred for ever, so that the heire doth suffer for the laches of his Ancestor. 3. The estates that shall be Co. 9. 104, 5, 124. barred by the fine are estates by the common Law, or by Copihold, in fee-simple, fee-taile, or for life, or for yeares, the estates also of [...]enant by Statute, Elegit, and of Gardeins in Chivalrie, and of Executors that have land untill debts and Legacies be paid. And therfore if one enter upon, and put out a Copiholder of land, and levie a fine thereof, and the Copiholder suffer five yeares to passe and make no claime, &c. the Copiholder and his Lord both are hereby barred for ever. And if a lease be made for yeares, and the lessor or another before entrie of the lessee levie a fine with Proclamations, and the lessee doth not not make his claime, &c. within five [Page 23] yeares, hereby the lessee is barred of his interest forever. 4. The Plow. 378. Bro. Fines. 123. Co. 5. 124. things whereunto these Statutes doe extend, are lands and tenements, and not a Rent or other profit apprender out of the land, and therefore if I have a rent, common, or Estovers out of land, or a way over land, or power to sell the land, and a fine is levied of the land it selfe, and I doe not make my claime of my rent, &c. within five yeares, yet I am not hereby barred of my rent, &c. And for this cause it is, that if a tenant in ancient demesne levie a fine of his land, and five yeares passe, the Lord is not hereby barred to avoid it, fo [...] herein he claimeth not the land but his ancient Seigniorie. 5. The time in which they must make their claim, or bring Plow. Lord Zouches case, 370. their action that have present right and no impediment is within five yeares after Proclamation had, and the time for them which have impediments is within five yeares after the impediments removed. 6. The time within which they must make their claime Dyer. 3. Co. 3. 86, 91. Plow. 373. or bring their action whose right doth happen afterwards, if they have no impediment, is within five yeares after the time that their right doth accrew, and if there be any impediment within five years after the impediment removed. 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies. 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving, for he that will be within the second Saving to have benefit by it must be, 1 Another person. 2 The right must come and acrew to him first. 3 It must come to him after the fine and Proclamations. 4 His right must be upon some cause or matter before the fine. 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession, reversion, or remainder which is not devested and put to a right at the time of the fine levied. And therefore if one levie a fine of my land whiles I am in possession of it, this fine will not hurt me. So if the tenant of the land, out of which I have a Rent or Common, &c. levie a fine of the land, this shall not barre me of my Rent or Common, for I am still in possession of this in the judgement of the Law. So if there be tenant for life the remainder for life, or tenant in taile the remainder in taile, and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled, and after levie a fine to the bargainee, in this case the remainders are not barred, albeit five yeares passe without claime, for the Law in these cases doth adjudge them alwayes in possession. So if I make a Lease for yeares of land, rendring a rent, and a stranger levie a fine of the land, and the lessee for yeares payeth his rent to me duly, in this case I am said to be alwayes in possession, and therefore am not barred by this fine of my reversion. So if there be a tenant by Copy or lease for life, the remainder for life, and the first tenant for life accept of a fine of the [Page 24] land with proclamations and 5 years passe without claime &c. hereby he that is in remainder is not barred. So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land, and five years passe after the terme beginne, it seemes this is no barre, because this estate is not put to a right. And for the further illustration of all these things see the examples following. Stat. 4 H. 7. 32 H. 8. Co. super lit. 372. 1] Co. 9. 138. 140. Dier. 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other. according to the statutes, this is a barre to the estate taile, wherein these things are to be known. 1. That wheresoever the issue doth claime by the same title, and must make his Conveyance to the lands by him that levied the fine, there the fine will barre him, and therefore if lands be given to the husband and wife in speciall taile, viz. to them and to the heires of their two bodies issuing, or the like, or if the gift be to them and the heires males or females of their two bodies, or to them and the heires of their bodies with the remainder to the right heires of the husband in fee, and the husband alone levieth a fine with proclamations, by this the issue in taile is barred. And yet so as the right of the wife is saved so as she makes her claime &c. within five years after her husbands death. Dier 354? So if husband and wife tenants in speciall taile have issue and the wife die, and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo &c. and take backe by the same fine an estate in speciall taile the remainder over &c. and die, the issue by the first wife is barred. Co. 3. 90. So if tenant in taile be disseised, or make a feoffment in fee, and after levie a fine with proclamations to the disseisor or to a stranger, the issues in taile are hereby barred for ever, the continuance of the possession in a nother notwithstanding. Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body, the remainder to the father & the heires of his body, and the father dyeth, and the eldest sonne levy a fine with proclamations and dyeth without issue, this shall barre the second sonne for ever for the remainder descended to the eldest. Cûria trin. 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father (the father being then dead) and he levy a fine of this land, this will barre the younger brother. Dier. 3. But if the issue in taile doe not make his title by him that did levy the fine, there the fine will not barre, and therefore if my father be tenant in taile, and his brother disseise him and levy a fine, and he and my father dye, this fine shall not barre me as issue in taile, because I doe not make my title to the land by him: but if I suffer five years to passe and doe not make my claime &c. by this meanes I may be barred by the fine. Plow. 435. And if the fine be levied of another thing then the thing it selfe entailed, As if the tenant in taile grant by fine a Rent, Common, or the like out of the land intailed, this fine will not barre the issue. So if a Rent be entailed and the tenant [Page 25] in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue, and then levy a fine of the land, this is no barre to the issue of the Rent. 2. Albeit the fine be a double fine 2] Co. 76. 3. 85. super Lit. 353. Bio. fines. 118. Dier. 279. with a grant and render, yet it is within these Statutes, and will barre the issue in taile as well as a single fine, so as the grant and render be of the land it selfe and not of any profit apprender out of it. And therefore if husband and wife be tenants in speciall taile, and they levy a fine with proclamations, and the Conusee grant and render the land to them and their heires, this fine will barre the issue in taile. And if tenant in taile joyne with I. S. and levy a fine to a stranger, and the stranger doth grant and render the land againe to I. S. for years, and to the tenant in taile in fee afterwards; the issue in taile is barred by this fine. So if there be tenant for life, the Remainder in taile, and he in remainder in taile accept of a fine from a stranger, and grant and render to the stranger againe for years with a remainder over, hereby the issue in taile is bound. Plow. 435. If tenant in taile accept of a fine of the land entailed from a stranger, and then grant and render a Rent out of the land to the stranger by the same fine, this will not bind the issue in taile to pay the same Rent. Dier 117. If tenant in taile make a feoffement on Condition, and die having two sisters inheritable to the taile, and one of them levy a fine with proclamations sur Release to the feoffee of the whole, in this case it is doubted whether the other sister be barred of her halfe or not. 3. Albeit the tenant in 3] Co. 3. 86. 87. 1 in Shelleys Case. taile die before all the proclamations be finished, yet when they be finished as they may be after his death, the issue, in taile are bound by the fine, for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue, yet when the proclamations are passed this right that doth descend is bound by the Statutes, and the issue cannot by any claime &c. save the right of the estate taile that doth descend unto him. 4. Albeit the 4] Co. 3. 84. 91. issue in taile be within age, out of the Realme, under Coverture, non compos mentis, or in prison at the time of the fine levied and the proclamations passed, yet the estate taile is barred by the fine. And therefore if A. be tenant for life of land the remainder to B. in taile, the reversion to B. and his heires expectant, and B. levy a fine to C. and his heires, and hath issue and die before all the proclamations are passed, the issue in taile being then out of the Realme, the proclamations are made, and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land, in this case the estate taile is barred for ever. 5. These Statutes doe extend to fines levied by tenant in taile by 5] Co. 3. 90. Dier. 279. Plow. 435. Conclusion, and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud, albeit partes finis nihil habuerunt tempore finis. And therefore if the issue in taile [Page 26] in the life of his Ancestor when he hath onely a possibility, As if there be grandfather, father, and sonne, and the grandfather be tenant in taile, and the father levy a fine of the land before the grandfathers death, and then the grandfather dye before the father, and after the father dye, in this case the issue is barred by this fine: Curia. Trin 21. Jac. Com. B. Godfry & Wades case. Dier 48. so also if the grandfather survive the father. But in case of a collaterall descent, if the collaterall Ancestor die in the life time of his father without issue, this fine is no barre, but if he survive his father, contra. So if lands be given to the grandfather and his wife in speciall taile, and the grandfather dieth and the father doth disseise the grandmother, and doth levy a fine with proclamations, the grandmother dieth and then the father dieth, in this case the sonne is barred. Co. 3. 50, 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land, by this the issues inheritable to the estate taile are barred for ever. Plow. 434, 435. So if tenant in taile make a feoffement or be disseised, and after levy a fine with proclamations for a stranger, hereby his issues are barred for ever. Curia. 21. Iac. Co. B. So if tenant in taile die and his issue before his entry (having a freehold in law only) doth levy a fine with proclamations, this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud. Idem. So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father, this will be a barre to her issue for the fourth part of the land. Co. 3. 50, 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile, the tenant in taile himselfe may after levy a fine of the land, and thereby barre his issue, and the Conusee also to whom his issue hath levied a fine, and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue. Co. 10. 50. 9. 141. 3. 50, 51. If lands be given by will to one when he shall come to his age of twenty four years, to hold to him and the heires of his body, and he after his age of twenty one years levy a fine of this land with proclamations, this is a barre to the issue in taile. If a disseisor make a gift in taile, & the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land, this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt &c. but it is no barre to the disseisee, for he may avoid it by this plea when he will. Co. 3. 84. And à fortiori therefore, if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good: as if A. be tenant for life, the remainder to B. in taile, and B. levy a fine, albeit this be no discontinuance, yet it is a barre to the estate Discontinuance. taile. Trin. 21 Iac. Co B. Will. Godfrey versus Wades case. But if tenant in taile have issue a sonne and a daughter, and the sonne living the tenant in taile levy a fine and dye without [Page 27] issue, and then the tenant in taile dieth, by this the daughter and the estate taile is not barred. So if the younger sonne levy a fine in the life of the father, and then the tenant in taile dye, this is no barre to the elder sonne. So if lands be given to a man and the heires females of his body, and he hath a sonne and a daughter, and the sonne doth levy a fine of the land, this is no barre to the daughter. So if tenant in taile have a daughter his wife being with childe of a sonne, and the daughter levy a fine, and after the sonne is borne, this fine shall not barre the sonne, for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate. 6. Albeit the estate passed by the fine be afterwards [...] J Co. 3. 91. before all the proclamations had avoided, yet the issue in taile is barred by it. And therefore if tenant in taile discontinue in fee, and after disseise the discontinuee and levy a fine with proclamations to a stranger, and take an estate backe by Render in the same fine, and the discontinuee before all the proclamations passe enter and claime and so avoid the fine, yet hereby the estate taile is barred. Per Popham et Fenner. Iust. M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine, the issue enter, and after the proclamations passe, and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth, it seemes this fine shall barre the issues in taile. 7. This is a barre to the estate taile 7] Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion, and therefore when the estate taile is spent this barre is at an end. And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue, or her issue alone levy a fine, this will barre the issues of the issues whiles there be any, but they faile it will not barre C. in remainder, except he suffer five years to passe and so be barred by his non claime. So if tenant for life and he that is next in the remainder in taile joyne in a fine, this is a good barre to the issues in taile for ever as long as that estate taile shall continue, but not to him that is next in remainder, nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion. Co. 10. 96. & 9 Iac. B. R. If lands be given to A. and the heires males of his body, the remainder to B. and the heires males of his body, the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires, and after levy a fine of it sur Conusance de droit come ceo &c. to him and his heires, by this the remainder to B. is Discontinuance. not discontinued, but it is a barre to the estate taile by the Statutes, and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body, but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder, but in neither case a barre to him in remainder unlesse [Page 28] he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession. 8. If there be 8] Co. super. Lit. 372 tenant in taile the remainder to him in taile, and the tenant in taile levie a fine of this land, hereby both his estates are barred. Et sic de similibus. y] Bro. Fines 121. Co. 6. 55. Dyer. 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding, If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land, this will not barre the issues in taile. Or if lands be given in taile to any subject by the Kings own gift or provision, and the tenant in taile levie a fine, this fine shall not bind the issues in taile nor the King, but others it will barre, for these fines are not intended within, but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile. And in all cases where a recovery will not barre the issues in taile, there a fine will not barre them.

Albeit the fine of the husband and wife together of the wives Dyer 72. Plow. 373. 2 Wife barred by the fine of her husband or some other. land, or of the land of the husband and wife together, be a perpetuall barre to her and her heires for ever, yet if the husband alone levie a fine with Proclamations of such land, and then he die, in this case shee is not barred of her right, but if she doe not make her claime, &c. within five yeares after her husbands death she is barred of her right for ever, notwithstanding the Statute of 32 H. 8. M. 18. Jac. Co. B. in Anne Twists case. And if one seised of land in fee mary a wife, and after make a lease of this land to A. for life, the remainder to B. in fee, and B levie a fine with Proclamations, and the husband die, and the wife doe not make her claime, &c. within five years after the death of her husband; hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea. Quod partes finis nihil habuerunt, &c. Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die, and his widow having no impediment doth not make her claime within five yeares after his death; hereby she is barred of her dower for ever. Dyer. 358. If a jointure be made to a woman after the coverture, and her husband and she levie a fine of it; hereby without question she is barred of her jointure in this land, but it is thought that this is no barre of her dower in the residue of the land of the husband, and especially then when the fine is Sur conusance de droit come ceo, &c. Dyer 351. If lands be given to a man and his wife in taile, the remainder to the right heires of the husband, and the husband alone levie a fine of this, this will not barre the wife except she suffer five years to passe after his death without making claime, &c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy.

[Page 29]

If a man disseise me of the land I have in fee simple, or fee taile, 3. Disseisee and the like barred by the fine of the disseisor, &c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations, and I doe not make my claime, &c. within five years after the Proclamations had, hereby I and my heires are barred for ever of this land. And if I being such a tenant in fee make a lease for years, or be the Lord of any Copyhold estate, and my lessee for yeares, or Copyholder in fee, or for life be ousted, and I thereby disseised, and the disseisor levie a fine, and neither I nor my lessee for yeares, or Copyholder, doe make any claime, &c. within the five years after the fine levied, hereby we are all barred for ever. And if one disseise me of land, and after make a lease for life of it, and then levie a fine with Proclamations, and I suffer five yeares to passe, hereby I am barred both of the reversion and of the estate for life also.

If tenant for life make a feoffment in fee, and the feoffee levie Plow. in Stowels case. a fine with Proclamations, and he in reversion or remainder doe not make his claime, &c. within five years, hereby he is barred for ever.

If I pretend right or title to land, and enter upon it, and put him Co. 3. 79. out that is in possession, and then I levie a fine with Proclamations, with an intent to barre him, and he doth not make his claime, &c. within five years, hereby he is barred for ever, albeit he had the true right, and I no right at all.

If I purchase land of H. and after perceiving my title defeasible, and that a stranger hath the right of the land, I doe levie a fine Co. 3. 79. Doct. & St. 83. 155. to, or take a fine from another with Proclamations with intent and of purpose to barre him that hath right, and he suffer five yeares to passe, and doth not make his claime, &c. hereby hee is barred of his right for ever. And in these and such like cases, there is no reliefe Equitie. to be had in equity. See more in Numb. 11. infra.

If there be tenant in taile, the remainder in taile, and the tenant 9. Where a Fine shall be a barre as to one person, and not to another, or as to one part of the land, and not to another. Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled, and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo, &c. in this case as to the tenant in taile and his issue this is a barre, but as to all others it is no barre, albeit they never make any claime, &c. So if tenant in taile levie a fine of his intailed land, this is a barre as to him and his issues, but as to all others it is no barre at all, and therefore he in remainder or reversion in their times may enter notwithstanding. Co. 9. 140. 142. So if lands be entailed to the husband and wife, and the heires of their two bodies, and the husband alone levie a fine of this land, this as to the husband tenant in taile and his issues is a barre, but not as to the wife, for she shall be tenant in taile still, and yet it seems she may not suffer Recoverie. a recovery of this land afterward. So if a man attainted of felony or treason levie a fine of his land, this as to the King and Lord of whom the land is held is void, and is no barre to their advantage [Page 30] and title of forfeiture, but as to all others it is a good barre. 7 H. 4. 44. F. N. B. 98. Plow. So if one levie a fine of Lands in Ancient demesne and of other lands together, this as to the lands in Ancient demesne is not good, nor any barre at all, but as to the other lands it is a good barre.

By the ancient common law, he that had right, was bound to Co. super Lit. 254. 262 make claime, &c. within a year and a day after the fine levied and 10. The time of claime, and within what time he that hath right to land must make his claime, &c. to prevent the barie of the fine. execution thereupon, or else he was barred for ever, but this barre by non-claime is now gone, and if such a fine without Proclamations bee levied at this day, hee that hath right may make his claime at any time to prevent the barre, and avoid the force of the fine.

Parties to fines void of impediment at the time of the fine levied Stat. 1 R. 3. ch. 7. 4. H. 7. ch. 24. are barred of the land presently, and shall have no time to avoid Parties. the same fine by entrie, claime, &c. And privies in bloud, and privies in representation claiming by the same title which their Ancestor Privies. that levied the same fine had, shall be barred by the same fine presently, and that whether they have any impediment or not.

Estrangers to fines, (being all such as are neither parties nor privies) Estrangers. 1. That have present right and no impediment. who have right to the land whereof the fine is levied, and See the Sta. Plow. 374. Co. 9. 105. have no impediment naturall or legall, shall have time to make their claime, &c. within five years after the fine levied and Proclamations had, and no longer. And therefore if lessee for years, tenant by Elegit, Statute, or a Copiholder in fee, or for life, be ousted, and he in reversion disseised, they shall have but one 5. years between them to make their claime, &c. and if they claime not within that time they are all barred for ever, for they have all present right and may bring their action presently: but otherwise it is where the tenant for life, and he in reversion be disseised, for in this case he in reversion is not barred by the first five years after the fine levied, for in that time he can have no action, therefore he shall have time to make his claime 5. years after the death of the tenant for life. Plow. 356. 375. If a disseisor levie a fine with Proclamations of the land whereof the disseisin was, the disseisee must make his claime within the first 5. years after the Proclamations had, and if he happen to die within the five yeares, his heire shall not have 5. years more, but so much time more as to make up the time incurred in his father or other Ancestors time, 5. years, and albeit he be an Infant at the time of his Ancestors death, yet he shall have no longer time. 19 H. 8. 7. Plow. 374. Dyer 3. If a tenant in taile be disseised, and the disseisor levie a fine, the tenant in taile or his issues must make their claime within the next five years after the Proclamations passed, otherwise they be barred for ever. The like it is in the lachesse of him in remainder or reversion. Co. 100. And if in these and such like cases, he that hath present right and is without impediment bring upon himselfe any impediment, as if being within the Realme at the time when the fine is levied, he doe [Page 31] afterwards goe beyond the Sea, or the like, in these cases he shall have no longer time then the first five years after the proclamations had.

Estrangers to fines pestred with impediments of Infancy, Coverture, See the statutes. Plow. 359. Dier 3. Plow. 367. 377. 2. That have present right and impediment. Madnesse, Idiocy, Lunacy, Imprisonment, or absence out of the Realme, at the time of the levying of the fine, and having then any present interest or right shall have five years time after Infant. the infirmity removed to make their claime &c. And therefore an Infant regularly shall have time for five years after he come to his full age to make his claime &c. although he be in his mothers wombe at the time of the fine levied. And yet if my fathers brother disseise him, and levy a fine with proclamations, and a year after the proclamations my father dyeth, and after and within five years my uncle dyeth, in this case I by reason of my infancy shall have only so much time to avoid the same as at the death of my father remained to come of the five years next after the proclamations, and not a new five years, because I claime by the same title that my father had. So if my father, or other ancestor be disseised and the disseisor levy a fine with proclamations, and my father or ancestor dye within five years after the proclamations, in this case I shall not have a new five years, but only so much as remaineth of the old five years to make my claime &c. Madmen Non sane memorie. Plow. 366. 375. and Lunatickes (being strangers to the fine) shall have the like time to make their claime &c. as Infants have, and yet if this infirmity happen after the fine levied, and before the last proclamations be made, these persons are not bound to the first years, but shall have five years time after they be cured of their maladies. Women Plow. 375. 376. Women Covert. Covert (estrangers to the fine) shall have five years time after they be discovert to pursue their right. But if a feme sole (estranger to a fine) have present right, and after the fine levied she take a husband, and so five years passe after the proclamations had, in this case she is barred and shall have no further time to claime. Estrangers to fines imprisoned at the time of the fine levied shall have the same time and liberty Infants have, but if such imprisonment Plow. 360. 366. 375. Imprisonment. happen after the time of the fine levied and before the last proclamation made, it seemeth they shall have five years after the inlargement. And estrangers to fines being out of the Realme at the time of the levying thereof shall have five years time after Out of England. Plow. 366. their returne to enter or claime &c. But if they be in England at the time of levying of the fine, and after goe beyond the Seas, and suffer the five years after the proclamations to passe, in this case they shall have no longer time, except they be sent in the Kings service and by his commandement. [...] Sr. Tho. Cottons case 27 Eliz. And if the party be beyond the Sea at the time of the fine levyed, and never return but dye there, it seems in this case the fine will not barre his heire at all.

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Estrangers to fines that have divers defects or infirmities, as 3. That have divers defects. Infancy, Coverture, non-sanity of minde, imprisonment, absence Plow. 375. Dier 133. out of the Realme, to avoid fines shall have time for five years after the last of the infirmities removed. But if they have divers impediments, and they be all once after the proclamations made wholly removed, and after they fall into the like againe and dye, in this case their heires shall not have a new five years, but the first five years begun in their Ancestors time immediately after the first impediments so removed shall proceed, and non-claime of their heires during all the residue of the said five years bindeth them as their said Ancestors should have been bound thereby if they had remained void of such impediments during all the said five years.

Estrangers to fines that have no present but a future right, and 4. That are without impediment having future right upon cause precedent. that such as groweth wholly before the proclamations, if they be Plow. 373. Dier 224. void of impediment shall have five yeares time after their right, title, claime or interest first groweth, remaineth, descendeth or cometh to them after the proclamations. And therefore if a Mortgagee be disseised and the disseisor doth levy a fine with proclamations, and the five years passe, and after the Mortgagor payeth or tendreth the money, in this case he shall have time for five years after the tender or payment of the money to make his claime &c. So if a man levy a fine of his land whereof his wife is dowable, shee shall have five years after her husbands death to make her claime &c. and not be bound by the five years after the fine. Plow. 374. So if tenant in taile levie a fine with proclamations, and after the five yeares dyeth without issue, the donor shall have five years after his death without issue to bring his Formedon. Co. 78. Plow. 373. 374. So if lessee for life levy a fine, or make a feoffement in fee and the feoffee doth levy a fine; in this case he in reversion or remainder shall not be bound by the next five years after the fine levied, but he shall five years next after the death of the tenant for life, and if he dye within the five years, his heires shall have only so much time as to make up the time before his death five yeares. Plow. 374. Co. 9. 105. So also is the law if lessee for life be disseised, and the disseisor or a stranger levy a fine, in this case he in reversion or his heires shall have five years after the death of the tenant for life and shall not be bound to the next five years after the time of the fine levied. Plow. 374. 19 H. 8. 7. Co. 3. 87. 84. Dier 3. So if tenant in taile in possession levy a fine and dye without issue, in this case he in the remainder shall have time for five years after the death of the tenant in taile without issue, and if he make not his claime &c. in that time, he and his issues are barred for ever. The same law is for him in reversion or the donor if there be no remainder. Co. 3. 87. And if tenant in taile discontinue in fee, and the discontinuee levieth a fine with proclamations, and five years doe passe and the tenant in taile dieth, in [Page 33] this case his issue shall have five years after the Descender to bring his Formedon. 30 El. But if tenant in taile discontinue rendring rent and dye, and the issue accept the Rent (which doth barre him for his time) and then the discontinuee levieth a fine and dyeth, in this case the issue of the issue shall not be barred by the five yeares after the fine, but shall have five yeares after the death of the issue. Plow. 374. And if one de non sane memorie, make a feoffement, and the feoffee levie a fine, and then the feoffer die; in this case the heire shall have 5. yeares after the death of his Ancestor, and not be bound by the 5. yeares next after the fine levied.

Estrangers to fines that have future right upon any cause precedent See the Statutes Plow. 366, 367. Dyer 3. Plow. 358. being affected with such impediments when the right first accreweth, 5. That have future right and impediment. shall have 5. years after the impediment removed to make their claime &c. And therefore infants that are borne, or in their mothers wombe when such right doth happen to them, women Covert, mad men, Lunaticks, prisoners beyond the Seas shall have this time. As if a man have issue a son and a daughter, and the son doth purchase lands and die, and the daughter entreth as his heire, and is disseised by A who levieth a fine, and 5. yeares claime without claime, and tenne yeares after the father hath another sonne who is heire to his brother; he shall have in this case a new full 5. yeares after he come to his full age, for he is the first unto whom the right descended after the Proclamations. But if a stranger to a fine to whom a remainder or other title first accreweth after the fine doe not pursue his right within 5. years, hereby he and his issues are barred for ever. And in like manner if the first issue in taile to whom the title of the taile first accreweth neglect to make his claime &c. within the first 5. years after his title accrewed, hereby he is bound for ever, and the whole estate taile also. And if one abate after the death of a tenant in fee-simple, and make a feoffement upon condition, and the feoffee levie a fine, and 5. yeares passe without any claime made by his heire, hereby the heire is barred for the present, but if afterwards the condition bee broken, and the Abator enter, then the heire may have an assise of Mortdancester against the Abator or enter when he will.

Estrangers to fines that have neither present nor future right at 6. That have no right for any cause before the [...]ine. the time of the levying of the same fines by reason of any matter Plow. in Stowels case. before the fines levied, whose right groweth entirely before the Proclamations or partly before and partly after, may make their claime &c. when they please. As if a father die seised of land his elder sonne being professed, and the younger sonne entreth and is disseised, and a fine with Proclamations is levied, and then the elder sonne is dearaigned, in this case it seemes he is bound to no time. So if a tenant cease one yeare, and then a fine with Proclamations is levied, and after the tenant ceaseth another yeare, the Lord may [Page 34] have his Cessavit 20. years after the Proclamations:

And estrangers to fines that have severall future rights by divers 7. That have future rights by divers titles. titles growing at severall times it seemeth shall have severall five Plow. 537. 367. 372. years to make their claims &c. commencing from the severall times that their titles do first accrew unto them. As if tenant for life the remainder in fee make a feoffement in fee, and the feoffee levie a fine with Proclamations, and he in the remainder suffer the 5. yeares to passe, in this case he is barred of his entrie upon the alienation for the forfeiture, but it hath been held that if the tenant for life die, that he shall have another 5. years time to bring his Formedon in the remainder. So if the husband make a feoffement of his wives Plow. 357. 368. 372. land to another upon condition which is broken, and he levieth a fine of this land, and the husband hath issue by his wife and dieth; and the first 5. yeares passe, and then his wife dieth; hereby he is barred of the title by the condition, but he shall have 5. yeares more to make his claime as heire to his mother. But if lands be given to H for the life of A, the remainder to B for life, the remainder to H in fee, and H is disseised, and after the disseisor levie a fine, and 5. years passe; in this case H is barred both of his present and future estate and shall have no further time to make his claime &c. and yet if Cestuy que vie and he in the meane remainder die, H shall have another 5. years to make his claim to preserve his remainder. In like manner it is if land be given to H for the life of A, the remainder to him for the life of B, the remainder to him for the life of C, and he is disseised, and the disseisor levieth a fine with Proclamations; in this case, some say H for his present right shall have 5. years by the first saving of the Statute, and 5. years after the death of A by the second saving of the Statute. If one disseise a feme sole, and after mary her and have issue by her, and the husband is disseised before mariage or after, and then a fine is levied with Proclamations, and the husband dieth first, and afterwards the wife dieth within the 5. years, the issue being of full age, the 5. years passe, hereby he is bound as heire to his father, but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis.

Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case. [...]. How a fine shall enure and work. feoffement or the like there the fine shall not passe any thing, nor work by way of Estoppell, but only by way of corroboration, and shall be guided by the precedent agreement. And therefore if a feoffement be made to two and their heires, and after a fine is levied to them two and the heires of one of them, this shall enure as a release, and shall not alter the estate, but if there be no precedent agreement it shall work as it may. Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case.

If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent, and by indenture at the [Page 35] same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment, and after a fine is levied sur conusance de droit come ceo &c. accordingly, in this case this fine shall enure as a fine sur release, because the Conusee hath the fee before, and it shall not enure by way of Estoppell, albeit it bee a fine sur conusance de droit come ceo &c. And Estoppell. Extinguishment. therefore the rent and condition shall remaine in this case, and not be extinct.

A fine may be avoided for many causes, as by the death of the parties See before at Numb. 6. part. 2. F. N. B. 20. f. Stat. 23. El. ch. 3. after the conusance before the recording of it, or by covin in the 12. Where a fine may be avoided, or not. And how. 1. By a writ of error. procuring of it; Also it may be avoided for other causes, as for some error in the proceeding in the suing out of the fine, and this is done by writ of error (but this error then that shall not make a fine voidable must be notorious, because the thing is done by consent, and it is a rule in Law Consensus tollit errorem.) And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine, and both of them be within age, whiles either of them be within age, they may avoid the fine as against them both. But if there be tenant for life and he in remainder in taile being an Infant, and they two levie a fine, and he in the remainder reverse it for infancy, this shall not avoid the fine as to the tenant for life also. A fine also is and may be sometimes avoided, or at Plow. 358. 359. Co. 9. 106. least lose much of his force by the claim, entry, or action, of him that hath right to the land: for if the estate contained in a fine be 2. By a claime, entrie &c. And by whom a claim &c. may be made. once within 5. years after Proclamations lawfully defeated, the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years, albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations. In like manner if there be tenant for life, the remainder for life, the remainder in fee, and the first tenant for life alien, and the alienee levie a fine with Proclamations, and the second tenant for life claim, or enter, &c. this doth make void the fine both against him, and against him in remainder also: for it is a rule, That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied, may make a claime or entrie to prevent the bar of the fine. As tenant for his own, or for anothers life, tenant for years, he in reversion or remainder after an estate for life or years, a Copyholder, or the Lord, a Gardian in nature, or nurture, may avoyd a fine. And this they may do for themselves and others, & for others without authority precedent or assent subsequent, and the claim of one of them in this case shall availe the other. And by authority also any other man may make a claim, entry &c. in this case for him that hath right, and so he may doe also without any authority precedent, if the party for whom he doth it doe afterwards agree and assent unto it. But a [Page 36] stranger of his owne head (unlesse perhaps it bee for an Infant) cannot make such a claime or entry to prevent the barre of a fine, except hee that hath the right doe give him authority before it be done so to doe, or doe agree to it after it is done. And therefore if a stranger of his owne head will make an entry or claime into land whereof a fine is levied whereunto I have right, and he doe it to my use, and I doe not agree to it within the 5. yeares, this entrie or claime will not avoid the fine. And yet it was held by Just. Dodridge, M. 2▪ Car. B. R. that if a stranger enter in my name and to my use that have the right, that this doth vest the estate in me before agreement, and I shall be said to agree untill I doe disagree.

A fine also is, and sometimes may be avoided by plea, As by Stat. 4 H. 7. c. 24. Co. 3. 141. 88. Dyer 334. 3. By a plea. Averment of the continuance of seisin of the Land in another at, and before the time of the fine levied, and that partes finis nihil habuer [...]nt t [...]mpore levationis finis, and then he must shew in whom the estate was. As if lessee for yeares, or a disseisee, levie a fine to a stranger that hath nothing in the land, or A be disseised by B, and B bee disseised by C and B levy a fine to D, or one that hath a right of a remainder only, or a disseisor make a gift in taile, and the donee make a feoffement to A, and after levie a fine to a stranger that hath nothing in the land. But this plea it seems neither parties nor privies, albeit they bee issues in taile, may have at this day, but strangers only, and therefore in the last case the disseisor and not the issue in taile may avoyd this fine by this plea. But if a Collaterall Ancestor of whom the issue in taile doth not claim the land levie such a fine, the issue may by this plea avoid it. It seems also the issue in taile may have this plea to a fine Sur Release only.

Also there is a plea by which (as it seems) a fine hath been avoidable, which in effect is nothing else but an averment of seisin still Co. 3. 84. Dyer 334. 290. Stat. 27 E. 1. c. 1. in the demandant or plaintiffe or his heires before, at, and after the time of the fine levied. And this plea (as it seems) no man may have at this day but the issue in taile only to avoid a fine levied Sur grant & Render, by the Ancestor in taile, and not to avoid a fine levied Sur Conusance de droit come ceo que il ad de son done &c. And a feme Covert to avoid a fine levied by her husband alone.

If there be two of one name, and one of them levie a fine of the land of the other, or a stranger levie a fine in the name of him 34 H. 6. 19. 19 H. 6. 44. that is owner of the land; in both these cases the fine may be avoyded by pleading the speciall matter. And yet some hold that in this case the party hath no remedy but by action of disceit.

A fine also is and sometimes may be avoided by the sentence of 4. P [...]a Vacat. a Court, when it appeareth to be gotten and obtained by some notorious fraud or practise▪

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And now it is high time we come to the second kind of common assurances made by matter of record. viz. a Common Recovery.

CHAP. III. Of a Common Recovery.

A Recoverie in generall is the obtaining of any thing unjustly 1. Common Recovery. Quid. Co. super Lit. 154. See the Preamble of the stat. of 23 H. 8. cap. 10. 23 Eliz. cap. 3. Doct. & Stud. 41. West. Sym. tit. Recovery. taken or detained by judgment or triall of Law. And it is either a common recoverie which is such a recovery as is used for a common assurance of land, or other recovery which is not used as an assurance of land. And the common recovery that is used for the assurance of land is nothing else but [...]ictio juris, or a certaine forme or course set downe by Law to be observed for the better assuring of lands and tenements to men. And this is somewhat after the example of the recovery upon Title, which is without consent and contrary to the will of him against whom the same is had: for Recoveror. Recoveree. Vouchee. there is in this a colourable suit, wherein there is a demandant which is called the Recoverer, and a tenant which is called the Recovere, and one that is called to warrant upon a supposed warranty which is called the Vouchee.

The common recovery is somtimes with a single voucher; which 2 Quotuplex. is when the writ is brought against him that is to passe the land immediately, and he doth vouch over the common vouchee. And sometimes it is with a double voucher; which is when the writ is brought against another to whom he that is to passe the land hath aliened it, and he doth vouch him that is to make the assurance, and he doth vouch over the common vouchee: and this is the [...]urest way, and the sa [...]est kind of recovery. In this formality of a common 3 The manner and order of suffering a Common Recovery. recovery the course is, that by agreement of the parties a reall See the places before Co. 1. [...]4. 10. 43. 45. action is begun by a writ of entry brought by him that is to have the land assured against him that is to make the same assurance if it be with a single voucher, or if it be with a double voucher against him to whom he that is to make the assurance hath aliened the land. And in this suit, the recoveror that doth bring the action doth [...]urmise that the tenant against whom the writ is brought hath no right to the land, but that the recoveror hath right thereunto, and that the tenant came to it from such a stranger whom the demandant doth name: And to this the tenant doth appeare in person or by Atturney, and then doth enter into defence of the land, but in pleading doth vouch to warrant. i. doth alleage that he bought the land of I. S. a stranger, who in the conveyance thereof bound himselfe and his heirs to warrant, and make good the title to him or them to whom it is conveyed, and thereupon he prayeth that I. S. may be called in to defend the title, and then hee [Page 38] is allowed by the Court to call in I. S. to say what he can for the justifying of his right to the land before▪ he so conveyed it: And hereupon I. S. doth appeare and make shew as if he would defend the title, but doth pray a further day may be assigned him to make his defence; which being granted him by the Court, at the day appointed he by agreement, covin and assent of the parties doth not come in but make default: And thereupon the land is to be recovered by him that brought the writ against the tenant, and he is left for his remedy to I. S. upon his warranty, and accordingly judgment is given by the Court that the demandant or recoverer shall recover the land demanded against the tenant, and that the tenant shall recover so much land of I. S. of his own land in recompence for the land recovered from him which he ought to have warranted and defended but suffered to be lost. And this recovery over is called Recovery in value. or pro Rata. Quid. F. N. B. 1▪ 34▪ Co▪ 9. 6. a recovery in value or pro Rata. But if the recovery be with a double voucher, or a treble voucher, I. S. is upon his appearance to call or vouch to warrant I. D. and to alleage in the same manner as the tenant doth, and so pray that I. D. may come in, and thereupon I. D. doth appeare and make default: And so if there be more vouchers; and then there must be severall recoveries over in value against every one of them; but he that is the last vouchee is alwaies the common voucher who is one of the [...]ryers of the Court of Common Pleas, a man not worth any thing and one that hath no land to render in value upon the supposed warranty. And by his devisei grounded upon the strict Principles of law the first tenant doth wllingly let goe the land for the assurance of the Purchasor, and yet in truth hath no recompence over because the vouchee hath no land to [...]ender in value. And by this meanes if one have [...]n estate taile in lands which he is desirous to sell or to convert into an estate in fee simple, the same is commonly done, for the tenant in taile doth cause the purchasor or some friend of his to bring a writ of entry against him for this land, and he appeareth to the writ, and in pleading [...]aith that the land came to him or his Ancestors from such a man or his ancestors who in the conveyance bound themselves to warrant it. And thereupon that man is called in, who doth appeare and make default, and thereupon Judgement is had against him in manner as aforesaid. Or if he would have the recovery with a double voucher, then doth he by fine, feoffement, or deed of bargaine and sale inrolled discontinue the land, and then cause the recoveror that is to have the land to bring his writ of entry against the discontinuee, and he doth vouch the tenant in taile, who doth vouch over the common vouchee, and so it is done; and by this the estate taile that the tenant in taile hath or had is barred and bound, for that it appeareth now he had no power to entaile the land whereunto he had no just title, [Page 39] and besides [...]e shall recover a recompence over in value, and this is adjudged in law to goe in succession of estate as the land should have done, which is the reason why the recovery is a barre to all that are in remainder and reversion aswell as to the issues in taile.

And in the suffering of these recoveries the tenants and vouchees Experientia. doe appeare most commonly in person in Court, and so the recovery is finished in the court presently without more doing, but sometimes they will not or cannot appeare in person, and then they doe use to appear and suffer the recovery by Atturney. And in that case there must be a Conusance for a warrant of Atturney Warrant of Atturney. taken to authorize the Atturney or Atturneys in this manner if it be for a treble voucher.

Glouc'ss. Prec' A S & B uxori ejus quod juste &c. redd' C D Manerium West Sym. ubi supra. de N cum pertinen' &c. que clam' esse jus [...]t hered suam & in que iidem A & B non habent ingress. nisi post disseisinam quam H H injuste & fine Judicio fecit prefat' C infra 30. Annos jam ultim' [...]lapsos &c. ut dic' &c.

Glouc'ss. A S & B po. lo▪ suo W W & R R A [...]tornat. s [...]os conjuncti [...] & divisim versus C D de placito terre.

Glouc'ss. M M gen. quem A S & B vocant ad warrant. po. lo. suo I I & L L Attornat' suos conjunctim & divisim versus C D de placito terre.

Glouc'ss. G W gen. quem M M voc. inde ad warrant' po. lo. suo R G & R S Attornat' suos conjunctim & divisim versus C D de placito terre.

And in these cases to make two atturneys at the least, and to Co. 10. 43. Co. 1. 94. give them an authority joyntly and severally that if one of them dye before the recovery be suffered, the other may have power to doe and dispatch it. And these warrants of Atturney for the suffering of recoveries are to be knowledged and certified in the same manner as the conusances of fines knowledged in the Country are, save only that Recognisances for warrants or atturney for recoveries may be taken by any Judge of the Court of Common Pleas or any Serjeant at law without a Dedimus Potestatem. But if any others take it they use to doe it by a speciall Dedimus Potestatem, Dedimus Potestatem. which is to command the Commissioners therein named to come to such persons and to take the names of their atturney or atturneys in the suit, and to certifie the same into the Chancery under their Seales such a day. And if there be any woman covert that is to make the conusance it seemes shee is to be examined as in the Examination. case of the conusance of a fine. And when this is done the recoveries may be suffered by the atturneys without the personall appearance of the parties. And this is as good a recovery as the other which is suffered by the persons themselves appearing in Court, but that it will require longer time for the perfection of it, for in this [Page 40] case there must goe forth a Summoneas ad warran' which must have nine Returnes ere the recovery can be perfected, and by that time one of the parties may be dead. And when the recovery is thus suffered by the parties in person or by their atturneys, the same is to be entred by some one of the Clarks of the Court of Common Pleas upon the Rolles of the same Court there to remaine upon Record. And herein there must goe forth a writ of Execution called an Habere facias seisinam, which is sent to the Sheriffe of the Habere facias. seisinam. County where the land doth lye to put the Recoveror in possession of the land (except the recovery be of a reversion of land after a lease for years of it, in which case the reversion shall be in the recoverors by a claime without any writ.) And this writ the Sheriffe doth returne as executed according to the contents thereof, albeit in truth he never doe any thing upon it. And after this all the same proceeding is to be Exemplified by the Clarke of the same Court.

A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41, 42. Doct. et Stud. 41. 49, 50. stat. 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use, nature and operation of it. fine, and such a thing as whereof the law taketh notice; for it is now become a formall and orderly manner of Assurance of lands, and one of the Common Assurances of the Kingdome, or a common way and meanes to passe land from one to another. And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate, an use may be averred upon it as well as upon Forfeiture. Averment, Covin. a fine, and it may be avoyded for covin as well as any other kind of conveyance. But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon. And because many of the Inheritances of the kingdome doe depend upon this Assurance, and it is oft times the greatest security purchasors have for their money, therefore it hath much favour from the law at this day. And therefore the law will not endure it shall be disputed against, for Communis error facit jus. And hence it is that it shall not be avoyded for small errors, for it is another rule of law Consensus tollit errorem. And if a recovery be suffered by a tenant in taile, hereby he hath not only discontinued, barred and destroyed the estate taile, and so defeated himselfe and his issues the former owner of the land, and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only, but also all former estates, leases and charges made by him in remainder or reversion: Co. 1. 62. 25. Doct & Stud. 49. 44 Ed. 3. 22 [...] for as when the estate taile in possession is not barred by a recovery, the estates in reversion or remainder are not barred, for Quod non in magis propinquo non in magis romoto valebit; So it is è converso, where the estate taile in possession is barred by the recovery, all the remainders and the reversions, Conditions, charges, incumbrances and estates dependent upon it are barred also, except it be [Page 41] in some speciall cases where the remainder or reversion is in the King. And therefore if A be tenant in taile, the remainder to B in taile, the remainder to C in fee, and B or C doth make a lease for years of the land, or grant a rent charge out of the land, or enter into a Statute, or the like; or grant the remainder or reversion upon condition, and after A doth suffer a common recovery of the land, and after dieth without issue, in this case the recoveror shall hold the land discharged of all these estates and charges in remainder. But otherwise it is if A himselfe make a lease, or enter into a Statute, and then suffer a common recovery of the land, in this case this recovery doth not avoyd but affirme the lease or charge, for whereas it was before voydable by the issue in taile or him in remainder or reversion, now it is good against them all, and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile. This kind of Assurance therefore is in some respects better then a fine, for a fine will barre the heire in taile, but not him that is in the remainder or reversion, but a recovery will barre them all.

In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery. And who shall be barred and bound thereby, or not. West Sym. ubi supra. Co. super Lit. 372. requisite. 1. That there be a demandant, a tenant, and a vouchee as the efficient causes thereof, for if either of these be wanting it is not a compleat recovery. And therefore if a common recovery be had against a tenant in taile without a voucher; this is voyd. And for this it is to be knowne that such persons and by such names may be demandants, tenants, and vouchees in recoveries, as may be cognisors and cognisees in fines. Benets case Hobarts Rep. 275. Pasc. Pasc. 9 Jac. Earle of Newports case adjudged. And therefore a recovery suffered by an Infant appearing by his Guardian is good, and will Infant. Woman covert. bind him and all others. Co. 10. 43. Plow. 515. 2] Doct. & stud. 52. Co. 5. 40, 41. West ubi supra. So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others. 2. That there be land demanded as the matter, and that the thing be demandable. And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had, a writ of entry for the suffering of a recovery may be had save, only it may not be de fossato, stagno, piscaria, un' Carucat' terre, estoveriis, homag, fidelitat', de servitiis [...]aciendis, de bovata marisci, de selion' terre, de gardino, cottagio, crofto, virgata terre, fodina minerae, mercatu, nec de superiori camera. And yet of some of these also it may be by other names. Also a recovery may be had of a rent, common advouson, franchises and the like, but not of an annuity. 3. That it be had and Co. 3. 3. stat. 23 Eliz. cap. 3. suffered in that order and forme as law requireth, viz. that there be a writ of entry brought, an appearance of the tenant in fait, a voucher, and an appearance of the tenant in Law the vouchee, Judgement and Execution in manner as aforesaid, for if there be any substantiall defect in these things the recovery may be thereby [Page 42] avoided by writ of error, but if it be only in forme it will not hurt. 4 That there be a lawfull tenant to the Precipe. i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the [...]reehold, either by right. i. that hath an estate for life at least in the land, or by wrong. i. that is a disseifor of the land demanded and whereof the recovery is had. And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow. 514 Doct. & Stud. 49. See infra. in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together, the fine is sued out first, for this doth make the Conusee tenant of the free-hold of the land, and then the recovery is had against him. And when the recovery is to be had of a reversion, and that there is an estate for life in being of the land whereof the recovery is to be had (for an estate for years or any such like estate will not hinder the suffering of a recovery) there the course is to get a Conditionall Surrender from the tenant for life of his estate to him in reversion or remainder, to the end that he may be perfect tenant of the Inheritance, and then the writ of entry may be brought and the recovery had against him, for if a writ of entry be brought against a stranger, and he vouch the tenant in taile in possession of the land, and so a recovery is had; or if there be tenant for life of land, the remainder or reversion to another in taile, or in fee, and a stranger doth bring a writ of entry against him in the remainder or reversion or against a stranger who doth vouch him, and so a recovery is had; these recoveries are not good. And yet if the writ be brought against the tenant of the land and a stranger that hath nothing in the land together, and so a recovery be had; this recovery is good enough. And if a disseisor make a gift in taile of the land to another, and the writ is brought against him, and he vouch the disseisee, and he vouch the common vouchee; this is a good recovery. 5. That it be in such a case as is not prohibited Stat. 34. H. 8. ca. 20. Co. super Lit. 37 [...]. 2. 5. 16. Co. 8. 77, 78. by some Statute law, for if the King give any of his owne land Prerogative. whereof he is seised, or cause or procure another in consideration of money or other land to give the lands whereof he is seised, in taile to any of his subjects or servants in recompence of their service, or the like, the remainder to the King in fee simple, or fee taile; such estates in taile cannot be barred by a common recovery: And therefore if such a tenant in taile shall suffer a recovery of such land it is voyd, and it will neither barre the issues in taile, nor any of them in remainder, nor the King. But if the King make such a gift in taile keeping the reversion to himselfe, and after doth grant the reversion to another; in this case tenant in taile may suffer a recovery and bar the estate taile and the reversion also. And where a subject by the Kings provision doth make such a gift in taile and then doth grant the remainder to the King for life or years only; in this case the estate taile, temainders [Page 43] and reversion also may be barred by a common recovery. So in other cases where a subject doth make a gift in taile, the remainder to the King in fee; this estate taile may be barred by a common recovery. And therefore if there be tenant in taile, the remainder or reversion in fee to another, and he in remainder or reversion by deed indented and inrolled doth bargaine and sell his remainder or reversion in fee to the King; or if one covenant to stand seised to divers uses in taile the remainder to the King in fee, in these cases the estates and the reversion and remainders depending thereupon may be barred by a recovery. So if a man make a gift in taile, the remainder in fee, and he in the remainder doth grant his remainder to another for life, the remainder to the King in fee on condition the estate shall be voyd upon the tender of 20 l. in this case the estate taile, and the reversion also and condition thereupon may be barred. So if the Duke of Lancaster had made a gift in taile, and the reversion had descended to the King; this estate taile might have been barred by a recovery. So if Prince H. sonne of H. 7. had made a gift in tail, the remainder to H. 7. in fee, which remainder by the death of H. 7. had descended to H. 8. in this case the tenant in taile might have barred the estate taile by a recovery. And yet if the King make a gift in taile, the remainder in taile, or grant the reversion in taile; in these cases a common recovery may not be suffered to barre the entaile, remainder, or reversion. And if the husband for the advancement of his wife in Jointure, and the preferment Stat. [...] H. 7. cap. 20. Co. 3. 58. 61. 59. of the heires of their two bodies, make an estate in taile to him and his wife and the heires of their two bodies, and the wife after her husbands death alone by her selfe or with any other husband suffer a common recovery of the land whereof this estate is made; this recovery will not barre the estate taile. But if in this case the recovery be suffered by the heire in taile, or by the heire and his Mother together, it is a good recovery. And therefore if A be seised of land in fee and he make a feoffement in fee, to the intent that the feoffee shall reconvey it to him and his wife and the heires males of his body, and this is done accordingly, and they have issue a sonne, and she surrender, or make a forfeiture, and he enter and suffer a recovery; this is a good recovery and barre to the esate taile: or if the writ be brought against the mother, and she vouch the heire in taile, and so a recovery is had, this recovery will barre the estate taile. And howsoever at the Common Stat. 14 Eliz. cap. 8. Co. 1. 15. 62. [...]0. 43. 45. 3. 6. Law a recovery against a tenant for life with a voucher upon a lawfull warranty and a recovery in value was a barre to him in remainder or reversion, and there was no remedy in this case, yet at this day it is otherwise. And therefore if tenant in taile after possibility of issue extinct, tenant by the courtesie, or any other tenant for life doe suffer their lands to be recovered from them by [Page 44] covin and agreement either as immediate tenants or as vouchees upon feigned titles, without the assent, and to the prejudice of him in remainder or reversion; such recoveries are voyd, and will not Forfeiture. barre the remainders or reversions, but are forfeitures of the estates of such tenants for life. Insomuch that if tenant for life be made tenant in fait to the writ, or tenant in law upon the voucher, and so a recovery be had, as if tenant for life make a lease for years, and the lessee for years doth make a feoffement in fee, and the feoffee doth suffer a common recovery in which the tenant for life is vouched, and he vouch the common vouchee; these recoveries will not bind the reversions or remainders. But there is no provision made at this day to preserve the reversion or remainder expectant upon an estate taile, nor to avoyd a recovery of the tenant for life, where he in the next remainder is agreeing and assenting to it. And therefore if there be tenant for life, the remainder to A in taile, the remainder to B in taile, &c. with divers remainders over, and the tenant for life doth suffer a common recovery, in which he doth vouch A who doth vouch the common vouchee; in this case this is a good recovery and doth barre the estate taile, the remainders, and reversion also. And if one be seised of land in fee and have two sonnes, A by his first wife and B and a daughter by his second wife, and he devise the land to his wife for her life, the remainder to B his sonne in taile, and the reversion of the fee descend to A, and the writ of entry is brought against the tenant for life, and shee vouch B, and he doth vouch the common vouchee, and so a recovery is had without the assent of the heire in reversion; this is a good recovery and a barre to all the estates in possession, remainder and reversion. And if a writ of entry be brought against the tenant for life, and he make default after default, and then the next in remainder in taile is received, or he pray in aid of him in reversion or remainder, and then they vouch over, and so a recovery is had; this is a good recovery and a barre to all the estates in remainder and reversion. But if the writ of entry be brought against the tenant for life & him in the remainder in tail together, and they vouch the common vouchee, and so a recovery is had; this will be no good recovery to barre the estate taile. See before in fines & Co. super Lit. 44. And if Sprirituall persons as Bishops, Deanes, Parsons, and such like, suffer a recovery of their Ecclesiasticall lands; such a recovery is voyd and will not bind the successor. Plow. Manxelscase Co. 10. 37 [...]. 1. 94. Plow. 357. But if it be not in some such prohibited case as before, and the recovery be had and suffered by and between such persons, and of such things, and in such a manner as aforesaid, in such cases albeit there be in truth no warranty made upon which the voucher is had, and albeit there be nothing to be recovered in value, for that the vouchee hath no land to recover over in recompence, and albeit that no execution be done in the [Page 45] life time of the party against whom the recovery is had, yet is the same regularly a perpetuall barre to the parties against whom the same is had and their heires of all the estates they have in fee simple, fee taile, or for life in them and against all them in remainder or reversion and their remainders and reversions that are depending upon the estates: with this difference; The recovery with the Co. 3. 59. Lit. Bro. Sect. 38. Plow. Manxels case. 12 Ed. 4. 13. 13 Ed. 4. 1. single voucher doth not barre any estate but such as the tenant in taile hath in possession at the time of the recovery had, so that if the tenant in taile be in of any other estate, as by disseisin, or the conveyance of the disseisor, or the like, this estate is not barred. But the recovery with the double voucher doth bind and barre all interests, estates and titles that the vouchee hath at the time of the entry into the warranty. All which is further illustrated by the examples following. Co. 3. 5. 10. 37. If the writ of entry be brought against the tenant in taile, and he vouch the common vouchee, and so a recovery is had; this recovery with a single voucher is a good recovery and a barre to the estate taile if it be then in possession and not put to a right and to all the remainders and reversions depending thereupon. Co. 1. 135. 136. 3. 59. 12 E. 4. 19. 13 E. 4. Co. 10. 45. So if lands be given to A in taile the remainder to the right heires of B (B being then living) and the writ of entry is brought against the tenant in taile, and he doth vouch over the common vouchee; this is a good recovery and a barre to the estate taile and the remainder also. But if the tenant in taile be disseised, and then suffer a recovery with a single voucher; or the disseisor make a new estate in taile to the tenant in taile, and then the tenant in taile doth suffer a recovery with a single voucher; or if the tenant in taile make a feoffement in fee of land, and then take back a new estate to himselfe from the discontinuee in taile or in fee, and then doth suffer a common recovery with a single voucher; by this recovery the entaile is not barred. But by a recovery with a double voucher in these cases the estate taile is barred. And therefore as where the tenant in taile doth levy a fine, make a feoffement, or bargaine and sell the land by deed indented and inrolled and the writ is brought against the Conusee, feoffee, or bargainee, and he doth vouch the tenant in taile, and he doth vouch the common vouchee; this doth barre the estate taile and the remainders and reversion depending thereupon: So if in these cases the conusee, feoffee, or bargainee doth make a new estate in taile to the conusor, feoffor, or bargainor, or he disseise the conusee, feoffee, or bargainee, and then levy a fine, make a feoffement, or bargaine and sell to another against whom the writ of entry is brought, and he vouch the tenant in taile, and he doth vouch the common vouchee; by this recovery the first and second estate taile Co. 3. 5. Plow. in Manxels case 1. 8. and all the remainders and reversion depending thereupon are barred. So if lands be given to I. S. and the heires males of the body [Page 46] of his wife engendred, and he hath issue a sonne, and after his wife dyeth, and he discontinue and take an estate to him and the heires females of the body of his second wife, and after discontinue againe and take an estate to him and the heires females of his owne body, and after discontinue againe, and the writ of entry is brought against the last discontinuee, and he doth vouch the tenant in taile, who doth enter into the warranty generally, and voucheth the common vouchee; this is a good recovery and a barre to all the estates in taile, and the remainders and reversions also. And if A before the Statute of uses had been tenant in taile, and had made a feoffement in fee to B and he and B had after made a feoffement to C to the use of A and his wife and the heires of their two bodies, and then shee had dyed, and after A had entred upon C the feoffee, and made a feoffement to W in fee, against whom I S had brought a writ of entry, and he had vouched A the tenant in taile; this had been a good recovery and a barre to all the estates. And if lands be given to husband and wife and the heires of the body of Co. 3. 5. 6. 32. the husband with remainders over to strangers, and the husband alone doth discontinue the whole land by fine, feoffement or bargaine and sale by deed indented and inrolled, and the writ of entrie is brought against the discontinuee, and he doth vouch the husband alone without the wife, and the husband doth vouch the common vouchee, and so a recovery is had; this is a good recovery for the whole land and a barre to all the estates in tail and remainder and reversion, but not to the estate of the wife for her life after the husbands death. But if lands be given to the husband and wife and the heires of their two bodies with remainders over to strangers, and the husband alone discontinue, and the recovery is suffered as in the last case; it seemes this is no barre to the estates in taile or remainder or reversion for any part of the land. And yet if lands be given to I S and I D in taile and I S discontinue the whole, and the writ of entry is brought against the discontinuee, and he vouch I S alone; this is a good recovery for the one halfe of the land and a barre to all the estates. And if lands be given Husband and wife. as before to husband and wife and the heires of their two bodies, and the writ of entry is brought against them both, and they vouch the common vouchee, or the husband alone doth discontinue, and the writ is brought against the discontinuee, and he vouch the husband and wife both, and they enter into the warranty and vouch the common vouchee, and so the recoverie is had; these are good recoveries for the whole, and a barre to all the estates in taile and to the estate of the woman and to all other estates. And where Lit. Bro. 37. lands are given to a man and his wife and the heires of the body of the wife; or to the wife and the heires of her body, and the writ of entry is brought against the husband and wife, and they vouch [Page 47] the common vouchee; these are good recoveries and will barre the husbands and wives and the estates in taile, remainder and reversion. And where a man hath land in which his wife hath a Jointure, Plow. 514. or to which shee will have title of dower after his death, if the writ of entry in this case be brought against them both, & they vouch the common vouchee, and so a recovery is had, this recovery will barre them both: But the husband alone without her cannot barre her of any such estate by a recovery, for she may falsifie and avoid it after his death. And if lands be given to husband and wife and the Co. 3. 5. 1. 12 Ed. 4. 14. heires of the body of the husband, and the writ of entry is brought against the husband alone, and he vouch the common vouchee, and so a recovery is had with a single voucher; this is no good recovery for any part of the land, nor barre to any of the estates albeit the husband doe survive the wife. And yet if lands be given to two Co. 3. 6. others and the heires of the body of one of them, the remainder over to to a stranger, and the writ of entry is brought against one of them, and he vouch the common vouchee, and so a recovery is had; this is a good recovery and a barre to all the estates for the one halfe of the land. If lands be given to A in taile, the remainder to B in taile, the remainder to C in taile, the remainder to D in fee, and A doth make a feoffement in fee, and the writ of entry is brought against the feoffee, and he doth vouch B (being him in the second remainder in taile) to warranty, and he doth vouch the common vouchee; this is a good recovery and a barre to the second estate taile and all the remainders and reversion depending thereupon; And yet it is no barre of the first estate taile which A Cur [...]a Mich. 18 Jac. B. R. So was it held by most of the Judges in the case betweene Pell & Browne. hath. If the writ of entry be brought against a Mortgagee and he doth vouch the common vouchee, and so a recovery is had; this is no good recovery to barre or bind the Mortgagor, but that he may enter upon the condition broken. So if one give lands to B and his heires so long as C shall have heires of his body, and B doth suffer a common recovery, and vouch the common vouchee; this is no good recovery to barre the donor of the possibility, for in both these cases he that is to be barred hath no remainder or reversion but an interest or possibility which cannot receive a recompence in value. But if in these cases the mortgagee vouch to warranty the mortgagor or B the donee vouch the donor, and so they vouch over the common vouchee, and so the recovery is had; these will be good recoveries to barre both them and their heirs for ever. And if one have an estate in fee simple determinable on a Limitation or a Condition, as if lands be given to A and his heires untill B pay to him 100 l. and then that it shall remaine to B and his heires, and A in this case doth suffer a common recovery and vouch the common vouchee; it seemes this is no barre to B and his heires, but that upon payment of the 100 l. he shall have the land. So if [Page 48] one by his will devise his land thus, I give unto A my sonne and his heires for ever my land in W paying 20 l. to B when A shall come to 21 years of age, and then that A and his heirs shall have it for ever, and if A shall dye without heires of his body C being then living that then C shall have it to him and his heires for ever, and A pay the 20 l. to B at his full age, and then suffer a recovery of the land; this is no barre to C of his estate. But here it mu [...]t be Co. 3. 5. noted that in the cases before where it is said that a recovery is void it is meant as to the heires and them in reversion and remainder, for as to the parties themselves that doe suffer the recovery the same is for the most part good and doth bind them by way of Estoppell and conclusion. And it must be noted also that a stranger that hath right to the land at the time of the recovery suffered is not barred at all by the recovery or by his lachess of non-claime &c. as in the case of a fine.

The recoverors in common recoveries their heirs and assignes Stat. 7 H. 8. cap. 4. Dier 31. Co. super Lit. 104. 6. The remedy of Recoverors against the Lessees for Rents and services and upon wast done. shall have the like remedy against lessees for lives and years of the land recovered, their Executors or Assignes by distresse, avowry, or action of debt for the rents and services reserved upon their leases that shall be due after the same recoveries had: And also like actions for wast done after the recovery had: And like remedy upon a disturbance in a Presentation to an advowson, and in like manner and forme as the lessor should or might have had if the same recoveries had never been had, albeit the same lessees doe never Atturne to the same recoverors. And if a man make a lease for years to begin at Michaelmas reserving rent, and before Michaelmas he suffer a recovery; in this case the recoveror shall distraine for this rent which the lessor before the recovery could not distraine for. But if the recovery had not been had he might have distrained.

A recovery may be defeated, frustrated and avoided (which is called 7. Where a Recovery may be avoided. Or not. And by whom. And how. the falsifying of a recovery) in part or in all for many causes, as for Stat. 23 El. cap. 3. Co. 5. 40. 21 H. 8. cap. 15. [...]. super Lit. 46. 104. Co. 3. 78. Dier 249. Co. 3. 4. 1. 62▪ 5. 39. Plow. 515. that there is some grosse and substantiall Error in the manner of the proceeding. But a recovery is not avoidable for false or incongruous Latine, rasure, enterlining, misentring of any warrant of Atturney, misreturning or not returning of the Sheriffe, or other Fauxi [...]ier de Recovery. want of forme in words and not in matter of substance, because it is done by the consent of the parties. Or it may be avoided for that he against whom the writ of entrie is brought is not tenant of the freehold by right or wrong at the time of the writ brought, as when the writ is brought against a stranger that hath nothing in the land, and he doth vouch the tenant in taile in poss [...]ssion of the land. Or a recovery may be avoided for that he that hath the estate and the right is neither party nor privy to the recovery, as when the writ of entry is brought against a disseisor, and he vouch a stranger that hath nothing in the land; or a recovery is had against [Page 49] the husband alone of the land whereunto his wife hath title of dower. Or a recovery may be avoided for that another hath some estate in the thing whereof the recovery is had at the time of the recovery suffered, as when there is a recovery had of land whereof there is alease or estate for years by Statute, Elegit, or the like. Or it may be avoided for that the recovery is had by covin, as when it is suffered by tenant for life to di [...]herite him in reve [...]sion, or when it is gotten by some undue practise and sinister dealing, for in this case it is sometimes made void by a Vacat or sentence of a Court. And where a recovery is avoidable or reversable for any of these or such other like causes it must be avoided by him whom it doth concern that is barred and bound by the same recovery that should have had the land if the same recovery had not been and not by any other whom it doth not concerne. As if an erroneous recovery be suffered by tenant in taile; in this case his issues, or if they faile, the next in remainder or reversion shall defeat it. So also if the land be recovered against a stranger; the tenant in taile shall avoid it; And if the land be recovered against a disseisor, the disseis [...]e shall avoid it; And if the land be recovered against him in reversion or remainder, the tenant for years by Statute or Elegit shall avoid it: but in these last cases they shall falsifie and avoid it during their particular estates only. So also the wife shall falsifie the recovery suffered by her husband alone as to her title of dower only and no longer and further. And he in the reversion or remainder shall falsifie and avoid the recovery suffered by the tenant for life either in the life time of the tenant or afterwards. But neither he in reversion or remainder, or any one by or under him, or any other can falsifie a recovery suffered by the tenant in taile in poss [...]ssion except it be for some such causes as before. And the recoveror himselfe cannot falsifie a recovery. So neither can a Gardian, or a tenant of a Manor, as if one hold land of a Manor, and a stranger recover the Manor by a feigned title; a tenant of the Manor cannot falsi [...]ie this recovery. And in all these cases where a recovery is avoidable and a man hath power given him to falsifie; he must doe the same sometimes by writ of Error, as in the case of an erroneous proceeding; and sometimes by pleading and the setting forth of the speciall matter, as in the case where the tenant is not tenant of the free hold, or when the recovery is had by covin against the tenant for life, or the like; and sometimes by the shewing and setting forth of the practise to the Court, and a motion made that a Vacat may be made upon the Judgement for the causes alleaged.

And thus having done with the Cōmon Assurances that are made [Page 50] by matter of record we come to the Common Assurances that are made by matter of Fait, viz▪ by Deeds and Instruments of writing in the Country, wherein we must stay a while upon the learning of Deeds in generall, and from thence we shall descend to the particular kinds of Deeds.

CHAP. IIII. Of a Deed.

A Deed is a writing or Instrument written in paper or parchment [...] A deed. Quid. Termes of the Law. Co. super Lit. 35. sealed and delivered to prove and testifie the agreement of the parties whose deed it is to the things contained in the deed.

All deeds are either Indented, or Poll. The deed indented Termes of the Law. Co. super Lit. 229. 143. 38 H. 6. 25. [...] Quotupl [...]. Indenture. Deed [...]oll. (which is that which is called an Indenture) is when the paper or parchment is cut and indented. And it is defined to be a writing containing a Conveyance, bargaine, contract, covenants or matter of Agreement between two or more, and is indented in the top or side answerable to another that likewise doth comprehend the selfe same matter. And this is so called because it is so indented, for albeit it be called an indenture and begin in these words, Haec Indentura &c. yet if it be not actually indented it is no Indenture: And of the other side if it be not so called or these words be omitted, yet if it be indented it is an Indenture. And this was anciently called Charta cyrographata vel Communis, because each party had his part. The deed poll is that which is plaine without any indenting, when the parchment or paper is polled or cut even. And this was anciently called charta de una parte. And this is single and but one, which the feoffee, grantee, or lessee for the most part hath. The deed indented is also sometimes Bipartite. i. of two parts, when there are two parties and two parts of the deed. And then commonly the feoffor, grantor or lessor hath the one part, and the feoffee, grantee or lessee the other part. And sometimes it is Tripartite. i. when there are three part [...]es and three parts, and then commonly each party hath a part of the Indenture. And sometimes it is Quadripartite &c. And according to the parts they doe seale interchangeably one to another. And amongst these parts the part sealed by the feoffor, grantor or lessor is said to be the principall or originall, and the rest are called but Accessary, Counterparts or Copies; and yet all of them Counterpart. in law doe make up but one entire deed▪ These deeds also are sometimes Lit. Sect. 371. 372. [Page 51] times in the first person, as Noveritis &c. me A B &c. dedi & concessi &c. And albeit it be an indenture so made yet is it good enough. And sometimes they are made in the third person, as Haec Indentura testatur &c. quodidem A B &c. dedit & concessi [...] &c. Bro. Oblig. 51. Co. super Lit. 35. 36. West Symb. [...]ib. 1. part 1. Sect. 46. The deed Poll is usually made in the first person, but if it be made in the third person it is good enough. There are divers other distinctions of deeds, for some are Publique that doe concerne Countries, some of the Prince: And some are Private between particular persons, and those private persons or Subjects. And these only are intended here. And of these some are Absolute, and some Conditionall: some are inrolled, and▪ some not inrolled: some concern the realty, and some the personalty: And some are mixt. And some of these also containe matter of Grant, or Gift, amongst which feoffements, gifts, bargaines and sale, grants and leases are the chiefe. And some of them containe matter of discharge, as releases, acquitances, and defeasances, and such like. And some of them containe other matter, as confirmations and such like. Or as other distinguish, some of them are Constitutive and making, and some are remissory or liberatory. And the first [...]ort are some of them creating. i. such whereby any estate, property or obligation not having essence before, is newly raised and created, as the first grant of a rent, Common, way &c. estate taile, for life, years, &c. And some of them are conveying. i. such by which estates, properties and the like being already created are conveyed to others, as feoffements, bargaines and sales, grants over or assignements, surrenders, and the like. Those that are of the last sort are such as doe describe and testifie some precedent contract for a duty or fact to be paid, performed or done, released or discharged, of which sort are all acquitances, releases, and other such like matters of discharge.

But hereby the way, two things are to be observed. 1. That Note. See West Sym. [...]. part. there may be and are divers other kinde of deeds besides those which are named before, for every agreement put in writing sealed and delivered becommeth a deed. And Atturnements, Exchanges, Surrenders, Partitioners, Authorities, Commissions, Licences, Revocations, and the like are usually made, given, done and granted by deed. And there are divers other Instruments concerning Merchants and other affaires; if therefore any of these be done by deed such a deed is for the most part subject to the rules of deeds herein laid downe. 2 Albeit that feoffements, gifts, bargaines, leases, Atturnements, Exchanges, Surrenders, and such like things may in divers cases be as well made and done without as with a deed, yet if a man will make his claime to any thing given or granted by such feoffement, gift, &c. by deed, the deed must be such a deed as is a good and perfect deed by the rules here [...] after laid down.

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In every deed or writing there are two parts considerable. Co. super Lit. 6. 229. 2. 3. 3. The parts of a deed. 1. The externall or materiall part. i. The parchment or paper, waxe and writing. 2. The internall or intellectuall part. i. the sense, force, virtue and operation of the words and matter therein contained. And in the writing, context or matter contained in divers deeds, as feoffements, grants, leases and the like there are certaine formall or orderly parts which make up the whole of which the law doth take speciall notice: as, 1. The Premisses, the office whereof is rightly to set downe the name of the feoffor, grantor, lessor, &c. feoffee, grantee, lessee, &c. and to comprehend the certainty of the thing granted or leased. And herein in some deeds there is also a recitall of some things, and in some deeds an Exception of some part of the thing granted before by the deed. 2. The Habendum, the office whereof is to name againe the feoffee, lessee, &c. and to set forth what estate he shall have and for what time he shall hold the thing given or granted. 3. There is set downe and expressed upon what termes and conditions the estate of the thing granted shall be held: and therefore there is sometimes contained therein a Tenendum, to set forth by what Tenure the grantee shall hold the land granted. 2. A Reservation or Reddendum, to set forth by what Rent he shall hold the land. 3. A Condition. 4. A Warranty. 5. Covenants. 6. The Conclusion after this manner In cujus rei testimonium &c. wherein is set forth the date of the deed, containing the day, moneth and yeare, and the stile of the King or yeare of our Lord. And all these are sometimes contained under the Premisses and the Habendum.

All the parts of a deed indented in Judgement of Law doe Plow. 134. 38 H. 6. 24, 25. Lit. Sect. 370. 9 H. 6. 35. 35 H. 6. 34. make up but one deed, and every part is of as great force as all 4. The nature of [...]deed indented and a deed poll with the difference that is between them. the parts together, and they are esteemed the mutuall deeds of either party and either party may be bound by either part of the same. And the words of the Indenture are the words of either party. And albeit they be spoken as the words of the one party only, yet they are not his words alone but may be applyed to the other party if they doe more properly belong to him: for every word that is doubtfull shall be applied and expounded to be spoken by him to whom they will best agree according to the intent of the parties; and they shall not be taken more strongly against one or beneficially for the other as the words of a deed Poll shall. 11 H. 7. 22. per Brian. If therefore A by indenture enfeoffe B upon condition and then doth enter for the condition broken; in this case it hath been held that A in his pleading may shew forth the deed that he himselfe sealed, and that this is sufficient. And therefore also it is thought that an Indenture made in the first Person is as good in Law as an Indenture made in the third Person when both parties Lit. Sect. 373. [Page 53] have to this put to their Seales, for if in an Indenture made in the third Person or in the first person mention be made that the grantor only hath put to his Seale and not the grantee, then is the indenture only the deed of the grantor, but when mention is made that the grantee also hath put his Seale to the indenture, it shall be said to be the deed of them both.

And although both parts of the indenture are but as one part, yet the deed of the grantor is as the Principall and the other is Finches Law 109. not but a Counter-part. And therefore if the lessor only seale and not the lessee, yet it is as good as if both had sealed, and if there be any difference between the Parts, the Counter-parts shall be made to agree with the principall, and it shall be deemed the misprision of the Clarke.

This deed is the strongest kind of deed of the two, for this Estoppell. Plow. 434. 421. worketh an Estoppell. i. doth barre and conclude either party to say or except any thing against any thing contained in it, for if a lease be by indenture, both parties are concluded to say that the lessor had nothing in the land at the time of the lease made, so that if the lessor hap to have the land after by purchase or descent, the lessee may enter upon him by way of conclusion, and the lessee by Estopell shall be forced to pay his rent. But it is otherwise of a deed poll, for this is commonly but of one part which is sealed by the feoffor, lessor, &c. only. And this shall be expounded to be the sole deed of the feoffor, lessor &c. and the words therein contained shall be said to be his words and shall bind him only and be expounded altogether in advantage of the feoffee, lessee &c. and against the feoffor, lessor &c. and this doth not worke any Estoppell against either party. But if a deed be indented or poll, and there be therein reciprocall Covenants between Trin. 38 El. Co. B. per Curiam. Co. super Lit. 143. them from one to another albeit there be but one part, yet if each of them seale it and deliver it the one to the other, this is good for both parties, and each of them that can get the deed into his hand to shew or plead may take advantage thereof against the other. And in this case the deed is usually kept by one indifferent between them both.

Note here first of all that some deeds are void from the beginning See Grant infra. 5. When and where a deed shall be said to be good and sufficient. And when and where not, but void or voi [...] ab ini [...]is. and doe never take effect; and amongst these some are absolutely void and void against all persons, and some are void only to some purposes and against some persons. Some also that are not void from the beginning are notwithstanding voidable, and that sometimes by the party himselfe that made them or any others, and sometimes by others and not by himselfe. And some deeds are good in their first creation and well made at the f [...]st, but become void by some matter ex post facto. And this may be either by an extrajudiciall act, as rasure, or the like, or by a judiciall [Page 54] act. i. when by the sentence of a Court a deed is damned and made void, which is called a Vacat of the deed. A vacat of a deed.

To the making of every good Deed containing any agreement Co. super Lit. 225. 35. 36. Co. 2. 4. 5. these things are requisite. 1. Writing. i. That it be written in Things requisite to make a deed good. parchment or paper, and that the agreement be legally and formally set downe and be sufficient in Law for the composition and frame of the words. And this is called the legall part, the Judgement whereof belongeth to the Judges of the Law. 2. That there Perk. Sect. 149. 137. be a person able to contract, and to be contracted with, and a thing to be contracted for, and that all these be set down by sufficient names. 3. Reading. i. That if it be an illiterate man that See infra. is to seale the deed and he desire to heare it read, that it be truly read or the contents thereof truly declared to him. 4. Sealing. i. See infra. That the deed so written be sealed by the party or some other by his appointment for a further testimony of his consent thereunto. 5. Delivery. i. That the deed so written and sealed be delivered Perk. Sect. 137. &c. by the party or some other by his appointment as his deed. And these last things being matters of fact are to be tryed by Jurors. 6. That the ground, foundation, end, and purpose of making the See infra. deed be good and not against the Law. Otherwise in most of these cases the deed is voyd ab initio. Also in some cases to perfect the contract and make the conveyance of the thing intended to be passed thereby good, some other ceremonies or complements are requisite, as Inrollment, Livery of Seisin, Atturnement, otherwise the deed in part at least becommeth fruitlesse and vaine. For a deed may be void, either for that the writting is not in parchment or paper; or being so is not legally and formally drawn; or being so, there doth want a person able to give, or make, or capable to have, or take, or a thing to be contracted for; or if so, for that it is not duely sealed and delivered; or if so, for that it is not truly read at the time of the sealing and delivery; or if so, for that it is made void by some speciall law, as being made upon an usurious Contract, by duresse, or the like. Or it may at least in part lose his force afterwards by neglect of inrollment, Livery of Seisin, or Atturnement in cases where these things are requisite.

Every deed well made must be written. i. The agreement Perk. Sect. 118. Co. super Lit. 171. must be all written before the sealing and delivery of it: for if a 1. In respect of the writing of it. man seale and deliver an empty peece of paper or parchment, albeit he doe therewithall give commandement that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed. 2. This writing must be in paper or 2] Co. super Lit. 229. F. N. B. 122. Lit. 27 H. 6. 9. parchment, for if an agreement be written on a peece of wood, linnen, the barke of a tree, a stone, or the like, and this be sealed and delivered; this is no good deed. Co. 2. 3. But it may be written in [Page 55] any language, or in any hand. And therefore it is held that a deed written in French or Latine, and in Text, Court, or Roman hand, is as good as a deed written in English and in a Secretary hand.

Perk. Sect. 123. And albeit the writing be besides the lines, or the lines be written crooked, yet this will not hurt the deed. Perk. Sect. 155. Co. super Lit. 225. And if there be any Alteration, rasure, or enterlining made in any part of the deed before the delivery of it; this will not hurt the deed. But in such cases it is policy to make a Memorandum of it upon the backe of the deed, and to give the witnesses notice of it; for otherwise if it be in any place materiall, as in the name of the grantor, grantee, in the limiting of the estate, or the like, and especially if it be in a deed poll, the deed is greatly suspicious. 3. The matter written 3] Co. super Lit. 225. must be legall and orderly for manner and matter. i. There must be words sufficient to set forth the agreement and bind the parties, for a deed may be void and lose his virtue in all or part for repugnancy, incertainty, and divers other matters (whereof see in exposition of Deeds infra.) But it is not materiall whether the deed be in the Fitz. Fait & feoffements. 5 Dier 6. First, or in the Third person so as the words be aptly applyed. For if a deed Poll be in the Third person viz. Quod presens scriptum testatur &c. quod idem A dedit & tradidit &c. Or an obligation be in the Third person, viz. M^d. quod I S debet I D 20l. &c. these are good deeds notwithstanding the Statute of 38 E. 3. cap. 4. which is meant only of obligations made beyond the Seas. So if the words of a deed indented run in the First person, it is as good as if it were in the Third person. Neither is it necessary that the English Co. 5. 121. 10. 133. See Oblig. Numb. 3. or Latine whereby it is made be true and congruous, for false and incongruous Latine or English seldome or never hurteth a deed, for the rules are Falsa orthographia non vitiat chartam. Falsa grammatica non vitiat concessionem. Neither is it necessary that every Co. super Lit. 6. deed have all the parts of a deed before set downe, as Premisses, Habendum, &c. for a deed may be good without Habendum, warranty, Reservation, or Covenant. And a deed is good albeit these Co. 2. 5. Dier. 19. Kelw. 70. words in the close thereof In cujus rei testimonium Sigillum meum apposui be omitted, and albeit there be no mention made in the same that the deed was sealed and delivered so as in truth it be duly sealed and delivered and the sealing and delivery can be proved. Co. 2. 5. 5. 117 Dier 28. Perk. Sect. 120. Co. super Lit. 6. Also a deed is good albeit it mention no time or place of date or making, or have a false date. i. be dated at one time and delivered at another, and albeit it have an impossible date, as the 30 of February or the like, for anciently untill the time of E. 2. and E. 3. the deeds had no date because the Law was then held to be that if a deed were dated before the time of memory it was not pleadable except it were of Record but it might have been given in evidence. But he that doth plead such a deed without any date, or with such an impossible date must set forth the time when it was delivered.

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The second thing required in every well made deed is, That the 2. In respect of the persons parties thereunto and matter therein. person making it be able to give, grant, make, or doe the thing Co. 11. 73. Plow. 555. Perk. Sect. 1. 119. See Grant. infra. Numb. 4. Feoffements infra Numb. 12. contained in it; that the person to whom it is made be capable of the thing to be given, granted, made or done thereby, for if it be made by, or to any such persons as are disabled, as Infants, Aliens, women Covert, Persons attainted of Treason or Felony, Idiots, and such like, it will be void in all or part. But any person naturall male or female, or politique, as sole Corporations, or Corpotations aggregate of many, Ecclesiasticall or Temporall, not disabled by law may give or take by deed. Also there must be some matter whereabout the contract may be conversant. It is therefore said that in every grant there must be grantor, grantee, and a thing to be granted and in every obligation an obligor, obligee, and thing to which the obligor is bound, and so of Feoffements and other deeds.

The third thing required in every well made deed is, That if the Co. 2. 9. 3. 11. 27. 14 H. 8. 25. 3. In respect of the reading of it. party that is to seale it be a blind or an illiterate man, and desire to heare it read that it be so, for if such a man be to seale a deed, and he desire to heare it, or to heare the contents of it read or declared to him first, and it be not done, and he afterwards seale and deliver it; this is no good deed. So if upon or without any such request made by him that is to seale and deliver it, the partie himselfe to whom it is made, or a stranger shall read the deed, or declare the contents thereof falsly and otherwise then in truth it is; the deed will be voyd at least for so much as is so misread or misdeclared. But if the party himselfe that is to seale and deliver it before the sealing and delivery thereof cause another that is a stranger covinously to read it, or to declare the contents thereof falsly to him, and otherwise then it is, of purpose to make the deed voyd; this will not hurt the deed. So if the party that is to seale the deed can read himselfe and doth not, or being an illiterate or a blind man doth not require to heare the deed read, or the contents thereof declared; in these cases albeit the deed be contrary to his mind, yet is it good and unavoydable.

The fourth thing required in every well made deed is, that it be 4. In respect of the sealing of it. sealed: But this sealing of deeds in times past was not used, for the Termes of the Law. Fait. Co. fuper Lit. 225. Co. 2. 4. 5. Perk. Sect. 129. Saxons used only to subscribe their names and to adde the signe of the Crosse, and to set downe a great number of witnesses. And afterwards the Normans brought in with them the sealing of deeds but by degrees, for first the Kings and a few of the Nobility used it, and to seale with their Seales of Arms, afterwards all the Nobility used it, and then the Gentlemen, and about the time of E. 3. all men began to use sealing of deeds, which hath been continued ever sithence, so that now it is of necessity, in so much that if a deed be never so well written before and delivered afterwards, yet if it be [Page 57] not sealed between the writing and delivery, it is not a good deed▪ But if a stranger seale it by the allowance or commandement precedent Perk. Sect. 130. 131. 134 or agreement subsequent of him that is to seale it before the delivery of it, it is as well as if the party to the deed did seale it himselfe. And therefore if another man seale a deed of mine, and I take it up after it is sealed and deliver it as my deed; this is said to be a good agreement to, and allowance of the sealing, and so a good deed. And if the party seale the deed with any Seale besides Perk. Sect. 130. 131. 132 his own, or with a stick or any such like thing which doth make a print, it is good. And although it be a Corporation that doth make the deed, yet they may seale with any other seale besides their common Seale and the deed never the worse. And if there be 20. to seale one deed, and they seale all upon one peece of wax Perk. Sect. 134. and with one Seale, yet if they make distinct and severall prints; this is a very sufficient sealing and the deed is good enough.

The fifth thing required in every well made deed is, That there 5. In respect of the delivery of it. And what shall be said a good delivery, or not. 1. In respect of the person that doth make it. Co. 2. 4. 5. Perk. Sect. 137. 9 H. 6. 37. be a delivery of it. And for this it must be known, that delivery is either actuall. i. by doing something and saying nothing, or else Verball. i. by saying something and doing nothing, or it may be by both, And either of these may make a good delivery & a perfect deed. But by one or both of these it must be made, for otherwise albeit it be never so well sealed and written, yet is the deed of no force. And though the party to whom it is made take it to himselfe, or hap to get it into his hands, yet will it do him no good nor him that made it any hurt untill it be delivered. And a deed may Perk. Sect. 137. 9 H. 6. 37. Co. 11. 28. 3. 35. 47 E. 3. 3. be delivered by the party himselfe that doth make it, or by any other by his appointment or authority precedent or assent or agreement subsequent, for omnis ratihibitio mandato aequiperatun, And when it is delivered by another that hath a good authority and doth pursue it, it is as good a deed as if it were delivered by the party himselfe: but if he doe not pursue his authority then it is otherwise. And therefore if a deed or the contents thereof be read or declared to a man that is to seale him; and he (being illiterate) doth deliver him to a stranger, and bid him examine him, and if it be so as it was read to him, then to deliver him as his deed, otherwise to redeliver him to him againe that made it; in this case if the deed be in truth, otherwise then it was read, and yet notwithstanding he to whom it was delivered doth deliver him to him, to whom it is made, this delivery shall not not availe, neither is the deed by this delivery become a good deed. Dyer 167. Perk. Sect. 137. 8H. 26. Co. super Lit. 36. 3. 26. 5. 119. 10 H. 6. 25. 13 H. 4. 8.

And so also a deed may be delivered to the party himself to whom it is made or to any other by sufficient authority from him: or it 2. In respect of him to whom it is made. may be delivered to any stranger for and in the behalfe, & to the use of him to whom it is made without authority. But if it be delivered [Page 58] to a stranger without any such declaration, intention or intimation unlesse it be in case where it is delivered as an escrow, it seems this is not a sufficient delivery. And yet if an Obligation be made to the use of a third person expressed by the deed, and the obligor Dyer 192. deliver it to him to whose use it is made; this is said to be a good delivery. And albeit it be delivered before or after the day of the 3 In respect of the time. 4 In respect of the manner and order of delivery. date of it, yet it is good enough: but if it be delivered before it be Co. 2. 4. Plow. 492. sealed it is nothing worth. And where it is delivered before the date, yet in the pleading of it it must not be so set forth.

If I have sealed my deed, and after I deliver it to him to whom Co. 9. 137. Dyer 192. 167. Co. super Lit. 36. 49. 35. Ass. pl. 6. it is made, or to some other by his appointment and say nothing, this is a good delivery: So if I take the deed in my hand and use these or the like words; Here take him, or This will serve, or I deliver this as my deed, or I deliver him you; these are deliveries. So if I make a deed of land to another, and being upon the Land I deliver the deed to him in the name of Seisin of the Land; this is a good delivery. So if the deed be sealed and lying in a window, or on a Table, and I use these or the like words, There he is, take it as my deed; this is a good delivery and doth perfect the deed, for as a deed may be delivered by words without deeds, so may it also be delivered by deeds without words. But if a man seale and acknowledge Adjudged Trin. 37. El. B. R. before a Major or other Officer appointed for that purpose a writing provided for a Statute ora recognisance, this acknowledgment before such an Officer shall not amount to a delivery of the deed so as to make it a good obligation if it happen not to be a good Statute or Recognisance.

The delivery of a deed as an Escrow is said to be where one doth 19 H. 8. Kelw. 88. 14 H. 8. 22. 14 H. 6. 42. Perk. Sect. 141. 140. 142. 138. 143. 144. Fits Feoffments & Fait. 4. 13. 15. Co. 9. 137. super Lit. 48. 36. As an Escrow. Quid. make and seale a deed and deliver it unto a stranger untill certaine conditions be performed, and then to be delivered to him to whom the deed is made to take effect as his deed. And so a man may deliver a deed, and such a delivery is good. But in this case two cautions must be heeded. 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himselfe to whom it is made. The words therefore that are used in the delivery must be after this manner. I deliver this to you as an escrow to deliver to the party as my deed upon condition that he doe deliver you 20l. for me, or upon condition that he deliver up the old bond he hath of mine for the same mony, or as the case is. Or else it must be thus. I deliver this as an Escrow to you to keep untill such a day &c. upon condition that if before this day he to whom the Escrow is made shall pay to me 10l. or give to me a horse, or infeoffe me of the Manor of Dale, (or perform any other condition) that then you shall deliver this Escrow to him as my deed. For if when I shall deliver the deed to the stranger, I shall use these [Page 59] or the like words. I deliver this to you as my deed, and that you shall deliver it to the party upon certain conditions: Or, I deliver this to you as my deed to deliver to him to whom it is made when he comes to London, in these cases the deed doth take effect presently and the party is not bound to perform any of the conditions. So it must bee delivered to a stranger, for if I seale my deed and deliver it to the party himselfe to whom it is made as an Escrow upon certaine conditions &c. in this case let the form of words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently, and the party is not bound to perform the conditions; for, In traditionibus Chartarum non quod dictum sed quod factum est inspicitur. Fitz. Faits & Feoffements 13. But in the first cases before where the deed is delivered to a stranger and apt words are used in the delivery thereof, it is of no more force untill the conditions be performed then if I had made it and layd it by me and not delivered it at all, and therefore in that case albeit the party get it into his hands before the conditions be performed, yet he can make no use of it at all, neither will it do him any good. Idem. But when the conditions are performed and the deed is delivered over, then the deed shall take as much effect as if it were delivered immediately to the party to whom it is made, Co. 3. 35. and no act of God or man can hinder or prevent this effect then if the party that doth make it be not at the time of making thereof disabled to make it. He therefore that is trusted with the keeping and delivery of such a writing ought not to deliver it before the conditions be performed, and when the conditions be performed he ought not to keep it but to deliver it to the party. For it may be made a question whether the deed be perfect before he hath delivered it over to the party according to the authority given him. Howbeit it seems the delivery Co. 5. 84. 3. 36. is good, for it is said in this case that if either of the parties to the deed dye before the conditions be performed, and the conditions be after performed, that the deed is good, for there was traditio inchoata in the life time of the parties, & postea consummata existens by the performance of the conditions it taketh his effect by the first delivery without any new or second delivery, and the second delivery is but the execution and consummation of the first delivery. And therefore if an Infant, or woman covert deliver a Co. 3. 35. 36. deed as an Escow to a stranger, and before the conditions are performed the Infant is become of full age, or the woman is become sole, yet the deed in these cases is not become good. And yet if a disseisee make a deed purporting a lease for years, and deliver it to a stranger out of the land as an Escrow, and bid him enter into the land, and deliver it as his deed, and he do so, this is a good deed, and a good lease, so that to some purposes it hath relation to the time Relation. See infra at Num. 8. of the first delivery and to some purposes not.

[Page 60]

In case where a deed is meerly void and doth take no effect by his first delivery, as where a woman covert doth seale and deliver Perk. Sect. 154. 11 H. 6. 27. Double Delivery. a deed, or the like, and she after being sole after her husbands death doth deliver the deed again, in this case the deed is become good. So where a deed originally good doth becom void by matter ex post facto, as by breaking the Seale or the like, if the party to the deed seale and deliver it again; by this means the deed is become good again. But regularly there may not be two deliveries of a deed, for where the first delivery doth take any effect at all, the second delivery is void.

Perk. Sect. 1 [...]4. And therefore it is held that if an Infant or a man by duresse of imprisonment do make seale and deliver a deed &c. i Co. 5. 119. (in which cases the deed is not void but voidable) and after the Infant being of full age, or the man imprisoned being at large, doth deliver this deed again the second time; this second delivery is void: Debile fundamentum fallit opus. So if a man be disseised and make a lease for years in writing and deliver the deed, Co. super Lit. 48. and after deliver it upon the ground, this second delivery is void, for the first delivery made it his deed; but if he had delivered it as an Escrow to be delivered as his deed upon the ground, this had been a good second delivery. And by all this that hath been said it New Term [...] of the Law tit. Fait. 9. Jac. Scots case. Subscribing of the parties name or mark n [...]t necessarie. appeareth, that the putting to or subscribing of the parties name or mark to the deed he is to seale is not essentiall, for a deed may be good albeit the party that doth seale it doth never set his name or his mark to it, so as it be duly sealed and delivered. But it is the best and [...]urest way notwithstanding to have the name or mark of the party subscribed, for by this means the deed may be the better proved when the witnesses are dead.

Note here that albeit a writing or Escrow that is not sealed Note. and delivered in manner as aforesaid may not be used nor pleaded as a deed, yet it may serve and be used as an evidence and proofe of the agreement contained therein. And whatsoever may be done by word without any writing may much more and better be done by writing unsealed or sealed, though it be not delivered as aforesaid.

And the last thing required in every well made deed is, that it 6. In respect of the ground and end of it. have a good foundation, and be to a good end, for albeit a deed have all the qualities of a good deed before required, viz. that it be well made, read, sealed, and delivered, yet it may be void or at least voidable for others causes, as when it is either unjustly gotten and obtained, or corruptly in pursuit and execution of some d [...]shonest agreement, or to a dishonest end or purpose. made. A deed therefore Co. 2 9. Perk. Sect. 16. [...] 14 [...]. 45 E. 3. 6. whether it be a feoffment, gift, grant, lease, release, confirmation, Mana [...]e or Du [...]sse. Quid. or obligation that is made or obtained by manasse, or duresse, i. when one doth threaten another to kill or maime him, if he will [Page 61] not make him such a deed, or doth imprison another untill he make him such a deed, and thereupon he make the deed, a deed thus obtained by force and through feare to avoid danger is void and will not bind him that made it nor availe him to whom it is made. In which matter these things must be observed. 1. That there must be some threatning of life or member, or imprisonment, or some imprisonment Bro. Duresse in toto, 9 H. 7. 24. 21 E. [...]. 13. or beating it selfe, for if it be only a threatning to take away goods, or to burn a house, or the taking and keeping of a mans goods, or the like, this will not make the deed made upon that occasion to be per duresse. 2. It must be a threatning, beating or imprisonment of the party himselfe that doth make the deed, or of his wife, for if it be a threatning, beating or imprisonment of any other besides the party himself that doth make the deed or his wife, this will not make the deed to be by duresse. 3. The threatning beating or imprisonment must bee to this end, and hereupon the deed must be made, for otherwise the deed shall not be said to be by duresse. As for examples. If foure do threaten one to imprison him if he will not seale a deed to one of them 4. and he do so; this deed shall be said to be gotten by duresse and therefore void. And if one threaten a man to kill him unlesse he will seale a deed to him and three others, and he doe so; this is void as to all the foure. For if one threaten another to kill or maime him if he will not seale a deed to a stranger, and thereupon he do so; this is void as if it were to the party himselfe. If one threaten to kill wound, or imprison me to make me swear or promise to seale him such a deed, or imprison me untill I do so, and afterwards at another time and in another place, and when I am at liberty I do it accordingly; this shall be said to be made by duresse and void. If I be in prison at one mans suit, and then another man doth cause me to be used more severely in prison to compell me to make him some deed which I do thereupon make to him; this deed shall be said to be gotten by duresse and therefore void.

But if I be imprisoned at one mans suit (be the cause just or not) and being in prison I make an Obligation, or any other deed to a third man: this shall not be said to be by duresse but is a good deed. So if one threaten me to take away my goods, burn or break my house, enter upon my land, kill or wound my father, or mother, brother, or sister, or friend, or doe imprison any of them, and thereupon I seale a deed; this is good and shall bind me. So if one distraine my beasts to compell me to seale a deed and will not deliver them unlesse I do so, and threaten me that if I take the beasts again and not seale the deed he will kill me, and thereupon I seale the deed; this is a good deed and shall bind me. If I be arrested upon good cause and being in prison or under arr [...]st I make an Obligation, feoffment or any other deed to him at whose suit▪ I [Page 62] am arrested for my enlargement and to make him satisfaction; this shall not be said to be by duresse, but is good and shall bind me. And therefore if Auditors in an account do commit an accomptant to prison, and then he make an obligation to his master for the Arrearages, this is good. And if one in prison for felony grant a reversion of land to another to help him out of his trouble, this is a good grant. If A and B enter into an obligation upon the threatning of B only, this is a good obligation by A that was not threatned.

And if one make an Obligation by duresse, and after being at Bro. Defesance ▪ 17. Estoppell. large take a defesance upon it, this makes the Obligation good again, and the obligee is concluded to say it was by duresse. A deed also made upon or in pursuite and execution of an usurious contract. i. such a contract as whereupon the lender is sure to have in mony or monies worth for the loane of the thing above the principall Terms of the Law. Co. 5. 70. 37 H. 8. ch. 9. 39 El. c. 18. 21 Jac. ch. 17. 13 El. ch. 8. more then after the rate of 8l. for the 100l. by the yeare Usury. Quid. also is void. In whi [...]h matter these cases are to be observed. If one 6. Decembris borrow 30l. untill the second day of June next following to be paid then for it 33l. for the principall loane if the sonne of the oblig [...]e be then alive, and if he die before that time, that then he shall pay but 27l. which is lesse then the principall; in this case this contract is usurious and corrupt, and therefore the deed that doth containe it is void.

If one borrow 100l. and for this mortgage land above the value Co [...]ets case. Pasch. 7. Jac. B. R. of 8l. by the yeare, on condition that if the Mortgagor pay the mony at the years end, that the estate shall cease; this is an usurious contract, and therefore the deed whether it be a deed of feoffment, grant, or lease containing it is void. So if I lend another man 10l. for a yeare and take security by Statute or Obligation that the borrower pay me the lender 20l. for it; this contract is usurious, and therefore the Statute and Obligation void. But if the agreement and Statute or Obligation be, that if the borrower pay not the 10l. within the yeare that then he shall pay 20l. for it; this is no usury, and therefore in this case the deed is good. If one come to me to borrow 500l. of me and tell me he is unable to pay it together, and therefore hee desires hee may pay it in twelve or thirteene years, and doth offer therefore to give me for my kindnesse 200l. over and above besides the use to let him have it so, and then the 500l. the interest, and the 200l. is cast together, and so we agree upon an Annuity of 80l. per annum for fourteene years, which is assured by Conveyances unto me; in this case the contract is usurious, and all the assurances made to perfect it are void. And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case. the contract is not usurious. If a man desire to borrow of me 100l. for a yeare and I am content to let him have it for the use of 8l. [Page 63] but withall I compell him to take a lease of me of a house at 60l. rent which in truth is worth but 30l. this contract is usurious and therefore the assurances thereupon made void. Et sic de similibus. But if a man the 17^th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l. to be paid every halfe yeare, and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l. the 17^th of Iuly 1580. that then the rent shall cease; this contract is not usurious, and therefore the assurances thereupon made are not void but good. But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l. and redeem the rent, and that clause be put in only to evade the Statute, then is the contract usurious notwithstanding and the deeds and assurances thereof void. Et sic de similibus. If one borrow 100l. after the rate of 8l. per centum, and Hill. 7. Jac. B. R. Curia. the borrower do afterwards pay part of the principall and all the use within the yeare, and the lender doth receive it, or the lender doth sue for his mony within the yeare; these subsequent acts do not make the contract or deeds or assurances thereof void, for it is a rule, that if the originall contract be not usurious, no matter ex post facto can make it so. If one borrow of me 10l. and bind himselfe Bro. Obligation 79. to pay me by a day, and moreover bind himselfe that if he pay it not by the day, that he shall pay me 20l. for it; this contract and the deed for perfection of it are good, for this is not usurious, for all Obligations with conditions for payment of mony lent are of this nature▪ And yet if one borrow 100l. of me and for this mortgage land to me of a greater value then 8l. per annum on condition that if he pay the mony at any time before the years end then the assurance to be void; this should seem to be an usurious contract, for in this case I am sure to have by the agreement more then after the rate of 8l. per centum, and so it is not in the last case before. If one borrow 100l. for a yeare and give the Broker 20l. Per. [...]ust. Brigman Hil. 7. Car. to procure it; this will not make the contract usurious nor the assurances void▪ but for this the Broker may be punished.

Also all Obligations made to a Sheriffe contrary to the Statute Obligations▪ made to a Sherriffe contrary to the statute. Collusion in [...]raudulent conv [...]yances. 1. To deceive purchasors▪ of 23 H. 6. ch. 10. are void or at least voidable by pleading. But of this see in Obligations infra. A deed also made containing Stat. 27 El. ch. 4. Co. super Lit. 3. stat. 39 El. [...]h. 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void. For it is to this purpose provided by a Statute Law, That all fraudulent conveyances of land or any rent or pro [...]it out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them. But all such conveyances as are [Page 64] made bonâ fide and upon good consideration are not to be accounted fraudulent. For the better understanding of which Statute and the Law in these cases observe, That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied: And good considerations are set down in the Statute to distinguish from such as are not valuable, as nature, bloud, and the like. If one convey land with a present or future power of revocation or alteration at his will that doth convey it; this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land: So that if one convey his land to the use of himselfe for life, and after to the use of divers of his bloud with a future power, as after the death of H, or after such a day to revoke it, and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration; in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt. And if one convey land with such a power of revocation, and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power, and after sell the land for valuable considerations to a stranger; in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void. And if there be grandfather father and son, and the grandfather makes Co. 6. 72. a lease for 100. years to the father, and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts, the grandfather dieth, the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land, the sonne payeth no debts, and the assignement (albeit divers persons of quality were named assignes) was delivered to one of the assignes of meane estate in private, and after the father doth sell the land for valuable consideration, in this case this assignment shall be taken to be fraudulent and void as to the purchasor. And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death, and he sell it for valuable consideration; in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe, and that whether the sonne be privie to the conveyance made by his father or not. And if the fraudulent conveyance bee made to the King, yet it is void as to a purchasor as if it were made to a common person. And therefore if there bee tenant in taile the remainder in taile or in fee, and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King, and after the tenant in taile doth sell the land by common recovery for good consideration, in this case the purchasor [Page 65] shall avoid this deed to the King, whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale. And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee, M. 4. Ja [...]. Cowell & Bart. case. and then for good consideration maketh another lease to begin at the end of the former lease; this conveyance shall be void as to the second lessee. And if A make a lease to B for years upon good considerations, Per. 2 Iust. Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good & valuable consideration, and B doth not discover this but drives this bargaine with C, and is witnesse to this second lease, and the first lease is not excepted in the second lease; it seems in this case the first lease shall be void as to C. And in all these and such like cases, albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance, yet shall he avoid it as if he were ignorant of it. But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it. And therefore if one make a lease that would be fraudulent & void as to such a purchasor to A, and after make another lease bonâ fide to B, but without any rent or fine given for it; in this case the first lease shall not be said to be fraudulent as against the second lessee, and therfore not void. So if one covenant for the advancement of his heirs males &c. to levie a fine of land by a day to the use of himself for life, and after of his issue male; and before the day he make a lease that is fraudulent for many years of purpose, and after he doth levie a fine accordingly; in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile. So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it; and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them; in this case the conveyance first made shall not be said to be fra [...]dulent as against these purchasors, and therefore it is good against them. And if one that hath a terme for 60. years if he live so long make it away, Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely; and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S▪ in this case it seems that the first lease is not void, and that the purchasor shall have nothing but the forged lease.

A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch. 3. 1 [...] El. ch. 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties. and defeate Creditors of their just debts and duties is void also as against such persons. For it is provided to this purpose [Page 66] by other Statutes. That all feoffments, gifts, grants, alienations, bargaines and conveyances of lands, tenements, hereditaments, goods, and chattells, or any rent, profit, or commodity out of land made by fraud or collusion of trust to him that made the same, or otherwise with intent to hinder and delay, or put off, or put by Creditors, or others of their just and lawfull actions, suites, debts, accompts, damages, penalties, forfeitures, hariots, mortuaries, or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding, but all such as are made bonâ fide, and upon good consideration, are not to be accounted fraudulent by this Statute. For the better understanding whereof these cases following are to be heeded. If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure, and he take the profits of it as his own, or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts, having bound himselfe and his heires by any especialty, or to the intent that a warranty and assets shall not bind his sonne for other land or the like, in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent; and especially when the conveyance is made after suites begun; and more especially when any judgment is had upon the suits against him that doth make the deed. And so also is the law for goods. And therefore if one be indebted to A 20l. and to B 40l. Co. 3. 80. 83. Bro. Done. 20. Plow. 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite, the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt, and yet doth afterwards continue the occupation and use the goods as his own, and after A getteth judgment and execution; in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt, and before any suite begun by A, with any expresse or implicite trust, as to the intent that B shall be favourable to the debtor, or that if the debtor provide the mony that he shall have the goods again, or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can; in these and the like cases the deeds shall bee said to bee fraudulent and void, for howsoever it bee made upon good consideration, yet it is not made bon [...] fide. So if one in consideration of naturall affection, or for no consideration give all his goods to his child, or cousin bonâ fide, this shall be a void deed as to the Creditors. Et sic de similibus. So if one give all his goods and chattels to his executor in his life time by deed of gift, this shall be said to be fraudulent and shall be void as to Creditors. And albeit those to whom the deed of fraud is made know nothing of the fraudy, yet is [Page 67] the deed fraudulent in that case also as well as where they are privie to it. If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt; in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners, and they may order it with the rest of the estate notwithstanding. But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South. Lady Lamberts case. whereof he hath a term of years to B, upon condition that if he repay the mony to B a yeare after that he shall reenter, and B doth covenant with A, that he shall take the profits of it untill that time &c. A doth not pay the money, and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after, and in the interim judgment is had against A, upon a bond and execution awarded; in this case execution shall not be made of this lease, for this deed of mortgage shal not be said to be fraudulent as to the Creditor, for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto.

If A be seised of the fifth part of the Manor of B, and B of the Mich. 19 Jac. Co. B. Miller & Potscase. 6^th part, and M cometh to A to buy his part, and after M saith to A, my Counsell tells me I cannot safely buy of you unlesse B joyn, and after B doth grant a rent charge of 15l. per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection (and this was about 1^o. Jac. C being then but about three years old) with proviso that if D (whom B did then intend to mary) grant to the said C the like rent of 15l. and for the like estate out of 20l. land by the yeare of the land of B, then the said grant to be void, and after the said A bought the 6^th part of the said Manor of B, and D her husband being intermaried, and after A, B, and D her husband joyne in the grant to M, and in this case it was ruled that this grant to C was not fraudulent and void. If one doth hold his land to pay a hariot Co. 10. 56, 57. at the death of every one that dyeth tenant in fee simple, and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I, and the son (to prevent the Dower of his intended wife during his fathers life) makes a lease for forty yeares unto his father if his father live so long, and afterwards the mariage is had, the father payeth the rent, the sonne doth suit of Court for the land and after the father dieth; in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch. 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow. 49. Co. 8. 164. 9. 129. end.

A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships &c, wardship shall be void, as to a third part of the thing conveyed. And therefore if any tenant that holdeth of the King or any other [Page 68] Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship, primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits, as if none such were made. As if such a tenant by deed enfeoffe his lineall or collaterall heire within age, or make a lease for life the remainder to his heire, or make a gift in taile the remainder in fee to his heire, or make a feoffment on condition that he shall reinfeoffe his heire at his full age, or make a feoffment for the paiment of his debts, preferment of his wife and children, or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him; all these are fraudulent, and void as to a third part of the land, and as against the King or other Lord in respect of the benefit they are to have of and by the land. But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land. And if one make a feoffment of land to two (whereof his heire is one) and their heires for mony or other valuable consideration; this shall not be said to be a fraudulent conveyance of any part. So if such a joyntenant make a feoffment of his moity to a stranger. Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before, if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor; in these cases the deed is become good again, and the collusion gone. If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l, they shall convey it to those whom he shall appoint; in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end, and therefore it is a good conveyance against all men but the Creditors. Where deeds shall be void in part or in all for want of inrollment, atturnement, livery of seisin or the like; see afterwards.

If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto. And what will make such a deed void or not. 1. By Rasure. be afterwards altered by rasure, interlining, addition, drawing a line through the words (though they be still legible) or by writing new letters upon the old in any materiall place or part of it, as if it be in a deed of grant, in the name of the grantor, grantee, or in the thing granted or in the limitation of the estate, or if it be in an Obligation, when the word [Heires] shall be inserted, or the summe increased, or in the date of either, or the like; be the same either by the party himselfe that hath the property of the deed or any other whomsoever except it be by him that is bound by the deed; and be the same with or without the consent of him to whom it is made or doth belong; in this case and by either of these meanes the deed hath lost his force and is become void.

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And if the alteration be made by the party himselfe that oweth the deed, albeit it be in a place not materiall, and that it tend to the advantage of the other party and his owne disadvantage, yet the deed is hereby become void. But if the alteration be made by the party himselfe that is bound by the deed in any materiall or immateriall part thereof, or a stranger without the privity or consent of the owner of the deed shall make any such alteration in any part of a deed not materiall, (as if it be a deed of a grant containing a lease for years, and there be inserted between [To have and to hold] and [for 30 years] these words [from henceforth:] Or if it be an obligation and there be inserted between [Obligo me] and [per presentes] these words [Executores meos] in both which cases those words are needlesse and without any fruit at all; hereby the deed is not hurt, but it remaineah good notwithstanding. But if the Alteration be before the delivery of the deed, be it whatsoever or by whom soever, it will not hurt the deed. And herein it must Perk. Sect. 123, 124. Bro. Fait. 6. Perk. 129, 127. 128. be observed that then a rasure, &c. is most dangerous, and the deed thereby most suspitious when it is in a deed Poll and there is but one part of the deed; and when the rasure or other alteration is in any materiall part of the deed; and when the alteration makes to the advantage of him that doth owe the deed and to the disadvantage of the other that made it; and when there doth appeare some other thing to be written before; and when there is no other part of the deed, recitall, defeasance, or other matter to which this may be compared, and that may make it appeare to be before the delivery; and when there be other parts of the deed or other matters whereunto this being compared doth not agree in that part wherein the alteration is; and when the deed hath been in the smoke, or any such like meanes hath been used to cover the alteration. And in these cases the matter was anciently used to be Co. super Lit. 225. tried by the Judges upon the view of the deed; but it is now used to be tried by Jurors, whether the rasure, or other alteration were before the delivery of the deed or not.

And if after the sealing, delivery and perfection of a deed, the 2. By breaking or defacing of the Seale. Dier 59. Co. 11. 28. 5. 23. Dier 112. Perk. Sect. 135, 136. Bro. Oblig. 83. seale thereof happen to be broken off, or to be utterly desaced, so that no signe or print thereof can be seen, or it appeareth to have been broken off and it is glued, or the wax new heat and set on again; or the labell of the deed hath been broken off from the deed & is sewed on again; or the deed is new sealed with other wax, be the same by whatsoever means, or whomsoever unlesse it be by him and his means that is bound by the deed; in these cases and by either of these meanes the deed is become void. But if any peece of the seale remain fixed to the deed, and there be any print left upon that peece, the deed doth continue good. And if after the seale of a deed bee broken off the party that sealed it doe seale and deliver [Page 70] it de novo; by this meanes it seems the deed is become good again. Trin. 38 El. Co. B. Dier 112. 3 By redelivery or cancelling of it.

And if a deed be delivered up to the party that is bound by it to be cancelled and it be so; or if he that hath the deed doth by agreement between him and the other cancell the deed; by either of these meanes the deed is become void. But if an Obligee deliver up an Obligation to be cancelled, and the obligor doe not afterwards cancell him, but the obligee happen to get him again into his hands and sue the obligor upon him, the obligor hath not any plea to avoid him, for the deed remains still in force. 4. By disagreement. Co. 3. 26. 5. 119. Dier 167.

And if an Obligation be delivered as an Escrow to a stranger to be delivered to the obligee on certaine conditions, or to a stranger to the use of the obligee, and when this is after tendred to the obligee he doth refuse it and disagree to it; or if an Obligation be made to a feme covert, and her husband disagree to it, in all these cases the deed is become void. And like Law is of other deeds in divers such like cases. But the party bound by the deed may not Agreement. in these cases plead non est factum to the deed. And in these cases when the party hath once by his agreement made the deed good he cannot afterwards by his disagreement make it void: and when once by refusall and disagreement he hath made the deed void he cannot by agreement or acceptance afterwards make it good. 5. By Judgement of a Court. Crom. Jur. 29. 40. Bro. Fait. 38.

A deed also good in his originall creation may be afterwards damned or avoided by sentence and order of a Court, and this is usually done in the Starre-Chamber and in the Chancery, and it is when it appeareth that the deed was obtained by some fraud, Vacat of a deed. force, circumvention of such like practise, or when it doth appeare to be forged, or the like. 7. When and where a deed may be good in part and void in part. Or good against one person and void against another. Or not. Co. 11. 27. 14 H. 8. 27. 28. 29.

For the answer of this question these differences must be observed. 1. When a deed is void ab initio, and when it doth become void by matter ex post facto. 2. When the deed which is void in part from the beginning is entire, and when it doth consist of severall clauses: and when it doth consist of severall clauses when the severall clauses are absolute and distinct, and when they are severall and yet the one hath dependency upon the other. For if any of the Covenants of an Indenture, or the conditions of an Obligation be against Law, and the rest of the covenants or conditions be good and lawfull; in this case those that are against Law and the deed as to that part are void ab initio, and the rest and the deed as for that part are good ab initio. So if three distinct Obligations are written upon a peece of parchment, and the one of them only is read to the obligor, and he being an illiterate man seale and deliver the deed; in this case this is a good deed for that which was read and void for the rest ab initio. But if an obligation be for 20 l. and it be read to the obligor an Obligation of 20 s. this is void for the whole ab initio. Co. 11. 27. Kelw. 70. E. 30. 31.

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If a deed be read as containing the grant or gift of an estate taile and a letter of Atturney to give Livery of Seisin, and in that sense the party doth seale it, and in truth it is a feoffement and conveyance of an estate in fee simple; in this case albeit the letter of atturney were truly read yet because it hath dependence on the estate, it is void for all. Co. 11. 28. Fitz. feoffements & Faits. 57. 47 E. 3. 3.

If a man be indebted to me 20 l. on a Contract and 100 l. on an Obligation, and he pay me this 20 l. and I am to make a release for it, and the intendment of the release is no more, and it is so read to me being an illiterate man, but in truth it is a generall release, in this case it seemes it is good for so much as it is intended and was declared and void for the rest. Dier 27.

If the condition of an obligation be altered by rasure &c. the obligation also is hereby become void because the condition and obligation are one deed, but if the rasure &c. be in the defeasance of an obligation, this will not make the obligation void. 14 H. 8. 25. 26. Co. 11. 28.

If a deed containe divers distinct and absolute Covenants, and any of these Covenants be altered by addition, interlineation, rasure, or the like, by this meanes the whole deed and not that part only is become void. Co. 5. 23. 11. 28. 3 H. 7. 5.

If there be divers grantors, obligors, &c. named in a deed and one of them only doe seale the deed, this is a good deed as against him that doth seale and void as to all the rest that doe not seale. And if divers enter into covenants by a deed severally, and the seale of one of them is broken from the deed; in this case the deed is good still as to all the rest but void as to him. But if an obligation, or the covenants of a deed be joint and not severall or joint and severall, and the seale of one of the obligors or covenantors is broken, or the obligation or covenants be altered by rasure or the like; hereby the whole deed is become void. 14 H. 8. 29. Perk. [...]o. 2.

If I be bound in an obligation to a Monke and I S, this deed is void as to the Monke but good as to I S: So if a Monke and I be bound to another; this is good as against me, but void as against the Monke. And so it is in case of a Grant. Co. 1. 173. Dier 127. See in Leaks Numb. 13.

By a power of revocation or a condition a deed may be made void in part and continue in his force for another part. And therefore it seemes in the usuall case where a deed is made upon condition that if such a thing be, or be not done that the deed shall be void, or that these presents shall be void; that in these cases the whole deed and all the covenants therein contained are void; But if the frame of the condition be, That upon such a thing to be, or not to be done it shall be lawfull for the feoffor, lessor &c. to reenter, or that the demise shall be void, without more words; in these cases the estate only and those covenants that are incident thereunto, as for quiet enjoying and the like and the deed as to [Page 72] that part only is void: and for other covenants that are collaterall and have no dependence upon the estate that the deed doth remain in force and is good still, for a man may grant two acres upon condition to reenter into one of them. If it be intended that the whol deed shal be void, the best way is to use these words [thenthese presents & every thing therein contained shall be utterly void.]

All deeds doe take effect from, and therefore have relation to Co. 2. 4. 5. 5 H. 7. 26. Plow. 491. Dier 307. 315. Fitz. Feoffments & faits 87. 63. 95. the time not of their date but of their delivery: and this is alwaies [...] How and to what time a deed shall have relation, and when it shall begin to take effect. presumed to be the time of their date unlesse the contrary doe appeare. And hence it is, That if a Statute be acknowledged the 26. day of May, and the conusee make a release of all demands dated the 25. day and deliver it the 27. day; that by this release the Statute is discharged. And if the defeasance of a Statute doe beare date before, and the delivery of it be after the Statute; that the conusor may shew this and take advantage of it in avoidance of the Statute. And that if a writing be dated in the minority of an Infant, and be sealed and delivered by him when he is of full age, that this is a good deed and will bind him. And that if a release be supposed to be made by a husband to barre a duty due to the wife, and it be dated during the coverture but in truth it is sealed and delivered by the husband before the coverture; that this shall not barre the wife: the time therefore of delivery of a deed is materiall in all these and the like cases, and this is alwayes to be tried by a Jury. And hence it is also, That if the next presentation to a Church be granted to two severall persons by severall deeds of Fetz. feoff. & Faits. Batte 147. severall dates, and the deed that beareth the last date be first delivered; in this case he to whom this deed is made shall have the Presentation, and not the other whose deed albeit it be dated first yet is delivered last. And hence it is also that if a lease be made for Co. 5. 1. years, to begin from henceforth, or à confectione presentium, or à die confectionis; that this lease shall be said to begin from the time of the first delivery and not from the time of the date.

And where deeds have a kind of double delivery, as in case of Co. 3. 35, 36, 18 H. 6. 9. 27 H. 6, 7. Plow. 344. a delivery as an Escrow, there they shall take effect take effect from, and Relation. have relation to the time of the first delivery or not ut res valeat, for if relation may hurt and for some cause make void the deed (as in some cases it may) there it shall not relate. But if relation may helpe it, as in case where a feme sole deliver an Escrow and before the second delivery she is married or dieth, in this case if there were not a relation the deed would be void, and therefore in this case it shall relate. So if one disseise me of two acres of land in D and I release to him all my right in my lands in D and deliver it to an estranger as an Escrow &c. untill a time and before that time he disseise me of another acre there; in this case this release shall not by relation extend to this other acre to barre me [Page 73] of that also. But as to collaterall acts there shall be no relation at all in this case. And therefore if the obligee release before the second delivery the release is void and will not barre the party obligee of the fruit of his obligation.

If a man that is party or privy in estate or interest or one that doth justifie in the right of one that is such a party or privy shall 9. When and where a deed must be shewed in Court. And how long it shall abide there. And who may take advantage of it. Co. 10. 92. super Lit. 267. 317. 225. 231. 5. 74 Lit. Sect. 375. plead a deed in any Court, although he claime but parcell of the originall estate, yet in this case he must shew the originall deed to the Court: and the reason of this is, to the end that the legall part of the deed (the triall whereof belongeth to the Judges) may approve it selfe. i. that it may be seen whether the composition of words be sufficient in Law or not, and then that it may appeare whether the estate be with Condition, Limitation, or with power of revocation &c. to the end that if there be any such thing in it and there be no other part of it, the other party may take advantage of it, and then that it may appeare to be without resure or interlining and the like, and also that it may appeare to be well sealed and delivered (the triall whereof doth now belong to the Country.) But strangers to estates that are neither parties nor privies shall not be compelled to shew the deed though they make use of him. And when a deed is thus shewed in Court it must remaine in that Court all the Terme wherein it is shewed in the custody of the Custos brevium, and at the end of the Terme if the deed be not denied the Law doth adjudge the possession of the deed in him to whom it doth belong. But if the deed be denied then it is to be kept there untill it be determined. Also when a deed is shewed in Court the adverse party may take any advantage by it that it will afford him, as if a feoffement be made by deed poll on condition, and the feoffee doth breake the condition and the feoffor doth enter and the feoffee doth sue him and makes his title by that deed, the feoffee may take advantage of the Condition.

Any man that that occasion to use or plead a deed may set forth 10. Where one may say his deed was delivered at another time or in another place. the delivery thereof to be at any time after the date of the deed, Dier 315. 12 H. 6. 1. Co. 2. 4, 5. and in some cases he must doe so if he will have any advantage by it. As if he plead a release to an obligation and it beareth date before the obligation; in this case he must averre that it was delivered after or it will not availe him. But a man may not in pleading set forth the delivery of a deed to be before the date of the deed. And yet if it be so that a deed be dated after the time of the delivery of it, the deed is good, and therefore if he that doth use such a deed doe plead and set it forth as a deed made before the time of the delivery and the party that made it plead non est factum to the deed, a Jury upon the triall may finde the truth of Estoppell▪ the case: but if h [...] by his pleading set forth the deed to be delivered before the time of the date, then the Jury is concluded aswell [Page 74] as the party himselfe, for a Jury is estopped to finde any thing contrary to that which is apparently admitted in the record. In 12 H. 6. 1. debt brought by an executor the defendant pleaded the release of the Testator which did beare date after the death of the testator, but he did averre the delivery of it in the life time of the testator, and the Court did not allow of this plea.

Sometimes Antiquity added a place where the deeds were made, Co. super. Lit. 6. as Datum apud B, and this was in disadvantage of him to whom the deed was made, for if the deed be in generall and without this addition he may alleage the deed to be made where he will. An Co. super. Lit. 261. obligation made beyond the Seas may be sued here in England in what place the obligee will, and if it beare date at the Burdeux in France, it may be alleaged to be made in quodam loco vocat. Burdeux in France in Islington in the County of Middlesex and there it shall be tried, for whether there be such a place in Islington or not it is not traversable in that case.

Non est factum is an answer to a declaration whereby a man 11. Non est factum; Quid. And where this may be pleaded to a deed, or not. denieth that to be his deed whereupon he is impleaded.

If any deed or writing be used against a man in any Court and it want writing, sealing, or delivery, or it be not sealed, written, and delivered as before is set forth, the party that is sued upon it or against whom it is pleaded may plead this plea to it. So also if a deed by any Alteration of rasure &c. become void; in this case the party may plead this plea to avoid it. So also where a deed doth become void or lose his virtue by the not reading, or not true reading of it to an illiterate man, or by refusall or disagreement as in the cases before, the party may plead this plea to avoid it. But in all cases where the deed is voidable and so remaineth at the time of the pleading, as if an Infant, or man of full age by duresse seale and deliver a deed; or if an obligation be well sealed and delivered by two and the deed be joynt and the obligee sue one of them; in these and such like cases the party bound by the deed may not plead Non est factum, for in the first and such like cases he must avoid it by speciall pleading with conclusion of Judgment si Action &c. and in the last he must plead in abatement of the writ &c. And if an obligation or any other deed be by any speciall act of Parliament made void the party that is bound by it cannot plead this plea of Non est factum to it but he must avoid it by speciall pleading of the matter and taking advantage of the Statute and so with conclusion of Judgement si Action &c.

And now we come to the Exposition of deeds.

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CHAP. V. Exposition of Deeds.

IT is further to be observed that Deeds for the most part consist of these things. viz. the Premisses, Habendum, Tenendum, Reddendum or reservation, Condition, Warranty, and Covenant. And in the Premisses there is sometimes a Recitall, and somtimes an Exception contained: but all these are not essentiall parts of a deed, for a deed may be good albeit it have not all these parts or it be not so formall and orderly drawn and made.

The Premisses of a deed is all the forepart of the deed before the Co. super Lit. 6. 7. Co. 11. 51. 2. 55. Plow. [...]96. Habendum. And yet this word is sometimes taken for the thing 1. Premisses. Quid. demised or granted by the deed. And the office of this part of the deed is rightly to name the grantor and grantee and to comprehend the certainty of the thing granted, either by expresse words, or by that which by reference may be reduced to a certainty, and the exception or thing to be excepted if there be any. And in this part of the deed is the Recitall (if there be any in the deed) for the most part contained. And herein also is sometimes (though improperly) set downe the estate.

The Habendum of a deed is that part of the deed which doth 2. Habendum. Quid. begin with To have and to hold. And this doth properly succeed Co. super Lit. 6. 7. 10. 107. the Premisses. And the office hereof is to set downe againe the name of the grantee, the estate that is to be made and limited, or the time that the grantee shal have in the thing granted or demised, and to what use. And herein also is sometimes though needlesly set downe againe the thing granted. But the deed that doth usually consist of all these parts may be good notwithstanding some of 3. Where a deed is good notwithstanding some seeming fault in the Premisses or Habendum. them be omitted and it be not so formally made. For an estate may be made by a deed without any Habendum at all. As if one give or grant land to another and his heires, without any more words in the deed; or if one give or grant land to another, and limit no estate without any Habendum in the deed; and seale and deliver this deed and make Livery accordingly; in both these cases the deed is good, and in the first case an estate in fee simple is made, and in the last case an estate for life is made. And if the name of the grantee be not contained in the Premisses, yet if it be in the Habendum, it may be good enough. As if one give or grant land Habendum to B and his heires, and he is not named in the Premisses, yet this is a good deed to make an estate in fee simple. And yet if the thing granted be only in the Habendum and not in the Promisses of [Page 76] the deed, the deed will not passe it. And therefore if a man grant Plow. 152▪ Dier 96. Perk. Sect. 251. blacke acre only in the Premisses of a deed Habendum blacke acre and white acre; white acre will not passe by this deed. But if the thing newly added be implied in the thing granted by the Premisses of the deed, as being an incident thereunto or otherwise, or it be the same thing, and expressed in other words only, in these cases the Premisses and the Habendum may stand together. As if one grant a manor, Habendum the manor with the Advowson appendant to the manor; or if one grant a Reversion of land by the name of a reversion in the premisses, Habendum the land it selfe, in both these cases the deed is good and the advowson and reversion will passe. So also if livery of Seisin be made of the thing newly added, in this case perhaps it may passe by the Livery. And if the thing granted be lef [...] out in all, or in part in the Habendum, yet the grant is good. And thereof if one grant land to A Habendum to A his heires &c. or if one grant white acre and blacke acre to A Habendum white acre to A and omit black acre; yet these deeds are good, and all that is contained in the premisses of the deed doth passe in both cases. And if a feoffement be made to one, Habendum Lit. 1. Co. super Lit. 46. Co. 6. 35. New Terms of the Law. tit. Assignes. to him and his heires, without the word Assignes; this is a good feoffement and the estate thereby made is assignable: as where a lease is made to one his executors and administrators, without the word Assignes, this is a good Lease and assignable. So if one grant land to A Habendum to him for 100. years; or Habendum to him and his assignes for 100. years; these are as good leases as the lease that is made by these words Habendum to A his executors, administrators and assignes for 100. years. So if a lease of land be made to A Habendum the land to him and his heires for 100. years, this is a good Habendum and the word [heirs] is void, and it shall goe to his executors &c. As also where land is granted to A Habendum to him and his Successors for 100. years; this is a good lease, and the word [Successors] void, for it shall goe to executors &c. And if a lease be made Habendum for years, and say not how many years; this is a good Habendum and a lease for two years.

A Recitall is the setting down or report of somthing done before. 3. Recitall▪ Quid. 4. Where it is needfull; or not.

When a man is to take any new estate from the King of a thing Co. 1. 45. Dier 77. whereof there is any estate in being, there the former estate if it be good and of record must be rehearsed and recited in the deed, or else the second grant will not be good: but in case of a common Person there needs no such recitall, neither when a man is to derive an estate out of a former, or assigne over a terme of years is it needfull there should be any recitall of the former estate in being. 5. Where misrecit [...]l [...] will hurt a deed▪ or not.

If one recite or rehearse an estate made fo [...] terme of years, and Co. 1▪ 74. [Page 77] then after grant over that terme to another, and mistake in the recitall; this mistake may make all void. As if a Fieri facias come to a Sheriffe to levy a debt, and he by writing recite that the defendant hath a terme of years, and doth suppose it to begin 1^o. Maii, 2 Jac. when in truth it doth begin the 20^th. of August, and then sell the same terme; in this case this sale is void. But if he adde withall these words in the deed [And all the interest that the defendant had in the land] or if he make sale of it for a certain number of years only; this grant may be good notwithstanding the misrecitall.

If one recite a former lease to be made such a day to I S and Dier 93. 160. then make a new lease to begin after the end of the former lease, and mistake the date of the old lease; in this case the deed is good notwithstanding this mistake.

If one grant a reversion, and in reciting the lease in possession 8 H. 7. 3. Fitz. Grant. mistake the date of it only and recite all the rest truly; this will not hurt the grant. No more then where a man doth recite that such land came to him by forfeiture, and then doth grant it by name; for in this case albeit it did not come to him by forfeiture but by surrender, yet this mistake will not hurt. And yet in case of the King such a misrecitall may make the grant void.

If I grant to I S all the lands in Dale which I purchased from Dier 50. 87. 376. I D or which came unto me by descent from I D, or I give all my goods to I S which I have as executor to I D, and in truth I have no such lands or goods, but I had them by some other meanes or of some other; in these cases and by this mistake the deed is void. But if I grant to I S all my lands in Dale by name, as white acre, which I purchased of I D and in truth I did purchase them of another; in this case this mistake will not hurt the deed. So if I grant 20. load of wood in Dale in the great wood which I had of the grant of my father, and in truth I had not of the grant of my father but of the grant of another; in this case the grant is good. But of this matter see more in Grant Numb. 4. part 5.

An Exception is a clause of a deed whereby the feoffor, donor, 6. Exception▪ Quid. Plow. 361. 195. Dier 59. Perk. Sect. 615. Co. super Lit. 47. 3 H. 6. 45. grantor, lessor, &c. doth except somewhat out of that which he had granted before by the deed. And this doth most commonly and properly succeed the setting downe of the things granted, and is made by one of these words Except', Preter, Salvo, Si non, or such like. And hereby the thing excepted is exempted and doth not passe by the grant, neither is it parcell of the thing granted: as if a manor be granted excepting one acre thereof, hereby in Judgement of Law that acre is severed from the manor. But this may be in any part of the deed, and so hath it been resolved. Hil. 17. Car. B R. Fregunnels case. Perk. Sect. 42 &c.

In every good Exception these things must alwaies concurre, 7. What shall be said a good exception; or not. 1. This Exception must be by apt words. 2. It must be of part [Page 78] of the thing granted and not of some other thing. 3. It must be of part of the thing only, and not of all, the greater part, or the Plow. 19. Co. super. Lit. 47. effect of the thing granted. 4. It must be of such a thing as is severable from the thing which is granted, and not of an inseparable incident. 5. It must be of such a thing as he that doth except may have and doth properly belong to him. 6. It must be of a particular thing out of a generall, and not of a particular thing out of a particular thing or of a part of a certainty. 7. It must be certaintly described and set downe. As for examples. Plow. 195. Perk. Sect. 641. If a man grant al his lands in Essex saving, besides, or except his lands in dale, or all his lands in Dale excepting one house, or one acre in certain; or one house excepting one chamber in certain; these and such like Exceptions are good. Dier 103. Plow. 104. 361. 67. Co. 8. 63. 11. 47. 5. 11. Perk. Sect. 642. 3 H. 6. 35. And if one grant a manor excepting one Tenement (parcell of the manor) or excepting the Services of I S (who doth hold of the manor) or excepting one Close, or excepting one acre, or excepting the Advowson appendant, or excepting the woods, or excepting twenty acres of wood, or excepting all the grosse trees; these are good exceptions.

14 H. 8. 1. And if one grant a mesuage and houses thereunto belonging excepting the barne or excepting the dov [...]house; it seemes this is a good exception, for they may passe by the grant of a mesuage &c. Co. 8. 63. 5. 23. And if one grant land excepting the Timber trees thereupon, or excepting the trees thereupon; or if a man sell a wood excepting 20. of the best oakes, and shew which in certain; these are good exceptions. In the case of Haward & Fulcher. Hil. 3. Car. B. R. So if one have a manor wherein is a wood called the great wood, and he grant his manor excepting all the woods and underwoods that grow in the great wood and all the trees that grow elsewhere, this is a good exception. Co. 11. 64. And if one grant a mesuage and all the lands and tenements thereunto belonging excepting one cottage; this is a good exception. Perk Sect. 113. 644. Dier 157. And if one grant a reversion excepting the rent; this is a good exception of the rent and doth keep it from passing by the grant. So if a man have a a rent charge out of land and he release his right in the land except the rent; So if the Lord release to his Tenant Salvo dominio suo, &c. these are good exceptions. Plow. 361. And if one grant all his horses except his white horse; this is a good exception of the white horse. 3 H. 6. 45. Perk. Sect. 643. And if a man be seised of a manor, and lease it by deed indented for life exceptis & reservatis quod bene liceat to the lessor succidere dare & vendere omnes grossas arbores in dicto manerio crescentes &c. it seemes this is a good exception of the trees. But if the exception be of another thing then the thing granted: Perk. Sect. 639. Dier 59. Plow. 361. 67. 370. As if one grant a manor or land excepting 12 d. or excepting the Tithes, or excepting one acre of ground which is no parcell of the manor or of the land before granted; or if one grant the land descended to him of the part of his father excepting the land descended to him of the part [Page 79] of his mother; these exceptions are void. Dier 97. 264. Co. super Lit. 47. Plow. 153. 103, 104. 14 H. 8. 1. Doct. &. Stud. 98. Or if the exception be such as it is repugnant to the grant and doth utterly subvert it and take away the fruit of it, as if one grant a manor or land to another excepting the profits thereof; or make a feoffement of a close of meadow or pasture, reserving or excepting the grasse of it; or grant a manor excepting the services; these are void exceptions. Dier 59. 263. So if one grant his house, chambers, cellars, and shops, excepting his shops; it is said this is no good exception. And by the like reason if one grant his meadow and pasture grounds except his meadow grounds, this exception is not good no more then if one grant two manors or two acres excepting one of them. And of this opinion was the Chiefe Justice in B. R. Hil. 3. Car. in the case of Haward and Fulcher. Plow. 524. Dier 264. Br. grant. 60 38 H. 6. 38. And yet if a man make a lease for yeares of a Mill excepting the profits thereof during the life of the lessor; it is said, this hath been adjudged a good exception. But I doubt of this case, for the exception of the profits of a thing is the exception of the thing it selfe. And a man cannot grant an estate and reserve a part of the estate, as make a feoffement in fee and reserve a lease for life, or grant an Advowson and reserve the Presentation for his life. Co. super Lit. 150. Or if the exception be of an inseparable incident and a thing that cannot be granted by it selfe and from another, as if a manor be granted excepting the Court Baron, or land be granted excepting the common appendant thereunto belonging; these exceptions are void. But exceptions of severable incidents are good. Co. 5. 12. Hi [...] ▪ 9 Jac. B. R. per Curiam. Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law; as if a lessee for years assigne over all his terme in the land excepting the Timber trees, earth or clay; this exception is not good. But if lessee for life make a lease for years, or lessee for 21. years make a lease for This difference hath been agreed. 20. years; or tenant by the courtesie or in dower grant over their estate excepting the Timber trees; these are good exceptions. And if a lessee for life or years open a Cole-mine and then assigne over his estate excepting the mines or the profits thereof; these are void exceptions. Co. super Lit. 47. Plow. 53. Or if the exception be of a particular thing out of a particular thing, as if one grant white acre and black acre excepting white acre, or grant 20. acres of land by particular names excepting one acre of them; these exceptions are void. Perk. Sect. 643. 641. Or if the exception be set downe incertainly, as if one grant a house excepting one chamber; or grant a manor excepting one acre, but doth not set forth which ch [...]mber or which acre it shall be; these exceptions are void.

A Tenendum is a clause of the deed whereby the tenure was heretoforce created. And this doth most commonly and properly 8. Tenendum. Quid. Co. super Lit. 6. & Co. 9. 130. succeed the Habendum, and was made by this word Tenendum per servicium &c. But▪ sithence the Statute of Quia emptores terrarum [Page 80] when the fee simple doth passe the tenure is alwaies of the chiefe Lord and is thus set forth, Tenendum de capitalibus dominis &c. And this clause at this day is for the most part omitted altogether.

A Reservation is a clause of a deed whereby the feoffor, donor, Co. 10. 107. Plow. 132. Co. super Lit. 47. Perk. Sect. 625. lessor, grantor &c. doth reserve some new thing to himselfe out 9. Reservation or Reddendum. Quid. of that which he granted before. And this doth most commonly and properly succeed the Tenendum, and is made by one or more of these words Reddend', reservand', solvend', faciend', inveniend', or such like. This doth differ from an exception which is ever of part of the thing granted and of a thing in esse at the time, but this is of a thing newly created or reserved out of a thing demised that was not in esse before; so that this doth alwaies reserve that which was not before or abridge the tenure of that which was before.

In every good reservation these things must alwaies concurre. 1. 10. What shall be said a good reservation. And what not. Plow. 132. Perk. Sect. 626. Co. 8. 71. It must be by apt words. 2. It must be of some other thing issuing or comming out of the thing granted and not a part of the thing it selfe nor of some thing issuing out of another thing. 3. It must be of such a thing whereunto the grantor may have resort to distraine. 4, It must be made to one of the grantors and not to a stranger to the deed. As for examples. Plow. 132. If a man grant land yeelding and paying money or some such like thing yearly, this is a good reservation. But if the grantee covenant to pay such a summe of money, or to doe such a thing yearly; this is no good reservation, but a covenant to pay a summe of money in Covenant. grosse and not as a rent. Co. 5. 111. 8. 71. super Lit. 214. 213. 99. If a lease be made for years rendering a rent to the lessor or his heires, in the disjunctive; or rendering a rent to the lessor, without saying [and his heirs &c.] or rendering a rent during the said terme; and doth not say to whom; or rendering 10 l. to the lessor and [...]5 l. to his heires; all these reservations are good. But if a lease be made rendering rent to the heires of the lessor; this reservation is void because the rent is not reserved to himselfe first. Co. super Lit. 142. If one grant land, yeelding for rent money, corne, a horse, spurres, a rose, or any such like thing; this is a good reservation: but if the reservation be of the grasse, or of the vesture of the land, or of a Common or other profit to be taken out of the land; these reservations are void. Co. super Lit. 47. Co. 5. 3. Perk. Sect. 626. If one grant a manor, mesuage, land, meadow, or pasture, or the vesture or herbage of of land, meadow or pasture, rendring a rent; this is a good reservation. But if one grant Tithes, rents, commons, advowsons, offices, a corody, mulcture of a Mill, a Faire, market, priviledge, or liberty, reserving a rent; this reservation is void. And yet such a reservation also in case of the King is good. And in case of a Subject also, if Prerogative. a lease be made by deed in writing of any such thing for a terme of years reserving a rent; this may be good by way of contract to [Page 81] produce an action of debt, though not as a rent to be distrained Debt. for. And thus by apt words an apt rent out of manors and such like memorable things, or divers rents may be reserved upon one grant. As if one grant the Manors of A, B and C rendring for Co. 5. 55. Dier 308. Co. super Lit. 47. 164. 213. A 20 s. for B 20 s. and for C 20 s. these are good Rents and severall. So if one grant the manors of A, B and C rendering 3 l. viz. for A 20 s. for B 20 s. and for C 20 s. this is a good reservation, but in this case the rent is intire. Also one may reserve one rent one yeare and another rent another yeare; as 10 s. one yeare and 20 s. another yeare, or one may reserve a rent to be paid every second or third yeare, and no rent the other yeares, or one may reserve one kinde of rent one yeare and another kinde of rent another year; and these reservations are good. And these Co. super Lit. 225. 8 H. 7. 9. Bro. Fine 36. Reservation. 4. reservations may be by fine aswell as by deed, or it may be in case where the lessor hath a reversion of the land, or upon a partition to make an equality without any deed at all. But if it be upon an exchange to make an equality, it is not good except it be by deed. Co. super Lit. 214. 143. 47. Dier. 222. If two Joint tenants joine in the grant of their land by deed indented and the rent is reserved to one of them; this is a good reservation and shall goe to him alone. But if it be by word or by deed Poll that the lease is made the rent shall goe to them both. Adjudge Mich. 8. Car. in Blands case. And if a man poss [...]ssed of a Terme joine his wife with him and they both assigne over this Terme by indenture rendering a rent to them two and the survivor of them, and shee doth not seale the deed; in this case the reservation as to the wife is void. And if the reservation be of the rent to a stranger that is no party to the deed and to him only, this reservation is void. And therefore if the father and his sonne and heire apparant by indenture lease Hobarts Rep. 274. Oates & Fith Co. 3. his land for years to beginne after the fathers death rendering rent to the sonne, it is void.

A Condition is a clause of restraint in a deed or a bridle annexed and joined to an estate staying and suspending the same and making 10. Condition. Quid. it incertaine whether it shall take effect or no.

A Warranty is a clause or covenant made in a deed by the one 11. Warranty Quid. party unto the other whereby the feoffor, donor or lessor doth for him and his heires grant to warrant and secure land granted to the feoffee, donee or lessee and his heires during the estate.

A Covenant is a Clause of agreement contained in a deed whereby 12. Covenant. Quid. either party is bound to doe, performe or give something to the other. And of all these see at large afterwards.

In the Construction of deeds it must be considered, 1. How a Co. super Lit 302. Perk. Sect. 66. deed in the grosse shal be taken and enure. 2. How it shall be taken 13. How and to what purpose a deed of grant in grosse shall en [...]re and be constr [...]ed and taken. and expounded in the severall parts and peeces of it. And for the first these Rules are to be known. 1. If divers joine in a deed and some are able to make such a deed and some are not, this shall be [Page 82] said to be his deed alone that is able, as if divers joine in the grant of a thing by deed & one alone hath all the estate and the rest have nothing in the thing granted; it shal be said to be his grant alone that hath the estate. And so è converso. If a deed be made to one that is uncapable and to others that are capable, in this case it shall enure only to him that is capable. 2. A deed that is intended and made Dier 251. Co. 2. 35. & super Lit. 49. to one purpose may enure to another, for if it will not take effect that way it is intended it may take effect another way. And therefore a deed made and intended for a release may amount to a grant of a Reversion, an Atturnement, or a Surrender, or è converso. And if a man have two waies to passe lands by the common law and he intendeth to passe them one way, and they will not passe that way; in this case ut res valeat it may passe the other way. As if a man beseised of two acres of land in fee, and letteth one of them for years, and after intending to passe them both by feoffement maketh a Charter of feoffement and maketh livery in the acre in possession in the name of both the acres; in this case the acre in possession only doth passe: but if the lessee of the other acre Atturne then the reve [...]sion of that acre will passe also. But where a man may passe lands by the Common law or by raising of a use and setling it by the Statute there in many cases it is otherwise. As if the father make a Charter of feoffment to his sonne and a letter of Atturney to make livery, and no livery is made; in this case no use shall arise to the sonne. So if a man in consideration of marriage make a feoffement with a letter of Atturney to give livery, and no livery is made; in this case no use will arise. And so was it held by Ch. Justice Popham B. R. for the intētion of the parties doth work much in the raising and direction of uses. And therefore it is said that when a man doth intend to passe land one way it shall never passe another way contrary to Dier 96. his intent, as if one covenant for good considerations to levy a fine of land to the use of I S and his heires, if no fine be levied no use shall arise upon the covenant. If one by words of Bargain sell, give 19 Eliz. Thorold & Gordens case. and grant, make a feoffement of his house for money, and intending to passe it by way of bargaine and sale and Inrolment the deed being made there being a Master of the Chancery in the house whereof the feoffement is made, he doth acknowledge and deliver the deed before him, in this case if the deed be not inrolled the conveyance is void and that delivery shall not amount to a livery of seisin. And yet when the intent is apparent to passe it one way or another Experientia. there it may be good either way, as where one doth make a feoffement in fee with a letter of Atturney to make livery, and in the same deed doth covenant in case livery of seisin be not had to perfect the deed to stand seised to the uses of the feoffement, in this case albeit no livery of seisin be made or atturnement had to perfect the feoffement or grant, yet if it be in such a case where there is a [Page 83] consideration sufficient to raise the uses by the covenant, the uses will arise by the covenant. 3. When a deed may enure to divers purposes he to whom the deed is made shall have election which Co. super Lit. 301. Dier 251. way to take it and he may take it that way as shall be most for his advantage. As if a deed of grant be made by the words Dedi & concessi; this in law may amount to a grant, feoffement, gift, lease, release, confirmation or surrender, and it is in the choise of the grantee to plead or use it the one way or the other. So if a lease for Co. 2. 36. Dier 30. 302. years be made to me of land for mony by the words demise, grant, bargain and sell; I may take and use this by way of bargain and [...]ale, or by way of demise at my pleasure. So if one have a rent out Dier 109. 319. of land whereof I and my wife are jointly seised, and he doth by his deed release, give and grant this rent to me, in this case I may use this as a release to extinguish the rent, or as a grant of the rent as it may make most for my advantage. Et sic de similibus. But where any inconvenience may grow by such an election there the grantee shall not have an election but it shal enure as it may, as where a man may passe land by the common law or by raising of use and setling Co. 2. 35, 36. it by the Statute there sometimes it is so. And therefore if in the same case before, a father make a Charter of feoffement to his sonne and a letter of atturney to make livery and no livery is made; hereby no use will arise to the sonne as it will in case of a covenant. And if a lease for years be made of a Manor by the words bargaine, sell, demise and grant, and this is to begin at a day to come; in this case it must passe entirely as a demise at the common law or entirely as a bargaine and sale, and the lessee hath not election to take or use it otherwise or to use it for part one way and for part another way. 4. It shall enure as much as may be according to the apparent intent Finches law. 58. of the parties. And therefore it is that if a feoffement be made of a Manor with an advowson appendant; or a bargaine and sale of land in possession and land in reversion together be made and the feoffement is not well executed for want of livery of Seisin or Atturnement, or the deed of bargaine and sale is not inrolled; in these cases albeit the advowson may passe without livery or atturnement and the reversion without inrolment, yet because the intent doth appeare to be that all shall passe together therefore neither the advowson nor the reversion will passe by this deed. 5. When a deed is made it shall enure as it may, and so as it may have and take Plow. 140. 59. Co. super Lit. 30 [...]. the most and best effect that may be according to reason, as if tenant for life or years and he in remainder or reversion in fee joine in a feoffement by deed; this shall enure in the first case as the lease of the tenant for life and the confirmation of him in the remainder or reversion, and in the last case as the feoffement of him in the reversion &c. and the surrender of the lessee for years to the feoffee and and no forfeiture of the estate in the lessee for life. But if in this [Page 84] case the feoffement be by word it seemes it shall enure first as a surrender of the estate of the tenant for life and then the feoffement of him in reversion ut res valeat. And if A be tenant for life the remainder to B for life the remainder to D in taile the remainder to the right heirs of B and A and B joine in a feoffement by deed, in this case this is the feoffement of A and confirmation of B but a forfeiture of both their estates whereof the tenant in taile may take present advantage. If tenant for life grant a rent charge to him in Co. 5▪ 15. Forfeiture. reversion in [...]ee, and he by his deed doth grant this rent over to another and his heires; this is a good grant and confirmation also to make the rent passe to the second grantee in fee simple. So if a disseisor make a lease for life the remainder to the disseisee and the dissee doth grant the remainder over; this is a good grant and confirmation also. If A doe bargaine and sell his land to B by indenture, Co. super Lit▪ 147. and before inrolment they doe both grant a rent charge to C by deed and after the indenture is inrolled: in this case after the inrolment this shall be said to be the grant of B and the confirmation of A, and if the deed be not inrolled it shall be said to be the grant of A and confirmation of B. If one make a Charter of feoffement Co. super Lit. 21. of one acre of land to A and his heires, and another deed of the same acre to A and the heires of his body and deliver seisin according to the forme and effect of both deeds; it seemes this shall enure by moities, viz. he shall have an estate taile in the one moity with the fee simple expectant and a fee simple in the other moity. If Co. super Lit. 45. two severall tenants of severall lands joine in a lease for years by deed indented; these be severall leases and severall confirmations from each of them from whom no interest passeth and doth not worke by way of Estoppell. If B tenant for life of C and he in remainder Estoppell. or reversion in fee of the same land joine in a lease for life or years by deed indented; this shall enure during the life of C as the lease of B and the confirmation of him in reversion or remainder and after the death of C as the lease of him in reversion or remainder and the confirmation of B without any Estoppell. If tenant in taile and he in reversion grant a rent charge in fee, it shall bee taken the grant of the tenant in taile and the confirmation of him in reversion, but when the tenant in taile di [...]th without issue, it shall be taken the sole grant of him in reversion. If two Jointenants bee in fee of an acre of land Perk. Sect. 80. and they lease it to a stranger for life, and the lessee grant his estate to one of the lessors; in this case it seemes it shall enure for a moity by way of grant and for the other moity by way of Surrender.

If there bee Lord and tenant, and the Lord grant his Seigniory to his tenant and to a stranger; this shall enure Perk. Sect. 81 Dier 140. for a Moitie to the tenant by way of Extinguishment [Page 85] and for the other moitie to the stranger by way of grant. If tenant Perk. Sect. 82, 83. for life of the grant of a woman sole grant his estate to the husband of the wife, this shall enure for the whole by way of grant.

If a lease be made for life the remainder for life to a stranger and the lessee grant his estate to his lessor; this shall enure by way of grant. If there be Lord and two Joint tenants in fee, and the Lord grant his Seigniory to one of his tenants in fee; it seemes this shall take effect for the whole by way of extinguishment. If there be lessee for life and the reversion descend to two coparceners, and one of them take a husband and the lessee grant his estate to the husband and wife; this shall enure by way of grant for the whole. If the disseisee and the heire of the disseisor (being in by Co. super Lit. 372. Co. 7. 14. 1. 147, 148. 5. [...]. 4. 2. descent) make a feoffement by one deed and livery of seisin thereupon; this is the feoffement of the heire only and the confirmation of the disseisee. 6. If one have divers estates in land and he make any charge or grant upon or out of it; this shall issue out of all his estates. And if one have a possession and an ancient right, and grant a rent charge out of the land, or make a lease of the land; this shall issue out of both the estates and it shall enure from him Perk. Sect. 592. having severall estates as it shall enure from severall persons having the same estates. Quando duo jura concurrant in una persona [...]quum est ac si essent in diversis. 7. If one that hath a rent charge out of a manor by grant reciting his grant grant the same rent to a lessee for life of the manor out of which the rent doth issue, to have and perceive to him and his heires, and surrender to him the deed; this shall not enure to extinguish the rent but by way of grant, of which the heire of the lessee for life may take advantage if he doe not by granting away the rent, purchasing the reversion of the manor or making a feoffement of the manor and thereby Co. super Lit. 302. committing a forfeiture, or by some such like meanes prejudice himselfe, for by these meanes the rent will be extinct and determined. If a disseisor grant a rent to the disseisee, and he by his deed doth grant it over to another; or the diss [...]isor make a lease for life or gift in taile the remainder to the disseisee, and the disseisee doth Perk. Sect. 69. grant over this remainder, and the tenant atturne; these grants of the disseisee shall be taken for a grant and a confirmation also ne res pereat. If there be Lord and tenant of white acre and two other acres, and the Lord grant by deed to his tenant that he will not distraine his tenant in white acre for his service; this grant shall not enure to determine the Seigniory in any part, but as a Mich. 37 & 38 Eliz. B. R. Curia. covenant, so that if he doe distraine in white acre, the tenant may have an action of covenant. If a man have a wood of 200. acres, and he grant it to another for life or years, and that he shall cut therein 4. or 5. acres every yeare; in this case albeit the wood be granted and the grant shall enure to passe it yet the grantee can [Page 86] cut no more but 4. or 5. acres by the yeare. And yet the grantor as this case is can not himselfe cut any of the wood during the time, as in case where a man doth grant to another that he shall cut every year 4. or 5. acres in such a wood; for in this case the grantor may notwithstanding cut as much as he will. And here note that in all the cases before according to the construction that the law makes of the deed so must the party that is to use it set it forth and plead it, as when it shall enure as a lease then it must be pleaded as a lease &c. See more in Release Numb. 9. Surrender Numb. 7. Confirmation Numb. 7.

In the construction of deeds it must be observed that there are 14. How a deed of grant shall be construed and taken in all the parts and branches thereof. Generall Rules. some generall rules that are appliable to all the parts of all kinds of deeds, and some that are appliable only to some kind of deeds and to some part of the deed only. In the construction therefore Co. super Lit. 313. Lit. Sect. 563. Plow. 160. 154. of all parts of all kinds of deeds these rules are universally observed.

1. That the construction be favourable and as neere to the mindes and apparent intents of the parties as possibly it may be and law will permit. for Benigne sunt faciendae interpretationes cartarum propter simplicitatem laicorum. Et verba intentioni non è contra debent inservire, as if there be Lord and tenant and the tenant grant the tenements to one man for terme of his life the remainder to another in fee, and the Lord grant the Services to the tenant for life in fee; in this case howbeit a grant may enure by way of release, and a release to the tenant for life shall enure to him in remainder and is an extinguishment, yet because this is contrary to the intent, it shall be taken for a suspension only of the Doct. & Stud. 39. Lit. cap. 1. services during the life of the tenant for life and the services shall goe afterwards to his heire. But if the intent of the parties be apparently against law then the construction shall not apply the deed to their intent, as if one give land to another and his heires for 20. years; in this case the executor and not the heire shall have this land after the death of him to whom it is given. So if one by deed intending to give land to another and his heires give the land to him To have and to hold to him, or to him and his assignes Plow. 161. 16 H. 8. 10. Dier 15. Fitz. Barre. 237. Bro. Don. 14. 17 E. 3. 7. 46 E. 3. [...]7. for ever, without these words, [and his heires] this is but an estate for life at the most.

2. That the construction be reasonable and according to an indifferent and equall understanding, and therefore if I grant to another Common in all my Manor, this shall be expounded to extend to commonable places only, and not in my gardens, orchards &c. And if I grant to one E [...]tovers out of my Manor; he may not by this cut downe my fruit trees. And if one grant me (a Barrister) a fee pro consilio; this shall be taken for counsell in Law only. And so in case of a Physitian. And if one grant to me to digge in all his [Page 87] lands for Tinne; I may▪ not by this grant digge under his house. And if one grant me Common for all my beasts; this shall be taken for all my commonable beasts and not for goats and the like. And if one grant me all his trees in his manor; by this I shall not have his apple trees. And if one lease to me his house and land to the end that I may make profit thereof in the best manner: by this grant I may not prostrate the house or make wast.

3. That too much regard be not had to the native and proper Plow. 154. 170. 134. Dier 46. Co. super Lit. 223. 146. 217. Co. 9. 48. 10. 143. definition, significations and acceptance of words and sentences to pervert the simple intentions of the parties, for a manor may passe by the name of a mesuage, or a Knights fee, if it be used so to be called. & sic è converso, a mesuage by the name of a manor: a Remainder may be granted by the name of a Reverter, a Reversion by the name of a Remainder: for the law is not nice in grants, and therefore it doth oftentimes transpose words contrary to their order to bring them to the intention of the parties, and it is a rule of law, Mala grammatica non vit [...]at cartam, neither false Latine nor false English will make a deed void when the intent of the parties doth plainely appeare. It is therefore held that two negatives doe not make an affirmative when the apparent intent is contrary. And it is another rule of Law, Falsa ortographia non vitiat Concessionem.

4. That the construction be made upon the entire deed, and that Plow. 160. 161. one part of it doth help to expound another, and that every word (if it may be) may take effect and none be rejected, and that all the parts doe agree together and there be no discordance therein. Ex antecedentibus & consequentibus est optima interpretatio, for Turpis est pars quae cum s [...]o toto non convenit. Maledicta expositio quae corrumpit textum. If a man make a feoffement of all his land in D with Common in omnibus terris suis; this Common shall be intended in the lands granted in D only, and not elsewhere, for it must be understood secundum subjectam materiam.

5. That the construction be such as the whole deed and every part of it may take effect and as much effect as may be to that purpose Lit. Sect. 283. Finches Ley 60. Plow. 160. 154. for which it is made, so as when the deed cannot take effect according to the letter it be construed so as it may take some effect or other, Verba debent intelligi cum effectu. Et benigne faciendae sunt interpretationes ut res magis valeat quam pereat. And therefore if an Annuity be granted pro consilio impendendo, or a feoffement made ad erudiendum [...]ilium, or ad solvendum 10 s. these shall be construed conditionall grants without any words of condition, for otherwise the party will be without remedy.

6. That all the words of the deed in construction be taken most Co. super Lit. 183. Finche of the Law 6. strongly against him that doth speake them and most in advantage of the other party, Verba Cartarum fortius accipiuntur contra proferentem, & quelibet concessio fortissime contra donatorem interpretanda [Page 88] est. And therefore if one seised of land in fee grant it to another, and say not for what time, this shall be taken an estate for life. But this is to be understood with this limitation, that no wrong be thereby done, for it is a Maxime in Law. Quod legis constructio non facit injuriam. And therefore if tenant for life grant Forfeiture. the land he doth hold for life to another, and doth not say for what time; this shall be taken an estate for his owne life, and not the life of the grantee, for then it would be a forfeiture. So if one be seised of some lands in fee, and possessed of other lands for years, all in one parish, and he grant all his lands in that parish (without naming them) in fee simple or for life; by this grant shall passe no more but the lands he hath in fee simple. So if a man have a house wherewith there hath been Copy hold land and other land usually occupied; and he let this house and all his land thereunto belonging: in this case and by this demise the Copy hold land doth not Co. super Lit. 112. passe; for in both these cases then there would be a forfeiture. But otherwise by these words all the lands in both cases would passe.

7. That if there be two clauses or parts of the deed repugnant the one to the other the first part shall be received and the latter rejected except there be some speciall reason to the contrary, and therefore herein a Deed doth differ from a Will; for if there be two 4 El. the Bishop of Ely's c [...]se. repugnant clauses in a Will the first shall be rejected and the latter received.

8. That that which is generally spoken be generally understood unlesse it be qualified by some speciall subsequent words, as it may be; for if one be seised of a manor wherein there is a Parke, and Co. super [...]. 42. he grant the manor with the custody of the Parke; by this the Parke will not passe.

9. That if the words may have a double intendment and the one standeth with law and the other is against law, that it be taken in that sense which is agreeable to law: and therefore if tenant in taile make a lease of land to B for term of life, and doe not mention for whose life it shall be; this shall be taken for the life of the lessor 9 Ed. 4. 4. and not for the life of the lessee, as it shall be if such a lease be made by tenant in fee simple.

10. That things doubtfully set down be applied to him to whom they doe properly belong. As if I S make a feoffment to one of his own name, and there is a covenant in the deed that I S shall deliver Co. 9. 48. 10. 143. the deeds, this shal be taken of I S the feoffer and not I S the feoffee.

11. That such a construction be made of abbreviations as the deed may not lose his force, as if one grant tot' ill'Maner' de D. & C, if it be but one manor, the words shall be taken for totum illud Manerium, Fit. Grant 41. Plo. 317. Co. 5. 12. 22. ass. Pl. 61▪ Perk. Sect. 110. if two manors, then it shall be taken for tota illa maneria. And here note that most of all these rules run through all the cases Note▪ of exposition he reafter following.

[Page 89]

The exposition of the severall parts of the deeds of grant. And how the words and sentences therein shall be taken. 1. In the premisses, and what doth passe by the grant of a thing. Touching things granted these rules are first to be known.

1. When any thing is granted all the means to attaine it and all the fruits and effects of it are granted also and shall passe inclusive together with the thing by the grant of the thing it selfe without the words cum pertinentiis or any such like words. Cuicunque aliquid conceditur conceditur etiam & id sine quores ipsa non esse potuit. As by the grant of Conusance of pleas is granted the Ordinary processe to bring causes to judgment. By the grant of a ground is granted a way to it. By the grant of Trees is granted with all power to cut them down and take them away, by the grant of Mines is granted power to digge them; and by the grant of fish in a mans pond is granted power to come upon the banks and fish for them. Co. super Lit. 152. Lit. Sect. 572. 229. Co. 4. 86, 87. 8 H. 7. 4. Bro. Grant. 86. 144. 43 Ed▪ 3. 22. Co. 10. 10. 64. super Co. Lit. 307.

2. The incident, accessary, appendant, and regardant shall in most cases passe by the grant of the principall without the words cum pertinentiis, but not è converso, for the principall doth not passe by the grant of the incident &c. Accessorium non ducit sed sequitur suum principale. And therefore by the grant of a reversion without naming the rent the reversion after an estate taile, for life, or years and the rent reserved upon the estate will passe, so as the tenant atturne to the grant: but by the grant of the rent the reversion will not passe. So by the grant of a manor, the Court Baron therunto belonging wil passe; by the grant of a house or ground, the wayes thereunto belonging doe passe; by the grant of errable land, the common appendant thereunto will passe; by the grant of Mills, the waters, flood gates, and the like that are of necessary use to the Mills do passe; by the grant of a house, the estovers appendant thereunto will passe; by the grant of a manor, the advowsons appendant and villaines regardant▪ thereunto passe; by the grant of a Faire, the Court of Pipowders will passe; by the grant of homage or rent, the fealty will passe; and by the grant of Escuage, homage and fealty will passe. But divers things that by continuall enjoyment with other things are only appendant to others, as warrens, leetes, waifes, estraies, and the like, these will not passe by the grant of those other things, and therefore if one have a Warren in his land, and grant the land, by this the warren doth not passe. And yet if in these cases he grant the land cum pertinentiis, or with all the profits, priviledges &c. thereunto belonging; by this grant perhaps these things may passe. And here know that a reversion may be parcell or appendant to a thing in possession, and passe by the grant of it, but a possession cannot be parcell or appendant [...]8 H. 6. 38. Co. 11. 47. 50. Plow. 103. Bro. Grant. 60. 129. Co. 1. 7. 28. to a thing in reversion. And therefore if one make a lease for life of a manor excepting 20. acres of it, and after grant the reversion of the manor; by this grant the 20. acres will not passe. So if one be disseised of an acre parcell of a manor, or of common appendant to the manor, and before an entry or recontinuance of [Page 90] the acre or common he grant the manor to a stranger; by this the acre of land or common will not passe. But otherwise it is in case where a lease for years only is made of parcell of a manor. And if a lease be made for life of 20. acres parcell of a manor, and after the manor it selfe is granted; by this the reversion of the 20. acres is granted and will passe also.

And if a man make a feoffment in fee of an acre of land parcell of a manor, and after repurchase it, and then grant the manor; this acre will not passe by this grant, for it is not united by the new purchase. But it is otherwise of trees, for if a man make a lease for life of a manor or other land excepting the trees, and after grant the reversion of the manor or land to another; hereby the trees doe passe. And if a man make a feoffment in fee of a manor excepting the trees, and after the feoffee buy the trees, in this case the trees are united againe, so that if the feoffee sell the manor the trees shall passe with it. If I lease an acre of land to which an advowson is appendant for terme of life reserving the advowson, and after doe grant the reversion of that acre with the appurtenances; hereby the advowson doth not passe. But if I grant the advowson for terme of life reserving the acre, and after grant the acre with the advowson cum pertinentiis; by this the advowson doth passe. If land be appendant to an office, there by grant of the office with the appurtenances the land will passe without livery of seisin. And if an office be appendant to land, there by the grant of the one the other will passe. 3. That which is parcell or 14 H. 8. 25. Co. 11. 50. of the essence of a thing albeit at the time of the grant it be actually severed from it doth passe by the grant of the thing it selfe. And therefore by the grant of a Mill, the milstone doth passe albeit at the time of the grant it be actually severed from the Mill. So by the grant of a house, the dores, windows, locks, and keyes, do passe as parcell of it, albeit at the time of the grant they be actually severed from the house. 4. By the grant of the land, or ground 14 H. 8. 1. Co. super Lit. 4. it selfe, all that is supra, as houses, trees, and the like is granted, for Cujus est solum ejus est usque ad coelum, also all that is infra, as Mines, earth, clay, quarres, and the like. And by the grant of a 12 H. 7. 25. house, the ground whereon it doth stand doth passe. 5. When any matter of interest or profit is granted, the grant shall be taken largely. But when any matter of ease or pleasure only is granted, Plow. 289. 19 H. 6. 4. as a walk, or the like, the grant shall be taken strictly. 6. When a man doth grant all his lands, or all his goods; by this grant doth passe not only what he is sole seised or possessed of but also what he is joyntly seised or possessed of with another. And so è converso. If two men joyn together and grant all their lands, or all their goods; hereby doe passe not only all they have joyntly and together, Co. super Lit. 301. Lit. Sect. 543, 544. but all those they have sole and a part. 7. Some words in [Page 91] deeds are large and have a generall extent, and some have a proper and particular application; the former sort may containe the latter, as Dedi, or Concessi, may amount to a grant, a feoffment, a gift, a lease, a release, a con [...]irmation, a surrender: and it is in the election of the party to whom the deed is made to use it to which of these purposes he will. And hence it is that if a Lord by the words of dedi & concessi grant to his tenant that doth hold of him his rent; or one that hath a rent charge out of land doth grant it to the tenant of the land; that in these cases the rent is extinguished albeit it be by way of grant. But a release, surrender, confirmation &c. cannot amount to a grant &c. nor a surrender to a confirmation or a release &c. because these be proper and peculiar manner of conveyances and are destinated to a speciall end. Co. super Lit. 5. 6. Co. 4. 88.

Amongst words whereby things doe passe some are collective, The terms whereby things are granted, expounded. compound, or generall comprehending many things, as hereditaments, lands, tenements, honors, Isles, villages and the like including lands of severall sorts and qualities. And some words are simple or particular, as Meadow, Pasture, Wood, Moore, and the like.

The word [Hereditament] is of as large extent as any word, for Hereditament. Co. super Lit. 6. 16. Perk. Sect. 114, 115. 11 H. 6. 22. whatsoever may be inherited, be it corporeall or incorporeall, reall, personall, or mixt, is an hereditament. By the grant therefore of all hereditaments doe passe Honors, Isles, Castles, Seigniories, Manors, Mesuages, Lands, Meadowes, Pastures, Woods, Moores, Marishes, Furses, Heaths, Reversions, Commons, Rents, Vicarages, Advowsons in grosse, and the like things which the grantor hath in feesimple at the time of the grant, whether he hath it by purchase or descent. And the word [Tenement] is of large extent also, and it seemes Tenement. doth comprehend as much as the former. And therefore by the Bro▪ Grant. 143 Co. super Lit. 6. Perk. Sect. 114. grant of all Tenements will passe as much as by the grant of all Hereditaments.

The word [Land] strictly doth signi [...]ie nothing but errable land, Land. Co. super Lit. 4. Co. 4. 891. Perk. Sect. 114. but in a larger sense it doth comprehend any ground, soile, or earth whatsoever. And therefore by the grant of all Lands, doth passe errable lands, meadowes, pastures, woods, moores, waters, marishes, furses, heath, and such like, and the castles, houses, and buildings thereupon, but not rents, advowsons, and such like things. Also by grant of any land in possession the reversion thereof will Co. 11. 47. 50. 10. 107. passe. And yet by the grant of a reversion of land the land in possession will not passe.

But here it must be observed that in cases of grants and gifts of Note▪ Edw. case Mich. 9. Jac. curia 9 H. 7. 25. Bro. Grant. 87. 11 H. 6. 22. all hereditaments, tenements, or lands, consideration is had of the estate of the grantor, for if a man be seised of some lands in fee, and have other lands for life, or years only, and all these are lying within one parish, and he grant all his lands, tenements, or hereditaments in this parish to another in fee simple, fee taile, or for life, Forfeiture▪ [Page 92] and give livery of seisin in the lands whereof he is seised in fee, in the name of all the rest; by this doth passe no more but his lands whereof he is seised in fee, for otherwise it would be a forfeiture for those lands. But if the livery of seisin be made in any part of the lands he hath for life or yeares, then that part wherein the livery is made will passe and no more. And if the conveyance be by bargain and sale and deed inrolled, then the lands whereof he is seised in fee simple and for life shall passe, and not the land he hath for a terme of years. And yet if in this case the grant be for years, then all the lands will passe, for then there will be no forfeiture in the case. Howbeit it is said in Bro. Done 41. pro lege. That if a man give or Forfeiture. grant all his lands and tenem [...]nts in B, that by this leases for years doe not passe, and that these words doe intend franktenements at the least.

These words [Honor, Isle, and Commote] are compound words Co. super Lit. 5. Honor. Isle. Commote. Castle. and of large extent. And therefore by the grant of them may passe one or more seigniories, manors, and divers other lands. Also a Castle may containe one or more manors. And therefore by the grant of a Castle may passe one or more manors. And so sometimes è converso a Castle may passe by the grant of a manor. But by a Castle most commonly is signified no more but the house or building Plow. 169. and the parcell of ground inclosed wherein it doth stand.

This word [Village or Towne] is of large extent also. And by Co. super Lit. 5. Plo. 168. Town or Village. the grant of it a manor, land, meadow, and pasture, and divers such like things may passe.

This word [Manor] is a word of large extent and may comprehend Manor. Co. super Lit 5. 58. Perk. Sect. 116. Co. 5. 11. Plow. 168. Dyer 233. 14 H. 8. 1. 9. Iac. B. R. Dyer 30. 8 H. 7. 4. many things. And therefore by the grant of a manor without the words of Cum pertinentiis doe passe demesnesse, rents, and services, lands, meadowes, pastures, woods, commons, advowsons appendant, villaines regardant, Courts Baron and perquisites thereof that are in truth at the time of the grant parcell of the manor. Baintons case. M. 9. But nothing that in truth is not parcell of the manor albeit it bee so reputed will passe by the grant of the manor, and therefore if one have a manor, and after purchase the lawday or a warren to it, and then he grant away the manor, hereby the lawday or warren will not passe. And yet if by union time out of mind they have gotten a reputation of appendancy, perhaps by the grant of the manor cum pertinentiis these things may passe. Co. super Lit. 5. 26. Ass. Plo. 54. 2 E. 3. 36. By the grant of a manor also divers Towns may passe. An Honour also may passe by this name. And so also may a Castle or a hundred. And one manor also that is parcell of another manor may passe by the grant of that manor whereof it is parcell.

The word [Knights-fee] is a compound word also and may Co. super Lit. 5. Plo. 168. 17 E. 3. comprehend many things. And therefore by the grant of this may passe land, meadow, and pasture as parcell of it. And sometimes [Page 93] by this doth passe so much land as to make a Knights fee. And some say it doth containe eight hides of land. And it seems also that a manor may passe by this name if it be usually called so.

The word [Grange] is a compound word also, and by the grant Grange. Co. super Lit. 5. Plow. 167. of a Grange will passe a house or edifice, not only where corne is stored up like as in barns but necessary places for husbandry also, as stables for hay, and horses, and stables and sties for other cattle and a curtilage and the Close wherein it standeth at the least. And where land, meadow and pasture &c. belonging to such houses are called all together by the name of a Grange there perhaps by this word the whole may passe.

The word [Farme or Ferme] called in Latine [...]irma is also a Fa [...]me. Co. super Li. 5. Plow. 195. compound word and doth comprehend many things. And therefore by the grant of a Ferme will passe a messuage and much land, meadow, pa [...]ure, wood &c. thereunto belonging or therewith used, for this word doth properly signifie a capitall or principall mesuage and a great quantity of demesnes thereunto appertaining. Bro. Grants. 155. Also by the grant of all Farmes, or all Fermes; it seems leases for years doe passe.

This word is a collective word also, for by the grant of unam Oxgange of land. Co. super Lit. 5. bovatam terre, or of one, or of an oxgange of Land may passe land, meadow and pasture, and it doth properly intend as much as an Oxe can till. And Iugum terre or halfe a Plow land is as much as Halfe a Plow land. two Oxen can till, and by the grant of halfe a plow land may passe and meadow, and pasture.

The words [Plow land, and a Hide of Land] are Synomyna and A Plow land, or a Hide of land. are collective words also. And therefore by the grant of Carucatam Co. super Lit. 5. Plo. 167. or Hidam terre, or of a Plow land, or of a hide of land may passe 100. acres of land, meadow and pasture, and the houses thereupon, but it doth properly intend as much land as one plow can till in a yeare.

This word [A yard-land] is also collective and doth comprehend A yard of land. Halfe a yard land many things, but it is not certaine, for in some Countries it Co. super Lit. 5. doth containe 20. acres, and in some Countries 24. acres, and in some Countries 30. acres, by the grant therefore of virgatam terre, or a yard land will passe that quantity of land, meadow and pasture that is called by this name. And so by the grant of halfe a yard, or a quarter of a yard land. Fold course.

The word [Fold course] is also compound, for by the grant of a [...]old course lands and tenements my passe. Et sic de similibus. And Co. super Lit. 6. finally by the grant of any such compound thing as before for the most part there doth passe thereby so much as in common reputation Plow. 167. is accounted part of that thing and is usually called by that name.

By the grant of a Rectory or Parsonage will passe the house, the Parsonage, Rectorie, Vicarage. 8 H. 7. 1. Bro. Grant. 86. glebe, the tithes, and offerings belonging to it. And by the grant [Page 94] of a Vicarage will passe as much as doth belong unto it, as the Vicarage house &c.

By the grant of a mesuage, or a mesuage with the appurtenances Plow. 85. 15. 171▪ 178. 569. Lit. Bro. Sect. 31. 185. Co. super Lit. 5. Co. 10. 65. Kelw. 57. 27 H. 6. 2. Mesuage. Curtilage. House. doth passe no more but the dwelling house, barne, dove-house, and buildings adjoining, orchard, garden [...] and curtilage. i. a little garden, yard, field, or peece of void ground lying neer and belonging to the mesuage, and houses adjoyning to the dwelling house, and the close upon which the dwelling house is built at the most. And so much also may passe by the grant of a house. So that the quantity of an acre of ground or thereabouts in Orchard, Garden, and out-let may passe by either of these names, but more then this will not passe by the grant that is made in either of these words, albeit more have been occupied with it, and albeit more be intended to be passed by the grant. And therefore if there be a mesuage or dwelling house and divers acres of land thereunto belonging called all together by the name of Hedges. And a grant is made by these words, of all that mesuage with the appurtenances commonly called by the name of Hedges; by this grant nothing shall passe but the mesuage, garden, and curtilage. See before. And yet if a manor or farme be commonly called by the name of a mesuage, there by the grant of a mesuage the whole manor or ferme may passe. Lit. Bro. Sect. 185. 160. Bro. Leases 55. Plow. 170. c 13 Ass. Pl. 2. Co. super Lit. 4. And by the grant of a mesuage or house and all the lands thereunto appertaining will passe all the land usually occupied therewith. Also by the name of a mesuage a Chappell or a Hospitall may be granted.

By the grant of a Cottage doth passe a little dwelling house that Cottage. hath no land belonging to it.

By the grant of all a mans errable land there doth passe no more Errable land, Meadow, Pasture. but that kinde of land: And by the grant of all a mans meadow ground, or all a mans meadows, doth passe no more but that kind of ground: And by the grant of all a mans pastures doth passe no more but the land or ground it selfe imployed to the feeding of beasts, & also such pastures and feedings as he hath in another mans soile.

If a man have divers acres or peeces of Wood, and grant to another Wood. Trees. 14 H. 8. 1. Perk. Sect. 116. Co. 5. 11. Br. Done 14. omnes boscos suos, or all his woods, or all his woods growing in such a place; by this grant doth passe all the highwood and underwood, and not only the wood growing upon the land or soile but the land or soile it selfe wherein it doth grow. But in this case if the grantor have in the same place divers peeces of wood and divers closes wherein there are divers trees growing in the hedges; it seems in this case these trees in the hedges shall not passe by this grant in these words, especially if the case be so that the cutting of them will be a wast. And yet if the grantor have no peeces or groves of wood in the place, nor trees but what are growing in the hedges and grounds, in this case it seemes all the trees except the apple trees doe passe, but not his hedges and hedgrowes. And in [Page 95] case where the trees only doe passe, as where the grant is of all a Co. 5. 11. 11. 50. mans trees there shall passe no more of the soile but so much as shall serve for the nutriment of the trees, and the owner of the soile shall have the grasse growing thereupon also. If a man grant Curia. Hill. 16 Jac. B. R. Pinchcombs case. to another all his salable underwoods within his manor which have been usually sold by the owners of the manor with free entrie, egresse and regresse for felling, making and carying the same away at all times convenient; in this case it seems the soile doth not passe but the wood only. And yet if those words with free entrie &c. be omitted contra.

If one devise, grant and to terme let a farme with all manner of Dyer 374. Co. 11. 48. timber, wood, underwood and hedgrowes except the great oakes in such a close, to have and to hold the Farme for 21. years, in this case albeit there be the word Grant, and that the trees be not named againe in the Habendum, yet the other trees doe not passe by this grant otherwise then in other leases, and if the lessee cut any Timber to sell it is wast in him.

A Tofte is a place where a mesuage hath stood, and by this name Toft. in a grant such a thing will passe.

Bruera is a heath or heathy ground. Frassetum is a wood or Bruera. Frassetum. Alnetum. Salicetum. Selda. Filicetum. Fraxinetum. Lupulicetum. Arundinetum. Roncaria. Iuncaria. Ruscaria. Mariscus. Mora. Co. super Lit. 4. 5. peece of ground that is woody. Alnetum is a word of Elders, or place where Elders grow. Salicetum, a wood of willows or place where willow grow. Selda, a wood of sallowes, willowes or withies, or place where such things grow. Filicetum is a brakie ground or place where such things grow. Fraxinetum, a wood of ashes, or place where Ashes grow. Lupulicetum, a hopyard or place where hops doe grow. Arundinetum, a place where reeds grow. Roncaria or Runcaria, a place full of bryars or brambles. Iuncaria or Ioncaria or Iampna (which are all one) a place where rushes doe grow. Ruscaria, a place where kneeholme or butchers pricks or broom doth grow. Mariscus, a [...]enne or marish ground. Mora, a more barren and unprofitable ground then a marish. And by grant of these and such like things, or of 20. acres of such ground, these particular kinds only or so many acres thereof doe passe. Vacaria, is a Dairie house. Porcaria, a Swinestie. Bercaria a Tannehouse: Vacaria. Porcaria Stagnum. Gurges. and by these names these things will passe. By the name of Stagnum Co. super Lit. 5. or Poole, or Gurg [...]s a gulfe the water, land, and fish in the water will passe.

By the grant of Stadium, Ferlingus, or Quarentena terre doth Stadium. Ferlingus. Quarentena terre. Selio terr [...]. Acre of land. Rood of land▪ Co. [...]dem. passe a [...]urlong or furrow long, which anciently was the 8^th part of a mile. By the name of Selio or porcaterre doth passe a ridge of land which is sometimes longer and sometimes shorter. By the grant of an acre of land doth passe so much as in an acre by measure in that Country by the Ordinary account and measure of the Country. By the grant of a Rood of land doth passe 10. pearches [Page 96] the 4^th part of an acre. And by the grant of 6. foot in length and two foot in breadth, so much only doth passe. And by these and such like names land may be granted.

By the grant of Mineras or Fodinas plumbi &c. or Mines of Co. super Lit. 6. Co. 5. 12. Mines. Lead &c. the land it selfe will passe if livery of seisin be made thereof, but otherwise it seemes not, and then the grantee hath by the grant a power to digge only granted unto him.

If one grant to me to digge a Trench in his ground from such a Perk. Sect. 111. Trench. place to such a place to convey water by a lead pipe, or otherwise; hereby also inclusive is granted a liberty at any time after to digge to amend it as occasion shall be.

If one grant to me to dig turfes in his land or soile and to carry Co. super Lit. 4. Turses. them away at my will and pleasure; by this is not granted the land it selfe, the houses or trees thereupon or mines therein.

If one grant to another Common for all his beasts in his land; Co. super Lit. 4. Perk. Sect. 108, 109. Common. hereby is not granted Common for Goates, Pigges, and such like beasts and cattell that are not commonable. But if the grant be of common for all manner of beasts contra. And if one grant to another Common without number in his land, the grantor is not hereby excluded to common there with the grantee.

And if one grant to me common of pasture for 10. Kine in his Lands in Dale; by this grant I shall have common in his commonable grounds and lands only and not in any other lands. And if a man grant common of pasture to me for my beasts ubicunque averia sua ierint, and he occupie 100. acres of land with his beasts, and after he keep no beasts; yet by this grant I may keep my beasts in those 100. acres. But if hee grant to mee common of pasture for my beasts wheresoever his cattell shall goe &c. by this grant I shall have no common but when the grantor doth use his common with his Cattell &c.

By the grant of Estovers will passe houseboote, hayboote, and Perk. Sect. 116. plowboote. But if a man grant to me Estovers out of his manor, Estovers I may not by this grant cut downe any of the fruit trees within his manor.

If land be granted to me; hereby also implicitly is a way thereunto 14 H. 8. 1. granted to me also. Clar. case Trin. 5 Jac. B. R. So that if one have 20. acres of land Way. and grant me one acre in the middest of it, hereby inclusive there is granted me a way to it. Per. Williams & Yelverton Justices. Mic. 3 Jac. And yet if a man have two Closes and he use to goe over one of them for his ease to the other Close by a new way; and after he grant the further Close cum pertinentiis; by this grant the new way doth not passe.

If a man have a Forest, Park, Chase, Vivarie, and Warren in his Co. super Lit. 5. Rice & Wisemans case. Mic. 9 Jac. owne ground, and he grant this Forest, Park, Chase, Vivarie or Warren; Forest, Park, Chase, Warren. hereby not only the priviledge but the land it selfe doth passe. But if the ground be anothers; or if it be his owne and the grant [Page 97] be onely of the game, &c. in these cases the land or soil it selfe will not passe.

If a man be seised of a river, and by his deed doth grant seperalem Fishing. Co. super Litt. 4. piscariam, or aquam suam in the same, and maketh Livery secundum formam cartae; by this grant doth passe onely a liberty to fish within the water, and not the soile nor the water it selfe: and therefore the grantor may take water still, and if it be drie he may take the soile also. And if one grant all his fish in his pond; by this is granted a power to come and fish for them, but the grantee Fitz. Barre. 237. may not hereby dig a trench, and let out the water to take the fish, albeit they may not be otherwise taken.

If one bee seised of 20 acres of land, and hee grant to another Vesture or Herbage of land. Co. super Litt. 4. Dier 285. Trin. 5. Jac. B. R. accord. and his heires the vesture, or the herbage of it, and maketh livery of seisin in it secundum formam cartae; by this grant doth passe the corn, grasse, underwood, sweepage, and the like; and for these things the grantee may have an action of trespasse for any wrong done to him. But hereby the land it self, the houses, Profits of lands. and great trees thereupon, and mines therein doe not passe. And if one grant the herbage or vesture of a wood; hereby is granted the grasse and underwood onely, and not the timber or great trees. But if a man so seised of 20 acres of land, grant to another the profits of this land To have and to hold to him and his heirs, and maketh livery secundum formam cartae; hereby the vesture, herbage, trees, mines, and all whatsoever parcell of that land doth passe.

If one grant to another all his deeds, or all his muniments; hereby 35 H. 6. 37. Deeds. will passe all his charters, feoffments, leases, releases, confirmations, letters of Atturney, and the like.

If one give or grant to another Omnia bona, or all his goods; by Goods. Co. super Litt. 118. 39 H. 6. 35. Dier 59. Perk. Sect. 115. 12 H. 8. 4. Bro. Grant 96. 51. Done 39. 47. Dier 5. Co. 8. 33. this doth passe all his moveable and immoveable, personall and reall goods, as horses, and other beasts, plate, jewels, and houshold stuffe, bowes, weapons, and such like; and his money, and his corn growing on the ground, also all the obligations and bils that are made to him, and in his own name doe passe by this, but not the debts due by such obligations and bils. And some say that leases and terms of years of houses, lands, rents, commons, &c. rents charge for years, wardships of tenants in Capite, and by Knights service, and the interests that a man hath by Statute Staple, Statute Merchant, or Elegit, doe passe by this grant, but of this others doubt. And if a man give or grant to another omnia catalla Chattels. sua, or all his chattels; hereby doth passe as much as by the grant of all his goods, and by this without question leases for years &c. doe passe. But by neither of the grants doe passe those goods or chattels which the grantor hath by delivery in keeping for another, or the like. Neither doth any estate of inheritance or freehold, or the charters concerning any freehold passe under [Page 98] these words. Perch. Just. B. R. 21 Jac. Neither doth any thing in action, as debts, or the like, nor hawkes, hounds, poppinjays, or the like passe by this grant. Adjudged 3 Jac. Kelw. 64. 10. Col. 4. 1. Per Flemming Just. 7 Jac. B. R. And yet if an Executor grant omnia bona & catalla sua; hereby the goods and chattels he hath as Executor as well as his other goods and chattels will passe. And if one grant all his leases for years which he hath by any conveyances; hereby the leases for years which he hath as Executor as well as other leases for years will passe.

If one grant to another all his Utensils; hereby will passe all Dier 59. Utensils. his houshold stuffe, but not his plate, jewels, or any such like thing.

If a man be seised of land in feesimple or for life, and have an estate Grant of all a mans estate, right &c. Co. super Litt. 345. Litt. Sect. 613. Plow. 161. Co. 1. 153. in it for years, by Statute Merchant, Staple, Elegit, or the like: and he grant all his estate, or all his right, or all his title, or all his interest of and in the land; by this grant all his estate, and as much as he is able to grant doth passe. And if tenant for life of land, the remainder to the stranger in taile, the remainder to the right heires of the tenant for life doe grant by these words; hereby both his estates do passe. And if a tenant in tail grant all his estate in the land; hereby there doth passe as much as he can grant. And all these words also doe cary and passe reversions as well as possessions. And if a man have a tearm of years of land, and he grant his tearm; hereby doth passe the tearm of yeares, and all his estate and interest of the land.

And note that by all these names these things may be granted, Note. and that for such things as are grantable without deed, when Pitz Brief 581. they passe by a verball grant in any of these words, the words shall have the same exposition as they have in deeds.

If one grant all his goods in such a place si quae fuerint; by this H. 6. grant nothing doth passe but the goods that are in such a place at the time of the grant, and not any other goods that shall bee there afterwards.

If two men have goods in common, and have other goods severally, Bro. Done 12. and they give me all their goods, by this grant is given all their goods they have in common, and likewise all the goods they have in severalty.

If [...]wo tenants in common, or others severally seised of land, Plow. 171. 140. Co. 10▪ 106. join in the grant of a rent of twenty shillings, or a horse, out of the land whereof they are so seised; by this grant the grantee shall have two twenty shillings or two horses.

If a man grant a rent of ten pound to me, To have and to hold Bro. Grant 64. during my life and my wives life, and after the death of my wife a rent of three pound to me for my life; in this case if my wife die I shall have both the rents. But if there bee any words of restraint or determination of the first rent, it may be otherwise.

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If one be seised of a garden plot in the parish of Sale, and grant Adjudg. M. 20 Jac. B. R. Burton versus Brown. it to B for ten years, which being expired he doth grant his garden plot to C for twenty one years, and C doth build a house upon part of it, and leaveth the other part in a garden plot still, and after the twenty one years ended, the lessor doth grant to D, totam illam peciam fundi sive gardin' plott' nuper in tenura de B & nunc de C, lying in the parish of Sale, by this grant the house newly built, and the plot of garden doth passe.

If one grant his Manor of Dale in Dale, which in truth doth Bro. Grant 53. 88. Done 26. extend into Dale and Sale; in this case no part of the Manor that doth lye in Sale shall passe. So if one grant all his tenements in Dale; hereby none of the tenements in Sale will passe. So if the Manor lie within the parishes of A, B and C, and the grant is of the Manor of Dale, lying within the parishes of A and B; by this grant no part of the Manor lying in C, will passe. But if one seised of the Manors of A and B, in the County of C, grant thus, totumillud Manerium de A & B, cum pertin' in Com' C, or Co. 1. 46. totum illud Manerium de A cum B, in Com' C, by these grants in case of a common person both the Manors will passe.

If one grant all his lands in Dale which hee had of the gift of Bro. Grant Plow. I S, by this grant nothing will passe but that which hee had of the gift of I S. But if one grant all his lands in Dale called Hodges which he had of the gift of I S; by this grant all that which is called Hodges shall passe, albeit the grantor had it not of the gift of I S.

If one grant all his lands in the occupation of I S; by this grant Dockraies case Pasch. 12 Jac. doth passe not onely such lands as I S doth occupy by right, but also such lands as hee doth occupy by wrong, and not onely the lands whereof he hath some estate, but also such lands as whereof he hath the pasturage onely.

If one grant all his lands in B, and elsewhere in the County of 2 Jac. Br. S, in the tenure of I S; by this grant nothing doth passe but that which is the tenure of I S.

If one grant his Manor of S, nec non omnes mariscos suos de S, ac Adjudge Seignior Wentworths case. Co. 1. 46. omnia terra, tenementa &c. in S. & alibi dict' Manerio spectan'; by this grant the marsh doth passe though it be no part of the Manor.

If one grant all his demesne lands of his Manor of Dale &c. it seems by this the customary land parcell of the Manor held by copy doe passe.

If one be seised of tithes which did belong to an Abby, part of which were gathered by the Almoner, and part not, and he grant Adjudge Hil. 2 Jac. B. R. Bakers case. omnes & omnimodas decimas granorum &c. infra dominium praedict' & precinct' ejusdem, in dict' Comit'. Ac omnes alias decimas, proficna & commoditates &c. infra dominium praedict' & dict' Monaster' &c. spectan' et quae nuper per Eliemozinar' ejusdem Monasterii collect' fuer'; by this grant shall passe all the tithes as well those that were [Page 100] collected by the Almoner, as those which were not, and those words quae per Eliemozinar' &c. shall refer onely to the last, and not to both sentences.

If one grant all his lands in D, containing 10 acres, whereas in truth his lands there doe contain 20 acres; by this grant the whole Dier 80. 20 acres will passe.

If one grant the Scite of an Abbie & omnia terras prat' pasturas & Dier 77. subscript' cum pertinen' dict' Monaster' pertinen' &c. viz. such a thing and such a thing, &c. by this grant the grantee shall have all the lands belonging to the Monastery, and viz. shall relate to Subscript' onely, and not to omnia. See more in Grant infra at Num. 4. and in Testament, at Numb. 8. and in Fine, at Numb.

The Exception is always taken most in favour of the feoffee, lessee In the Exception. And how that shall be taken: 1. In the thing excepted. Co. 10. 106. 14 H. 8. 1. 11 52. &c. and against the feoffor, lessor. And yet it is a rule, That what will passe by words in a grant, will be excepted by the same words in an exception. And it is another true rule, That when any thing is excepted, all things that are depending on it, and necessary for the obtaining of it, are excepted also: as if a lessor except the trees, he may bring his chapman to view them if hee desire to sell them, and he or the Vendee may cut them and take them away. And by such an exception the Lessor will have the boughs, fruit, hierons, and hawks, that breed in them &c.

If a man be seised of a fishing from such a place to such a place, Perk. sect. 646. Fitz. Assisi 316. and hath a mill upon the water, and hee grant totam partem suam piscariae de D, quam diu terrae suae se extendunt, salvo tamen stagno molendini; this exception doth not take away the fishing of the grantee in the mill pond, but it shall have relation only to the pool to repair the mill.

If a man seised of a Manor make a lease of it excepting all Hil. 16 Jac. B. R. per 2. Judges. the saleable underwoods now growing, or which hereafter shall grow on the premisses, which have been usually sold by the owners of the Manor, with free entrie, egresse and regresse, for the felling, making, and carying away of the same at times convenient; in this case the soil is not excepted by reason of the subsequent words.

If one be seised of a Manor and make a lease of it cum pertin' una Dier 58. cum columbar' ac reddit' tenentium, decimis garbarum, finibus, heriot' perquisit' Cur' & aliis omnibus proficuis, Advocac' Ecclesiae & Wrece, except', in this the exception doth begin at Advocac' Ecclesiae, and doth except that which followeth and no more.

If one grant in fee excepting the trees, or any other thing to the Dier 264. 2. In the time. grantor without saying [and to his heires;] by this exception the thing excepted is severed only for the life of the grantor, and then it shall passe with the rest of the things granted. But if the thing be excepted indefinitely without saying [for the life of the grantor &c.] nor how long; this shall be taken to be an exception during the estate.

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The Habendum as all other parts of a deed for the most part shall be taken most strongly against the grantor and most in advantage of the grantee, yet so as withall it shall be construed as neer the intent of the parties as may be, as in al the cases following doth appear. In the Habendum or limitation of the estate and how that shall be taken.

If land be given or granted to one habendum, or to have and to hold to him and his heirs so long as he pay 20 yearly to I S and Plow. 557. his heires, or so long as such a tree doth stand, or the like; this is a kind of seesimple, but it is limited and qualified and determinable upon this contingent. And yet this may become a pure feesimple, Feesimple. for if land be granted to one and his heirs untill I S pay 100l. and I S die before he pay it, in this case the estate is become a pure fee-simple.

If lands be given or granted to a man, to have and to hold to him and his heires, this is a feesimple, pure, absolute and perpetuall; Co. super Lit. 8, 9. Lit. 1. 27 H. 8. 5. Perk. Sect. 239. 240, 241. 39 H. 6. 38. Plow. 28. Bro. Estates 4. 11 H. 7. 12. Co. super Lit. 15. and this is made by these words [his heires] for it is a generall rule that these words [his heires] only make an estate in fee-simple in all feoffments and grants. But this rule hath many exceptions, for if feoffment of land be made to I S & heredibus, without the word [Suis] this is a feesimple. And yet if the grant be to I S and I D & heredibus, without this word [Suis] contrà, for this is only an estate for their lives. And if lands be given to a Bishop, Parson or the like To have and to hold to him and his successors; this is a feesimple. And lands be given to a Maior and Communalty or other Corporation aggregate generally without the word Successors, or any other word, or if lands be given to such a Corporation for their lives, this is a feesimple. But if land be given to a Parson, or the like To have and to hold to him, without saying how long; or to have and to hold to him for life; by this he hath no more but an estate for life. Co. 6. 27. super Lit. 9. And if lands be given to the King generally without any other words; this is a feesimple. 15 Ed. 4. 13. 9 H. 7. 11, 12 H. 8, 9. H. 4. 84. 33 H. 6. 20. Co. super Lit. 9. Ass. Pl. 12. Plow. 130. 14 H. 4. 13. So if one grant deo & ecclesiae de D; it is said this is a feesimple in the Parson of D. So also of a grant Ecclesiae de D. per Thirne Iust. So if a grant had beene to the Monkes of such a house, it had beene a fee-simple in the house. And in like manner it is in other cases; ^c As if one recite that B hath enfeoffed him of white acre To have and to hold to him and his heires, and then he saith further, that as fully as B hath given white acre to him and his heirs he doth grant the same to C, by this C the grantee hath the feesimple of this acre. And if one grant 2. acres to A and B To have and to hold the one to A & his heires, & the other to B in forma predicta; by this B hath a feesimple in this other acre, for an estate in fee simple, fee taile, or for life may be made by such words of reference. Also if a rent be granted betweene Parceners for to make an equalitie of partition, and it bee granted generally and without any words of heires, yet this is a feesimple. So where lands are given in Frankalmoigne. And so [Page 102] also it is in the cases of a release of right, a fine, and a recovery.

If one give or grant land to another To have and to hold to him 27 H. 8. 27. Lit. Sect. 31. Co. 11. 46. and his heires males, or to him and his heires females, in both these cases there is a feesimple made, but otherwise it is when these words are in a Will, for then it is but an estate in taile only.

If one grant land to one, To have and to hold to him & his right 33 H. 6. 5. heires; by this he hath a feesimple. And so it shall be taken if it be by fine. So if one grant land to I S for life, the remainder to Co. super Lit. 22. Co. 1. 95. 66. the heires, or to the right heires of I S, this is a feesimple: so if one make a feoffment in fee to the use of himselfe for life, and after his death to the use of his heires; this is a feesimple.

If one grant land to I S. To have and to hold to him and the heires of I S; this is a feesimple, and all one with a grant to I S and his heires.

If one grant land to another to have and to hold to him for 20. 20 H. 6. 35. Co. super Lit. 217. yeares, and that after the 20. years the grantee shall have it to him and his heires by 10l. rent, and give livery of seisin; by this the grantee shall have the feesimple.

If one grant land to the Wife of I S to have and to hold to her Co. 2. 91. Dyer 156. Co. super Lit. 22. for life, and after to I S in taile, and after to the right heires of I S; by this I S hath a feesimple. And if one grant land to A for life, the remainder to B for life, the remainder to the right heirs of A; by this A hath a feesimple.

If land be granted to a man and his wife, to have and to hold Bro. Estates 86. to them and the heires issuing of them, it seemes this is a feesimple and not a feetaile.

If land bee granted to one and his heires by the premisses of a Co. 2. 21. 24. super Lit. 21. 21 H. 6, 7. deed to have and to hold to him for life; by this he hath a feesimple. So if by the premisses of a deed land bee granted to one and the heires of his body to have and to hold to him and his heires; by this he hath an estate taile and a fee simple expectant. And so via versa. If by the premisses of the deed the grant be to him and his heires to have and to hold to him and the heires of his body; by this also he hath an estate taile and a feesimple expectant.

If lands be given or granted to a man to have and to hold to him Termes of Law, tit. tail. Lit. tit. Fee toto, in & Co. super Lit. 26. [...]ee taile. and to the [or his] heires of his body, or the [or his] heires males of his body, or the [or his] heires females of his body; by this the grantee hath an estate taile. So if ands be given to a man, to have and to hold to him and the heires males, or to him and the heires females of his body begotten; in both these cases it is an estate tail.

If lands be given to a man & his his wife, to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males, or to them and the heires females of their two bodies begotten; by this they both have an estate taile. And if lands be given to them & the heires males, or heires females of the body of the husband begotten on the wife; by this he hath an estate taile & [Page 103] his wife an estate for life only. And if lands be given to A to have and to hold to him and his heires on the body of B begotten; by this A hath an estate taile and B hath nothing. So if lands be given to a man and his wife, to have and to hold unto them and the heires he shall beget on her body; by this they have an estate taile in them both. If lands be given to a man and his wife and the heirs of the body of the husband; by this the husband hath an estate in generall taile, and the wife but an estate for life. If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife; by this he hath an estate taile and she no estate at all.

If one give his land to his daughter or Cousin in Frankmariage; Lit. Sect. 17. by this they have each of them an estate taile without any word of [heires, or heires of body] &c.

If one give lands to B and his heires, to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5, 6. and his heires, if B have heires of his body and if he die without heires of his body that it shall revert to the donor; by this B hath an estate taile. So if one give lands to B and his heires if he have issue of his body; by this he hath an estate taile. So if lands be given to B to have and to hold to him and his heires, provided that if he die without heire of his body that the land shall revert. So if lands be given to A & B uxori ejus & hered eorum & aliis hered ipsius A, si dict'hered de dict' A & B exeunt' obierunt sine herede de se &c. by this they have an estate taile. And so in all such like cases where after a limitation of a feesimple these or such like words are added, viz. that if he die without heires of his body the land shall revert, for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before.

If lands be given to A and B, (a young man and maid unmaried) to have and to hold to them and the heires of their two bodies; Co. super Lit. 26. Plow. 135. by this each of them hath an estate taile, and if they mary their heires may inherite it.

If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass. Pl. 47. 5 Ass. 14. his heires of the body of his Father; by this the sonne hath a fee-simple. But if the words bee to have and to hold to him and the heires of the body of the Father engendred; by this it is an estate taile in a deed as it is in a Will. And if the Father be dead the Law Will. is so also, but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni. So if there bee grandfather, father and sonne, and the father dieth, and lands be given to the son to have and to hold to him and the heires of the body of the grandfather; this is an estate taile in the sonne: but neither the father nor the grandfather have either of them any estate in these cases. If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife (being dead) begotten; by this I S hath an estate taile.

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If one grant lands to I S, to have and to hold to him and the Co. super Lit. 385. heires of his body issuing, the remainder to I D and his heires in forma predicta; by this I S and I D, after him have each of them an estate taile.

If one grant lands to A to have and to hold to him for life the Co. 2. 91▪ super Lit. 22. 39. Ass. Plow. 20. remainder to the first sonne of A, and the heires males of the body of that first sonne; by this the first sonne hath an estate in taile, and A his father but an estate for life only. But if lands be granted to A for life the remainder to the heires of the body of A; by this A hath an estate taile in him. And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire; by this there is an estate taile made, yet so as it shall last only during the lives of those two heires.

If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten; by this he shall have an estate taile, for begotten shall be intended by the donee on that woman.

If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter, and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten; by this the wife hath an estate for life and the son an estate in taile, and if he die without issue it shall goe to his daughter per formam doni.

If lands be granted to the husband of A and wife of B, to have Co. super Lit. 20. and to hold to them and the heires of their two bodies; by this they have each of them an estate in taile in them, for there is a possibility that one husband and wife may dye, and then the other husband and wife may intermary.

If there be father and sonne, and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son; by this the sonne hath an estate taile but the father as it seemes but an estate for life.

If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten (the father being dead) by this the son hath an estate taile.

If lands be granted to I S, to have and to hold to him and the 12▪ N. 4. heires he shall happen to have of his wife; by this he hath but an estate taile and no feesimple, and his wife hath no estate at all.

If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife, and he hath no wife at the time of the grant; by this he hath an estate taile.

If A have issue by B his wife C a sonne & D a daughter, and A Co. super Lit. 26. die, and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten; in this case and by this deed C hath an estate taile & the woman hath only [Page 105] an estate for life, and if C die without issue, D his Sister shall have the land per formam doni. But if one grant lands to A late wife of I S, to have and to hold to the said A and the heires of I S on the body of the said A begotten; in this case the son and heire shall take no estate by the grant. And the same construction shall be upon the same words in his Will. Will.

If lands be granted to the husband and wife, to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them; by this the survivor shall have an estate taile after the death of the other.

If lands be granted to I S to have and to hold to him & heredibus Co. super Lit. 20. de carne sua, or heredibus de se, or heredibus quos sibicontigerit, in all these cases I S hath an estate taile and no more.

If lands be granted to husband and wife, to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband, the remainder to the husband and wife and the heires of their two bodies begotten, this remainder is void, and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more.

If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten; by this I S hath an estate taile and no more.

If lands be granted to I S & heredibus de corpore procreatis; by this the heires that shall be begotten afterwards shall take. And Co. super Lit. 20. if lands begranted to I S & heredibus de corpore procreandis; by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards.

If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor; by this the grantee hath an estate in taile in the rent, as if he grant to I S that if he and his heires be not paid &c. that he or they shall &c. he hath a feesimple in the rent. For life.

If one give or grant land to another to have and to hold to him, Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes, and say not how long nor for what time, and the grantor make livery of seisin according to the deed; by this the grantee hath an estate for his owne life. But no livery of seisin be made no estate at all but an estate at will doth passe by this deed. And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant; by this his terme of years and that estate which he hath is granted. But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe, and it is a forfeiture of the estate of the lessee for Forfeiture. 17 Ass. Pl. 17. years of which he in reversion may take present advantage. And if one grant to another Common in his land when he doth put in his owne beasts, or Estovers in his Manor when he commeth there, and say no more, by this it seemes the grantee hath an estate for life.

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If one grant land to I S to have and to hold to him or his heirs, Co. 5. 112. super Lit. 8. in the disjunctive; this is but an estate for life and no more. So if one grant lands to I S to have and to hold to him and his heire, in the singular number; by this I S hath only an estate for life and no feesimple.

If one bargaine and sell land to another for money, and limit no Co. 1. 87. 130. Plow. 539. time and expresse no estate; by this the bargaine shall have only an estate for life. But otherwise it was before the Statute of Uses, for then it had been a fee simple.

If lands be granted to I S for life, and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male; by this I S hath but an estate for life. But if it be to the next heires males of I S it is an intaile.

If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple, or in fee taile, without saying [to him and his heirs, or to him and his heires males, or the like] this is but an estate for life and no more. So if one grant land to I S to have and to hold to him and his feed, or to him and his issues, generally without more Co. super Lit. 8. 20. words; by this is made only an estate for life. But in the construction of a Will the law is otherwise in most of these cases. Will.

If lands be granted to two & heredibus without this word [Suis] 20 H. 6. 35 by this they have an estate for their lives and no longer.

If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life, or for the life of I D; by this I S hath an estate for life and no more.

If one grant lands to A and B Habendum sibi & suis omitting Co. 4. 29. super Lit. 1. 8. all other words, or to have and to hold to them and their assignes; by this they have an estate for life only. So if lands be granted to any naturall person to have and to hold to him and his Successors; by this he hath only an estate for his life.

If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting any estate; in this case I S hath an estate for life only.

If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life; by this C hath an estate for his life if A and B live so long.

If a tenant in taile grant totum statum suum; by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow. 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer. And if a lessee for life grant all his estate; hereby his estate for life doth passe, for this is as much as he can lawfully grant.

If a man have a sonne and a daughter and die, and lands be granted to the daughter and the heires females of the body of the father; it seemes by this she hath only an estate for life.

If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234, 235. she shall live sole, or during her widowhood, or so long as she shall [Page 107] behave her selfe well, or so long as he shall dwell in such a house, or so long as she pay 10 l. yearly, or so long as the coverture between her and her husband shall continue; or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice, or the like; in all these cases if livery of seisin be made according to the deed, or if the grant be of such a thing whereof no livery is requisite, the grantee hath an estate for his life and no more, and that determinable also.

If one grant lands to I S. to have and to hold to him for life, Co. super Lit. 183. 42. Plow. 161. F. N. B. 168. and doth not say for whose life; this regularly shall be taken for the life of I S the lessee, and not for the life of the lessor. But if the lessor himselfe have but an estate for life in the lands granted, then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture. And if he that doth make the lease be tenant in taile of the land, this shall be taken to be a lease for the life of the lessor. And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires; by this he hath only an estate for the life of the grantor and no more. So if tenant in taile of land grant it to one for years, and after grant his reversion to another To have and to hold to him and his heires; this shall be construed to be an estate for the life of the tenant in taile and no longer, and the atturnement of the tenants in these cases will not alter the cases. And so it is in case of a Release also, as if tenant in taile doth release to B (being lessee for years of the land) all his right to the land, this shall be taken to enure but for the life of the tenant in taile and no longer, as if a man retaine a servant, and say not how long; this shall be taken for a year. Constructio legis non facit injuriam.

If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it; by this I S hath an estate for life in the rent. And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts, this is an estate for life of the grantee.

If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives, omitting these words [and the longest liver of them] by this notwithstanding they shall hold it during the life of the longest liver of them. And if lands be granted to A To have and to hold to him during the lives of B, C and D without any more words; by this A hath an estate during all their lives and during the life of the longest liver of them. 38 Eliz. B. R. in the case of Ros & Adwick. And if lands be granted to A To have and to hold to him during his life, and during the lives of B and C, by this he hath a lease for his owne life and the lives of B and C and the longest liver of them. But if a lease be made to I S of land to have and to hold to him during the time [Page 108] that A and B shall be Justices of Peace, or during the time that A and B shall be of the Inner Temple, or the like; in these cases the [...]ailer of one doth determine the estate. Adjudged B. R. 8 Eliz. Hoba [...]t & Wisemores case. And if a lease be made to B only To have and to hold to him and C for their lives; by this B hath an estate for his owne life only and no more and C hath nothing at all. And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow. 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant. have and to hold to him, [or to him and his assignes, or to him, his executors, administrators and assignes] during the life, or during the lives of others; and in most cases where a man is tenant pur auter vie. i. for the life or lives of another or others, if the tenant pur auter vie in possession die his estate shall not goe to his heires, executors or administrators unlesse they can first get into possession after his death, but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life, and after his death then he that can first get into the possession againe &c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years, or for one year, or at will, and this undertenant be in possession at the time of the death of the tenant pur auter vie, this undertenant shall have it for his life, if the life or lives by which it is held so long live, for the rule in this case is occupanti conceditur. Et capiat qui capere potest. And this estate is called an occupancy, and he that hath it an occupant. To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held, for in this case after his death his heire and none other shall have it; or if this be neglected, then he must take care to grant over his estate by act executed (for by his last will he may not devise it) to some friend and his heires in trust for him; or he may grant it over to another, and take a regrant of it to himselfe and his heires; or he may make a lease for years of the lands to some friends in trust, and by this meanes he may have the fruit of it during the terme.

When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Die [...] 286. 307. it shall begin presently, otherwise it shall begin at the time expressed For years. When such a lease shall begin and how long it shall continue. if it may stand with law. If a lease for years be made bearing date the 26^th. day of May, To have and to hold for 21. years from the date, or from the day of the date; in these cases the lease shall begin on the 27^th. day of May. But if the words be To have and to hold from henceforth, or from the making hereof, in these cases the lease shall begin on the day in which it is delivered. And if it be to begin à die confectionis, then it shall begin the next day after the delivery. And if it be To have and to hold for 21. years; without mentioning when it shall begin, it shall begin from the delivery [Page 109] if there be no former lease in being, and if there be, then it shall begin from the time of the ending of that lease. If the deed have a date which is void or impossible, as the 30 of February, or 40. of March, and the terme be limited to begin from the date, then it shall begin from the delivery. So if a man by his deed recite a lease which is not, or which is void, or misrecite a lease that is in esse in point materiall, and then say To have and to hold from the end of the former lease; this lease shall begin in course of time at the time of the delivery of the deed.

If one make a lease of land to A for 20. years, and then grant Co. 1. 154. Plow. 198. it to B To have and to hold to him from the end of the first terme &c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end. But if the words of the second lease be To have and to hold to him from the end of the 20. years, in this case the second lease shall not begin untill the 20. years be expired. And if one make a lease of white acre to A for 10. years, and of blacke acre to B for 20. years, and then reciting both the leases doth make a lease to C to begin after the former leases; this shall be taken respective, and shall begin for white acre after the end of the 10. years, and for black acre after the end of 20. years. And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term, that then presently after the decease of the last of them longest living the lessor shall reenter, and one of them die; and after the lessor doth make a lease to another Habendum &c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years; in this case this second lease shall begin after the death of the lessee surviving, reentry of the lessor, or the effluxion of time of the first lease which of them shall first happen, and the lessee cannot at his election make it to begin at any other time.

If a man make a lease for 30. years, and 4. years after make another lease to another man in these words. Noveritis &c. me A de Dier 261. B predictis 30. Annis finitis dedisse & concessisse B de C &c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum: by this the second terme shall begin at the end of the 30. years. And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case. pasc. 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed; in this case the second lease shall begin at the end of the first lease, & these words [to be accompted &c.] shal be rejected▪

If one make a lease of land to A for 10. years, and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years, and after the first lessee doth purchase the reversion by which his terme is drowned; in this case the second lease shall begin presently when Michaelmas is come.

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If two Jointenants be, and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live; by this the lease shall continue no longer then they both live together, and when either of them is dead the lease is determined. Co. 5. 9. And if one grant his land to I S to have and to hold to him, his executors &c. for the terme of 100. years if A, B, and C live so long; and leave out these words [or either of them] in this case if either of them die the lease is determined. But if the words be To have and to hold for 100. years if A, B or C [omitting or either of them] shall live so long, contra. Pasch. 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live; this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative.

If one possessed of land for a terme of years grant the same to another, Dier 307. 69. Plow. 520. 524, 525. 423, 424. Co. 7. 23. To have and to hold to him, his executors and administrators, or to him and his assignes, or to him, without any more words: or if a man that is possessed of a terme grant his lease to another, and doth not say for what time; it seemes in these cases the whole terme is granted albeit no livery of seisin be made. And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee, and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently. And if a lessee for years of land grant a rent out of the land generally without any limitation; this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue. But if he grant a rent by expresse words for the life of the grantee: by this the grantee shall have it for all the terme if he live so long.

If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose, and if he will hold the land over that he shall pay a rent in money, and no livery of seisin is made; by this it seemes in certaine is made a lease for seven years untill the Condition be performed; and then also it seemes it is a lease for no longer time. And so perhaps it will be if livery of seisin be made.

If one grant a rent of 5 l. per annum unto I S, To have and to Co. super Lit. 42. Plow. 273. hold to him &c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent. But if lands be granted to I S To have and to hold &c. untill he shall receive 20 l. out of the profits of it, in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money, and if no livery be made he hath no estate at all but at will.

If one make a lease for life and say, that if the lessee within one Co. super Lit. 218. [Page 111] yeare pay not 20 s. that he shall have but a term for 2. years; by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it.

If one make a lease to I S To have and to hold to him, his executors Co. 9. 63. 60. &c. for 10. years if I D shall live so long, and I D is dead at the time when the lease is made; in this case I S hath an absolute lease for 10. years.

If one grant lands to I S To have and to hold to him, his executors Plow. 273. Co. super Lit. 45. Dier 24. &c. for 3. years and so from 3. years to 3. years during the life of I S, or from 3. years to 3. years during the life of the lessee; by this it seemes I S hath a lease for 6. years and no more. And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years, and after the end of those 3. years for 3. other years during the life of the lessor; by this it seemes I S hath a lease for 9. years and no more. And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae; this perhaps may be an estate for life.

If lands be granted To have and to hold from our Lady day pro termino unius Anni & sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit; by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will. And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni, et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee &c. ab & post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox' sequen'; by this the grantee hath a lease in certaine but for one year only, and if the parties agree againe a lease for 3. years.

If one make a lease to I S To have and to hold to him for years, Co. 6. 35. 21. H. 7. 38. and say not how many years: by this the lessee hath a lease for 2. years and no more.

If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age; in this case if I D die before that time the lease is ended.

If a man possessed of a terme of years of land doth grant the land to another and his heirs, this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest.

If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons. Dier 263. and to hold to them and to the heires of the husband and I S; by this the wife hath only an estate for life in a moity w^th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires. Co. 8. 87. 10. 50. super Lit. [...]5. Dier 145.

If lands be granted to two brothers, or two Sisters, or to a [Page 112] brother or sister, or to a father and sonne or any others, To have and to hold to them and the heires of their bodies begotten: by this they have joint estates for their lives, so that the survivor of them will have the whole for his life, and severall inheritances. i. estates in generall taile by moities in common one with another. And if lands be granted to two men and their wives and the heires of their bodies begotten: in this case they have joint estates for life, and afterwards the one husband and wife shall have the one moity and the other the other moity in common. And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies: by this they have each of them an estate taile in common with the other.

If lands be granted to husband and wife To have and to hold Lit. Sect. 27, 28, 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing, or in any such like manner; by this the wife hath an estate taile as farre forth as the husband. But if it be granted to them To have and to hold to them and the heires of the body of the husband, or to the husband and wife and the heires of the husband which he shall have by his wife, or in any such like manner: by this the wife hath only an estate for life and the whole estate taile is in the husband. So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband: by this he hath an estate for his life only and his wife the whole estate taile. And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten, or To have and to hold to him and the heires of his body begotten on the wife he shall first mary, or To have and to hold to him and his wife he shall first mary, and the heirs of their bodies begotten: in these cases the husbands have the whole estate and the wives nothing at all. But Use. otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary, for by this it seemes the wife shall take also.

If lands be granted to A a maried man, and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred: by this they have each of them an estate taile presently executed, and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives, and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile.

If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void. And when not, but shall controll, divide or expound the premisses. life the remainder to B in fee: by this A shall have the whole for his life and B the feesimple afterwards.

As touching this matter these differences are to be taken. Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates. When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony, or take [Page 113] effect by the same ceremonie, and when not but another ceremony is required to the perfection of the grant and estate. And when there is an expresse estate made by the deed in the Premisses thereof, and when but an implied estate only, as for examples. If one grant land, rent common, or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life, or To have and to hold to him and to his assignes, without more words; in this case the Habendum is repugnant and void, and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made, for otherwise no estate at all but at will will passe. So if a man grant a rent, or any such like thing that lieth in grant to one and his heires To have and to hold to him for years; this is a void Habendum, and the grantee shall have the feesimple. But if a man grant land to another and his heires To have and to hold to him for a certaine number of years; in this case whether he make livery of seisin or not it is a good Habendum; and by this the grantee shall have an estate for so many years and no more. So if one grant land, rent, common, or any such like thing to one in the Premisses of the deed without limitation of estate (which in judgement of law is an implied estate for life) To have and to hold to him for a certain number of years, or at will; this Habendum is good and shall stand with the Premisses and qualifie it; and by this the grantee shall have but a lease for years, or at will, as the Habendum is. And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. & per curiam in Thurmans case. Pasc. 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires; this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant. So vice versa, If land be granted to one and his heires To have and to hold to him and his heirs of his body; this shall be construed an estate taile and a feesimple expectant and so both shall stand together.

If lands be given to B and his heirs To have and to hold to B and his heires, and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor, it seemes this is a feetaile only and no feesimple expectant. Voluntas donatoris in carta doni sui manifeste expressa observanda est.

If a lease for years be made of land, and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him &c. for life; this Habendum shall stand. So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe, this is good and both shall stand together, but nothing is granted in either case but the reversion.

If the next Advowson of a Church be granted to three To have & Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally; this is joint and the Habendum is void. Co. 2. 55. And yet if one grant land to two by [Page 114] the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life, the remainder to the other for life; this is not repugnant but shall stand together and make the estates severall and in remainder one after another. So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other; by this they have severall estates. Expressum facit semper cessare tacitum.

If a man have a lease for years of land, and he reciting this, by Dier 272. Plow. 520. the Premisses of the deed doth grant all his estate in the land, To have and to hold the land or the terme after his death, or for part of the time only; in this case the Habendum is void and the whole estate doth passe immediatly by the premisses.

If a tenant for life surrender a moity of his land, and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life; this Habendum shall stand and enure according to the grant.

If a man seised of land in fee make a lease for life of it to one, Curia pas. 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact' &c. vacare acciderit; in this case the Habendum and premisses may stand together. It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted. But touching this and the matters that doe concern uses see Vse infra at large. And see also more for the Exposition of Deeds in Testaments Numb. 8. Grant Numb. 4. Leases cap. 14. Numb. 4. And here note that parol-agreements and conveyances Note. have the same construction for the most part made upon them as are made before upon deeds. And therefore if a man by word of mouth without any writing grant all his lands in Dale to I S To have and to hold to him for life, but doth not say for whose life; this shall have the same construction as such a grant made in writing hath.

This is alwaies taken most in advantage of the feoffee, grantee, Co. 5. 111. 10. 106. 8. 71 Co. super Lit. 47. 213, 214. lessee, &c. and against the feoffor, grantor, lessor, &c. and yet so as In the reservation of rent. And how that shall be taken. the rent be paid during the time. And therefore if the reservation be only to the feoffor, grantor, &c. and the deed doe not say also [to his heires, executors &c.] this reservation shall continue only for the life time of the grantor and shall determine with his death. And so also it is where the reservation is to the feoffor or his heires, in the disjunctive, for in this case the rent shall continue only during the life of the grantor. And yet if one make a lease for years rendring yearly during the said terme to the lessor or his heirs or executors; this is a good reservation during all the terme, by reason of these words [during the terme.] So if the feoffor, or lessor be [Page 115] seised in fee, and make a feoffement in fee, or lease for life or years, rendring rent to the feoffor or lessor or his executors or assignes; in Plow. 171. 21 H. 7. 25. 27 H. 8. 19. Dier 45. this case the rent shall continue only for the life of the lessor. But if the reservation be to the feoffor, or lessor, his heires and assignes, in the copulative, or in the disjunctive to him or his heires, or to him and his successors (if it be the lease of a Corporation) during the terme; then all the assignees of the reversion shall enjoy it. And if the reservation be thus, yeelding and paying so much rent (without any more words,) this shall be taken for all the time of the estate and shall goe to him in reversion accordingly. And if the reservation be, rendring so much rent during the said terme, and doth not say to whom; in this case it shall be construed to be to him that hath the reversion and accordingly it shall be paid and shall continue during the term. So held in the case of Bland M. 8 Car. B. R. But if A be seised of land in fee, and make a lease for years of it rendring rent to A [without saying To his heires &c.] during the said terme; this rent shall continue only during the life of A and no longer. And yet if A be possessed of a terme only, and make an under-lease or assignement with such a reservation; Quere.

If the reservation be thus, Yeelding and paying 20 s. during the said 27 H. 8. 19. terme, omiting the word [yearly] this shall be taken, to be not once only but yearly during the terme and accordingly it must be paid. Pas 21 Jac. Hudson & Brent B. R. And if a lease be made for years, rendring in every middle of the yeare, quolibet medio Anni 20l. this shall be paid during the term.

If one by deed indented grant lands to A To have and to hold Co. 10. 107. to him for life, the remainder to B and the heires of his body, and for default of such issue to remaine to D in taile, or for life, yeelding therefore yearly &c. in this case the reservation shall extend to all the estates.

If a lease be made the 10^th. day of August, rendring rent at our Dier 130. Co. 5. 111. super Lit. 217. Lady day and Michaelmas; in this case albeit our Lady day be first named, yet the first payment shall be at Michaelmas next after the making of the deed.

If the reservation be at Michaelmas or within 20 daies after: in Per Williams & Yelverton Iust. Ch. Iust. contra 9 Jac. B. R. this case the 20^th day shall be taken exclusive. But if the rent be to paid at Michaelmas or by the space of 20. daies after, in this case the 20^th day shall be taken inclusive.

If a lease be made in December, from the Nativity of Christ next for one yeare with this addition, Et si in fine dicti Anni ambae partes Co. 10. 106. agrearent quod eadem dimissio foret renovata tunc habend & tenend premissa dicto I S (the lessee) ab & post dictum festum tunc proxim. sequend. usque finem trium Annorum. Reddendo inde Annuatim durante dicto termino dict. W S. &c. in this case the reservation shall relate to both the terms, and the rent shall be paid the first yeare although they doe not agree to renew the lease.

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If two Jointenants by deed poll, or by word make a lease for Co. super Lit. 214. life reserving a rent to one of them; this shall goe to them both. So if one of them be tenant for life and the other in fee, and they joine in a lease for life, or gift in taile reserving a rent; the rent shall enure to them both. But if tenant for life and he in reversion joine in a lease for life, or gift in taile by deed reserving a rent, the rent shall enure to the tenant for life only during his life and after to him in reversion.

If two tenants in common make a lease of their land rendring Plow. 171. 289. Co. 10. 106. 20 s. rent; this shall be but one 20 s. and not two 20 s. So if the lease be rendring a Hawke or a Horse; by this they shall have but one Hawke, and one Horse, and not two Hawkes or two Horses, as it shall be in cases where they doe joine in the grant of such things out of their land.

If one make a gift in taile of two acres of land, the one at the Co. 10. 106. cōmon law & the other in Burrow English rendring an oxe to him and his heires, and the donee having two sonnes die, and the eldest sonne doth inherite the one acre and the youngest sonne doth inherite the other; in this case the donor and his heires shall have but one oxe &c.

If one make a lease of land for years if the lessee live so long, Co. 10. 107 108. and after the lessor by his deed indented doth grant the land to another To have and to hold the reversion to the grantee for his life cum post mortem &c. aut aliter acciderit vacare reddend inde Annuatim to the grantor and his heires cum reversio predicta acciderit 9 s. 4 d. per Annum; in this case this reservation of rent shall not begin before the reversion happen in possession.

If rent be reserved to be paid at two termes, and it is not said by 13 H. 4. Avowry 240. Co. 8. 95. 10. 47. Bro. Done 57. Fitz. Done 2. equall portions; yet it shall be so taken and it must be so paid.

If one be possessed of a terme of years of land, and grant it by In other respects. deed to I S for his life, and after his death to I D; in this case the whole terme is granted to I S, and his executors, administrators and assignes shall have it and not I D. But if a terme were so devised D [...]vise. by Will, contra. And if one give or grant to another his horse, or his bookes for his life, and that after his death they shall remaine Remainder. to another, the remainder is void, and the first shall have it for ever, for the gift or grant of such a thing for an houre is a gift of it for ever.

See more in Vse Numb. 7.

And it is now time that we come to the other parts of a Deed and first to a Condition.

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CHAP. VI. Of a Condition.

A Condition is a kind of Law or bridle annexed to ones act 1. Condition. Quid. Termes of the Law. Co. super Lit. 201. staying or suspending the same and making it uncertaine whether it shall take effect or no. Or as others define it, It is modus an Equality annexed by him that estate interest or right to the land &c. whereby an estate &c. may either be created, defeated or enlarged upon an incertaine event. And this doth differ from a Limitation, which is the bounds or compasse of an estate, or the time Limitation▪ Quid. how long an estate shall continue. And this sometimes is contained 27 H. 8. 16. Co. 2. 70. in a Testament or Will, and sometimes in a deed. And when it is in a deed it hath no proper place assigned it, but it may be in any part of the deed; howbeit for the most part it is placed next after the Habendum, or next after the Reservation of the rent. It is also sometimes annexed to and depending upon estates; and sometimes annexed to, and depending upon Recognizances, Statutes, Obligations, contracts, and other things: Conditions are also contained in Acts of Parliament and Records. But of these we speake not here in the ensuing matters, which are especially to be applied to such Conditions as are usually contained in deeds and annexed to the realty. i. to estates in feesimple, feetaile, for life, or years.

And of these Conditions there are divers kinds. For some 2. Quotuplex. Co. super Lit. 201. Plow. Colthirsts case. Co. 8. 43. are in deed or Expresse. i. when the condition is expressed by the party in legall terms and by expresse words in writing or without writing knit to the estate, as if I enfeoffe a man of land rendring rent at a day on condition that if it be not paid it shall be lawfull for me to reenter. And some are in law or Implied. i. when the condition is tacitè created by the law without any words used by the party. The first sort of conditions also are some of them precedent or executed. i. when the condition must be fulfilled [...]re the estate can take effect, as where an agreement is between me and I S that if he pay me 10 l. at Michaelmas he shall have such a ground of mine for 10. years; or I make a lease of land to I S for 10. years, provided that if he pay me 10 l. at Michaelmas he shall have the land to him and his heires; and in these cases by the performance of the condition the estate is acquired. And some of them are Subsequent and Executory. i. when the estate is executed but the continuance thereof dependeth upon the breach or performance [Page 118] of the condition, as where a lease is made for years, on condition that the lessee shall pay 10 l. to the lessor at Michaelmas or else his lease shall be void, and in this case by the performance of the condition the estate is held and kept. These conditions also are some of them in the affirmative. i. that doe consist of doing, as providing that the lessee shall pay the rent, or pay 10 l. to the lessor &c. And some in the Negative. i. that consist of not doing, as provided that the lessee shall not alien &c. And some of them are in the Affirmative which imply a Negative, as provided that if the rent be unpaid▪ that the lessor shall reenter which implieth a Negative, viz. not paid. Conditions also are some of them collaterall. i. when the act to be done is a collaterall act, as that the party shall pay 10 l. goe to Rome, or the like. And some are inherent. i. such as are annexed to the rent reserved out of the land whereof the estate is made. And some of them also are Restrictive & contain a restraint, as that the lessee shall not alien, or do wast, or the like. And some are compulsory, as that the lessee shall pay [...]o the lessor 10 l. such a day or his lease shall be void. And some of them be single. i. to doe one thing only. And some copulative. i. to doe divers things. And some disjunctive. i. when one thing of divers is required to be done. And some conditions Co. super Lit. 201. make the estate whereunto they are annexed voidable only by entry or claime. And some of them make the estate void ipso facto without entry or claime. And sometimes they tend to destroy estates, sometimes to make, or to enlarge estates, and sometimes neither to make nor destroy, but only to clogge estates, as where a lease is made rendring rent on a day, on condition if it be not Lit. Sect. 327. paid that the lessor shall enter on the land and keep it till the rent be paid. And all these waies conditions may be lawfully made. Ine [...]e potest donationi modus, conditio sive Causa.

The conditions in law or implied are either by Common law, Co. 8. 44. 3. 65. Lit. 325. 378. F. N. B. 205. or by Statute law. The first sort are some of them founded on skill, as where an office is granted, there is a condition tacite implied, that if the grantee doth not execute it faithfully according to the trust the grantor may put him out. And some are without skill, as where an estate is made for life or years of land, there is this condition implied, that if the lessee doe wast he shall forfeit the place wasted, or if the lessee make a feoffement of the land he shall forfeit his estate and the lessor shall enter. And where an estate [...]s made in fee of land; this condition is implied, that the feoffee shall not alien it in Mortmaine. And these conditions doe somtimes give a recovery, and no entry, as in the case of wast. And sometimes Co. 4. 121. they give an entry and no recovery, as in the case of Alienation in Mortmaine. In the case of exchange also there is a condition in law, for which see Exchange.

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It is a generall rule, That when a man hath a thing he may condition 21 H. 7. 24. Perk. Sect. 707, 708. &c. 3. What things may be made and done upon Condition. And to what things a Condition may be ann [...]xed. Or not. And how it may be made and annexed thereunto. with it as he will. Conditions in deed therefore may be annexed to things inheritable, to frank tenements, or to chattells reall and personall: as for example, If a feoffement in fee, gift in taile, or lease for life be made of lands or tenements, or a grant be of a rent, Common, or the like thing in feesimple, feetaile, or for life, these things may be done upon condition. So a lease for years of land, or a grant of a rent &c. for years may be made upon condition. And a lease may be made for five years on condition that if the lessee pay to the lessor within the first two years 10. markes that then he shall have the fee, otherwise but for five years. Also a Gardian in [...]hivalry may grant the wardship of the body and land or either of them on condition. A tenant by statute Marchant, Perk. Sect. 281. Co. super. Lit. 274. Perk. Sect. 724. Co. 8. 98. Dier 242. Staple, or Elegit may grant their estates upon condition. The Lord may grant his Seigniory to his tenant on condition. The tenant for life may grant his estate to his lessor, or him in reversion upon condition. The King may make letters Patents of denization to an alien, or a [...]harter of pardon to a man for his life upon condition. Also releases and confirmations may be made upon condition. And a submission to an award may be upon a condition. But an Institution to a Benefice, or an induction may not be Co. 2. 74. on a condition. An atturnement, or an expresse Manumission of Co. super Lit. 274. a villaine cannot be upon a condition subsequent, as it may be upon a condition precedent. And a condition cannot be released upon a condition, as some hold. But the contrary is held by others cleerly and that there is no difference between this and a release of a right Ideo quere. An award cannot be made on a condition as was held in Sherers case 35 Eliz. A contract or sale of a Chattell Perk. Sect. 712, 713. personall, as an oxe or the like, may be upon condition, as if A sell his horse to B that if A doe such an act, then that B shall pay 5 l. at the day agreed upon, otherwise but 4 li. So if I agree with a Physitian that if he cure such a disease he shall have so much; and in this case he cannot have the money untill he have done the cure. As where I promise a man 10 l. when he hath built such a house, in this case he cannot have the money untill the house be built. Also retaining of servants, delivery of Charters, and divers other things may be done upon condition. And if an Executor assent Co. 4. 28. to a legacy upon a condition; the assent is good but the condition is void.

And conditions annexed to estates in all the cases before Lit. Sect. 365. Co. super Lit. 161. 216. howsoever they are most frequently and safely made by deed in writing, yet it seemes such conditions may be made and annexed to any estate of a thing grantable without deed without any writing Doct. & St [...]. 16. Perk. Sect. 715. at all; howsoever in some cases it cannot be well pleaded nor used without a deed, for it is a rule, That if a condition be pleaded [Page 120] in any action to de [...]eat a freehold, the deed wherein the condition is contained must bee shewed. But of chattels reall, as leases for years and the like, or grants of chattels personall, a man may plead that such leases and grants were made upon condition, without shewing the deed. And in the first case also of a condition to avoid a freehold, it may be given in evidence to a Jury, and they may finde the matter at large as it is, and so the party may have advantage of the condition without shewing any deed of it. Also the Co. 5. 40. pleading of a feoffment in fee on condition without deed and reentry, is good if the party confesse the condition. A condition may Co. 8. 90. be annexed to a limitation of uses, and thereby the same may be made void. See Vse.

The nature of an expresse condition annexed to an estate in generall Co. super Litt. 186. Perk. Sect. 818. Litt. Sect. 358. Dier 6. is this: That it cannot be made by, nor reserved to a stranger, 4. The nature of a condition in deed, and of a limitation. but it must be made by, and reserved to him that doth make the estate. And it cannot bee granted over to another except it be to and with the land or thing unto which it is annexed and incident. And so it is not grantable in all cases; for the estates of both the parties are so suspended by the condition, that neither of them alone can well make any estate, or charge, of or upon the land; for the party that doth depart with the estate, and hath nothing but a possibility to have the thing again upon the performance or breach of the condition, cannot grant or charge the thing at all. And Dier 298. Co. 8. 44. Perk. Sect. 818, 819. if he that hath the estate, grant or charge it, it will be subject to the condition still, for the condition doth always attend and waite upon the estate or thing whereunto it is annexed: so that although the same doe passe through the hands of an hundred men, yet is it subject to the condition still; And albeit some of them be persons priviledged in divers cases, as the King, infants, and women covert, yet they also are bound by the condition. And a man that comes to the thing by wrong, as a disseisor of land whereof there is an estate upon condition in beeing, shall hold the same subject to the condition also. And when the condition is broken or performed Dier 117. Co. 10. in Mary Portingtons ca [...]e. Super Litt. 230. Litt. Sect. 374. Perk. Sect. 564. so. 108. Litt. [...]o. 224. Dier 127. Co. super Litt. 224. &c. the whole estate shall be de [...]eated: So that if there be a lease for life made by deed and not by will, the remainder over in fee, on condition that the lessee for life shall pay ten pound to the lessor; if the lessee pay not this ten pound, the estate in remainder is avoided also. Et sic è converso, unlesse by speciall limitation it be otherwise provided, as if A grant by [...]ndenture land to B for life, the remainder to C in fee, rendring rent to A and his heires, with condition that if the rent be behind, to re [...]nter and retain the land during the life of B and no more, and A doth enter in the life time of B for non payment; this doth not destroy the remainder. And if tenant for life and he in remainder join in a feoffment on condition that if &c, that then the tenant for life shall reenter; this [Page 121] is good without defeating the entire estate: for regularly a condition cannot avoid a part of an estate onely, and leave another part entire; neither can the estate be void as to one person, and good as to another, (except it be in case of a condition annexed to an estate limited by way of use, as in Frances case Co. 8. 90.) And yet if A make a gift in tail to B, the remainder to B in fee upon condition not to alien, and B doth alien; this doth defeat the estate taile onely, and not the remainder. Also the whole estate of the whole Co. 4. 121. Dier 127. and not of some part only, shall be avoided, except by agreement the condition be specially restrained to some part, and the reentry given in that part only, as where a feoffment is made of two acres, on condition that if such a thing happen, the feoffor shall enter into one of them. And further when he that hath right doth [...]eenter Perk. Sect. 840. by force of such condition, hee shall avoid all charges and incumbrances put upon the land after the condition made, for hee that doth enter into land by force of such a condition, must have it again in the same plight as it was when he parted with it. And See infra. finally, a condition for the most part will not determine the estate without entrie or claim. So that howsoever a limitation hath much affinity and agreement with a condition, Litt. Sect. 3 [...]0. and therefore it is sometimes called a condition in law Co. 9. 128. 8. 17. 6. 41. Plow. 413., both of them doe determine an estate in being before, and a limitation cannot make an estate to be void as to one person, and good as to another, as if a gift bee made in taile to one and his heires males, untill he doe such a thing, Co. 10. 40. Dier 300. Litt. Sect. 90 and then his estate to cease and goe to another: yet herein they differ: 1. A stranger may take advantage of an estate determined by limitation, and so he cannot upon a condition. 2. A limitation doth always determine the estate without entrie or claime, and so doth not a condition.

Conditions anne [...]ed to estates are sometimes so placed and confounded Co. 2. Lord Cromwels case. 10 Mary Portingtons case. Co. super Litt. 204. [...]7 H. 8. 16. Litt. Sect. 328, 329, [...]30, 331. amongst covenants, sometimes so ambiguously drawn, and 5. When an estate shall be conditionall. And what words will make a condition. And what not. And how a condition may bee knowne from a covenant, or limitation. at all times have in their drawing so much affinity with limitations, that it is hard to discern and distinguish them. Know therefore that for the most part conditions have conditionall words in their frontispice, and doe begin therewith, and that amongst these words there are three words that are most proper, which in and of their own nature and e [...]icacy without any addition of other words of reentry in the conclusion of the condition that doe make the estate conditionall, as Proviso, Ita quod, and Sub conditione. And therefore if A grant lands to B, To have and to hold to him and his Proviso. Ita quo [...] Sub conditione, heires, Provided that, or so as, or under this condition, that B doe pay to A ten pound at Easter next; this is a good condition, and the estate is conditionall without any more words. But there are Si. Si contingat, other words, as Si, si contingat, and the like, that will make an estate conditionall al [...]o, but then they must have other words joined [Page 122] with them, and added to them in the close of the condition, as that then the grantor shall reenter, or that then the estate shall be void, or the like. And therefore if A grant lands to B, To have and to hold to him and his heirs, and if, or but if it happen the said B doe not pay to A ten pound at Easter, without more words, this is no good condition, but if these or such like words be added, that then it shall be lawfull for A to reenter, then it will be a good condition.

But here note that these words Proviso, Ita quod, and sub conditione, Co. super Litt. 146. Co. 2. 70. Dier 152. 311. Litt. Bro. 256. Dier 6. 222. Plow. 136. 5 H. 7. 7. Perk. Sect. 732. albeit they bee the most proper words to make conditions, yet doe they not always make the estate by the deed to bee conditionall, but sometimes doe serve for other purposes; for the word Proviso hath divers operations besides; for sometimes it doth serve for, and work a qualification or limitation, and sometimes it doth serve to make and work a covenant onely. And then only (being inserted amongst the covenants of the deed) it doth make the estate conditionall when there are these things in the case. 1. When the clause wherein it is hath no dependence upon any other sentence in the deed, nor doth participate with it, but stands originally by and of it selfe. 2. When it is compulsory to the feoffee, donee, &c. 3. When it comes on the part, and by the words of the feoffor, donor, lessor, &c. 4. When it is applied to the estate, and not to some other matter, as if one grant a Manor with an Advowson appendant, and after the Habendum and reservation of rent amongst the covenants, there is this clause inserted [Provided that the grantee shall regrant the Advowson for the life of the grantor] this is a good condition. And thus it may be also a condition and a covenant: as if the words run thus, Provided always, and the feoffee &c. doth covenant &c. that neither he nor his heires shall doe such an act, this is both a condition and a covenant. But if the clause have dependence on another clause of the deed, or bee the words of the feoffee &c. to compell the feoffor to doe something, then is it not a condition but a covenant onely, as if there be in the deed a covenant that the lessee shall skowre the ditches, and Covenant. then these words follow [Provided that the lessor shall cary away the earth.] Or there is a covenant that the lessee shall repaire the houses, and then these words follow [Provided that the lessor doe provide timber.] So if this clause bee applied to some other thing, and not to the thing granted, then is it no condition, as if a lease of land be made rendring rent at B, provided that if such a thing happen, it shall be paid at C; this doth not make the estate conditionall. Or a lease is made for yeares without impeachment of waste, proviso quod non prosternet domus voluntarie; in this case howsoever this doth make the priviledge, yet doth it not make the estate conditionall. Or a lease is made for years rendring rent, provided [Page 123] that the lessor shall not distrain for the rent▪ in this case this is a good condition, but not annexed to the estate. So if in a deed of bargaine and sale of land after the Habendum, there are these Dier 318. words, viz, upon these conditions following, viz. that if the vendor pay the vendee twenty pound at Easter, and enfeoffe him of a meadow called S before Whitsontide, that the bargain shall bee void. Provided neverthelesse that the bargainer shall hold the land fortwenty years without the let of the bargainee; it seemes this Provided in this case doth not make a condition. So if a lease be 27 H. 8. 15. B [...]o. Condition 7. made of a house, & amongst the covenants these words are inserted, [Provided also that if the lessor will dwell upon it, or keep it in his hands, then the lessee, his executors and assigns doth covenant upon one yeares warning to remove and give place to the lessor this lease notwithstanding;] it seemes this is no condition but a covenant onely. C [...]ia pasche 14 Jac. Br. in the case of Muddy. Co. super Litt. If a lease be made, provided that if the rent bee behinde, without any more words; this is no good condition.

The word si also doth not always make a condition, for sometimes it makes a limitation, as when a lease is made for years if I S shall live so long.

There are other words also that in the Kings grant, in last Wils Co. super Litt. 236, 237. Doct. & Stud. 122. Dier 138. Plow. 142. 7 H. 4. 22. Co. super Litt. 204. Co. 10. 42. Dier 318. Doct. & Stu. 34. and Testaments, and other speciall cases doe make conditions, as ea intentione, ad effectum, propositum, intentionem, paying, and the like. So that if one devise his land to I S, ea intentione &c. that he shall pay to W S tenne pound, or paying, or so as he pay to W S tenne pound, or to sell &c. these are good conditions. But these words regularly doe not make a condition when they are used in deeds. And therefore if one make a feoffment in fee ea intentione, ad effectum &c. that the feoffee shall doe, or not doe such an act; these words doe not make the estate conditionall, but it is absolute notwithstanding. And yet perhaps these words being conjoined with some others may make a condition, as if lands be granted ea intentione quod si defecerit &c. tunc quod reintrabit, or the like.

Also conditions are sometimes made especially in estates and leases Doct. & Stu. [...]4. Dier 6. 91. 63. 92. for years, without any of these formall words when the apparent intent of the lessor is to make the estate conditionall, albeit the words be not used as the words of the lessor, but as the words of the lessee, or indefinitely of neither. And therefore it hath been said, That if an Indenture bee made between A and B thus: It is agreed and covenanted between the parties aforesaid, that B shall have the land for yeares, and that hee shall not alien it; that this estate is conditionall. But it seems this is not law. But if this clause be inserted amongst other covenants, viz. If the lessee hinder the lessor to fell, cut, and cary away the trees upon the lands devised, that the lessor may reenter and the lease shall be void; this is a good condition, and so it hath been adjudged in the case of [Page 124] Haward and Fulcher, Hil. 3. Car' B. R. And if a lessee for yeares doe covenant in his lease, that if hee, his executors, or assignes, shall alien, that it shall be lawfull for the lessor to reenter; it seems this is a good condition, and not a covenant onely. And if a lease for years be made, and this clause is inserted in the deed, It is agreed between the parties that if the lessee do not pay 10 pound to the lessor at Easter, that from thenceforth the lease shall bee void; this is a good condition. And if a lease bee made with this clause inserted in the deed, it is agreed that whosoever shall have the estate or interest, that he or they shall find sureties within the year for the rent, otherwise the estate shall cease; it seems this is a good condition. And if a lease for years be made with this clause inserted, Dier 66. 65. Curia Mich. 37, 38. Eliz. B. R. And that it shall not be lawfull for the lessee to alien without licence of the lessor, under pain of forfeiture; this is a good condition. And if a lease for years be made of a house, with this clause inserted in the deed, And the lessee shall continually dwell upon Dier 79. 27. Co. super Litt. 204. the same house upon pain of forfeiture of the said terme; this is a good condition. And if in a lease for years the lessee covenant to Plow. 132. pay so much rent, and then these words are inserted, And if it shall happen the said yearly rent &c. then the lessee doth covenant and grant &c. that the lease shall be void; it seems this is a good condition, and so hath it been ever taken as was said by Just. Dodridge, Hil. 3. Car'. And in all these cases the estate is conditionall. But in cases of feoffments in fee, gifts in taile, and leases for Co. super Litt. 204. Doct. & St. 94. Dier 65. 138. life, it seemes words penned in this manner will not make conditions, but that in these cases the precise and formall words of a condition are requisite. And therefore that if a feoffment be made by deed, and therein is inserted this clause, That it is agreed, or that the feoffee doth covenant that if the feoffor doe such an act, that the feoffor shall reenter; this is no condition, nor the estate hereby made conditionall. And yet see Perk. Sect. 744.

If one make a lease for yeares on condition to pay rent at foure feasts, and after there is a clause in the deed. And if the rent shall Dier 348. be behinde, &c. that he shall distrain; this clause doth not take away the condition, but the same doth continue and the estate is conditionall still. See more in the next question.

In the making of e [...]ates the cause is regarded. And in case of Co. super Litt. 204. the grant of lands or tenements, causa doth sometimes make a condition, as if a woman give lands to a man and his heirs, causa man imonii praelocuti; in this case if she either mary the man, or the man refuse to mary her, shee shall have the land again to her and her heirs. But of the other side, if a man give land to a woman and to her heirs causa matrimonii praelocuti, though he mary her, or the woman refuse, he shall not have the lands again to him and his heirs. And in the case of a grant executorie the word [pro] may make a [Page 125] condition. And therefore if a man grant me an Annuity pro una acra Co. super Litt. 204. Co. 10. 42. Plow. 141. 9 Ed. 4. 19. 15 Ed. 4. 2. Dier 6. terre, or pro decimis &c. or if hee grant mee an Annuity for a way, or a gutter through my ground, this is conditionall, and if he be disturbed in the way, acre of land, tithes, or gutter, he may refuse to pay the Annuity. So if an Annuity be granted to an Officer for the executing of his office, or pro consilio impendendo, if the grantee doe not execute the office, or give counsell, &c. the Annuity shall cease. But if one grant me Tithes or an Annuity, and I grant an Annuity for these Tithes, or grant to give counsell for the Annuity; it seems the grants that are in this manner are not conditionall, but absolute. So if I pro consilio &c. or pro una acra terre &c. make a feoffment in fee, or lease for life of another acre, these estates are not conditionall. And if one devise land to be sold by his executors, and Dier 7. 127. See Testament. to be distributed for his soul; by this it seems the estate or power of Testament. the executors is conditionall. So if one devise his land to finde a Preacher or a Chaplain. But otherwise it seems it is of land so conveyed by deed in a mans life time. And if a feoffement be made of Plow. 141. 142, land ad erudiendum filium; some have said this estate is conditionall.

The most apt and proper words to make a limitation of an estate Co. super Litt. 234, 235. Co. 10. 42. Plow. 413. Litt. Sect. 90. Dier 290. Limitation. are Quamdiu, Dummodo, Dum, Quousque, Si, and such like. And therefore if A grant lands to B, To have and to hold to him and his heirs, untill B goe to Rome, or untill he be promoted to a Benefice, or untill B pay to A, or A pay to B twenty pound, or so long as I S shall live, or if A grant lands to B, To have and to hold to him, his executors, &c. if I S and I D shall live so long. Or if A grant lands to B, To have and to hold to him for the life of B, So that B pay 20 pound to A at Easter following; these are not conditionall, but limited to estates. So if A grant lands to B To have and to hold to him for so long as he shall keep himself a widower, or dum sola fuit, or durante viduitate, if the grantee be a widow, these are good limited estates, but these words doe not make the estates to be conditionall.

If the words in the close or conclusion of a condition bee thus, Dier 125. Plow. 159. Perk. Sect. 740. That the land shall return to the feoffor, &c. or that hee shall take it again and turn it to his own profit, or that the land shall revert, or that the feoffor shall recipere the land; these are either of them good words in a condition to give a reentry, as good as the word [reenter] and by these words the estate will bee made conditionall.

The tenant by the curtesie, the tenant in taile after the possibility Co super Lit. 233, 234. Co. 8. 44. of issue extinct, the tenant in dower, the tenant for life, the tenant 6. What shall bee said a condition in law. And when an estate shall be subject to such a condition. for yeares, by Statute, or Elegit, Gardian, &c. doe hold their estates subject to a condition in law, so that if either of them alien his land in fee, or claim a greater estate in a court of record then his own, he doth forfeit his estate, and he in remainder or reversion [Page 126] may enter, and if such a tenant doe waste, hee in reversion shall recover the place wasted. The tenant in feesimple doth hold his estate subject to a condition in law, so that if hee alien his land in Mortmain, he doth forfeit it, and the Lord may enter upon him. So also he that doth take land in exchange doth hold it under a condition in law, viz. that if the land he give in exchange for that land be recovered from him that hath it, that he shall enter upon his own land again. Also every officer that hath to doe in the administration of Justice, all Keepers of Parks, Stewards, Beadles, Bailiffes, and such like, hold their offices under a condition in law; so that if they doe not duly execute it, and doe all that thereunto doth appertain, they may forfeit them, and the grantor may put them out. In quo quis delinquit in eo est de jure puniendus.

To every good condition is required an externall form. i. words 7. What shall bee said a good condition in deed or limitation in his originall creation. And what not. 1. For the manner, and frame, and order of making of it. to declare an intent in the party to have the estate conditionall, as in the cases before. And an internall form. i. such matter as whereof a condition may be made.

As to things executed, the condition must be made and annexed Perk. Sect. 717. Co. 1. 113. Plow. 133. Co. super Litt. 146 217. Co. 2. 7 [...] to the estate at the time of the making of it; but as to things executory, it may be made afterwards. And if the condition be made in another deed, and not the same deed wherein the estate is made, if it bee delivered at the same time it is as good as if it were contained in the same deed. And therefore if a man make a feoffment, lease, or the like, by one deed absolute, and at the same time make another deed of defeasance or condition, and deliver both together, this is a good condition, and will make the estate conditionall. But if the defeasance be sealed and delivered before, or after the deed, contra. And therefore if one make an absolute feoffement in fee, and before or after the sealing or delivery of that deed the feoffor declare himself by deed: or the feoffor and feoffee agree by deed that the estate made before, or to be made after, shall be conditionall, yet this is not conditionall. And yet if an Annuity be granted absolutely by one deed, and after the grantee grant to the grantor, that if the grantor doe such a thing, the Annuity shall cease: in this case the Annuity is conditionall.

A condition may be annexed to an estate by way of use, as if a Co. 146. Hil. 40. Jac. B. R. Warners case. Co 1. 112. Albanies case. feoffment be made to A, to the use of B, and his heires, on condition that B shall pay to the feoffor twenty pound such a day; this is a good condition. So if one covenant to stand seised of lands to the use of B and his heirs, on condition that if he pay him tenne pound, the use shall be void, or the like. Also a condition may be Dier 1 [...]6, 348. annexed to an estate created by Will, as if one devise land to I S for his life, Provided that he pay ten pound yearly to I D; this is a good condition. Whereof see in Testament.

A rent, or any such like thing may be granted on condition, that Co. 8. 17. 24 [...]d. 3. 29. [Page 127] if such a thing bee or bee not done, the rent shall cease for a time, and then revive again, and this condition is good. But in case of land it is otherwise, for that cannot bee granted after this manner. Also a condition to make an estate void for a part of the time is not good. And therefore if a feoffment bee on condition, that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6▪ such a contingent the feoffor shall enter and have the land for a time, or the estate shall be void for a part of the time; or make a lease for ten years, provided that upon such a contingent it shall be void for five years; these conditions are not good. And yet if a feoffment bee made of two acres, provided that upon such a contingent the estate shall bee void as to one acre onely; this is a good condition.

A condition that a stranger, or the heir of the feoffor shall doe Co. super Litt. 214. Doct. & Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good, as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next; or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee, that the feoffor and his heirs shall reenter. But a condition to give a stranger a reentry is void so farre forth. And therefore if an estate bee made upon condition, that upon such a contingent a stranger shall enter, or the estate shall cease, and another shall have it; howsoever this may be so drawne, as it may be a good condition to give him his heirs &c. that doth make the estate an entry, yet it cannot be good to give the estate or the entry to the stranger. So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter; this is not good to give an entry to the stranger, but it is good to give the feoffor a reentry. And yet by will a man may devise a terme after this manner.

If a man enfeoffe another, upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings, &c. and if hee faile of payment thereof, that the feoffor shall reenter; albeit this as a reservation of rent is meerely void, and the condition that doth call it a rent, is meerly mistaken, yet the condition is good, and ut res valeat the words shall be taken contrary to their proper sense.

If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound, or goe to Rome before such a day &c. that then the feoffee shall pay to me ten pound &c. this is a good condition.

If a feoffment be made to one and his heirs, on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound, hee shall have the fee of land; this is not a good condition. But if he say further, And if he fail to pay that, the feoffor shall reenter, this is good.

If a gift in tail be made to a man and the heirs of his body, and Co. super Litt. 224. if he die without heirs of his body, that then the donor and his heirs shall reenter; this is a void condition, for when the issues fail, the estate is at an end.

[Page 128]

Conditions that are so penned, as they are insensible and altogether Muddy & Gardners case. Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void: as if one make a lease on condition that if the rent be behinde to restrain, and if there bee not sufficient, the ground to enter into the premisses; this condition is void for insensibility, and the estate is absolute. Et sic de similibus.

A condition to enlarge or encrease an estate may be good, as if Co. 8. 75. Plow. 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow. 135. 10 Ass. pl. 15. Perk. Sect. 745. 707. Plow. 25. Litt. Sect. 707. 350. Plow. 272▪ 482, 483. 4 H. 7. 4. See more in the Lord Staffords case, Co. 8. 73. To enlarge an estate. a gift be made in tail, or a lease be made for life or years, on condition that if such an act be done or not done, the lessee shall have the land to him and his heirs, as if one make a lease for life to one, and if the lessor die without heir of his body, then he doth grant the land to the lessee and his heirs for ever. Or if land be granted to a man for 5 years, on condition that if the grantee pay to the grantor within the two first years ten pound, then that he shall have the [...]eesimple, otherwise that he shall have the land but for five years, and livery of seisin be made according to the deed; this is a good condition, and by this upon the performance of the condition the feesimple will passe. So if one grant land for five years rendring rent, and that if the lessee will hold it over to him and his heirs, that he shall pay twenty pound rent; this is a good condition, and if be pay the rent, he shall have the feesimple. So if a man make a lease for years, and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term, he shall have the feesimple of the land, and deliver both these deeds at one time, and give livery of seisin accordingly; this is a good condition. So if a lease for life be made upon condition, that if the lessor or his heirs pay to B or his heirs, ten pound at a certain day, that then the lessor may reenter, and if he doe not pay it at that time, and the lessee pay to the lessor or his heirs ten pound at a certain day, after the former day, that then the lessee shall have the land to him and his heirs for ever; this is a good condition. But in all cases where these kind of conditions are good to make the increased estate good, there must be these things in the case. 1. There must be a precedent particular estate as an estate in tail for life, or years, for a foundation to erect the subsequent estate upon, and that first estate also must be certain and irrevocable, not upon contingency, or with power of revocation. 2. The privity must remain untill the time of the performance of the condition, for if the donee or lessee doe grant away the first estate, the condition cannot afterwards be performed to effect and produce the encreasing estate. 3. The subsequent estate must vest [...]o instanti, when the contingency upon which the condition depende [...]h, shall happen or never. 4. The first and second estate must take effect by one and the same deed, or else by two deeds delivered at the same time, for quae incontinenti fiunt i [...] esse videntur. 5. The condition upon which the increase is, must [Page 129] be possible and lawfull, for upon an impossible condition it cannot, and upon an unlawfull condition it shall not increase.

If one make a lease for life, provided that if the lessee die within Co. 1. 155. Dier 150. sixty years, that his executors shall have the land for so many of the sixty years as shall be to come at the time of his death; this is no good condition to make the estate to increase, but it may be a Covenant. And if a lease for years be made, on condition that Covenant. Co. 1. 84. if the lessor sell the reversion of the same land, the lessee shall have the fee of it; this is no good condition to increase the estate. And a possibility cannot decrease upon a possibility, as a lease for years Co. 8. 75. to a lease for life by one contingent, & the lease for life to a feesimple by another. And if a lease be made to a man and a woman for Co. super Litt. 218. their lives, on condition that which of them two shall first mary that one shall have the fee and they intermary; in this case neither of them shall have the fee for incertainty.

If a man make a lease for life, and adde this condition, that if To [...]bridge an estate. Co. super Litt. 218. 50 Ed. 3. 27. the lessee within one year doe not pay twenty shillings, that he shall have but a term of two years, and he doe not pay the 20 s. by this his lease for life is gone, and he hath now but a lease for two years.

If a lease be made, on condition that if a stranger dislike it, or be 2. For the matter & substance of it. 1 H. 8. 13. discontented with it, that the lease shall be void; this is a good condition.

If a lease be made, on condition that if the lessee be outlawed, the Hil. 6. Jac. B. R. Curia. lease shall be void; it seems this is a good condition.

If a feoffment be made, on condition that if the feoffee commit Pre [...]og [...]ive. Trin. 3 E. 6. per Curiam. treason, that the feoffor shall reenter; in this case the condition is vain, for if the feoffor enter, his entry is not lawfull, for the King is intitled, and his title shall be preferred.

No condition or limitation, be it by act executed, limitation of a Testament. Co. 1. 83. 6. 43. Co. 9. 128. use, or by devise, or last Will, that doth contain in it matter repugnant, and tending to the utter subversion of the estate, or matter Use. that is against law, or matter that is impossible to be done is good. And therefore in all such cases if the condition be subsequent, the estate is absolute, and the condition void: And if the condition bee to goe before the estate, the estate and the condition both are void.

If a feoffment or other conveyance be made of land, or a grant of Repugnant conditions. To restrain Alienation, Co. super Litt. 223. rent &c. in feesimple by deed or will, upon condition that the feoffee or grantee shall not alien to certain persons, as to I S, or to I S and W S; this is a good condition. So if one make a feoffment in fee of land, on condition that the feoffee shall not alien it in Mortmain; this is a good condition. So if A be seised in fee of black acre, and B doth infeoffe A of white acre in fee, on condition that he shall not alien black acre; this is a good condition. But if the condition be that the feoffee or grantee shall not alien the thing granted to any person whatsoever, or that if he doe alien to any person, that he shall pay a fine to the feoffor; these conditions are void in [Page 130] the case of a common person as repugnant to the estate. But in case of the King, such conditions are good. And in the cases of a common P [...]erogative. person also the alienation is good until it be avoided by the feoffor. And in Pasc. 19 Jac. B. R. it was held by Just. Dodridge and Chamberlain, that if a feoffment be on condition that if the feoffee alien, he Bragge and Tanners case. shall pay 10 l. to the feoffor; that this is a good condition: but Ch. Just. and Just. Haughton held the contrary, for then this shal be a circumvention of the law. If a gift had been made to an Abbot, & his successors, on conditiō not to alien, this had been a good condition. Doct. & St. 124.

If one make a feoffment of land to an infant, on condition hee shall not alien to any person; this is a good condition during the Co. super Litt. 224. 10 H. 7. 11. 13 H. 7. 23. Co. 10. 30. Perk. Sect. 739. 21 H. 6. 33. minority of the infant, but not afterwards. In like manner as if one make a feoffment to a husband and wife, on condition they shall not alien; this condition to some intent is good, i. to restrain alienation by feoffment or deed, and to some intent repugnant and void, i. to restrain alienation by fine, for that is lawfull. So if a gift be made in tail, on condition that the tenant in tail may alien for the profit of his issues; this is a good condition. And so if land be given in tail, upon condition that the tenant in tail or his heirs shall not alien in feesimple, feetail, nor for the term of any others life, but for their own lives; this condition is good. But if lands be given in tail on condition, that the tenant in tail, or his heirs in tail shall not suffer a common recovery, levy a fine with Proclamations according to the Statutes of 4 H. 7. and 32 H. 8. to bar the issues, or on condition that he shall not make copyhold estates of copyhold land, according to the custome of the place, or make leases according to the Statute of 32 H. 8. ca. 28. these conditions are held to be repugnant, and for that cause void. And yet see, for the last of these cases the opinion in Co. super Litt. 223. to be contrary, and that a condition to restrain the making of such leases is good; for this power is not incident Dier 48. Co. 6. 43. to the estate, but given to him collaterally by the Statute, and Quilibet potest renunciare juri pro seintroducto. But tota curia in Mary Portingtons case is against him. If a man make a gift in tail to A, the remainder to him and his heirs, on condition that he shall not Co. super Litt. idem Dier 227. alien; this condition as to the estate tail is good, and void as to the other. And therefore if an alienation be, he shall defeat it onely as to the estate tail. And if a man make a gift in tail, on condition that Co. 6. 43. the donee or his heirs shall not alien; this is a good condition to some intents, and void to other, and therefore if he make a feoffment in fee, or any other estate by which the reversion is discontinued tortiously, the donor shall enter, otherwise if he suffer a common recovery. And a gift in tail, on condition that the tenant in tail shall not make a lease for his own life, is not a good condition, by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land, and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life, on condition that the lessee shall not alien the land leased, or any part thereof during the term, or on [Page 131] condition that he shall not alien it, or any part of it, during the term without licence of the lessor; these are good conditions. So if one be seised in fee of a Manor, and he make a lease of years of it to I S, on condition that he shall not make voluntary estates by copy; this is a good condition. But in a feoffment in fee such a condition is repugnant and void. And if one be possessed of a lease for years, or of a house, or of any other chattel reall or personall, and he give or sell all his interest therein, upon condition that the donee or vendee shall not alien the same; this condition is void for repugnancy, and the gift or sale is absolute.

If one make a feoffment of land in fee, on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption; it seems this is a good condition and not repugnant.

If I grant land to another for life, if it shall please me so long to Dier 94. suffer him; it seems this condition is repugnant and void.

If a feoffment be made of land in fee, on condition that the feoffee Co. 10. 39. super Litt. 206. Plow. 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land, or shall not take the profits of the land, or on condition that the heire of the feoffee shall not inherit the land, or condition that the feoffee shall not doe wast, or condition that his wife shall not be endowed; in all these and the like cases the condition is void as repugnant to the estate.

If a gift in tail be made, on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land, or on condition that if the donee die, his estate shall go unto another, or on condition that their wives shall not be endowed, or on condition that they shall not do wast, or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail; all these conditions are repugnant and void.

If lands be given or granted to two and their heirs, on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition, or on condition that the survivor shall not have the whole albeit there be no severance; these conditions are repugnant and void.

If one make a lease for life, on condition that the lessee shall not Perk. [...]ol. 141. doe fealty; this condition is not good.

If lands be given to one and the heirs males of his body, provided Co. super Litt. 204. that if he die without heirs females of his body, that the donor shall reenter; this condition is repugnant and void.

If one have land in possession, or reversion, and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it, on condition that the grant shall not charge the person of the grantor; this is a good condition, and not repugnant. But if a man grant a bare annuity, or grant a rent charge out of another mans land with such a condition, or if one grant a rent charge, on condition that the grantee shall not distrain, nor charge the person of the grantor, or if one grant a rent out of land, on condition that the land shall not be charged with it; all these conditions are repugnant and void. So if two grant a rent charge out of land, provided [Page 132] that it shall not extend to one of them; this condition is repugnant and void.

If a man seised in fee of land make a lease for years rendring rent, Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land, on condition that he shall not distrain for his rent in the former lease made to this lessee; this is a good condition, and not repugnant.

If one make a feoffment in fee, or lease for life, with warranty, on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant, nor recover in value, or if the lease be made without impeachment of wast, on condition that if the lessee doe wast the lessor shall reenter; these are good conditions, and not repugnant.

All conditions annexed to estates being compulsory, to compell a Co. super Litt. 223, 224. 207. Perk. Sect. 722, 723. Conditions against Law. man to doe any thing that is in its nature good, or indifferent, or being restrictive, to restrain or forbid the doing of any thing which in its nature is malum in se, as to kill a man, or the like, or malum prohibitum, being a thing forbidden by any Statute, or the like; all such conditions are good, and may stand with the estates. But if the matter of the condition tend to provoke or further the doing of some unlawful act, or to restrain or forbid a man the doing of his duty; the condition for the most part is void. And therefore if lands be given or granted to a man, upon condition that he shal kil a man, or upon condition that he shal burn his neighbours house, or upon condition that he shall forswear himself, or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe, or that if hee doe not these things, the grant shall bee void; this condition is void. Or if lands be given or granted to an officer, upon condition that he shall not duly execute his office; this condition is against law, and void [...] Et sic de similibus. So if a gift be made in tail, upon condition that the donee shall discontinue, or one give or grant Perk. Sect. 727. land, on condition that the grantee shall be a forestaller against the Statutes; these and such like conditions are void. And hereupon it Co. 1. 24. 6. 43. is, that conditions annexed to land, that the profits thereof shall be employed to superstitious uses are void. And hence also it is that Dier 343. Co. super Litt. 206. such conditions as are against the liberty of law, as that a man shall not mary, or the like, are void. And hence also such as are against the publique good. And therefore it seems if one grant his land to I S, Co. 11. 53. 7 Ed. 3. 65. on condition that he (being a husbandman) shall not sow his errable land; this condition is void. And in all these cases if the condition Perk. Sect. 722. 725. be subsequent to the estate, the condition only is void, and the estate good and absolute; if the condition be precedent, the condition and estate both are void, for an estate can neither commence nor encrease upon an unlawfull condition.

Co. 6. 41. super Litt. 207. 219. 206. Dier 252. 262. Plow. 152. Perk. Sect. 935. 729. Plow. 272. 286. Co. 1. 84. super Litt. 207. All conditions annexed to estates that contain in them matter Conditions impossible. at the time of making of them impossible to be done are void. And therefore if one give or grant land on condition, that a man shall go to Rome in three days, or condition that a man shal infeoffe [Page 133] a corporation, when there is none such, or if one give lands in taile, on condition that the estate shall cease, as if the tenant in tail bee dead, or if one grant lands, on condition that a man shall infeoffe his wife; all these and such like conditions are void. And in these cases also if the condition be subsequent, the condition is void only, and the estate is absolute, and if the condition bee precedent, the condition and the estate both are void, for an estate can neither commence nor increase upon an impossible condition. And if the thing to be done by the condition be possible at the time of the making of the condition, and doe afterwards by the act of God become impossible; the condition is become void, and the estate absolute, as if a feoffment be made, on condition that the feoffee shall before Easter following enfeoffe the feoffor, and the feoffee die before the day, or on condition that the feoffee shal appear in such a Court before or at Easter, and he die before the time; in these cases the condition is gone, and the estate is absolute.

And the same Law is for the most part of Limitations, if they bee Limitation. Co. 6. 41. 1. 84. repugnant, impossible, or against Law, as is before shewed to be of Conditions. See more in the next division following.

It is a generall rule, That such conditions annexed to estates as 8. How a condition in deed or a limitation shall be taken & expounded. And how it must and ought to be performed. 1. In respect of persons. Co. 8. 90. super Litt. 219. 27 H. 8. 14. goe in defeasance, and tend to the destruction of the estate being odious to the Law, are taken strictly, and shall not bee extended beyond their words, unlesse it be in some speciall cases. And therefore if a lease be made, on condition that if such a thing bee not done, the lessor [without any words of heirs, executors &c.] shall reenter and avoid it; in this case regularly the heir, executor &c. shall not take advantage of this condition. So if one make a lease for years of a house, on condition that if the lessor shall be minded to dwell in the house, and shall give notice to the lessee, that hee shall depart; in this case if the lessor die, his heire, executor, &c. shall not have the like advantage and power as the lessor himself, for the condition shall not be extended to them. And hence it is, that if a lease for years be made, on condition that the lessee shall Not to alien. Dier 66. not alien without the licence of the lessor; in this case the restraint shall continue only during the lives of the lessor and lessee and no longer. And yet this rule hath an exception, for if a man mortgage Co. super Litt. 219. his land to W, upon condition that if the mortgagor and I S pay 20 s. such a day to the mortgagee, that then he shall reenter, and the mortgagor die before the day; in this case I S may pay the money To pay mony. and perform the condition. But otherwise it is whiles the mortgagor doth live, for in that time I S alone without him may not tender it, and if he do, this tender is no performance of the condition. And in case where a condition doth tend to create an estate Litt. Sect. 352. Co. super Litt. 219 Co. 8. 60. there it shall have the most favourable exposition that may be, and therefore in that case albeit the words be not satisfied, yet [Page 134] if the intent be satisfied, it sufficeth. And therefore if one make To make an estate. a feoffment in fee, on condition that the feoffee shall make an estate back again in tail to the feoffor and his wife before such a day, and before that day the feoffor die; in this case the condition shall be performed as neer to the intent as may be, and therefore if the condition be, that he shall make the estate to them two Habendum to them and the heirs of their two bodies engendred, the remainder to the right heirs of the feoffor, the estate shall be made to the wife for life without impeachment of wast, the remainder to the heirs of the body of the husband begotten on the wife. And if A enfeoffe B on condition that B shall make an estate in frankmariage to C with such a one the daughter of the feoffor; in this case albeit an estate in frankmariage may not be made, yet an estate shall be made to them for their lives. Et sic de similibus. Conditio beneficialis quae statim construit benigne secundum verborum intentionem est interpretanda, odiosa autem quae statum destruit stricte secundum verborum proprietatem est accipienda.

In all cases where a time is set for the doing, or performance of Co. super Litt. 209. 208. 219. Co. 2. 79. 6. 31. Litt. 353 [...] Plow. 30. Perk. Sect. 155. 779. 794 787. 793. 789. 788. 38 Ed. 3. 11. Dier 311. 2. In respect of time. the matter contained in the condition, be it to pay money, make an estate, or the like, it must be done at the time agreed upon, and set down in the condition. And in cases where it is to be done before a time certain, it must be done before that time, or else the condition is broken. But in all cases where no time is set for the doing of the thing contained in the condition, be it to pay money, make an estate, or the like, if the act to be done, bee to be done to the party that doth make the estate, or be to be done to him and a stranger, and be such a thing as is for the benefit of him that doth make the estate, and for his benefit only, there regularly the party that is to doe the thing shall have time to doe it during his life, unlesse the party, feoffor, &c. that doth make the first estate, whereunto the condition is annexed, doth hasten the doing thereof by request: for if he request the doing thereof and set no time, it must be done within a convenient time after that request; and if he request and prefixe a time convenient when he doth desire to have it done, it must be done at that time; and in these cases the condition cannot be broken without a request, so long as he to whom the estate upon condition is made be living. And therefore To pay mony. Testament. in this case it is not like to a condition made by a Wil, for if one devise his land to I S, so as he pay the twenty pound to I D, the Testator doth owe him, and no time is set for the payment thereof; in this case he must pay it as soon as it is demanded, or he doth forfeit the land, and the heir may enter. But if the thing to be done, be to be done to a stranger, and be for the profit and benefit of a stranger only: as if a feoffment be made, on condition that the feoffee shall To mary I S. mary the daughter of the feoffor, or on condition that the feoffee [Page 135] shall infeoffe a stranger, and no time is set for the doing hereof; in To infeoffe. these cases the feoffee shall not have time during his life to doe it, but he must do it in a reasonable time, and that without any request at all, or else he doth break the condition. And in some speciall cases when the act to be done is to be done to the party himself, the party shall not have time to doe it during his life, as if one grant land To grant an Advowson or a rent. to I S, on condition that he shall grant an Advowson to the grantor for his life, or on condition that he shall grant a rent charge to the grantor during his life, to be paid at Michaelmas and our Lady day; in these cases the grant of the Advowson must be before the Advowson fall, and the grant of the rent must be before either of the days of payment come, and that without request, else the condition is broken. And if the condition be that if I S do such an Perk. Sect. 9. 798. act, that then the feoffee shall pay ten pound to the feoffor, else To pay mony. that the feoffor shall reenter, and no time is set when the feoffee must pay this ten pound; in this case it seems the payment must be as soon as the same act is done, and that without any request at all. And in case where the feoffee &c. or a stranger be to doe an Co. super Litt. 209. act, and he alone is to doe it, and it doth nothing concern the feoffor &c. as to goe to Rome, or the like, there the feoffee &c. or stranger shall have time during his life to doe the thing, and it cannot be hastned by request.

If lands be granted, on condition that the grantee shall make a To make a lease. Co. super Litt. 220: 222. lease for life of other lands to the grantor, the remainder to a stranger; in this case the feoffee shall have all the time of his life to doe it, if hee be not hastned by request. But if the condition be to make a gift in taile to a stranger, the remainder to the feoffor; in this case it must be done in time convenient without request.

If the King licence his tenant to infeoffe A and B, so as they give the land again to the feoffor, and the heirs males of his body, and he make a feoffment accordingly; in this case it must bee reconveyed before the death of the feoffor, or else the condition is broken.

If A infeoffe B of black acre, on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter; in this case C shall have time to do To infeoffe. this during his life, if B doe not hasten it by request.

If a lessee grant his estate to a stranger, on condition that the To ge [...] the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor, and no time is set when he shall get his good will; it seems in this case he shall have time to get his good will during the terme, and that although he deny it at the first, yet if he grant it afterwards that this is sufficient.

When a time is set in certain for the payment of mony, or the doing of any other thing generally, neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to a [...]end any other time. And if the thing be to be done on a day certaine, but no houre of the day is set down wherein the [Page 136] same shall be done; in this case they must attend such a distance of time before the Sun set, as may be convenient to doe that worke in. And if the condition be to pay money at a place certain, at any To pay money. time during life; in this case the money may not be tendred at any time in the place, in the absence of him that should receive it, but he that is to pay it must give notice to the other party before hand what time he will tender it, that the other may be ready to receive it. Or if at any time the parties hap to meet at the place, a payment or tender then at that place is sufficient. And the same law is for Obligation. the most part in conditions of obligations.

In cases where a place is set down for the doing of the thing contained 3. In respect of place. Co. super Litt. 210, 211. 213. Litt. Sect. 343. 345. Bio. Condition [...]0. in the condition, there it must always be done at that place, unlesse by some agreement made between the parties afterwards another place be appointed, otherwise the condition is not performed, and the parties are not bound to attend in any other place. But in cases where there is no place set down for the doing of the thing contained in the condition, if the thing to be done be a corporall service, as to pay money, or any such like thing, the party that is to doe it must at his perill seek out the person to whom it is to be done, if he be infra regnum Angliae: but if he be not within the kingdome, he is not bound to seek him, and yet the condition is not broken. And if the thing to be done be either locall, i. such a thing as must be done in or at a place certain, as the making of a feoffment of land, payment of rent, or the like; in this case the To pay mony. thing must be done at that very place, and a tender of doing it in that place is a sufficient performance of the condition; as for examples, If a feoffment be made, on condition that the feoffee shall pay to the feoffor twenty pound on Easter day at Dale, and the feoffee tender the twenty pound the same day at Sale: And albeit the feoffor be at Sale, and he tender the twenty pound to his person there the same day, yet this is no performance of the condition. And if a feoffment be made in mortgage, on condition for the payment of money at a day, and no place is set for the payment thereof; in this case the mortgagor must seek the mortgagee and tender it to his person at his perill: and tender of the money upon the land mortgaged, is not a sufficient performance of the condition. And if a feoffment be made, on condition that the feoffee shall infeoffe To infeoffe. the feoffor of white acre in Dale; in this case the feoffment, or the tender of it must be in Dale, and cannot be elsewhere, and a tender of it there is sufficient to perform the condition. So if the condition To acknowledge satisfaction. be, that the feoffee shall in Easter Terme next acknowledge satisfaction upon a Judgement in the Kings Bench; this must be done there, and cannot be done elsewhere. So if a feoffment in fee bee made of white acre, rendring rent to the feoffor and his heirs, on condition that if the rent be not paid, the feoffment to be void, and [Page 137] no place is set for the payment of it; in this case the feoffee is not To pay rent▪ bound to tender his rent any where for the saving of the condition, but upon the land, and a tender there is sufficient. And if a man make a feoffment in fee, without any reservation of rent precedent in the deed, on condition that the feoffee and his heirs shall render a yearly rent of twenty shillings a year to the feoffor and his heirs, and if they fail, that the feoffor shall reenter; in this case also it seems the payment or tender must be upon the land. But if the condition be, that he shall [...]ender twenty shillings a year to a stranger, and his heirs; this is no rent, nor in the nature of a rent, and therefore in this case the feoffee must tender it to the person of the stranger where he can find him at the day, or else hee doth break the condition, and tender upon the ground is not sufficient. But in these cases if the nature of the thing to be done be such as will not admit of such a cariage from place to place to seek out the person of the feoffor &c. there albeit the thing to be done be corporall or transient, and not a locall thing, yet that is to doe it shall not be bound to seek out the person of the other; as for example, If an estate be made, on condition that the grantee shall To deliver wood or corn. deliver twenty quarters of wheat, or twenty load of wood to the grantor at such a time, and no place is set for the doing thereof; in this case the grantee is not bound to cary the same about to seek the feoffor or grantor, as he is bound to cary money, but before the day, the grantee is to know of the grantor where he will appoint to receive it, and there it must be tendred. And the like law is for the most part in conditions of obligations.

It is best therefore in all these cases, and herein he that is to be Obligation. A Caveat. the agent is to take care to have certainty of time and place set down in the condition for the doing of the thing that is to bee done, and the more certain it is, the better it is for him.

If a lease be made, on condition that the lessee shall pay to the Per Just. Bridgeman. lessor all such sums of money as the lessor shall lay out in such a 4. In respect of other matters. To pay mony▪ businesse; in this case the lessor must first tender to the lessee a note of the charges before the lessee is bound to pay, and untill this be done the condition cannot bee broken. And after a note is given also, he shall have some reasonable time to provide the money. And if he tender him a note of more then in truth he doth lay out, the lessee if he know it, may pay so much as is laid out, and he may refuse to pay any more.

If lands be granted, upon condition that A shall make an estate To make an estate. Co. 5. 22. of lands at the charges of B; in this case A must doe the first act, viz. notifie to B what assurance he will make before B is bound to tender the charges.

If a feoffment be made, on condition that the feoffee shall give so To deliver houshold stuffe, or pay money. Pasche 17. Jac. B. R. much houshold stuffe to the feoffor, or so much mony for it as it shal [Page 831] be rated at by two indifferent persons to this end to be chosen; it seems in this case the election of the two men must be by the feoffee: but if the words be by two persons to be indifferently chosen then the election shall be by both parties, for in the first case the word Indifferent doth goe to the praising not to the persons.

If a feoffement be made of a ground, on condition that the feoffee To clense ditches. 27 H. 8. 1. Plow. Colthirsts case. 21. shall [...]ake the ditch [...]s, in this case if the feoffee doe it once it is a sufficient performance of the condition. And yet if a man grant a house for life, on condition that the lessee shall dwell and be resident in the house during the said terme; in this case it is not sufficient To dwell in the house. that he dwell in it once during the terme, but must doe so all the terme or else the condition is broken.

If an annuity be granted of tenne markes per Annum to a man, on Perk. Sect. 804. condition, or till he be promoted to a benefice by the grantor, and it is not said of what value the benefice shall be, in this case it shall be taken for a benefice of as great value, and of as good an estate as To give goods. the Annuity is, otherwise the grantee may refuse it, and yet his Annuity shall continue.

If a feoffment be made on condition that the feoffee shall give all Perk. Sect. 742. his goods si quae fuerint, or give al his Pikes in his pond si quae fuerint; in this case the words shall be taken in the present tense, for the goods and Pikes that are at the time of the grant. But if a feoffement be o [...] condition that the feoffee shall give all his goods in London si quae fuerint, that did belong to I S, in this case the words shall be taken in the preterperfect tense.

If one make a lease of the Manor of Dale (wherein is a wood Haward & Fulchers case. H [...]. 3. Car. B. R. Not to disturb the lessor in taking the wood. called Dale wood) excepting all the woods and underwoods growing in Dale wood and all the great trees growing elsewhere, and this is upon condition that if the lessee shall disturbe the lessor to cut and sell the wood and underwood excepted the lease to be void; in this case it seemes the condition shall extend only to the wood and underwood in Dale wood and not to the trees elsewhere: but if the words of the condition be [shall disturbe &c. to cut &c. the wood and underwood on the premisses] contra.

If one grant land rendring rent at the Feasts of S. Michaell and Dier 142. To pay rent. our Lady day or within a moneth after, on condition that if it be behind after the Feasts and da [...]es limited by the space of eight weekes that the lease shall be void; in this case the eight weekes shall be accounted from the moneth which is the twenty eight day after the Feast.

If the condition be made in the copulative and consist of divers 12 H. 7. 10. Co. super Lit. 225. Perk. Sect. 746. Dier▪ 337. 372▪ parts, every part must be observed or the condition will not be performed. But when it is made in the disjunctive, if any part of it be observed it is a sufficient performance of the condition. And therefore if a feoffement be made, on condition to reinfeoffe and pay [Page 139] twenty pound and the feoffee do reinfeoffe but not pay the twenty pound; in this case the condition is broken. But if the condition be to reinfeoffe or pay twenty pound and the feoffee doe one of them; it is a good performance of the condition. And when it is made in the copulative and disjunctive both, it shall be taken in the disjunctive only, as if a lease be made to A and B his wife, on condition that the said A and B or any child between them shall so long live; this shall be taken in this sense if the husband, wife or child shall so long live, so that the lease shall not be determined by the death of the husband or wife alone. If there be two provisoes in two severall indentures of conveyance of severall Manors to A and B that if the feoffor pay or tender twenty shillings to A and B or the heires of A that the Conveyance shall be void, and A die; in this case tender to B is not sufficient, and it must be made to the heire of A and it must be twenty shillings for every proviso: but otherwise it is of a collaterall act.

If the words of a condition be thus, that upon such a contingent Co. 3. 64. super Lit. 203, 204. Dier 6. 127. 11 H. 7. 21. the party shall enter and retaine the land untill the thing be done &c. in this case and by these words the estate is not determined as it is by these words, [that the estate shall be void, or that the grantor shal r [...]enter, or the like.] And in these words there is a difference also to be observed, for if the words be, that upon such a contingent the estate shall cease and be void, and it be a lease for years to which the condition is annexed, the estate is ipso facto void without entry or claime and can never be affirmed afterwards; but if the words of the close of the condition be, that the feoffor, lessor, &c. shall reenter, without any other words, albeit it be in a lease for years yet the lease is not void untill he hath made an actuall reentry. But in both cases if the estate to be avoided be an estate in [...]ee, or for life, it is only voidable by the breach of the conditi [...], and must be made void by entry or claime, and untill this be [...]one the grantor can make no new estate of the land. But in the first case before the party shall retaine the land and take the profits of it in the nature of a pledge untill the thing be done agreed upon in the condition and then the other party shall have the land againe. See more in the next questions. And in Obligation Numb. 7. Covenant Numb. 6. 9. When and how a Condition or Limitation shall be said to be performed. Or not. 1. When the act is to be done be tween the parties themselves▪ To make an estate.

The words of a condition may be performed and not the intent, Co. 8. 90. Lit. Sect. 352. Co. 3. 64. 282 2 H. 4. 11. and the intent may be performed and not the words; and then for the most part a condition is performed when the intent and meaning of it is observed. And therefore if a feoffement be made, on condition that the feoffee or his heires shall make an estate to the feoffor and his wi [...]e in taile before such a day, and before the day the husband die, and then he make an estate as neere it as he may viz. to the wife for life without impeachment of wast and after to the heires of the body of the husband; this is a good performance [Page 140] of the condition. And if the condition be that the grantee Co. super Lit. 207. shall make a feoffement of land; and he make a lease of the land first, and then a release to the lessee and his heirs; this is tantamount and a good performance of the condition.

If a feoffement be made, on condition that if the feoffor or his Co. super Lit. 222. Perk. Sect. 802, 803. heires pay tenne pound by a day the feoffement to be void, and the To pay money. feoffor before the day doth commit treason and is executed and so dieth without heire, and after before the day the heire is restored, and he at the day doth pay the money; in this case this is a good performance notwithstanding there was once a disability. So as if heretofore one had made a feoffement, on condition to reinfeoffe by a day, and before the day the feoffee had entred into Religion, and then had been dearaigned, and at the day had made the feoffement; this had been a good performance of the condition.

If a feoffement be made, upon condition that if the feoffee shall Co. 5. 96. & super Lit. 208. 207. pay to the feoffor tenne pound such a day, that then he shall have By and to whom money shall be paid upon a cond [...]tion. the land to him and his heirs, otherwise that the feoffor shall reenter, or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day; and before the day the feoffee sell the land; in this case the seller or the buyer either of them may tender the money at the day, and this will be a good performance of the condition, for he that hath interest in the land on the one side, or in the condition as party or privy on the other side may tender and performe the condition to save the estate.

If lands be mortgaged, (or which is all one) if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void, & before the day the mortgagor or feoffor die; in this case the heire or executor of the feoffor, the Ordinary, the Gardian in Chivalry or Socage of the heire of the feoffor, or any other by either of their commandement precedent or assent subsequent may pay this money at the day, and payment or tender of it by either of them at the day is a good performance of the condition. Lit. Bro. Sect. 12▪ 5. And so also it seemes is the law upon a devise of land to I S paying to Testament. I D twenty pound; if I S die his heire or executor may pay the twenty pound, and this is a good performance of the condition. But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound; this will be no good performance of the condition. And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot; the payment or tender by any one in his behalfe shall be a good performance of the condition. And if a feoffement be made, on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void, & no time is set for the payment of this mony, & the feoffor die before any payment or tender made; in this case his heire cannot tender it and so perform the condition.

[Page 141]

If a feoffement be made, on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void, and the feoffor die before the day and I S alone pay it; this is a good performance of the condition.

If a feoffement be made, on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day, and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another; in this case the money may be paid to the feoffee himselfe, or if he be dead to his heires, and this payment is a good performance of the condition. And if the words of the condition be [That if he pay to the feoffee, his heires or assignes &c.] in this case payment to either of them is a good performance of the condition; so as if in this case the feoffee make a feoffement over, it is in the election of the first feoffor to pay the money to the first or second feoffee, and if the first feoffee die, to pay it to his heire or the second feoffee: But payment to an executor or administrator in this case is not a good performance. And yet if the words of the condition be, that if he pay to the feoffee [without words, heires, executors &c.] tenne pound such a day, in this case the payment may be made to the executor or adminstrator of the feoffee after his death, and such a payment is a sufficient performance of the condition: And if the words of the condition be [that if the feoffor pay to the feoffee, his heires, executors or administrators &c.] in this case payment to either of them is a good performance of the condition. But payment to an assignee in this case is not good. And if the words be, that if he pay to the feoffee and his heires &c. in this case payment to his executors or to his assignes is not a good performance of the condition. So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued.

If a feoffement be made, on condition that if the feoffor shall To tender money. Pas. 9 Jac. 5. Sir Richard Lees case. tender twelve pence to the feoffee such a day the feoffement to be void▪ and afterwards the feoffee is disseised of the land, and after the feoffor doth tender the twelve pence to the feoffee at the day; this is a good performance of the condition.

If a feoffement be made to two men, on condition that they To reinfeoffe. shall reinfeoffee the feoffor, or make a lease to him by a day, and before Dier 69. 41 E. 3. 25. the day one of them die, and the survivor doth reinfeoffe, or make the lease; this is a good performance of the condition. And so also it seemes the law is if both the feoffees be living, for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it.

If a feoffement be made on condition that the feoffee shall infeoffe Plow. 23. 3 H. 7. 4. 21 H. 6. 10▪ the feoffor of the Manor of Dale by such a time, and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger, and then at the time appointed makes a feoffment [Page 241] of the Manor according to the condition; in this case this is a good performance of the condition. But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor, and then doth make a feoffement of the Manor according to the condition; this is no good performance of the condition. And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it, and some of them only doe grant this Annuity; this is no good performance of the condition.

If there be a feoffement made, upon condition that the feoffee 44 E. 3. 22. To make a lease. shall make a lease of land to the feoffor for life, the remainder to I S in fee, and the feoffee make a lease to the feoffor for life, and after by another deed doth grant the reversion to I S, this is a good performance of the condition.

If a feoffment be made upon condition that the feoffee shall purchase Perk. Sect. 807, 808. 21 H. 6. 28. Dier. 15. lands or tenements to the value of twenty pound per Annum, To purchase lands. and he purchase a rent common, or any such like thing to that value; this is a good performance of the condition. But if in this case the feoffee and another purchase so much land together jointly; this is no good performance of the condition. So if the feoffee alone purchase lands to the value of twenty pound per Annum, and there is a rent issuing of it which must be deducted; this is no good performance. And yet in these cases, if the stranger Jointenant release to the feoffee all his right in the land, or the grantee of the rent release to him the rent before the time of the performing of the condition the condition is well performed in both cases. Tantum valet terra quantum vendi potest. And if one make a feoffement Perk. Sect. 812. in fee, on condition that if the feoffee purchase land to the value of twenty shillings, the feoffement shall be void, and after the feoffee disseise another man of land to that value: it is said that by this the condition is performed, Sed quere. And that if he recover so much land in value in an action: that this is no performance of the condition. Sed quere. For this seemes to me a better performance Payment. of the condition then the former. To pay mony. Tender.

If lands be granted, on condition to pay money, and the money Dier 181. Lit. Sect. 334, 335. 338. Co. super Lit. 209. is tendred according to the condition, but either no body is ready to receive it, or it is refused: this is a good performance of the condition. And after a man hath once refused the money so tendred to him according to the condition, he hath no remedy in law [...]o recover it except it be money lent upon a mortgage. Termes of the law. tit. coine. And if the payment be made part of it with counterfeit Coine, and the party accept it and put it up, this is a good payment and consequently a good performance of the condition. Co. super Lit. 212. Fitz. Barre 343. And if at the day of payment the parties doe account together, and he to whom the money is to be paid being indebted to the other▪ that debt by agreement Acceptance. [Page 143] is allowed, and the residue is paid and accepted: this is a good performance of the condition. Co. super Lit. 212. So if the party that is to receive it accept and take new security by bond or statute for the money: this is a good performance of the condition. Dier 45. Co. 5. 96. And so in most cases, when by a condition a thing is to be done one way, and to be done to the party to the condition himselfe and not to a stranger, and he doth accept it another way: this is a good performance of the condition. Volēti non fit injuria. But if the thing to be done be to be to a stranger, & one that is no party to the condition, and it be done in any other manner, and he accept thereof: this is no performance of the condition. And so also if the time of doing the thing be past, as if one make a feoffement to me, on condition that if he pay me tenne pound such a day the feoffement shall be Perk. Sect. 392. void, and he doth not pay me at the day, but doth die, and after by agreement between his heire and me me doth pay me the tenne pound, and I receive and accept it, and thereupon I suffer him to enter and hold the land: in this case the condition is not performed but I may enter upon him and out him notwithstanding.

If the mortgagor pay the money according to the condition, and Adjudge Mich. 40. & 41 Eliz. B. R Powel. versus Bartholomew. after the mortgagee deliver it to the mortgagor as his own money, the condition is performed and the mortgage discharged notwithstanding.

If a feoffement be made to I S, on condition that if the feoffor pay to the executors or administrators of I S tenne pound the Co. 5. 96. super Lit. 209. feoffement shall be void, and I S die, and the tenne pound is paid to the executors of I S according to the condition, but it is covinou [...]y done. i. there is a private agreement that the feoffor shall have all, or part of his money againe: this payment in this case is no good performance of the condition, but that payment that must be a performance of a condition in this case to fetch lands out of the hands of an heire must be reall, full and effectuall.

If a lease be made, on condition that the lessee shall get the To get the good will of I S. 14 H. 8. 17. good will of I S and the lessor doth come to I S first and aske his good will, and he denie it him, and after when the lessee doth aske it he doth grant it him; in this case the condition is performed. So if the condition be, that he shall get his good will by such a day, and at the first being desired he denieth it, but afterwards and before the day he doth grant it. And yet if no day be set, and he desire his good will and I S denieth it and afterwards he doth get his good will; it seemes this is no performance of the condition.

If there be two things in the copulative to be done by the condition, Perk. Sect. 746▪ See before. both must be done, otherwise the condition will not be performed.

If a feoffement be made, on condition that if the feoffor and I S Co. super Lit. 219. [Page 144] pay tenne pound at Michaelmas the feoffement shall be void, 2. When the act is to be done by a stranger, to pay money. 3. When the act is to be done to a stranger. To make an estate. and before the day the feoffor die, and I S pay the money; this is a good performance of the condition. But if the feoffor be living contra.

If a feoffement be made on condition to make an estate to a Plow. 133. Co. 3. 64. stranger by a day, and before the day he die; in this case if an estate be made as neere the condition as may be it is sufficient.

Tender. If a feoffement be made to I S on condition that he shall infeoffe Co. super Lit. 209. 19 H. 6. 67. Perk. Sect. 815, 816. 2 E. 4. 2. 19 H. 6. 67. I D and his heires; and I S doth tender the feoffement to I D and he doth refuse to take it; this is no performance of the condition in this case. But if it be to be done to the feoffor himselfe contra. And so also it is, if the condition be to make an estate taile, or any lesser estate to a stranger, and he tender it and the stranger refuse it; this is no good performance of the condition. And if a feoffement be made, on condition to reinfeoffe the feoffor and his wife in taile the remainder to W in fee, and he tender it to the wife only and not to him in remainder; this is no good performance of the condition.

And the same law for the most part is in conditions of obligations. See more in Obligations at Numb. 9.

If a feoffement be made, on condition that the feoffee shall not Co. super Lit. 222: Dier 45, 46. 10. What act shall be a breach of a Condition in deed. And when a condition in deed shall be said to be broken. Or not. infeoffe I S of the land, and the feoffee doth make a feoffment to I S and I D; this is a breach of the condition. And so also it is if the feoffee make a feoffement to I D to the intent that he shall alien to I S. Quando aliquid prohibetur fieri directo prohibetur & per obliquum. And yet if the feoffee in the case before alien to I D and after he doth alien to I S, this is no breach of the condition. And if the condition be, that the feoffee shall not infeoffe I S and he die, Not to alien. and his heire enfeoffe I S, this is no breach of the condition.

If a lease for years be made, on condition that the lessee shall not Dier 45. 65. assigne, or alien, the term, or the land during his life without the licence of the lessor, and the lessee doth give it by his will without licence; this is a breach of the condition and forfeiture of the estate. But if he make an executor of his will only, this is no breach. And if the condition be that the lessee shall not alien, and he die, and his executor alien, this is no breach of the condition. And if the condition Per 3. Justices B. R. 3 Jac. be that the lessee shall not alien but to his children, and the lessee by will devise it to his executors; it seemes this is a breach of the condition. So if he devise that A his sonne shall have his term after his wife, and doth make A his sonne his executor; it seemes this is a breach of the condition. But if he doe not make A his executor contra. And in cases of devise albeit the executors doe not assent yet the condition is broken, as in case where a reversion is granted on condition that the grantee shall not alien it, and he doth alien it, but no atturnement is to this grant; yet it seemes this [Page 145] is a breach of the condition. And if a lease for years be made, on Dier 6. condition that the lessee or his assignes shall not alien, and the lessee doth make his wife his Executrix, and shee doth take another husband, and he doth alien it; it seemes this is a breach of the condition and a forfeiture of the estate. But if a lease be made on condition that the lessee shall not alien without the licence of the lessor, and after the lessor die, and the lessee assigne, or the lessee die and his executors or administrators assigne; this is no breach of the condition in either of these cases. So if a lease be made, on condition that the lessee shall not alien the terme during his life, and he makes an executor, but doth not devise it to him; this is no breach of the condition. And if a lease be Dier 152. Co. 4. 120. made, on condition that the lessee his executors or assignes shall not alien the terme to any persons without the licence of the lessor but to the wife or one of the children of the lessee, and the lessee die, and his executors alien to one of the children of the lessee and he alien to a stranger without licence; this is no breach of the condition. And if one make a lease of a house and Hil. 38. El. Marsh versus Curtis. land, on condition that the lessee shall not parcell out the land or any part of it from the house, and the lessee doth grant all his terme in the house and part of the land, and doth keepe the rest, and after doth lease that part also; this is a breach of the condition.

If a lease be made of a house, on condition that the lessee shall Not to suffer a woman with child in the house. Co. 8. 92. not suffer any woman great with child to harbour or lodge in the house six daies after notice given by the lessor, and the lessee doe suffer any such person after notice given, albeit the lessor consent to it; yet the condition is broken. But if the lessor doe nolens volens keep such a woman there against the mind of the lessee; this is no breach of the condition.

If a lease be made, on condition that if any wast be done Not to doe wast. 12 H. 4, 5. Bro. Condition. 40. the lessor shall reenter; in this case if the house fall by a tempest, this is no breach of the condition, for this is not wast: but if it be uncovered by tempest, and the tenant hath a convenient time to repair it, and doth not, but doth suffer the timber to perish for want of covering; this is a breach of the condition and the lessor may enter and put out the lessee. Per. Dier and Walsh Justices. Dier 281. And if a lease be made, on condition that that lessee shall not doe wast, and he suffer wast to be made in decay of the houses &c. it seemes the condition is broken. Sed quere.

If a lease be made, on condition that if the lessee be minded Not to sell till the lessor refuse it to any other. Dier 13. to sell his estate the lessor shall have the first offer thereof, giving as much as another will give; in this case if the lessee doth not give notice when he is minded to sell it he doth breake the condition: but if when he is minded to sell he doth tell the lessor [Page 146] of his purpose and what he is offered for it, and the lessor doth either say he will not have it, or that he will not give so much for it, or doth not accept it, but doth delay &c. and then the lessee doth sell it to another: this is no breach of the condition, neither is he bound to waite upon him in this case.

If a feoffement be made, on condition that the feoffee shall Co. super Lit. 221, 222. Co. 2. 58. Perk. Sect. 80. 803. Lit. Sect. 355. Co. super Lit. 206. make a feoffement in fee, gift in taile, lease for life, or years To make an estate. of the land to the feoffor, or to a stranger by a day; and before the day the feoffee doth disable himselfe to doe it, either by making some estate of the same thing to some other person in taile, for life, years, in present or future, or for one yeare, or by taking a wife whereby shee may be intitled to dower, or by suffering a recovery of the land, or by granting of any rent, Common, or the like, or by entring into any Statute &c. or by suffering any Judgement to be had against him, or by doing any other such like act, whereby he cannot convey the land according to the condition in the same plight, quality and freedome it was at the time of the conveyance made: in either of these cases the condition is ipso facto broken. And albeit the land be afterward discharged and the party againe enabled before the day to performe the condition, yet this will not salve the breach. And so also it is of a limitation. But when the condition is to be performed of the part of the feoffor or grantor, there disability before the time will not hurt so as he be againe enabled at the time. And so also it is when the condition is to be performed of the part of the feoffee, and there is no certaine day set for the performance of the thing, for in this case albeit he be once disabled, yet if he be afterwards againe enabled, and doe it within the time that the law doth give him to do it; in this case the condition is not broken. And so also it is, if the feoffee be disseised, and during the disseisin, he doe any such act as before; in this case before his entry this is no breach of the condition, for till then the charge doth not binde the land. And so likewise it is when the disability doth proceed from another cause, as where one doth make a feoffement on condition that the feoffee, shall reinfeoffe before such a day, and before the day the feoffor disseise the feoffee and keepe him out till the day be past, or one doth make a feoffement, on condition the feoffee shall marry B before such a day, and before the day the feoffor himselfe doth marry her so that the feoffee cannot performe the condition; in these cases the condition is not broken.

If one make an estate of lands (held in Capite) on condition Trin. 13 Jac. Slade versus Tompson. B. R. To imploy the profits to charitable uses. that he to whom it is made shall imploy the profits thereof to divers charitable uses, and he die his heire within age, by reason whereof the King hath the land during the minority of the [Page 147] heire, so that the profits cannot be employed; this is no breach of the condition.

If one make a feoffement of land, on condition to reinfeoffe To reinfeoffe. Co. 1. in Porters case. in convenient time, and the feoffee doth not so but doth make a lease to another; this is a double breach of the condition. And the same Law is of a Devise by will in this manner.

If a feoffement be made, upon condition that the feoffee shall To make an estate. Perk. Sect. 796. Co. 8. 90: See the parable Mat. 21. 28. make some estate to the feoffor, or some other by a day, and the feoffee before the day say to him to whom the estate is to be made, that he will never make the estate, notwithstanding he doth make the estate before the day according to the condition; in this case it is said the condition is broken. Sed quere of this, for it seemes if he really deny it before, and actually performe it at the day; that this is a good performance of the condition. As if a lease be made of a house, on condition that the lessee shall not disturbe the lessor in the taking a way of his goods out of the house, and To suffer one to take his goods. when the party doth come or send to fetch them the lessee doth only forbid them; this in this case is no breach of the condition, and it was agreed in this case that words without some deeds, as shutting the dore against them, forcible resistance, or laying of hands upon them, or the like are no breach of such a condition. And if a lease be made, on condition that the lessor shall be 3 H. 4. 8. foure times a yeare in the house demised without being ousted by the lessee and the lessee seeing him comming doth shut the dores To suffer one to come into a house. or windowes against him; this hath been thought to be no breach of this condition.

If a lease be made, on condition that the lessee shall pay yearly Dier 33. To pay a yearly rent or sum. to the lessor during the terme tenne pound; in this case if he faile of payment once, the condition is broken and estate forfeit. So if one make a feoffement in fee of land, on condition to pay tenne pound yearly to I S; if he faile once the condition is broken.

If a lease be made of a Manor in which are divers Copyholders, Not to molest Copiholders. Penner versus Glover 37 & 38 El. Mich. B. R. per curiam. on condition that the lessee shall not molest, vex, or put out any Copiholder paying his duties and services, in this case if the lessee enter upon, and put out any one Copiholder, this is a breach of the condition. But if he enter vi & armis upon a Copiholders tenements, and there beate him only, or the like: this is no breach of the condition.

If there be a condition to pay rent, and the lessee let part of To pay rent. Crompt. Jur. 64, 65. the land to other undertenants, or let all the land to another for part of the time, and he undertake the rent still, and faile of payment: in this case the condition is broken and estate forfeit. But if there be any covin and practise in the case between the first lessor and the lessee, the undertenants may perhaps have relief in equity. Equity.

If one make a lease for years of land, and then also make a feoffement Co. 8. 90. in fee of the lands on condition that if the lessee be disturbed Not to disturb. [Page 148] bed in his terme that he shall have the fee simple, and he is disturbed by the feoffor or by his meanes; in this case the condition is broken and the lessee shall have the fee simple. But if the disturbance be by a stranger and not by the feoffor or by his meanes or consent; this is no breach of the condition.

If a lease be made, on condition that the lessee shall not be out-lawed, Not to be outlawed. Per 2. Justices. H. 7 Jac. B. R. and he is outlawed without proclamation; it seemes this is no breach of the condition, because the outlawry is not good.

If a condition possible at the time of creation become after impossible Lit. Sect. 352. Co. 2. 59. in part by the act of God, and the party doe not performe that which is possible, the condition is broken.

If a man make a lease for years on condition, and the lessee doth Co. 8. 92. not know of it, and after the lessor doth by will give the land to the lessee without condition, and the lessee doth such an act as is a breach of the condition; in this case the condition is not broken, for the lessee must have notice of the condition ere he can breake him.

If a lease be made rendering rent, on condition, that if the rent Doct. & Stud. 35. 13 H. 4. 17. To pay rent. be not paid within twenty daies the lessor shall reenter, and the rent is not paid; in this case the condition is broken, but the lessor cannot enter untill he hath made a legall demand, and if he die before he doe it, his heire shall never take advantage of that breach, but it is discharged for ever.

When an act is to be done in time convenient, or otherwise, and the party doe it not by the time appointed by law; the condition is Li. Sect. 353. Plow. 30. broken.

If one grant an annuity pro consilio impenso & impendendo, and the To give advise. grantor require advise, and the grantee refuse or neglect to give it: 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate. And if the deed be, that he shall goe to such a place to give counsell, and he require him to goe thither and he refuse it, this is a forfeiture of the estate. But if he refuse to goe with him to another place, or give counsell to his adversary being not required to give counsel to him, this is no breach of the condition nor forfeiture of his annuity. And if one had heretofore devised his land to be sold by his executors, Lit. Sect. 383. & to have been distributed for his soule, & the executors had not sold it in time convenient, or had taken the profits to their own use: this had been a breach of the condition. See more in the last foregoing division, and in Obligation Numb. 10. Covenant Numb. 7. The same law is for the most part of conditions of obligations. See Obligation Numb. 10.

Every particular estate hath a condition in law annexed to it, and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken. Or not. therefore if tenant for life in dower, by the courtesie, or after possibility of issue extinct, lessee for years, tenant by statute merchant, elegit or the like make any absolute or conditional estate of the lands they hold in fee simple, fee tail, or for life & give livery of seisin thereupon Forfeiture. or levy a fine Sur conusance de droit, or suffer a recovery of the land, [Page 149] or the like; this is a breach of the condition in law and a forfeiture of their estate. Also if any such tenant (except tenant in taile after possibility of issue extinct) doe wast in the lands they doe so hold; this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed. But if an Infant Infant. Womencovert. or feme covert that hath such an estate shall make any such estate &c. this is no breach of the condition in law. And yet if such a person doe wast, this is a breach of the condition in law. And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another; this will be a forfeiture in him or her also.

If any keeper of a Parke without warrant kill any Deere, fell Co. super Lit. 223. or cut any wood and convert it to his owne use, pull downe the lodge or any house within the Parke used for hay for the Deere, or the like; this is a breach of the condition in law. So also if a keeper shall not looke to the game, but the Deere be killed by his default, and damage come to the Lord; by this also the condition is broken. But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture.

Offices that are for the Administration of Justice, or of clark ship in any Court of Record, or concerning the Kings treasure, revenue, Co. super Lit. 234. account, alnage, auditorship &c. have also conditions in law annexed to them, and therefore if such officers shall sell their offices or misdemeane themselves in their offices: by this the condition in law may be broken and they may forfeit them.

As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken. And what persons shall take advantage of a condition or a limitation. And what not. Lit. Sect. 347. Plow. 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214, 215. Doct. & Stud. 93. Perk. Sect. 830, 831. 833, 835. Plow. 488, 489. that doth create the estate it selfe, so neither can a man give or reserve the power, title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him, or them, or at least to one of them that doth make the estate, his or their heirs, executors and administrators &c. for it is a rule of the common law, That none may take advantage of a condition but parties and privies in right and representation, as heires, executors, &c. of naturall persons, and the successors of politique persons: and that neither Privies nor Assignees in law, as Lords by Escheate, nor in deed, as grantees of reversions, nor Privies in estate, as he to whom a remainder is limited, shall take benefit of entry or reentry by force of a condition. And therefore if a man had made a lease for life reserving rent, on condition that if the rent be behind the lessor, his heires and assignes shall reenter, and after had granted the reversion to a stranger; this grantee should not by the common law have had benefit by this condition. But if the lessor had died, his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant [Page 150] and inward might have taken advantage by the condition. And if one had been possessed of a lease for years, and had granted his terme upon condition and had died; his executors or administrators might have had advantage of this condition.

And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood, for an heire shall take advantage of a condition, though no estate descend to him from the Ancestor. And therefore if one be seised of land of the part of his mother, and he make a feoffement in fee of it, on condition, and die, and the condition is broken; in this case the heire of the part of the father shall enter, but as soone as he hath entred the heire of the part of the mother shall enter upon him and enjoy the land. And if a man be seised of land in the right of his wife, and he make a feoffement in fee of it, upon condition, and die; the heire of the husband shall enter for the condition broken, but the wife shall have the land. And so also is the law as touching Privies in right and representation, for Executors and Administrators shall take advantage of a condition now as heretofore. And so also shall the Successors of a Deane and Chapter, Bishop, Arch-deacon, Parson, Prebend, or any body Politique or corporate, Ecclesiasticall or Temporall; these shall take advantage of conditions as heretofore they did. So also the law is the same as touching Privies in law, for they shall no more take advantage of a condition now then heretofore. But as touching grantees of reversions and Privies in estate, there is some alteration made of the Law, for by a new law it is provided, That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion &c. of any lands &c. which pertained to Monasteries &c. as also all other persons being grantees or assignees &c. to or by any other person or persons, and their heires, executors, successors and assignes, shall have like advantage against the feoffees &c. by entry for not payment of rent, or for doing wast, or for other forfeiture &c. as the said lessors or grantors themselves ought or might have had.

And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow. 27. and the ancient Common law further touching this point, 1. These diversities must be observed to be taken before the Statute which take place still.

1. Between a condition that doth require a reentry, and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry, for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law. And therefore if a man at this day make a lease to another quousque, or untill I S come from Rome, or if a man make a lease to a woman quamdiu casta vixerit, or if a man make a lease to a [Page 151] widow si tamdiu in pura viduitate viveret, or if a man make a lease to another for one hundred years if he live so long, and then the lessor doth grant the reversion to a stranger; in all these and such like cases the grantee of the reversion may take advantage of the▪ limitation, for after the estate is ended by the limitation he may enter.

2. Between a condition annexed to a freehold and a condition Co. 3. 64, 65. Co. super Lit. 214. 11 H. 7. 17. Plow. 136. annexed to a lease for years, for if before the Statute a man had made a gift in taile, or lease for life, on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease; in this case the grantee of the reversion could not by the common law have taken advantage of the condition, for it could not be void or cease but by entry which could not be transferred to another. But if a lease for years had been made on such a condition; a grantee of the reversion might by the common law have taken advantage of this condition, for the estate in this case was by the breach of the condition ipso facto void without entrie. But now the grantee of the reversion shall have advantage of the condition in both these cases.

3. Between a condition in deed and a condition in law, for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat, may either of them have advantage of a condition in law for any breach in his owne time.

2. These Resolutions and Judgements upon the Statute must be marked. 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every cōmon person as well as the King may take advantage of conditions. 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute. 3. That he that comes to the reversion by fine, feoffement, grant, limitation of use, common recovery, or bargaine and sale, is such a grantee as is within the intendment of the Statute. 4. That where the Statute doth speake of feoffees &c. that it doth not extend to gifts in taile, and therefore if a gift in taile be upon condition, and after the donor doth grant the reversion; this grantee shall never have any benefit of this condition. 5. That where the Statute doth speake of grantees and assignees of the reversion; that hereby an assignee of part of the state of the reversion may take advantage of the condition, as if lessee for life be, and the reversion is granted for life &c. or if lessee for years be &c. and the reversion is granted for years &c. in these cases the grantees of the reversion shall have advantage of the conditions.

Davy and Mathews case per. & 2 Justi [...]es Trin. 1 [...]. 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years, rendring rent, with condition of reentry, and the first lessee doth afterward grant his terme and estate to I S; in this case I S [Page 152] is such a grantee and assignee of the reversion as shall take advantage of the condition. 6. That as well mediate as immediate grantees. i. the grantees of grantees in infinitum are intended within Co. 5. 112, 113. Co. super Litt. 214. this Statute. 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute. And therefore is a lease be made of three acres reserving rent upon condition, and the reversion is granted of two of the three acres; in this case the Prerogative. rent shall be apportioned, but the condition is destroyed except it be in the Kings case. And yet a condition may be apportioned Apportionmēt. by the act of law, or by the wrong of the lessee. As if a lease be made of two acres (the one of the nature of Burrough English, and the other at the Common law) upon condition, and the lessor having issue two sonnes dieth; in this case each of them shall enter for the condition broken. And if the lessee upon condition make a feoffment of part of the land; this doth not destroy the condition. There is therefore herein a difference between a condition Power of revocation. that is compulsory, and a power of revocation that is voluntary: for he that hath such a power may by his own act extinguish it in part, by levying a fine of part of the land or otherwise, and yet his power may remain for the residue as in the case of a limitation; but in the case of a condition he cannot doe so. 8. Such grantees as shall have advantage by this Statute, must be compleat grantees; Co. 5. 113, 114. Co. 8. 92. And therefore grantees of reversions by fine, or deed, must have atturnment ere they can take advantage of the condition. And yet if a reversion be granted by fine to one that hath no atturnment, and he grant it to another that hath an atturnment; in this case the second grantee shall take advantage of the condition, albeit the first grantee shall not. And the lessee must have notice of the grant of the reversion, ere he in reversion can take any advantage of a condition. And therefore it is, that if the lessor bargain and sell the land by deed indented and inrolled (in which case there needs no atturnment); or if the lessor make a feoffment of the land, and so out the lessee, and the lessee reenter (which is an atturnment in law); the grantee or feoffee in these cases cannot take advantage of any condition before he hath given notice to the lessee of this grant of the reversion. 9. Such as come in meerly by act of law, or paramount, as the Lord of a Villain, the Lord by Co. super Litt. 214. Pasche 7 Jac. Co. B. per 2 Justices. escheat, the Lord that doth enter for Mortmain, or the like, cannot take advantage of a condition within this Statute. And hence it seems it is that if lessee for forty yeares make a lease for thirty seven years on condition, and after surrender his estate to his lessor; Co. super Litt. 215. Dier 309. Curia in Leeks case. Pasche 7 Jac. Co. B. Albeit the words of the Statute be generall, yet grantees and assignces shall not take benefit of every forfeiture by force of a condition, nor yet of all conditions, but onely of such as are inherent. [Page 153] i. such as are either incident to the reversion, as for payment of rent, or for the benefit of the State, as for restraining of wast, for causing of reparations, making of fences, skowring of ditches, preserving of woods, and the like. And of conditions that are collaterall, such grantees shall not take benefit. And therefore if the condition be for payment of a sum of mony in grosse, to restraine alienation, for the delivery of corn, wood, or the like, the grantee of the reversion of the land shall not have advantage of it by this Statute, for these remain as they were before the Statute at the Common law. 11. Such conditions as are on the part of the lessor, it seems are not within this Statute; And therefore if one Per Justice Bridgman. make a lease for years, on condition that if the lessor, his heirs or assigns, pay ten pound to the lessee at our Lady day, the lease to bee void, & the lessor doth grant the reversion to a stranger before the day; it seems the grantee shall not take advantage of this; but the condition is gone.

If one make a lease for years rendring rent to him and his heirs, Doct. & St. 35. 13 H. 4. 17. on condition that if it be not paid within fourteen days, that hee and his heirs shall reenter, and the rent is behinde, and the lessor doth demand it, and then die; in this case the heir may enter. But if he die before demand, the heire cannot make a demand, and so take advantage of that breach of the condition, which was in the time of his Ancestor.

If a man be possessed of land for twenty years in the right of his Perk. Sect. 834. wife, and he make a lease of it for ten years rendring rent, with condition of reentry for default of payment, and after the husband die; in this case the wife shall have the rent, but it seems she shall not take advantage of the condition.

If a lease be made to I S, on condition that if such a thing be, Co. 1. 85. super Litt. 379. Dier 127. 117. or be not done, that the land shall remain to I D, or that I D shall enter; in this case I D shall never take advantage of this condition, either by the Common law or by this Statute.

Regularly where a man will take advantage of a condition, if he 13. Where entry or claim is needfull, to avoid an estate on condition. And where a man may take advantage of a condition without entry or claim. And where not. Co. super Litt. 218. 237. may enter, he must enter, and when he cannot enter, he must make a claim; for an estate of freehold or inheritance will not cease without entry or claim. And he that is to have advantage by the condition, may wave his advantage if he will. And untill such entrie or claim made, the party that should enter can make no good estate of the thing to any other. But herein a difference is to be observed in the penning of a condition, and between a lease for yeares and a lease for life or a greater estate: for if a lease for years be made, on condition that upon such a contingent the estate shall cease, or the lease shall be void; in this case when the thing doth happen, the lease is ipso facto void without entry or claim. But otherwise it is of a lease for life, albeit there be [Page 154] the same words in the condition. And if one make a lease for years, on condition that if such a thing be done, the lessor shall reenter; in this case an entry is needfull to avoid the estate.

If one make a feoffment in fee, gift in taile, or lease for life, on condition that upon such a contingent the estate shall be void; in this case there must be an entry made, after the condition is broken to avoid the estate. So if one bargain and sell his land by deed indented and inrolled, with proviso that if the bargainor pay &c. then the estate shall cease and be void, & he doth pay the mony; in this case the estate is not revested in the bargainor before an actuall reentry is made. And so it is also if lands be devised to a man and his heirs, on condition that if the devisee doe not pay twenty pound at a day, his estate shall cease and be void; in this case the estate is not void untill an actuall reentry be made. And so also it is if a reversion, remainder, advowson, rent, common, or the like, be devised on such a condition; in these cases there must be a claime before the estate will be determined. And therefore if a man grant such a thing to another and his heirs, on condition that if the grantor pay twenty pound on such a day, the state of the grantee shall cease or be void, and the grantor doth pay the mony according to the condition; in this case the state is not revested in the grantor before a claim made at the Church in case of an Advowson, and in the other cases upon the land. But in case where a man cannot make an entry or claim, there the law will not compell him to it. And therefore if one grant land to another for five years, on condition that if he pay to the grantor within the two first years forty marks, that then he shall have the fee, otherwise but for tearm of five years, and livery of seisin is made accordingly, and the grantee doth not pay this mony; in this case after the two years are past, the freehold shall be in the grantor without entry or claim, for as this case is, he cannot enter, but he must out the lessee of his term. So if I grant a rent charge out of my land upon condition; when the condition is broken, the rent is extinct, and here needs no claim. So if a man make a feossment of land to me in fee, on condition that I shall pay him twenty pound such a day &c. and before the day I let the land to him for yeares, Rent. rendring rent, and after the condition is broken; in this case he may retain the land without entry or claime, and the rent is extinct. So if one covenant to stand seised to the use of himself for life or otherwise, and then after to the use of others, with a proviso of revocation &c. and after he doth revoke it; in this case all the estates are revested in him without entry or claim.

14. When a condition broken shal make the estate &c. vold ab initio. And when not. And to what intents the lessor, feoffor, &c. shall be adjudged by his reentry to be in of his first estate. And to what intents not. It is generally true that he that doth enter for a condition br [...] ken, Co. 4. 120. Pe [...]k. Sect. 840. Plow. 186. 482. 14 H. 8. 17. doth make the estate void ab initio, & that hee shall be in of his first estate in the same course and manner as it was when he departed [Page 155] with the possession, and at the time of the making of the condition. And hence it is, that if there be any charge or incumbrance on the land, as if lessee of land upon condition grant a rent charge out of the land, or enter into a Statute or Recognisance, and the conusee have the land in execution, and this charge is after the condition is made; in this case when the condition is broken, and the party doth reenter, hee shall by relation avoid the rent, statute, and recognisances, and hold the land freed from them all. And if an estate be to passe by way of increase, upon condition, or a lease is to be made upon a condition precedent; when the condition is performed, the party shall hold his estate free from all after charges and clogs. And if a man enter for breach of a condition in Co. super Litt. 234. Perk. Sect. 843, 844. Co. super Litt. 233. law, hee shall avoid all charges and acts done after that thing is done which doth produce the forfeiture, but he shall not avoid any thing done before that time; for he must take the thing as hee findes it: as if a house or land belong to an officer in respect of his office, and he grant a rent out of it for his life, and then he doth forfeit it; in this case the rent shall continue. And if lessee for life of land grant a rent out of it, and then make a feoffment in fee of the land; in this case the rent shall continue, and the lessor cannot avoid. But if lessee for life of land make a feoffment in fee of it, and then grant a rent out of the land; in this case the lessor shall avoid it. And if a lessee grant a rent out of his land, and then doe wast, and the lessor recover the land, he cannot avoid this rent, but shall hold the land charged with it. But if the lessee doe wast first, and then he grant a rent charge to a stranger out of the land, and after the lessor recover the place wasted; in this case he shal hold the land discharged. And if lessee for life make a lease for years, and after enter upon the lessee for years, and make a feoffment in fee; this shall not avoid the lease for years. And if a man make a lease for C [...]mpt. Jur. 64, 65. yeares, rendring rent with clause of entry for non payment, and the lessee doth make underleases of part of this land, and after the rent is unpaid, and the lessor doth enter; in this case he shall have all the land, and avoid all the under leases. But if there be any covinous practise in the case, the undertenants may have remedy Equity. in Equity. And if a lease be made for life, the remainder in Co. 10. 41. taile on condition; in this case if the condition be broken, both the estates be avoided. Et sic de similibus. But this generall rule Co. super Litt. 202. Perk. Sect. 242. 842, 843. doth faile in divers particulars: as if a man bee seised of land in the right of his wife, and he maketh a feoffment in fee by deed indented, upon condition that the feoffee shall devise the land to the feoffor for life &c. and the husband dieth, and then the condition is broken; in this case the heir of the husband shall enter, and yet he shall not have the estate of the feoffor, for this doth presently after his entry vanish away. So if a tenant in speciall tail hath issue, [Page 156] and his wife dieth, and tenant in taile maketh a feoffment in fee upon condition, the issue dieth, the condition is broken, and then the feoffor doth reenter; in this case he shall have but an estate for life as tenant in tail after possibility of issue extinct. So if a lessee for life or years make a feoffment in fee on condition, and after doth enter for the condition broken; in this case he shall not be in in the same course, for now his estate is subject to entry for forfeiture, though he be tenant for life still. So if a disseisor be of certain land, and he die seised thereof, and his heir is in by descent, and the disseisee enter upon the heir, and infeoffe a stranger upon condition, and the heir of the disseisor doth enter upon the feoffee, and the disseisor, doth sue a writ of entry sur disseisin, against the heir of the disseisor, and doth recover and hath execution, and the feoffee on condition doth reenter, and after the condition is broken; in this case the feoffor is not in in the same case, for now the disseisor cannot enter upon him as he might before. And in some cases the feoffor by his reentry shall be in in his former estate, but not in respect of some collaterall qualities: as if tenant by homage Ancestrell, make a feoffment of the land he doth so hold in fee, on condition, and entreth for the condition broken; in this case it shall never be held in homage Ancestrel again. And so if a copyhold escheat be, and the Lord make a feoffment in fee upon condition, and entreth for the condition broken; in this case the custome annexed to that land is gone. So if there be Lord and tenant by fealty and rent, and the Lord is in seisin of the rent, and granteth his Seigniory to another and his heirs on condition, and the tenant doth atturn and payeth his rent to the grantee, the condition is broken; the Lord distraineth for his rent, and rescous is made, in this case the former seisin shall not enable him to have an assise without new seisin. If there be Lord and tenant, and the Lord disseise the tenant of the tenancy, and thereof doth enfeoffe a stranger on condition, and after the condition is broken, and the Lord enter, and the tenant doth enter upon him; in this case the Seigniory is not revived.

If tenant in tail make a feoffment in fee on condition, and dieth, and the issue in tail within age doth enter for the condition broken; in this case he shall be in first as tenant in feesimple, and heir to his father, and then shall be presently remitted: but if he be of full age he shall not be remitted.

If one make a feoffment of white acre and black acre, on condition &c. and that he shall enter into black acre onely; in this case Co. super Litt. 202, 203. upon breach of the condition, he shall enter into that part onely.

If the words of a condition be, That if such a thing be not done, the feoffor or lessor shall enter into the land, and take the profits thereof untill the thing be done, or to the like effect; in this case [Page 157] if the feoffor or lessor enter upon the breach of the condition, hee doth not avoid the estate, or get any thing by his entry, but the possession onely in the nature of a pledge, or a distresse untill the thing be done; And if the condition be for the payment of the rent, he shall hold the land untill he be paid the rent. And if the words be [That the feoffor &c. shall enter and take the profits, untill thereof he be satisfied, or untill he be satisfied or paid the rent] in the first case as soon as he is paid, either by the receiving of the profits, or payment of the rent behind, or both together; and in the last case as soon as he is paid the rent by the feoffee or lessee, the feoffee or lessee may enter again into the land.

If a condition be possible in his creation, and after become impossible Co. super Lit. 207. 219. 15 H. 7. 13. Dier 262. 15. When and by what meanes a condition shall be discharged and extinguished for ever, or suspended for a time. Or not. 1. By the act of God. Conditions impossible. by the act of God, the condition is discharged and gone for ever, and the estate is absolute. As if a feoffment be made to me, on condition that I shall reinfeoffe the feoffor before a day, or on condition that I shall appear at Westminster in the Kings Bench such a day, or on condition that I shall goe to Paris about the affairs of the feoffor before such a day, and before the day appointed it doth happen that I die; in all these cases the condition is discharged. So if the condition of a feoffment be that if the feoffor or his heirs pay ten pound to the feoffee such a day, and before the day the feoffor dieth without heire; in this case the condition is gone. And if the condition become impossible in part onely, then it is discharged for so much onely.

If there be Lord and tenant, and the tenant doth enfeoffe a Perk. Sect. 819. stranger on condition, and the feoffee die without heir, so that the tenancy escheat; in this case the condition doth continue, and the Lord must hold it subject to the condition.

Albeit a condition cannot be divided by the act of the parties, Co. super Litt. 215. Co. 4. 120. but it will be destroyed, yet it may be divided by the act of law; 2. By the Act of Law. and therefore if a lease for years be made of two acres of land (the one of the nature of Burrough English, and the other at the Common Law) on condition, and the lessor having issue two sons dieth; in this case albeit the condition be divided, yet it is not gone, but doth continue still, and each of them may enter for the condition broken. But if one that hath a condition knit unto his reversion, grant part of his reversion to a stranger; the condition is destroyed in all, for it cannot be apportioned by the act of the parties, as it may by the act of the law, or the wrong of the lessee.

A condition may be destroyed in the very creation of it; as if 3. By the Act of the parties. Co. 2. 59. the Lord Cromwels case. Dier 309. Co. super Litt. 265. 379. Co. 10. 41. one devise lands for life with expresse words of a condition, and not words of limitation, or words that may be so taken, the remainder over to a stranger; in this case the stranger cannot enter, neither is the remainder good, nor the condition effectuall. Or it may be discharged by matter ex post facto: as in the examples following. [Page 158] If one make a feoffment in fee of land upon condition, and after and before the condition broken, he doth make an absolute feoffment, or levy a fine of all or part of the land to the feoffee, or any other; by this the condition is gone and discharged for ever. And yet if one grant a rent out of his land, upon condition, and after make a feoffment of this land, this doth not extinguish the condition. And if a fine in this case be levied in pursuance of a former agreement; as if one by Indenture bargain and sell his land to another, and in the Indenture there is a covenant that all other assurances shall be to the use of the bargainee, according to the first agreement, and the bargaine and sale hath a condition annexed that the bargainee shall make a feoffment of part of the land to the bargainor, & after the bargainor doth levy a fine to the bargainee in corroboration of the first bargain; in this case the condition is not extinct, but saved by the original agreement. And if one make a feoffment in fee of land upon condition, & after & before the condition broken, he doth make a lease for years onely of the land, or part of it to the feoffee or any other; by this the condition is suspended for that time. And if the feoffor after a feoffment made of land upon Co. 2. 59. Perk. Sect. 819, 820. 163. Litt. Bro. Sect. 212. Co. super Litt. 219. condition, enter upon all or part of the land and be impleaded, and lose it; by this the condition is gone for ever. And if he enter and hold the possession onely; by this the condition is suspended during his possession, and if he hold the possession so long that the feoffee cannot perform the condition; the condition is discharged for ever. And if one make a feoffment of land upon condition, and after and before the condition broken, the feoffee doth Co. 7. 14. 4. 52. Litt. Bro. Sect. 212. 85, Co. super Litt. 218. make a feoffment of all or part of the land to the feoffor; by this the condition is gone for ever. And if the feoffee make a lease for life or yeares onely of part of the land; by this the condition is suspended for that time. But if the feoffee make a feoffment in fee, lease for life, or years to a stranger; this is no extinguishment nor suspension of the condition. And if the condition be to pay mony, or doe any such collaterall thing; if in this case the feoffee make a lease to the feoffor, this doth not suspend the condition.

If the feoffor or lessor release to the feoffee or lessee all conditions, Release. Perk. Sect. 823. Co. 1. 147. See Release and confirmatiō or all demands in the land, or confirm the estate of the feoffee without condition &c. by either of these means the condition is destroyed and gone for ever.

If one make a lease for life or years of land on condition, and after grant the reversion of part of this land; hereby the condition Co. 2. 59. Perk. Sect. 163. Co. 4. 119. is destroyed for ever. And if he make a lease of part of it onely; by this the condition is suspended.

A condition may be extinct or suspended by the intermariage Perk. Sect. 763. 765. 764. of the parties to the condition; as if a feoffment bee made by a woman, on condition to pay ten pound, or on condition to infeoffe [Page 159] her by a day certain, and before the day they two do intermary, and the mariage doth continue untill after the day; in this case the condition is gone. And if the condition be to reenter for not payment of rent; the condition shall be suspended and no rent be paid during the coverture.

If a lease be made for years, on condition that the lessee or his Co. 4. 119. 5. 34. 2. 59. 714. Dier 309. assignes shall not alien without the licence of the lessor, and the lessor licence the lessee alone to alien, or licence him to alien a part of the land, or licence him to alien all the land for a time, or if the lease be to three on such a condition, and the lessor licence one of them to alien; in al these cases the condition is gone for ever.

If one had enfeoffed me, on condition that I should pay him Perk. Sect. 766. tenne pound at Easter, and before the time he had entred into Religion, and made me his executor, and had not been deraigned; in this case the condition had been gone for ever.

If I be seised of land in fee, and take a wife, and during the mariage Perk. Sect. 822. enfeoffe a stranger on condition and die, and the feoffee endow my wife of her third part; in this case the condition is not destroied, and yet the third part is freed from the condition, but the reversion of that third part is not freed from the condition. And if shee grant her estate againe to the feoffee, the condition is revived. So if there be Lord and tenant, and the tenant make a feoffement in fee upon condition and the feoffee is attainted of felony &c. so that the tenancy doth escheate; in this case the condition is not gone, but the tenancy is charged with it.

If a feoffement, or lease be made rendring rent, on condition Co. 3. 64. super Lit. 211. for not payment a reentry, and the feoffor, or lessor after the breach of the condition doth distraine or bring an assise for the Rent, or doth accept the rent at another day; hereby the condition is not destroied but it is discharged for that time so that the feoffor or lessor cannot take any advantage of that breach: and if the act to be done by the condition be a collaterall act, as not to alien, or the like, and the condition is broken and the feoffor not having notice thereof doth accept the rent; in this case also and by this meanes the condition is not discharged.

If one disseise the feoffee, or the heir of the disseisor, or any other that hath lands by a just title, and thereof enfeoffee a stranger on 4. by the Act of a stranger. Lit. Sect. 476, 477. Co. super Lit. 277. condition, and the land is lawfully recovered from him by him that hath the title; hereby the condition is destroied for ever. And if a dis seisor make a feoffement in fee on condition, and after the disseisee doth enter upon the feoffee on condition; this doth extinguish the condition. But if the disseisee release to the feoffee on condition; this Release. release doth not discharge the condition. But if a disseisor make a lease for life, & the lessee for life make a feoffment in fee on condition, & the disseisee release to the feoffee of the tenant for life, by this [Page 160] the condition in law is destroied. And if the feoffee upon condition Perk. Sect. 823. 821. make a feoffement over without condition, & the disseisee release to the second feoffee; by this the condition is destroied, be the release before the condition broken or after. And if feoffee on condition make a lease for life, and the feoffor release to the feoffee on condition or lessee for life all conditions, or all demands to the land; by this the condition is discharged. And if the feoffee on condition make a feoffement to another on condition, and after the first feoffor doth enter for breach of the condition; hereby the second feoffement and the condition also is gone for ever.

If a man seised of land in fee let it to a stranger for years, and Perk. Sect. 820. one that hath no right doth out the lessee, and thereof die seised, and his heire is in by descent, and he doth make a feoffement to a stranger upon condition, upon whom the lessee for years doth enter within the terme claiming his terme; in this case the lessee shall hold the land discharged of the condition.

And now we passe to a Covenant being another part of a Deed.

CHAP. VII. Of a Covenant.

A Covenant is the agreement or consent of two or more by Termes of the law. Plow. 308. 1. Covenant. Quid. Deed in writing sealed and delivered whereby either or one of the parties doth promise to other that something is done already or shall be done afterwards. And he that makes the covenant is called the covenantor, and he to whom it is made the covenantee. Covenantor. Covenantee. 2. Quotuplex.

And this is either expresse, or in deed. i. when the covenant is Termes of the law. tit. Covenant. Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed: As when A by deed doth covenant with B to serve him for a year, and B doth covenant with A to pay him tenne pound for this service. Or it is implied or in law, i. when the deed doth not expresse it but the law doth make and supply it. As when one doth make a lease for years by the words [demise or grant] without any expresse covenant for quiet enjoying; in this case the law doth intend and make such a covenant on the part of the lessor, which is, that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life, and (as some thinke) during the whole terme; And hereupon an action of covenant may be brought against him in the reversion, so that if the heire that is in by descent put out the termor of his father the termor may have [Page 161] this action against him. A covenant is also either reall, i. that whereby a man doth bind himself to passe a reall thing, as lands or tenements: as a covenant to levy a fine of land, in which case the land it self is to be recovered, or when it doth run in the realty so with the land that he that hath the one hath, or is subject to the other, and so a warranty is called a reall covenant. Or it is personall, i. when it doth runne in the personalty and not with the land, but some person in particular shall have benefit by it, or be charged with it: as when a man doth covenant to doe any personall thing, as build, or repair a house, serve him, or the like. And these also are some of them said to be inherent, i. such as are conversant about the land, as that the thing demised shall be quietly enjoyed, shall be kept in reparations, shall not be aliened, or if it be to be sold that the lessor shall have the first refusall, to pay rent, not to cut downe timber trees, or doe wast, to fence the copices when they be new cut, to make further assurance, or the like. And some of them are said to be collaterall, i. that are conversant about some collateral thing that doth nothing at all, or not so immediatly concern the thing granted, as to pay a summe of money in grosse, to build a house in another mans ground, to make a feoffment or lease of other land, to give other security to perform the covenants, or to pay the rent, or that the lessor shall distrain for the rent in some other land then that which is demised, or the like; these are collaterall covenants. There is also a covenant to stand seised of land to uses, which is now become a kind of conveyance of land; for which read Vses at large.

The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it. Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow. 308. F. N. B. 145. something in futuro, and therefore it is for the most part executory; and if the covenantor doe not perform it, the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant. And this writ of covenant is therefore defined to bee a A writ or action of covenant. Quid. writ lying where a man is bound by a covenant in a deed and hath broken it. And in this case commonly the party damnified shall recover damages only for the breach: and if hee have a Judgement in an action brought for one breach, and after the covenantor doth breake the covenant again; in this case hee may bring a new action, and so for every breach. But a covenant doth somtimes Use. also make a transmutation of a property and possession of things, as in case of a covenant to stand seised of land to uses, for which see Vse. And in case where one doth covenant that another shall Lease. have a peece of land for five years; this is a good lease for five years, for which see Lease. And in case where one doth covenant with another, that if he pay him ten pound such a day, he shall have all his cattle in Dale, or his lease for years hee hath of the Manor of Contract. [Page 162] Dale; in this case it seems if he pay the mony at the time hee shall have the property of the goods, and of the lease for years. It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected.

A covenant may be in the affirmative, or in the negative. And it Plow. 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had. And what not. 1. In respect of the manner of making it. may be executed, i. that a thing is done already, or executory, i. that a thing shall be done hereafter, and these are all good. But if it be of a thing present, as if I covenant that my horse is yours; this is void. F. N. B. 145 G. Co. 3. 63. Ewers case. 8 Jac. And these covenants being made by a deed poll are as good and effectuall, as when they are made by a deed indented, so as the party have the deed to shew, for otherwise a common person cannot have an action of covenant, for it doth not lie upon a verball agreement, neither can it be grounded without a writing, except it be by a speciall custome as in London. Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case. Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words, as Covenant, Promise, and the like, to make a covenant on which to ground an action of covenant: for a covenant may be had by any other words, & upon any part of an agreement in writing, in what words soever it be set down for any thing to be, or not to be done, the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement. And therefore if these words be inserted in a deed amongst other covenants [That the lessee shall repair, provided always that the lessor shall allow timber: Or that the lessor shall skowre ditches, provided always that the lessor doe cary away the earth;] these are good covenants on both sides. Adjudge pasch. 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case. And if a lease be made of houses by Patent to I S, for twenty one years, and therein is inserted this clause [And that the said I S and his assignes shall repaire the houses when they shall bee decayed;] this is a good covenant. And so also it is where these or the like words be inserted amongst other covenants [And that the lessee shall pay ten shillings a year rent, or that the lessee shall not alien;] these shall bee said to bee covenants, unlesse it bee in such cases where there is some other meanes to inforce the doing of the thing. As if in case of the rent there bee a clause of distresse, Bro. Covenant 21. 26. & Co. & Dier ubi supra. reentry, or nomine penae. And in all cases regularly where words that doe beginne the sentence be conditionall, and have the effect of a condition, and doe give another remedy, there they shall not be construed to make a covenant, as in the cases of condition before. And yet if words of condition, and words of covenant be coupled together in the same sentence, [as Provided alwayes; and it is covenanted, or the like;] in such cases the words may be construed to make a covenant and a condition both.

If a man make a lease for life by Indenture, and therein are inserted Dier 150. Co. 1. 155. these words [It is provided that if the lessee die within sixty Lease. [Page 163] years, that then his executors and assignes, shall have the land untill the sixty years be ended, to bee accounted from the date of the Indēture;] this albeit it be not a good lease, yet it is a good covenant.

If a man make a lease for years, and warrant it to the lessee, his Bro. covenant 38. descent 50. 21 H. 7. 32. heirs, and assignes, during the term, or he that hath right to the land, confirme the estate of the lessee for years with warranty; in these cases howbeit this be not a warranty; nor in the nature of a warranty, yet it shall be construed a good covenant in law for the quiet enjoying of the thing.

If the Lord grant to his tenant, that he will not distrain him in Perk. Sect. 69. such a part of his land for his rent; this shall be taken to be a good covenant, by this word [grant].

A covenant to do anything that for the substance & matter of it is 2. In respect of the matter or substance of it. See West. Symb. in his first part toto. & infra Plow. 308. 302. 27 H. 8. 16. Dier 13. 324 253. 251. Fitz. Covenant 1. lawfull; or not to doe any thing that for the matter of it is unlawfull, is good: as if the grantor covenant that he is seised or possessed of a good estate of and in the thing he doth grant, and hath power to grant it. That the grantee shall quietly enjoy it. That it is and shall be free from incumbrances. That he will make further assurance if need be. That if the grantee be evicted, he shall pay no rent. That the grantee shall pay rent. That he shall discharge all dues, and save and keep harmlesse the grantor. That he shall not alien the thing granted; or if he doe, that the grantor shall have the first refusall thereof. That he shall not doe wast. That he shall have houseboot, hayboot. That the grantor or grantee shall repaire the old housing, or build new. That he shall pay and discharge all rents and payments issuing out of the land. That he shall not fell trees, or if he doe, that he shall pay to the grantor so much in money for every tree. That if he fell any underwood, he shall fence it. That he shall make an estate of land. That he shall be quit of any suit, service, or payment. That he shall give sufficient security to I S for an hundred pound he doth owe him; and all these and the like covenants are good. And generally where a condition for the matter See Condition Num. 7. of it is good, a covenant comprehending the same matter is good also. But if the matter required to be, or not to be done by Against Law. See Conditions against Law, Numb. 7. Dier 6. the covenant be for the substance thereof unlawfull, then is the covenant void and doth not bind: and therefore if one covenant to kil, or rob a man, or the like; this covenant is void. So if one covenant that he will maintain another in his suits, or that he will not appear in Inquests, or that he will break the peace, or that hee will forestall corn, or the like; these covenants are void. So if one be tenant in feesimple of land, and he covenant that he will not alien it; this covenant is void. So if a man be a tradesman, and he covenant 18 Jac. B. R. Jolliffe versus Broad. Pas. 19 Jac. B. R. Tanner versus Brag. that he will not use or exercise his trade; this restraint if it be absolute and continuall, it is void; but if it be sub modo only, as that he shall not use his trade at one time, or in one City or Town onely, [Page 164] this covenant may be good. So if a man be by covenant restrained to sow the land which hath been used to be sowed, and this be either absolutely, or sub modo, i. that if hee sow it hee shall pay thus much an acre for it; these covenants have been held to be void. Sed quaere how the law is now, for it seems the Statute of 39 Eliz. ch. 2. is discontinued. If A owe mony to B, and B owe mony to C, and Hil. 20 Jac. Co. B. Maire versus Stapleton. B doth make a letter of Atturney to C, to sue A at his own charge, & B doth covenant with C, that he wil not release the debt to A; in this case albeit this be maintenance in C to sue at his own charge, yet this is a good covenant and not against law. So also if a Deane Trin. 14 Jac. Co. B. Tailors case. and Chapter, or the like, covenant to renue a lease contrary to the meaning of the Statute of 18 Eliz. ch. 11. it seems this is a good covenant. And if the thing to be done by a covenant be in the nature Impossible. 27 H. 8. 27. 4 H. 7. 4. of it impossible, the covenant is void. And therefore it is, that if a man covenant to goe to Rome in three dayes, or the like; the covenant is void. So if a man covenant to make a feoffment to his wife; this covenant is void. But if a man covenant to make a good estate of land to her in feesimple, or otherwise, or to find her maintenance, or to give her so much by the year; these are good covenants. And generally there where the matter being in a condition will make See Condition Num. 7. the condition void because it is against Law, there it being in a covenant will make the covenant void.

If a lessor covenant with his lessee, that he shall and may have Dier 19. 115 houseboot, hayboot, plowboot, &c. by the assignment of the Bailiffe of the lessor; this is a good covenant: and yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement. But if the lessee doe covenant that he will not cut any timber, or fuell, without the leave, or without the assignement of the lessor; this is a good covenant and doth restrain him, for in this and such like cases the rules is, Modus & conventio vincunt legem.

If an obligee covenant with the obligor, that he will not sue him Mich. 36, 37 Eliz. Co. B. Adjudge Deaux versus Jefferies. 21 H. 7. 23. Release. upon the obligation untill Easter following; this is a good covenant, but no release or suspension of the debt.

Perk. Sect. 69. If there be Lord and tenant of three acres of land, white acre, and two others, and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services; this is a good covenant, but doth not determine the Seigniory.

If one man grant a mill within his Manor, & covenant for him & Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor; it seems this is a good covenant.

If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee, and after the lessee doth covenant, that if any of the covenants be broken, that the lessor shall enter upon the land demised, and hold it untill the lessee make him [Page 165] amends for the damage done by the breach of the covenant; it seems this is a good covenant, and that the lessor may take advantage thereof accordingly.

If a man seised of land in fee, covenant to stand seised of it to uses, Plow. 307, 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant; yet this may bee good by way of covenant, and give remedy to the covenantee in an action of covenant. But with this difference. If the covenant be future, as where one doth covenant with another, that in consideration of a mariage, his lands shall descend, remain, or revert to his sonne and heire apparent, and to the heires of his body, on the body of his wife; in this case the covenantee may have a writ of Covenant upon the covenant. For if a covenant be present, as that a man and his heirs shall from henceforth stand and bee seised to such and such uses, and the uses will not arise by the Law in the case; in this case no action of covenant will lie upon this covenant, for this action will never lie upon any covenant, but upon such a covenant, as is either to doe a thing hereafter, or that a thing is or hath heretofore beene done, and not when it is for a thing present, as when A doth covenant with B, that his blacke horse shall be for ever after the horse of B; this is no good covenant to give the horse to B, or to give him an action of covenant for him, but A may keep him still notwithstanding.

If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day, and the mortgagee doth covenant that he will not take the profits of the land untill default of payment; this is a good covenant, and the mortgagee therefore may not meddle with the profits untill the day of payment come.

If one make a lease for years of land by the words [Demise or 5. What shall be said a good covenant in Law, upon which an action of covenant may be had. And what not. Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case. Pas. 7 Jac. B. R. Winsecombes case. Grant], and there is not contained in the lease any expresse covenant for the quiet enjoying of the land; in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term, and upon this the lessee, his executors, administrators, or assignes, may have an action of covenant if he be disturbed. But where there is an expresse covenant in the deed for the quiet enjoying of the land, there the Law will not make this implied covenant. Expressum facit cessare tacitum. And therefore herein this is not like to the case, Warranty. where a man doth make a lease for life by the words of Dedi & concessi, or make a lease for life by other words reserving rent, (in which cases the law doth create a warranty against all men during the life of the lessor) for if in these cases there be an expresse warranty in the deed, yet this doth not take away nor qualifie the implied warranty, but the Lessee may make use of which of them hee will, if he bee ousted or evicted by one that hath an elder title.

[Page 166]

A covenat in particular (being one part of a deed) is subject Plow. 287. See in Exposition of Deeds before in toto. 6. How a covenant in deed or law shall be taken and expounded. And how it shall be performed. to the generall rules of exposition of all parts of deeds in generall, as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee. 2. To be taken according to the intent of the parties. 3. Vt res magis valeat &c. 4. When no time is limited for the doing of the thing, it shall bee done in reasonable time, and the like.

In cases where the covenantees have, or are to have several interests Ioint and severall. or estates, there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees, & cum quolibet eorum, aut alter [...] eorum; in this case these words make the covenant severall: as if one by Indenture demise black acre to A, and white acre to B, and green acre to C, and covenant with them and either of them, or covenant with them and every of them, that he is lawfull owner of all these acres; in this case the covenant is severall: but if he demise to them the three acres together, and covenant in this manner; the covenant is joint and not severall. And if A and B doe covenant jointly, and severally: in this case the covenant may bee joint, or severall, and the covenantors may be sued either the one way or the other, at the election of the covenantee.

If one make a lease of land to another, and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying. shall quietly enjoy it without the let of any person whatsoever, or without the let of any person whatsoever claiming by or under the lessor; in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case. to such persons as have title, or claime some estate under the lessor: for if in the first case any person that hath no title, and in the second case any person that shall claim under another and hath title, or that shall claim under the lessor, claim, or enter, or otherwise disturbe the lessee; this is held to bee no breach of the covenant. Sed quere of the first case. for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed, and a covenant in law: and that howsoever the covenant in law is extended only to evictions by title, yet that the covenant in deed shall be extended further. And therefore that if A make a lease for years to B, and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons; that if a stranger in this case that hath no right doth interrupt B, that he may have an action of covenant: as when such a promise is by word, an action of the case will lie upon it.

And if the lessor covenant with his lessee, that he hath not done Curia Jervis versus Peade. Mich. 40. 41 El. B. R. Action of the case. any act to prejudice the lease, but that the lessee shall enjoy it against all persons; in this case these words [against all persons] shall refer to the first, and be limited and restrained to any acts done by him, and no breach shall be allowed but in such an act. Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257.

The covenant in law upon the words Demise or Grant also for [Page 167] the quiet enjoying of the thing demised, is generall against all persons that have title during the Terme, and extendeth to the heir after the death of the lessor, as against himself onely, and shall charge the Executors or Administrators for any disturbance in the Executors. life of the covenantor, but not for any disturbance afterwards; he that doth sue therefore upon this covenant, must shew that he was molested or evicted by one that had an elder title.

If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land, and doth not say what bond; in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth.

A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. [...]ee before. 7 E. 4. 6. Bro. Grant. 164. quiet enjoying.

If one covenant with another to acquit him of all charges issuing out of the land, and after by Parliament the tenth part of the To free from incumbrances and charges. value, not of the issues of all lands are given to the King; in this case it seems the covenant shall not extend to this. But if the Parliament had given the tenth part exituū terre; the covenant would have extended to this as well as to rents, commons, and such like things, wherewith the land is charged.

If A covenant with B to make such assurance, or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise; To make assurances of land. in this case albeit B be learned in the law himself, yet he may not devise this assurance, but some other learned in the law must advise, otherwise A is not bound to make it.

And if A covenant with B to make such assurance of land by Co. 5. 19, 20. Dier 361. & per Just. Bridgeman. a day, as B or his heirs shall devise; in this case B or his heires must first devise the assurance before A is bound to doe any thing. And therefore if one sell land for money, and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare, provided that if the vendee make default in the assurance, then if he doe not pay twenty pound to the vendor, that then the vendee shall stand seised to the use of him and his heires, and the vendor tender no assurance, the twenty pound is not paid: in this case the land is in the vendee freed from the covenant. And therefore in these and such like cases, where a man is to make such assurance, as A or his heirs, or their Counsel shall devise; A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed, and to tender it to him that is to seale it, for untill then there can be no breach of covenant. But if A bee bound to make a feoffement, lease, or other assurance of land to B by a day; in this case B need not to demand it or tender the assurance, for A at his perill must doe it, otherwise he doth breake his covenant. Trin. 20 Jac. B. R. Steed versus Spike. And yet if in this case B doe get the assurance drawn, and tender it to A, it seemes A is bound to seale it, or [Page 168] otherwise hee doth breake his covenant. Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B, by a day, at the costs of B; in this case A must doe the first act, viz. notifie to B what manner of assurance he will make that he may know what money to tender, and when the money is tendred, A must see that hee doe make the assurance accordingly at his perill, and if he fail in either of these the covenant is broken.

If A be bound to make such assurance to B, as by the Counsell Co. 5. 20. learned of B, upon request made shall be devised: in this case it is sufficient if the advise be given to B, and that he do make it known to A, and it is not needfull it be given to A immediately. And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise, and I S doth devise a reasonable deed of bargain and sale, and hee tender it to A to seal; in this case A is bound to seal it presently, and he shall not have time to advise with his Counsell upon the deed, but if he be illiterate and cannot read the deed, he may refuse and delay to seal it untill he can get some body to reade it, which he must doe as soon as he can. And if one bee bound by Experientia. covenant to make an assurance upon request: the covenantee must request and tender an assurance also, and he must tender such a one also as is reasonable, otherwise the covenant will not bee broken by the refusull or neglect to doe it: as if one be bound to make a feoffment to A upon request; in this case A must get a naked deed of feoffment drawn without warranty or covenants, and tender it. And if the covenant be to make such a lease as the former; in this case the second lease must not differ from the former, and if it doe the party is not bound to seal it.

If one covenant to levy a fine at the next Assises for thirteene Curia Hil. 7 Iac. Co. B. years extunc; this shall be taken from the time of the fine levied, and not from the time of the covenant.

If one bargain and sell land to me by deed indented, and before Adjudge in Sir Jo. Brets case. the inrolment of the deed I do covenant with I S to convey all the land whereof I am seised, and to doe this before such a day, and before the day the deed is inrolled; in this case my covenant shall not extend to this land conveyed to me by this bargain and sale.

If A covenant with B, that in consideration of a mariage between Dier 371. the son of A and sister of B, that hee at the costs of his son, and by his sufficient deed will before Easter day assure land to his sonne, and B doth covenant that if A doe performe this, then hee will make him a generall release; in this case albeit A be ready, and the son doe not tender the assurance, and the conveyance is not made, B is not bound to make any release.

If one covenant to keep and leave a house in the same or as Fitz. Covenant 4. good plight as it was at the time of the making of the lease; To repaire the houses. in this case the ordinary and naturall decay of it is no breach of [Page 169] the covenant; but the covenantor is here by bound to doe his best to keepe it in the same plight, and therefore to keepe it covered &c.

If the words of a covenant be [that the lessee shall have thornes Dier 19. by the assignment of the lessor and necessary fuell also;] it seemes For the having of houseboot &c. by this that there must be an assignment of the fuell as well as of the thornes.

If the lessor covenant with his lessee that he shall have sufficient hedgeboote by assignment of the bailif of the lessor; in this case Dier 19, 20. and by this the lessee is not restrained from that liberty that the law doth give him, and therefore that he may take without assignment: But if the words be negative, that he shall not take without assignment, or that he shall take by assignment, and not otherwise, contra.

If A doth covenant with B that where as a mariage is intended Trin. 21 Jac. B. R. George versus Lane. to be solemnized between A and C the daughter of B at or before To convey lands of the value of &c. the fourteeneth day of August next, and where the said B hath paid to the said A a thousand pound for portion &c. the said A in consideration thereof doth covenant with B that he within one yeare of the day of the mariage will assure lands of the value of foure hundred pound per Annum; in this case albeit the mariage be not before that day yet the covenant must be performed.

If one make a lease for years of a Manor, and covenant that the That the lessee shall make estates. lessee shall make estates for life or years, and that they shall be good; Per Justice Bridgman. in this case it seemes this covenant shall not be taken to enable the lessee to make estates for a longer time then his estate will beare.

If the lessee covenant with the lessor that if the lessee be minded That if the lessee sell the lessor shall have the first refusall. Dier 13. to sell his estate the lessor shall have the first refusall; in this case when the lessee is minded to sell he need doe no more but acquaint the lessor with his purpose, and know his mind, and if he doe not answer him presently he may sell it to whom he will: And if the covenant be further that the lessor shall give as much as another will, the lessee must tell him what another doth offer him, and aske him whether he will give so much, and if he refuse or doe not accept it presently the lessee may sell to whom he will.

If one covenant to serve me a year, and I covenant to pay him To doe one thing for another. Co. super Lit. 204. Dier 371. Mich. 7 Jac. Co. B. tenne pound for it; in this case albeit he doe not serve me yet I must pay him the tenne pound. But if I covenant with him to pay him tenne pound if he serve me a yeare contra, for in this case I am not bound to pay him the money unlesse he serve me a yeare. So if one covenant to make new pales so as he may have the old, in this case it seemes he is not bound to make the new pales unlesse he may have the old pales. So if one covenant to pay money for service, counsell, or the like, or covenant to mary ones daughter, or make an estate, and the covenant is penned conditionally, and [Page 170] so as one thing is the cause of another, and it is not set downe by mutuall and reciprocall covenants; in all these cases if the cause or condition be not observed the covenant shall not be performed.

If one make a lease for tenne years, and covenant that if the lessee Co. 1. 144. That the lessee shal have the fee. pay him tenne pound within the tenne years that he shall have the see simple, and the lessee surrender his estate within the time; in this case if the lessee pay the money the lessor is bound to make the fee simple to him. But if the words of the covenant be, that if he pay him tenne pound within the terme he shall have fee, and the lessee surrender his terme, and then pay the tenne pound; in this case the lessor is not bound to make the fee simple, for it was not paid within the terme.

If one covenant to doe a thing to I S, or his assignes, or to I S 27 H. 8. 2. Assignes. and his assignes by a day, and before the day I S die; in this case it must be done to his assignes if he before the day name any assignee, and if he doe not, it must be done to his executor or administrator which is an assignee in law. See more in Condition Num. 8. Obligation, 7.

If one be seised of land in fee, or possessed of a terme of years, Dier 303. Co. 9. 60. 7. When a Covenant in Deed or Law shall be said to be broken. And when not. And how. and he doth alien it, and supposing he hath a good estate, he doth covenant that he is lawfully seised or possessed, or that he hath a good estate, or that he is able to make such an alienation &c. and in truth he hath not, but some other hath an estate in it before; in this case the covenant is broken as soone as it is made. Adjudge Sir Perall Brocas case. 32. Q. And if I bargaine and sell land by deed indented to B, and before the That the covenant or is seised of a good estate &c. deed is inrolled I grant the same land to C, and covenant that I am seised of a good estate of it in fee, and after the deed is inrolled; in this case the covenant is broken.

If A let land to B, and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case. Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case. Fitz. Covenant 26. Bro. Covenant. 40. without the let of any person whatsoever, and A himselfe, or any For quiet enjoying. other person that hath any title to the land by or under him, as if he make a lease of it, or granta rent out of it to another, or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor, and the disseisee, doe enter or disturbe B; in all these cases the covenant is broken. And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying, where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying; for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee, this is no breach of the covenant in law. And in all cases where any person hath title, the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title.

If a man make a lease of land, and after make a feoffement of 20 Jac. Bro. Covenant 7. [Page 171] the same land, and the feoffee doth disturbe the lessee; in this case it hath been said this is a breach of the covenant for quiet enjoying. Sed quere.

If a man purchase land to him and his wife and his heires in fee, Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton. and then make a lease for years of it to I S, and covenant for him, his executors and assignes that the lessee, his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor, his heires or assignes or any other person by or through his or their meanes, title or procurement, and after the lessor doth die, and his wife doth enter and disturbe; in this case and by this meanes the covenant is broken. And so it is also, if A purchase Swans case. M. 7 & 8 El. land of B. To have and to hold to A for life, the remainder to C the sonne of A in taile, and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case, and then he dieth, and then C doth out the lessee; in this case this was held to be no breach of the covenant. So likewise if A be seised of white acre in fee, and take to wife B, and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying, and then A doth die, and after B doth recover dower; by this the covenant is broken, and yet if the mother of A recover dower and out the lessee contra. So also if a tenant in taile doth make a lease with such a covenant, and his issue doth disturbe the lessee; this is no breach of the covenant. And yet if the lessor be the cause of the gift in taile, or procure the disturbance, this may be a breach of the covenant. And so also it is where a man is seised of land in fee, and he doth make a lease with such a covenant, and afterwards he doth die, and then his heire is in ward by reason of a tenure, and hereby the lessee is disturbed; it seemes this is no breach of this covenant.

If one covenant that the wife he is about to mary shall quietly Curia. B. R. pase. 6. Car. Crowles case. enjoy all her goods, and that the covenantee shall take it into his possession, and the husband doth only take the goods and keepe them in his possession; this is no breach of the covenant.

If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood. Adjudge Mich 2. Car. B. R. Sāders case. Dier 240. the King and his successors; and the Patentee of the King doe disturbe; this is a breach of this covenant.

If two make a lease, and covenant that the lessee shall enjoy the land without the let of them or any other, and one of them alone doth disturbe the lessee; this is a breach of the covenant.

If a lessee grant and assigne all the land contained in his lease to A, and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors &c. may enjoy it against all persons, and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower; in this case this [Page 172] is no breach of the covenant, for the words [but that &c.] doe referre to the former and are not absolute.

If A grant the Bailiwicke of W to B for life, and B assigne it Adjudge Rich versus Row. pasch. [...]3 Jac. Co. B. to C for three years, and after to D, and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit, but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C, and after the three years ended C doth execute a Proces there, and thereby incroch upon the office; this is no breach of the covenant.

If A grant land to B and his heires rendring tenne pound rent, Curia Hil. 20 Jac. Co. B. Greenway & Truckfalds case. To free from charges and incumbrances. and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances, and before that day a Common Recovery is had against C in which A is vouched, and this is to the use of C and his heires, supposing hereby the rent had been gone which is not so; in this case the covenant is broken, for this rent is an incumbrance.

If a lease be made of land for years, & the lessee devise it to his Co. 10. 52. wife durante viduitate, and after to his sonne, and he in reversion doth sell the fee to the woman during the widowhood, and doth covenant that the land is discharged of all former sales, rights, titles, charges: in this case the covenant is broken at the first by reason of the possibility of the sonne.

If A grant white acre to B, and covenant that B shall enjoy it 9 Eliz. Co. B. against all incumbrances, and C doth disturbe him in the taking of common there, and this is a common which is against common right and which he hath by prescription: in this case it seemes this is a breach of the covenant. But if it be of a common that is of common right contra.

If A covenant with B before Easter to make him a good sure Dier 139. To make estates and assurances. estate of land discharged of all former bargaines, leases and incumbrances whatsoever, (leases or grants for life or years reserving the ancient rent during the terme only excepted) and A after this and before the estate made doth make a grant of all or part of the land reserving the old rent, it seemes this is no breach of the covenant.

If one make a lease to I S for years, and covenant with him that Co. 5. 21. upon the Surrender of that lease he will make him a new lease, and the lessor before I S can make any Surrender doth sell away the reversion, or make a lease to another of the land, and so disable himselfe, this is ipso facto a breach of the covenant, without any Surrender made by the lessee which in this case is not needfull. For Lex neminem cogit ad vana & in utilia peragenda. So if one be seised of land in fee, and covenant to make a feoffement of it to I S by [Page 173] a day upon request, and the Covenantor before the day doth make a feoffement of it to another, and then doth die before any request made to him; in this case the covenant is broken.

If A covenant with B to make such assurance as B, or as the Counsell learned of B shall devise, and B tender such an assurance to Dier 338. Co. 2. 3. A to seale, and A doth refuse or delay to seale it; this is a breach of the covenant.

If A doth covenant with B, C, D and E to make them a feoffement Bro. Covenant 3. such a day, and they come to the land at the time to take it, and A doth not make the feoffement; by this the covenant is broken. And so also if B and C only or one of them doth come to the land, for it may be made to any of them in the name of the rest. But if none of them come to the land albeit the feoffor never come there it seemes the covenant is not broken.

If A covenant with B before Easter next to assure his house Curia B. R. to him and K his wife during the life of I S, and A surrender his house to the use of B and such as K shall name at the request of B; in this case the covenant is broken, for this is no performance of it.

If one covenant to repaire, sustaine and amend a house, and the To repaire. Dier 324. house is burnt by the negligence of the covenantor and not repaired againe; this is a breach of this covenant. And if the lessee covenant for him and his executors to repaire at his owne costs (the principall timber not hurt or in decay for lacke of reparations or otherwise in default of the lessee or his executors only except) and he die, and afterwards the house is burnt in default of the executors; in this case the covenant is broken and the executors may be charged.

If one covenant to leave a wood in the same plight he findes it, Fitz. Covenant 29. Co. 5. 15. F. N. B. 145. Co. 1. 98. Perk. Sect. 738. Dier 33. Plow. 29. 40 E. 3. 5. and he cut downe trees; in this case the covenant is broken presently, for it is now become impossible to be performed by his owne act: But if in this case some of the trees be blowed downe with the wind, or the like, by this the covenant is not broken, for it is now become impossible to be done by the act of God, and in this case the covenantor is not bound to supply it. And so likewise of a covenant to repaire houses, or if one covenant to sustaine houses or Sea banks, or covenant to leave them in as good case as one doth find them, and the houses be burnt, or throwne down by tempest, or the like, or the banks be overthrown by a suddaine s [...]ood, or the like accident; in this case the covenant is not broken by this accident only; but if the covenantor doe not repaire and make up these things again in time convenient the covenant will be broken. And if houses be let to me for years, and I covenant to leave them in as good plight as I finde them, and I throw down the houses, this is no breach of the covenant for I may reedifie them, [Page 174] and therefore no action will lie upon this covenant untill the end of the terme.

If one covenant to repaire a house before a day, and it happen Hil. 8 Jac. Curia. the plague is in the honse before and untill the day; and thereby it is not done; in this case the covenant is not broken, for this will excuse, but then it must be done in convenient time afterwards, for otherwise the covenant will be broken.

If a lessee covenant to doe all the reparations of a house demised Dier 198. at his own costs and charges, & he cut trees upon some of the ground demised to amend the house; it seemes this is a breach of his covenant.

If one covenant to pay money at five severall daies, and he faile Co. super Lit. 292. To pay money. of payment the first day; by this the covenant is broken.

If one take land sowed or a stocke of cattell in lease for years, 40 E. 3. 5. To leave a stock &c. and the lessee covenant to leave it in as good plight as he doth take it; in this case he must leave it sowed againe, and if any of the cattell die, he must make up the number, otherwise he doth breake his covenant.

If a Corporation doe covenant not to take Toll, and their Common Not to take toll. officer appointed for that purpose doth take it; this is a 43 E. 3. 17. breach of the covenant.

If A covenant with B to build a house by a day, and B doth 18 E. 4. 8. Kelw. 34. Trin. 36 El. B. R. Carrell versus Reade. To build a house. forbid him, and thereupon he doth forbeare to doe it, and doth it not; in this case the covenant is broken, for this will not excuse him: But if he doe by any actuall impediment hinder him, or be the cause why the thing is not done, then the not doing of it is no breach of the covenant. And therefore if a lessee covenant to clense one of the ditches in the land demised, and the lessor enter upon To clen [...]e a ditch. the land it selfe and keepe out the lessee, and he doth not clense the ditch by the time; by this the covenant is broken: but if in this case the lessor doe by force keepe the lessee out of the ditch or place it selfe, contra.

If A and B be Jointenants of a shop, and A covenant with Hil. 16 Jac. B. R. Siliard versus Loc. To have liberty to goe in and out of a shop. B that he and his assignes shall have free ingresse and egresse in and out of the shop, and A doth appoint C his servant to enter as servant to him and to occupy in common with A and this servant doth expell the servant of B; in this case this is a breach of the covenant.

If A covenant with B that B shall come foure times a year 3 H. 4. 8. into the house of A without being outsted by A and A when he To come into a house. doth see B comming doth shut the doores and windowes and doth not suffer B to come in; by this the covenant is not broken.

To mary another Make a feoffment &c. Tender and refusall. If A covenant with B to mary the daughter of B, make a feoffement, 33 H. 6. 18. Bro. Covenant 3. Fitz. Barre 62. or doe any other act to C (who is a stranger to the covenant) and A doth tender it and offer to doe as much as doth lie [Page 175] in his power, but the stranger doth refuse it, and thereby it is not done; yet this doth not excuse but the covenant is broken. But if the covenant be to doe any such act to the covenantee himselfe, and the covenantor tender it and the covenantee refuse it; by this the covenant is performed.

See more in the last question, and in Obligation Numb. 7, 8, 9. and Mich. 7 Jac. Co. B. in Condition Numb. 9, 10.

Any one that is party to the deed to whom the covenant is made 8. Who shall or may have advantage of a covenant in deed or law, and bring a writ of covenant upon the breach of it. Or not. may take advantage of the covenant, but not a stranger; for if A covenant with B to doe an act to C who is no party to the deed, and he doth it not, B and not C must sue him upon this breach.

If a lease be made of land to a husband and wife for years, and Co. 5. 17. Dier 257. 47 E. 3. 12. the lessor doth enter upon the land and put them both out, or the one of them after the death of the other, in this case both of them whiles they both live, and the survivor after the death of one of them may have this action of covenant upon the covenant in law. So if a wardship be granted to a woman by deed, and shee take a husband and die; the husband shall have advantage of this covenant in law made by the word [grant] if he be disturbed. So if one by the words [demise or grant] lease land to a woman sole for years, who taketh a husband and dieth; in this case if the husband be disturbed he shall take advantage of this covenant in law.

If a feoffement be made in fee, and the feoffor doth covenant Heire. Dier 338. to warrant the land, or otherwise to the feoffee and his heires; in this case the heire of the feoffee shall take advantage of this. As if A covenant with B and his heires to infeoffe B and his heires of land, and B die before it be done, in this case his heires shall take advantage thereof. And if A, B and C have lands in coparcenery, and they purchase other lands in fee, and they covenant each to other his heires and assignes to make such conveyance to the heire of him that shall die first of a third part as he shall devise, in this case the heire not the executor shall take advanntage of the covenant.

Executors and Administrators shall take advantage of inherent Executors & administrators. Co. 5. 17. F. N. B. 145. H. Dier 112. 271. covenants, albeit they be not named. And therefore if A covenant to doe a thing to B and doe not name his executors or administrators, and it be not done, it seemes the executors or administrators of B may have an action of covenant for the not doing of it. As if one covenant with I S to pay him money at Michaelmas and doe not say to his executors &c. and he die before the time; in this case his executor or administrator shall take advantage of this covenant and may recover the money.

S e Condition Numb. 12. Co. 5. 18. 9 Jac. B. R. Wilborne & Bestwichs case accord. Grantees of reversions shall have the like advantage against Assignees o [...] Grantees. Fermors (by action only) for any covenant or agreement contained [Page 176] in their lease as the lessors their heires or successors might. And so also shall lessees against grantees of reversions (recoveries in value except) by the statute of 32 H. 8. cap. 34 And herein (as in the cases of a condition before) a difference is taken between covenants that are inherent, and covenants that are collaterall. For the covenants whereof grantees by this statute shall take advantage are inherent covenants. i. such covenants as doe concerne the thing granted and tend to the supportation of it: As where a lessee for life or years doth covenant with his lessor and his heires to keep the houses demised in good reparations, or the like, and after the lessor doth grant away the reversion of all Mich. 8 Jac. Pimes case. or part of the houses to I S; in this case I S shall take advantage for any breach of the covenant in his time, but not for any breach before the time the reversion was granted. But if the lessee doth covenant with his lessor and his heires to pay him a summe of money, or make him a feoffement or the like, and then the lessor doth grant the reversion to I S, in this case I S shall not take advantage of this covenant: And yet the executors or administrators of the lessor shall take advantage of this covenant.

Regularly every assignee of the land or thing demised shall take Co. 5. 17. advantage of inherent covenants, as if a covenant be, to have Estovers to burne in the house demised, or to have timber to repaire, or if the covenant be that the lessor or lessee shall repaire, or the like. And therefore of these assignees in deed and in law assignees of assignees in infinitum shall take advantage, and assignees of executors or administrators, Tenants by Statute, or Elegit, or after a sale upon a Fieri facias, a husband in the right of his wife; any one of these and any other that shall come lawfully to a terme unto which such a conveant is incident, albeit he be not named yet may he take advantage of it.

If a lease for years be made to I S by the words [Demise or Co. 4. 80. Dier 257. Fitz. covenant 30. Grant] and the lessee assigne this over to I D; in this case I D may take advantage of the covenant in law, and bring an action against the lessor if he be disturbed.

If a lease for years be made of land, & the lessor doth covenant Co. 3. 63. F. N. B. 145. with the lessee and his assignes to doe, or not to doe something; in this case an assignee by word or an assignee by deed may take advantage of this covenant.

If two coparcenours make Partition of land, and the one of them Co. super Lit. 385. Co. 5. 23. 18. doth covenant with the other to acquite her and her heires of a suit that issued out of the land, and the covenantee doth alien her part to a stranger; in this case the alienee shall have the same advantage for acquitall of the land as the covenantee had. So if A be seised of the Manor of B whereof a chappell is parcell, and a Prior with the consent of his covent had covenanted with A and his heires [Page 177] Lords of the Manor to celebrate divine service in the chappell, and after A had sold the Manor; in this case the vendee or assignee of the Manor should have had the same advantage of the covenant the vendor had. But if the Lord had sold the chappell the assignee of the chappell should not taken advantage of the covenant. And if a covenant be to say divine service in the chappell of a stranger; in this case the assignee of the Manor in which the chappell is shall not take advantage of the covenant.

Regularly all those that doe seale and deliver the deed and are 9. Who shall be bound and charged by a covenant. And against whom a writ of covenant doth lie. And where. Or not. Co. 5. 16. 17, 18. named and bound by the expresse words of the covenant, whether the covenant be collaterall or inherent, are bound by the covenant contained in the deed; And therefore if heires, executors, administrators or assignes be named in the covenant, for the most part they are bound by the covenant. And in all cases of inherent covenants also, where a man doth covenant for himselfe only, and doth not name his executors and administrators or either of them; they are bound and may be charged by the covenant notwithstanding. Executors, Administrators. And in some cases the law is so also for collaterall covenants. And in most cases of inherent covenants that tend to the support of the thing granted; (in respect of which it is presumed the lessor tooke the lesse for the land) such as have the land, albeit they be neither executors nor administrators or either of them but assignees &c. shall be charged by the covenant though they be not named, for these covenants are said to run with the land.

If a feoffement, or lease be made to two, or to a man and his Co. super Lit. 231. Dier 13. Bro. covenant 6. Det. 80. wife, and there are divers covenants in the deed to be performed on the part of the feoffees, or lesses, and one of them doth not seale, or the wife doth, or doth not seale during the coverture, and he, or she that doth not seale doth notwithstanding accept of the estate and occupy the lands conveyed or demised; in these cases as touching all inherent covenants, as for payment of rent, and the accessaries thereof, as clauses of distresse, of reentry, of nomine poene, reparations, and the like, they are bound by these covenants as much as if they doe seale the deed. So if a lease be made to A for years or life the remainder to I S in fee, and there is a rent reserved, or there be divers covenants on the part of the grantees, and I S doth never seale the deed or counter part; yet if in this case he accept the estate after the death of A he must pay the rent and performe all the covenants that are inherent. So also if there be covenants in the Kings Patent to be performed on the part of the Patentee. As Experientia. Pasc. 14. Jac. B. R. Bret & Cumberlands case. if there be this clause in the Patent [and that I S (the Patentee) shall repaire the house when it is decayed;] in this case the Patentee is bound by this covenant, and all such like covenants. But Quere of collaterall covenants in the first cases, for therein it seemes the feoffee or lessee is not bound. And yet it is said, that if an indenture Co. super Lit. 231. [Page 179] be made between A of the one part and B and C of the other part, and therein there is a lease made by A to B and C on certain conditions, and B and C are bound to A by the indenture in twenty pound to performe the conditions and B only doth seale the deed and not C; yet in this case if C accept of the estate he is bound by the covenants, and one of them cannot be sued without the other whiles they are both living. Qui sentit commodum sentire debet et onus. Et transit terra cum onere.

If a man covenant for him and his heires to doe any thing whatsoever; Co. 5. 17. Bro. covenant 38. 32 H. 6. 32. Dier 257. Fit [...]. covenant. 31. hereby his heires are bound. But otherwise except the Heire▪ heires be bound by the deed by expresse name, an heir shall scarcely be bound or charged in any case by a deed. And therefore it is that if the lessee for years be ousted by any other but the heire himselfe, no action of covenant will lie against the heire unlesse there be an expresse covenant wherein and whereby the lessor and his heirs are bound. But if he be ousted by the heire himselfe it seemes an action of covenant will lie against him. And yet if he be ousted by an elder title from the lessor cōtra, for in this case the heir shal not be charged.

If a man doe covenant for himselfe only, to pay money, build a 10 H. 7. 10. Dier 19. 14, Bro. covenant 50 Dier 114. Executors. Administrators house, for quiet enjoying, or the like, and he doth not say in the covenant [his executors Descent administrators &c.] yet hereby his executors & administrators are bound & shal be charged. And yet if a lessee for years covenant for himselfe to repair the houses demised, omitting other words; it seemes in this case he is bound to repaire only during his life, and the executors or administrators are not bound. So if a lessor covenant for himselfe only to discharge the lessee of all quit rents out of the land; it seemes this covenant is only personall, and shall bind the covenantor only during his life. But if in these cases these words [during the terme] be added in the covenant, as if a lessee covenant for himselfe to repaire the houses during the terme, or the lessor covenant for himselfe to discharge the lessee of all quit rents during the terme; in these cases it seemes the executors and administrators also will be charged after his death.

If a lessee be ousted by one that hath title; it seemes an action Dier 257. of covenant will lie for this ouster against the executor or administrator upon the covenant in law, if he were put out in the life time of the lessor and not otherwise, for if there be tenant for life the remainder in fee to another, and the tenant for life by the words [demise or grant] doth make a lease for years and dye, and after he in the remainder doth enter and put out the lessee for years; in this case he cannot upon this covenant in law charge the executors or administrators of the lessor. But upon an expresse covenant for quiet enjoying he may. Assignees or Grantees.

In some cases an assignee shall be charged though he be not named, Co. 5. 16. [Page 178] and in some cases shall not be charged though he be named, and in some cases he shall be charged when he is named, as when the covenant doth extend to a thing in esse, parcell of the demise, there the thing to be done is appurtenant and quodammodo annexed to the thing, and shall bind the assignee though he be not expresly named, as a covenant to repaire &c. But if the covenant be annexed to a thing not in esse before but de novo to be erected on the thing, as to set up a new house, or the like; in this case it will not bind the assignees unlesse they be named in the covenant. And if the covenant be to doe a thing meerly collaterall; in that case it will not bind the assignees albeit they be named expresly. Also when a contract is personall only, and a man doth bind himselfe and his assignes; his assignes shall not be bound hereby: as if one demise sheep or other stock of cattell, or any other personall goods for any time, and the lessee doth covenant for him and his assignes at the end of the terme to deliver them in as good plight as they were at the [...]ime of the demise or such a price for them, and the lessee assigne them; in this case this covenant will not bind the assignee: but the executors and administrators of the first lessee are bound hereby. So if one demise a house and land Executors. with a stocke or summe of money for years, rendring rent, and the lessee doth covenant for him and his assignees to deliver the money at the end of the terme; in this case an assignee shall not be bound by this covenant as the executors and administrators of the lessee shall.

If a lessee covenant to repaire the houses demised or to discharge Co. 5. 17. Dier 27. Bro. descent 50. the lessor de omnibus oneribus circa terram, or the like; in these cases and such like albeit assignees be not named in the covenant, yet assignees and assignees of assignees in infinitum, & al others that shal come to the land by the act of law, or by the act of the parties shall be bound and charged by this covenant.

If a lessee covenant for him and his assignes to build a new house upon the land demised within seven years, and the lessee assigne it Co. 5. 17. over; in this case the assignee is chargeable. But if a man covenant for him and his assignes to make a feoffment, obligation, or the like, in this case the assignee shall not be charged albeit he be named. And if the lessee covenant for himselfe, or for himselfe, his executors and administrators only to build a new house upon the land demised, and the lessee assigne over the land; in this case the assignee is not bound by this covenant.

If a lease be made rendring rent, and if it be arere that the lessee Thins case. vers. Cholms ley. Trin. 36 Eliz. C. B. his executors and assignes shall forfeit three shillings four pence nomine poenae, and the lessee assigne the terme; in this case it seemes the assignee shall be charged with the nomine poenae.

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And in all the cases before where a covenant is broken, an action Bro. covenant 32. of covenant may be brought. But herein note that howsoever in Note. divers of the cases before assignees are chargeable upon a covenant, yet the lessee himselfe is not hereby discharged, but the lessor or grantee of the reversion hath election to charge which of them Election. he will. And therefore if a lessee covenant for him and his assignes to repaire, and the lessee assigne; in this case the lessor may have his action of covenant against either of them. And if a lessee covenant Hil. 16 Jac. B. R. Curia Bret versus Cumberlād. for him, his executors, administrators and assignes to repaire the houses demised, and he in reversion doth grant away his reversion, and the lessee assig [...]e his estate; in this case albeit the grantee of the reversion have accepted the rent of the assignee of the terme, yet he may still have an action of covenant against the executor of the lessee upon this covenant. So if a Patentee covenant for him and his assignes to repaire, and he assigne; the King may have his action against either of them.

If A and B doe covenant for themselves jointly without more Co. 5. 23. words; the covenant is joint and one of them cannot be charged without the other. But if they covenant for themselves severally the covenant is severall and they may be sued apart. And if they covenant jointly and severally; then the covenant is joint and severall, and they may be sued either way at the election of the covenantee.

Where the deed it selfe wherein the covenants are contained, Dier 20. Co. 5. 23. 10. W [...]n a covenant shall be said to be gone and discharged. And when not. And how. or the estate on which the covenants as accessary to the principall doth depend, is gone and determined there regularly the covenants are gone also. And therefore if a lease for life or years be surrendred, whereby the estate is gone, or a deed become void by rasure or the like, and there be covenants contained in the deed; by these meanes the covenants are gone also. But this surrender doth not discharge the breach of covenant which was before the 40 E. 3. 27. Bro. Surrender 47. Covenant 41. Hil. 4 Jac. B. R. Moile. vers. Austin. surrender. For if a Parson lease his glebe for years, and after resigne, whereby the lease for years doth become void; in this case the covenants of the lease as to the time before the resignation shall be said to be in force still.

Where a covenant is become impossible to be done by the act of God, as where one doth covenant to serve another seven Co. 1▪ 98. Plow. 286. years, and he die before the seven yeares be expired; by this the covenant is discharged.

Where there is an expresse covenant in a deed for quiet enjoying, Co. 4. 80. the implyed covenant is gone. Expressum facit cessare tacitum.

By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release. is discharged, so as the release be by deed, for a covenant by deed cannot [Page 181] be discharged by word. And therefore if A by deed covenant with B to build a house by a day, and B doth wish him to let it alone; this is no discharge of the covenant.

If the lessor accept the rent of the lessee or his assignee after Pasc. 6. Car. B. R. Adjudg Bachelors case. a covenant broken; this doth not discharge the breach of the covenant, but the lessor may sue for it notwithstanding.

And so we come to a Warranty being a speciall kind of covenant, and therefore next in order to be spoken to.

CHAP. VIII. Of a Warranty.

A Warranty is a covenant reall annexed to lands or tenements Finch. ley 39. Co. super Lit. 365. 1. Warranty. Quid. whereby a man and his heires are bound to warrant the same. Or it is where a man is bound to warrant the land or hereditament that another hath. And he that doth make this warranty is called the warrantor, and he to whom it is made Warrantor. Warrantee. the warrantee.

There are two kind of warranties. 1. A warranty in deed, 2. Quotuplex. Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty, which is when the same is expressed. i. when a fine, or feoffement by deed is levied or made in fee, or a lease for life is made by deed, comprehending warranty, or which hath an expresse clause of warranty contained in it, as when a conusor, feoffor, or lessor doth covenant to warrant the land to the conusee, feoffee, or lessee; whch is in these words. Ego I S & heredes mei warrantizabimus & imperpetuum defendemus W S & heredibus suis tenementa predicta contra omnes homines imperpetuum. And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor. 2. A warranty in law, or an implied warranty, which is when it is not expressed by the party but tacite made and implied by the law, whereof see divers Examples infra. The warranty in deed also is either lineall, which Co. super 383, 384. 370. 365. is thus described. A covenant reall annexed to the land by him which either was owner or might have inherited the land and from whom his heire lineall or collaterall might by possibility have claimed the land as heire from him that made the warranty. Or else it is collaterall, which is thus described. A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land. Also there is a warranty which doth commence by disseisin or wrong, of all which [Page 182] [...]ee divers examples afterwards. And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances, for there is a warranty of goods and cattells in contracts of which we treat not here.

The fruit and effect of this warranty in deed is, that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it, and what use may be made of it. warranted for ever, so that all his present and future rights that he hath or may have therein are hereby extinct. And therefore if the father be diss [...]ised, and the sonne in his life time release all his right to the land to the disseisor, and make a warranty of the land in the deed, and then the father dieth, and the right of the land descendeth to the sonne; in this case albeit the release doth not barre the sonne yet the warranty doth barre him. And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty, for if it be a lineall warranty, it is a barre of an estate in fee simple without any Assets. i. without any other land descended to him in fee simple from the same Ancestor that made the warranty: And with assets it is a barre of an estate in taile. And if it be a collaterall warranty, it is with or without assets a barre of an estate in fee simple or [...]ee taile, and all possibility of right thereunto; and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force, for if the warranty be avoided the right may be revived. But neither the lineall or collaterall warranty can enlarge an estate. And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. &c. life, and warrant the land to him and his heires; this doth not make his estate greater, neither will it barre titles of entry or action in cases of Mortmaine, consent to a Ravishor, mortgage, or dower. And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine, and he release, or make a feoffement with warranty; this warranty will neither barre him nor his heire. So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken; this will not barre his entry &c. neither will it barre any right that shall commence after the warranty made. And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets.

And in cases where the lineall or collaterall warranty is a barre, Co. super Lit. 265. Co. 10. 98, 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty, the party impleaded that is tenant of the land may plead and shew forth this warranty against him, and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted; and this in pleading is called a Rebutter. And if he be impleaded or [...]ued by another for Rebut [...]er. Quid. [Page 183] the land, then he to whom the warranty is made or his heires may vouch. i. call in the warrantor or his heires to warrant the land. Voucher. Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee, wherein he that doth vouch, (called the voucher) is demandant, and he that is vouched (called Voucher. Vouchee. the vouchee) is made tenant or defendant to the action, and the vouchor is as it were out of the suite. And this second tenant the vouchee is called the tenant by the warranty. And hereupon shall Tenant by the warranty. Quid. Summons ad warrantizandum. Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a Summons ad warrantizandum. And if the vouchee appeare he must plead to the vouchor, and if he shew cause why he should not warrant, that must be tried, and this shewing of cause is called a Counterplea to the voucher: but if he plead in a voidance of the warranty, it is called a Counterplea to the warranty. And Counterplea to the voucher. Quid. Connterplea to the warranty. Quid. if he cannot gainesay the warranty the stranger shall recover the land demanded against the vouchor, and he shall recover as much other land against the vouchee of the lands he hath or had at the time of the voucher. And this recovery of other land is called a recovery in value. And if the vouchee hath at the time of the voucher and recovery no lands descended to him to answer the warranty Recovery in value. Quid. but hath afterwards land happening to him by descent from that Ancestor, then he may have a resummons and recover the land that doth after happen. But if the Sheriffe returne upon the summons, that vouchee is summoned & he doth make default, then he shall have a Magnum cape ad valentiam, when if he make default againe the Judgement shall be given against the vouchor, and he shall recover over in value against the vouchee, and if the vouchee appeare and then make default the vouchor shall have a parvum cape ad valentiam, and then if he make default Judgement shall be given as before. But if the Sheriffe returne upon the summons, he hath nothing whereby he may be summoned, then may the vouchor have a writ called Sequatur sub suo periculo, whereupon shall goe an Alias and Pluries, and if the like returne be made the Sequatur sub su [...] periculo. Quid. demandant shall have Judgement against the first tenant, but he cannot recover in value against the vouchee. And if the case be so the vouchee had a warranty from some other for the land, he may dearaigne. i. maintaine the warranty over and shall recover Dearaignment del Garranty. Quid. in value over also against his vouchor in the same manner as before.

Or the warrantee to whom the warranty is made or his heires may at any time before they be impleaded for the land if they will F. N. B. 134. Co super Lit. 102. bring a Warantia Chartae upon the warranty in the deed against [...]arrantia [...]hartae. Quid. the warrantor or his heires, and hereby all the land the heire of the warrantor hath by descent from the Ancestor that made the warranty at the time of this writ brought shall [Page 184] be bound and charged with the warranty into whose hands soever it goe afterwards, so that if the land warranted be after recovered from the warrantee he shall recover so much land over againe of the other land of the heire of the warrantor or of the warrantor himselfe if he be living. And albeit the warrantee or his heires doe recover in this writ yet he may after upon occasion vouch the warrantor or his heires notwithstanding. And herein observe it is good policy if a man suspect any thing to bring this writ of Warrantia Chartae betimes, because it binds all the land of the warrantor from the time of the writ brought and not any of his other lands he had before that time that are now aliened.

The words Dedi & concessi, or Dedi only in a feossement doe Co super Lit. 383, 384. Co. 4. 81. 4. What words and clauses in a deed will make a warranty. Or not. make a warranty when an estate of franketenement or inheritance doth passe by the deed. But the word Concessi only, or Demisi & concessi, doe not make such a warranty. And by force of the Statute of Bigamis chap. 6. Dedi is made an expresse warranty during the life of the feoffor.

The word, Warrantizo, or warrant is the only apt and effectuall Lit. Sect. 733. Co. 5. 17, 18. word to make an expresse warranty or a warranty in deed, and therefore this word only is used in fines. And the words Defendo, or Acquieto, albeit they be commonly used in deeds, yet of themselves without the other will not make a warranty.

If a man by deed doth grant to warrant land to I S and his Dier 42. Co. super Lit. 383. heires, and the warrantor doth not bind his heires to the warranty; or doth not warrant to I S and his heires but to I S only; or doth warrant to I S and his assignes and not to I S and his heires; or doth bind himselfe and his heires to warrant the land, but doth not say how long, nor against whom; these are good warranties, but how they shall be taken see afterwards.

A warranty in deed may be annexed to estates of inheritance Co. super Lit. 366. 389. or freehold, and that not only of corporeall things which passe 5. To what things a warranty may be annexed and extended. And to what not. And how. by livery, as houses, lands, and the like, but also of incorporeall things which lie in grant, as Advowsons, Rents, Commons, Estovers, and the like which issue out of lands or tenements, and that not only to inheritances in esse but also to such as are newly created, as a man (some say) may grant a rent &c. de novo out of land for life, in taile, or in fee, with warranty. So a warranty in law may extend to a rent newly created, and therefore if such a rent be granted in exchange for an acre of land; this Exchange and warranty thereunto annexed is good. But a warranty may not be annexed to an estate or lease for years, albeit it be a lease of one thousand years, nor to any other chattell, and therefore in all actions the which less [...]e for years may have as trespasse &c. a warranty cannot be pleaded in barre.

[Page 185]

A warranty may be made upon any kind of conveyance, as upon Co. super Litt. 372. 385. Litt. Sect. 738. 745 706. fines, feoffements, gifts, &c. also a warranty may be made by and upon releases and confirmations made to the tenant of the land, albeit he that makes the release or confirmation hath no right to the land, &c. And yet some say, that by a release or confirmation where there is no estate created, or transmutation of the possession, a warranty cannot be made to the assignee. But if A be seised of land in fee, and B doth release to him, or doth confirm his estate in fee with warranty to him, his heirs, and assignes; in this case all men agree this warranty to be good; and so also it seems it is in the case last before, and that both the party himself, and the assignee may vouch.

A warranty in Law may be good in his creation, albeit it be made 6. What shall be a good warranty in Law. And how it shall barre and bind. Co. super Litt. 384. 386. without deed, for if a man by his last Will and Testament devise lands to antoher man for life, or in tail rendring rent; to this estate there is a warranty in Law annexed.

The words Dedi & concessi, or Dedi onely in a feoffment, make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law. But the word Concessi onely in fine or feoffment, doth not make a warranty in law. And albeit there be an expresse warranty in the deed, yet this doth not take away the implied warranty of the Law. And this warranty in Law by Dedi & Concessi, or by Dedi onely, is a generall warranty during the life of the feoffor.

Every partition and exchange implieth in it, and hath annexed Partition. Exchange. Co. super Litt. 102. 384. to it a speciall warranty in Law, and how it shall bar and be extended see in Exchange.

Every tenure by homage Auncestrel, i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord, and his Auncestors time out of mind by homage hath a warranty in Law annexed to it, by which the Lord is bound to warrant it to the tenant and his heirs.

If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent, or of a rent-service by deed; in these cases there is annexed an implied warranty against the donor or lessor, his heirs and assignes.

When dower is assigned to a woman, there is a warranty in Law included, which is that the tenant in dower being impleaded, shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable.

And this warranty in Law is of the nature of a lineall warranty, Co. super Lit. 384. and shall bind as a lineall warranty onely, for it doth never barre any collaterall title. And hence it is, that this warranty and assets in some cases is a good bar, as if tenant in tail exchange for other lands which are descended to the issue, and he hath accepted of them, or if not, that other lands are descended to him. But if tenant in tail of lands make a gift in tail or lease for life rendring rent and [Page 186] die; in this case this is no bar. And yet if other assets in fee simple descend, this warranty in Law and assets is a good bar.

To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed. Or not. And how it shall bar and bind. Infant. things are requisite, 1. That the person that doth warrant, bee a person able, for if an infant make a feoffment in fee of land, and thereby doth binde him and his heirs to warrant the land; in this case albeit the feoffement bee onely voidable, yet the warranty is void. 2. That the warranty be made by deed in writing, for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word, and by word binde him and his heirs to warrant the land; this is not a good warranty. So if a man give lands to another by his last Will, and thereby binde him and his heires to warrant it; this warranty albeit the Will bee in writing is void. 3. That there be some estate to which the warranty Co. 10. 96. & Super Litt. 384. is annexed, that may support it, for if one covenant to warrant land to another and make him no estate, or make him an estate that is not good, and covenant to warrant the thing granted; in these cases the warranty is void. 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed, bee such an estate as is able to support it, and therefore that it be a lease for life at the least, for if one make a lease for years of land, and bind himselfe and his heires to warrant the land; this is no good warranty, neither will it have the effect of a warranty: but this may amount to a covenant on which an action of covenant may be brought. 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. [...] descend upon him that is heir of the whole bloud by the common Law to him that made the warranty, and not upon another: for if tenant in tail in Burrough English (where by custome the youngest son is to inherit) discontinue the tail, and have issue two sons, and the Vncle release to the discontinuee with warranty and dieth; this is no good warranty to binde the sonne. So if in this case tenant in taile discontinue the taile with warranty &c. having two sonnes, and die seised of other lands in the same Burrough in fee simple, to the value of the lands in taile; the younger sonne is not barred by this warranty. So if one give his land Litt. [...]o. 161. to the eldest sonne, and the heires males of his body, the remainder to the second sonne, &c. and the eldest sonne doth alien with warranty having issue a daughter and die; this is no good warranty to barre the second sonne. So if tenant in taile have issue two daughters by divers venters and die, and they enter and a Litt. Sect. 737. stranger doth disseise them, and one of them doth release all her right, and binde her and her heires to warrant it; in this case the warranty is not good to barre the sister: but if they had beene by one venter contra. So if two brothers be by demy venters, and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle, and dieth without issue, and the younger dieth; this is no good warranty to barre the younger brother, for a warranty must evermore [Page 187] descend upon him that is heire at the Common Law to him that made it. 6. That he that is heir doe continue to be so, and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted, for if one binde him and his heires to warrant, and after is attainted of treason or [...]elony, and die; this warranty doth not binde his heire. So if tenant in taile be disseised, and after release to the disseisor with warranty, and after the tenant in taile is attainted of felony, and hath issue and die; this warranty will not bind the issue. 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made, and that he to whom the warranty doth descend, have then but a right to the land, for a warranty will not barre any estate of freehold or inheritance in esse in possession, reversion, or remainder, that is not displaced and put to a right before or at the time of the warranty made, though after at the time of the descent of the warranty, the estate of freehold or inheritance be displaced and devested. And therefore if there be father and son, and the sonne [...]th a rent-service, suit to a mill, rent-charge, rent-seck, common of pasture, or other profit apprender out of land of the father, and the father maketh a feoffment in fee with warranty and dieth; this shall not barre the sonne of the rent, common, &c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised, and so being out of possession the warranty had descended upon him, yet this warranty should not binde him. So if my collaterall Auncestor release to my tenant for life with warranty and die, and this warranty descend upon me; this shall not binde my reversion or remainder. But if in the case before the sonne be disseised of the rent &c. and affirme himselfe to be disseised by the bringing of an Assise (for otherwise he shall not be said to be out of possession of a rent, or the like) and after the father doth release with warranty and die; in this case the collaterall warranty shall binde and barre the son of his rent &c. And if in the last case my tenant for life be disseised, and my Auncestor doth release to the disseisor with warranty and die; this is a good warranty to barre and bind me. 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor, and th [...]t he be bound by it, for the heire shall never be bound by an expresse warranty, but where the Auncestor was bound by the same warranty, and therefore a warranty made by Will is void. 9. That the heire claim in the same right that the Auncestor doth, Co. super Litt. 370. for if one bee a successor onely in case of a corporation, hee shall not be bound by the warranty of a naturall Auncestor. 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty, for if my Auncestor make a feoffment, or a release with warranty, and at this time I am within [Page 188] age, and after he die, and the warranty descend upon mee within age; this warranty shall not bind me: but if I become of age after the warranty of my Auncestor, and before his death; in this case the warranty may barre mee. And in the first case it will barre me also, whiles it is in [...]orce; but I may by my entry avoid it. And the same Law is of a woman covert. And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend; in this case the warrantie shall binde them as well as any other, for such a warrantie cannot be avoided but by entrie and avoiding the estate. And where the husband is within age at the time of the descent of a warranty to his wife, and the entrie of the wife is taken away, there the warranty shall bind the wife.

If lands be given to A for life, and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass. pl. 35 of A, and the heires males of the body of that heire male, and A having issue B, makes a feoffment of the land with warrantie to I S; this is a good warrantie and a barre to the issue, for a man may be barred of his right by a warrantie which hee could never avoid: as where lessee for life is disseised, and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die, and this doth descend upon the lessor; by this he is barred.

A warrantie made for life or in taile is good, and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely, as if tenant in taile of land let it for life the remainder to another in fee, and a collaterall Auncestor doth confirme the estate of the tenant for life and die, and the tenant in taile hath issue; this is a barre to the issue during the life of the tenant for life. And in this case upon a voucher the recovery in value shall be put for life onely.

If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift; this warrantie is good no longer then the estate doth last. And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue, and the estate determine.

And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land, and to all persons, upon whom it doth descend, and is a barre of all the right that every one of them hath in the land, so that if they have all right jointly or severally, or one onely hath all the right and the rest none, he that hath the right is barred. And therefore if lands be given to A, and the heirs of his body and for want of such issue to E his sister and the heirs of her body, and A doth make a feoffment with warrantie, and die without issue having two sisters E and S; this is a bar to E for the whole albeit the warranty descend on her and another.

If there be tenant for life, the remainder to his sonne and heire Co. 5. 79. apparant in taile, and the father doth a feoffement in fee with [Page 189] warrantie and dieth; in this case this is a good warrantie, and will bar the son albeit it be made of purpose to bar him. But if by agreement and covin between him and A and B, he make a lease to A who makes a feoffment in fee to B, to whom the father doth release with warrantie, thinking by a collaterall warrantie to bar his son; this is no bar, for this warrantie began by disseisin: And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie.

If the father bee tenant for life, the remainder to the next heire Co. 1. 66. male of the father, and to the heires males of the body of such next heire male, and the father makes a feoffment to I S with warrantie and dieth; it seems this warrantie is a good bar to the heir; and in this case the heir cannot enter in the life time of his father, for he cannot be heire male unto his father untill his fathers death.

If tenant for life make a feoffement with warrantie, or be disseised, Co. super Litt. 366. 365. Co. 1. 67. Stat. Glou [...]. ch. [...] 6. Litt. Sect. 724, 725. and release with warrantie, and he in reversion being heir to the tenant for life doth not enter, but suffer the lessee for life to die, and thereby the warrantie to fall and descend upon him; in this case this warrantie generally is a bar without any assets. But if hee that doth so alien, &c. bee tenant by the courtesie, this is no barre to the heire without assets in fee simple from the tenant by the curtesie, and then it is a barre for so much. And if the heire for want of this assets at the time doth recover the land from his mother, and after assets doth descend from the father; in this case the tenant shall recover the same land of the mother againe. And if she that doth so alien, &c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband, or given unto her by any of the Auncestors of her husband, or by any other person seised to the use of her husband, or of any of his Auncestors; in this case her alienation, release, or confirmation with warrantie shall not binde the heire whether hee have assets or not. But if a man convey lands to the use of himselfe Co. 3. 58. B his wife, and the heirs of his body, and they have issue C, and the father dieth, and C disseiseth his mother, or getteth a feoffement from a disseisor, and then suffereth a recovery with a single voucher, and after the wife doth release to the recoverer with warrantie; in this case the warrantie is a barre to the issue, and not void by the Statute of 11 H. 7.

If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch. 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty, and the wife dieth, and then the husband dieth; this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father, albeit he be not tenant by the courtesie, but it is before her death that he doth make the estate and the warranty. But a Fine levied by the husband and wife, in this case is a good bar to the heir.

[Page 190]

If tenant in taile that is in of another estate, i. either by disseisin, Co. 3. 62. 22 Ass. pl. 37. 29 Ass. pl. 34. Fine. or by the feoffment of a disseisor, doth suffer a common recovery, and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer, and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth; in this case albeit the estate of the land be transferred in the post before the descent of the warrantie, yet it shall binde. So if hee to whom the warrantie is made suffer a common recovery, and after the Auncestor dieth. But if tenant in dower enfeoffe a villain with warranty, and the Lord of the villain enter into the land before the descent of the warrantie, and after the woman dieth; this warrantie shall not binde the right of the heir. So if a collaterall warrantie be made to a bastard and his heirs, and living, the Auncestor the Bastard dieth without issue, and the Lord by escheat doth enter, and after the Auncestor dieth; this warrantie shall not binde.

A collaterall warrantie may descend upon an issue in taile before the right descend, and yet be good with this difference, that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty, as if tenant in taile discontinue the taile in fee, and the discontinuee is disseised, and the brother of the tenant in taile releaseth all his right &c. to the disseisor with warrantie, and dieth without issue, and the tenant in taile hath issue and dieth; in this case the issue is barred. But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie, as if Lord and tenant be, and the renant make a feoffment in fee with warrantie, and after the feoffee doth purchase the Seigniory, and after the tenant doth cease; in this case the Lord shall have a Cessavit, for a warrantie doth never bar any right that doth commence after the warrantie.

If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty. And how such a warranty shall barre. the father or other Auncestor, the right of the lands or tenements so warranted, had or might have descended or come from the same Auncestor, and that from and by him that made the same warranty, such a warrantie is a lineall warrantie. As if a man bee seised in fee of land, and make a feoffment of it to another, and binde him and his heires to warrant the land, and hath issue and die, and the warrantie doth descend upon the issue; this is a lineall warrantie, for that if none such had been, Co. super Litt. 371. the right of the land had descended to him as heire to his father, and he must have made his descent by him. And if there be grandfather, father and son, and the grandfather be disseised, and the father release to the disseisor being in possession with warranty &c. and dieth, and after the grandfather dieth; this is a lineall warrantie to the son, and albeit in this case the warrantie descend [Page 191] before the right, yet it is a good bar. And if there be two brothers, Litt. Sect. 707. and the father is disseised, and the eldest brother doth release with warranty, and die without issue, and after the father dieth, and the warrantie doth descend to the younger sonne; this is a lineall warrantie to him. And if lands be given to A for life, Co. 1. 66, 67. the remainder to his right heires, and hee doth make a feoffment with warrantie and die; this is but a lineall warrantie. And if two parcenours be, and the eldest enter into all the land to her owne use, and then doth make a feoffment with warrantie and dieth without issue; this as to her owne part is a lineall warrantie, but as to her sisters part is a collaterall warrantie. And in every Co. 8. 52. New Terms of the Law, tit. Warrantie. case where one doth demand an estate taile, if any Auncestor of the issue in taile, whether he had possession of the land or not, hath made a warrantie, and if the issue, that were to bring a writ of Formedon, may or might have by possibility by some matter that might have been done conveyed to himself a title by [...]orce of the gift by him that made the warrantie; this is a lineall warrantie. As if a man be seised of land of an estate taile to him and the heirs of his body begotten, and make a feoffment of it, and bind him and his heirs to warrant it, and hath issue and dieth; this warrantie descending upon the issue is a lineall warrantie. And if lands Litt. Sect. 719. be given to one and the heirs males of his body, and for want of such issue to the heires females of his body, and the donee doth make a feoffment with warrantie, and hath issue a sonne and a daughter and dieth; this warrantie is lineall to the sonne, and if the sonne die without issue male, it is a lineall warrantie from the father to the daughter. But if the brother in his life time release to the discontinuee &c. with warrantie &c. and after dieth without issue; this is a collaterall warranty to the daughter. Litt. Sect. 714. If lands bee given to the husband and wife, and the heires of their two bodies engendred, and they have issue, and the husband discontinue and die, and after the wife doth release with warrantie and die; this is a lineall warrantie. And if lands be given to a Co. super▪ Litt. 375. man and a woman unmaried, and the heirs of their two bodies, and they intermary, and are disseised, and the husband doth release with warrantie and dieth, and after the wife dieth; this is a lineall warrantie to the issue for all the land. And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue, and the middle brother doth release with warrantie, and die without issue, and after the father dieth, and after the elder brother dieth without issue, and after the father dieth, and after the elder brother dieth without issue, so that the warrantie doth descend to the younger brother; this is a [...]neall warrantie to him. And if a father give land to his eldest son and the heirs males of his body, &c. the remainder to the second sonne, &c. if the eldest son alien in fee with warrantie, &c. and hath issue female, and dieth without issue male; this is a lineall warrantie [Page 192] to the second sonne. And in all these cases of a lineall warrantie if Litt. Sect. 711, 712. Doct. & St. 152, 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple, it is a barre without any assets; for the rule is, That as to him that demandeth fee simple by any of his Auncestors, he shall bee barred and bound by a lineall warrantie that doth descend upon him, unlesse hee bee restrained by some Statute. But it doth not binde the right of an estate in fee taile without assets, for in that case the rule is, That as to him that demandeth fee taile by writ of Formedon in the Descendor, he shal not bee barred by a lineall warrantie, unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie; and then it is a barre for so much onely as doth descend to him no more. And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die; in this case the issue of that issue is not barred by this warrantie and assets. But if the issue to whom the warrantie doth descend, bring his writ of Formedon, and is barred by judgement by reason of the warrantie and assets; in this case albeit he alien the assets afterwards, yet the estate taile is barred for ever.

If tenant for life do alien in fee with warrantie, or be disseised & Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty. And how such a warranty shall bar. release to the disseisor with warrantie and die, and the warrantie descend on him in reversion or remainder; this is a collaterall warrantie. So if the lessee for life be disseised, and a collaterall Auncestor of him in reversion release with warrantie and die, and the warrantie descend on him in reversion; this is a collaterall warrantie, for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. & St. 152. land. And if a man seised of lands in fee have issue two sonnes, and the father dieth, and the younger sonne doth enter, and doth alien the land with warrantie, and die without issue; this is now a collaterall warrantie that is descended on the elder brother. And if a sonne bee disseised of his own land, and bring an 21 H. 7. 10. Assise, and after the father doth release to the disse [...]sor with warranty and dieth; this warrantie that doth descend to the sonne is a collaterall warrantie. And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne, and after he doth make a feoffment wich warrantie and die before the entrie of his sonne, so that the warrantie doth descend; this is a collaterall warrantie. If there bee Litt. Sect. 707. father and two sonnes, and the father is disseised, and the younger sonne doth release wi [...]h warrantie to the disseisor and die without issue, and then the father dieth; in this case the warrantie now descended is a collaterall warrantie. If a lease be made Co. super Litt. 388. for life to the father, the remainder to his next heir, and the father is disseised and doth release with warrantie and dieth; this is a collaterall warrantie to the heire. And if the husband discontinue [Page 193] the right of his wife, and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die, and after the husband dieth; this is a collaterall warranty and a bar to her. And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow. 234. Kelw. 78. writ of Formedon, if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty, and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty; this is a collaterall warranty, as if tenant in taile discontinue the taile and die, having issue, and the uncle of the issue doth release with warranty to the discontinuee, and die without issue, so that the warranty doth descend on the issue in taile; this is a collaterall warranty. So if such a discontinuee make a feoffment in fee, or be disseised, and the uncle release with warranty to the disseisor, or feoffee, and die without issue, and the warranty doth descend on the issue; this is a collaterall warranty. If a tenant in taile have Litt. Sect. 708. three sons, and discontinue the tail in fee, and the middle brother doth release to the discontinuee with warranty, and after the tenant in taile dieth; this is a collaterall warranty to the elder brother. If one have issue three sonnes, and giveth land to the eldest, Litt. Sect. 716. and the heirs of his body, and for want of such issue to the middle, and the heirs of his body, the remainder to the third, and the heires of his body, and the eldest doth discontinue the taile in fee with warranty, and die without issue; this is collaterall to the middle sonne. In the same manner it is in case where the middle sonne hath the same land by force of the same remainder, because his elder brother made no discontuance but died without issue of his body, and after the middle brother doth make a discontinuance with warranty, &c. and dieth without issue; this is a collaterall warranty to the youngest sonne. And in this case if any of the sonnes be disseised, and the father that made the gift, &c. releaseth to the disseisor all his right with warranty; this is a collaterall warranty to the son upon whom the warranty doth descend. If lands be given to A, and the heirs of his body, and Co. 8. 52. Litt. Sect. 713. for want of such issue to E, his sister and the heires of her body, and A doth make a feoffement with warranty, and die without issue, having two sisters E and S; this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten, Litt. Sect. 741. who taketh a wife and hath issue a son by her, and the husband doth discontinue the taile in fee and dieth, and after the wife doth release to the discontinuee with warranty and dieth, and the warranty doth descend to the sonne; this is collaterall to him. If tenant in taile discontinue the taile in fee, and the discontinuee is disseised, and the brother of the tenant in taile doth release to the disseisor with warranty in fee, and dieth without ifsue, [Page 194] and the tenant in taile hath issue and dieth; this is collaterall as to the issue. If tenant in tail have issue two daughters, and die, and the elder enter into all to her own use, & thereof make a feoffment in fee with warranty, and die without issue, this warranty as to the other sisters part is collaterall, but not as to her own. If Co. super Litt. 373. the husband and wife, tenants in speciall tail, have issue a daughter, and the wife die, and the husband by a second wife have issue another daughter, and discontinueth in fee and dieth, and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth, and the warranty descend upon both the daughters; this is a collaterall warranty to them. If lands be given to one and the heirs males of his body, and for want of such issue to the heires females of his body, and the father die, and the brother release with warranty, and die without issue; this is collaterall to the daughter. If tenant in taile make a lease for life, the Litt. Sect. 738. remainder to another in fee, and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die, and after the tenant in taile die having issue; this is a good binding collaterall warranty during the estate for life. And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glou [...]. ch. 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty, whether the right bee the right of an estate taile, or the right of an estate in fee simple that is to be barred, it is a bar without any assets, for in this case the rule is, That a collaterall warranty is a barre to him that demandeth fee simple, and also to him that demandeth fee taile without any other descent of lands in fee simple, so that the heir on whom the same warranty is descend, can never have the land so warranted whiles the warranty doth continue in force, but is bound thereby, except it be in some speciall cases restrained by Act of Parliament, as where the husband alone during his wives life, or after her death, being tenant by the curtesie make a feoffement by fine or deed of his wives land, which shee hath by descent or purchase, with warranty; this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty. Or where a wife after her husbands death shall alone or with her succeeding husband alien, release, confirm or discontinue with warranty, the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors; this warranty is voidable and will not binde with assets.

If the son purchase land &c. and after let it to his father or any Litt. Sect. 699, 700, 701 702. Finch 82. Co. super Litt. [...]. 10. What shall be said a warranty that doth begin by Diss [...]sin. And w [...]at such a warranty doth work. other Auncestor for years, or at will, and he by his deed doth infeoffe a stranger, and that with warranty, and after dieth, whereby the warranty doth descend upon the heire; this warranty doth commence by disseisin. So if tenant by Elegit, Statute Merchant, Guardian in Chivalry, or Soccage, or because of Nurture, [Page 195] make a feoffement with warranty, and this warranty doth descend on his heir; this warranty doth commence by disseisin. So if one that hath no right at all enter into my land, and make a feoffement to another with warranty. So if one Coparcenor enter into the whole land, and make a feoffement in fee with warranty; this warranty as to the one moity doth begin [...]y disseisin. So if father and sonne purchase lands to them jointly &c. and the father alien the whole to another with warranty &c. and after the father dieth; this warranty as to the one moity doth beginne by disseisin. But if the purchase bee to them two and the heires of the sonne it is otherwise, for if the sonne enter in the life time of the father, the warranty is avoided for all, but if hee doe not enter, then as to the fathers moity it is a collaterall warranty. And if the purchase be to the father and son and the heirs of the father, and the father alien with warranty &c. in this case the warranty is good for the whole.

If the father be tenant for life, the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee, and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years, to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty, and all this is done accordingly, and the father dieth, and the warranty doth descend to the sonne; in this case the warranty shall be said to beginne by disseisin. But if the father in this case make a feoffement in fee with warranty and die; this is a good warranty to binde the sonne, albeit it be done of purpose to bar him. So if one brother make a gift in taile to another, and the uncle doth disseise the donee, and infeoffeth another with warranty, the uncle dieth and the warranty descendeth on the donor, and then the donee dieth without issue; this warranty doth begin by disseisin. So if the father and son, and a third person be jointenants in fee, and the father maketh a feoffment in fee of the whole, with warranty, and dieth, and then the sonne doeth; in this case as to the part of the third person, and to the part of the sonne, the warranty shall be said to beginne by disseisin. But releases at this day by a tenant for life to a disseisor or any other without covin, albeit it bee to the intent to barre him in reversion shall barre him, for intent without covin and disseisin shall not avoid a warranty. And examples of warranties that doe begin by disseisin, have these qualities; 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty. 2. The warranty and disseisin are simul and semel. And yet if a man disseise another with intent to make a feoffment with warranty, albeit the feoffement be made twenty years after the disseisin, yet it shall be said to bee a warranty that doth beginne by disseisin. But in all these cases of warranties that doe beginne by disseisin, this is the rule, That [Page 196] they are altogether void and without force as to all others but to the parties themselves that doe make them, and therefore they do not barre or binde any others at all of their right that have any. And the same Law is of a warranty that doth begin by abatement or intrusion; that is, when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty. And so also it is where the tenant dieth without heir, and an Auncestor of the Lord doth enter before the entry of the Lord, and make a feoffement in fee with warranty; in this case this shall not binde the Lord, because it doth begin by wrong.

All warranties in generall are favourably taken in Law, because 11. How a warranty shall be taken▪ they are part of mens assurances. Every warranty in Law is taken for, and hath the effect of a lineall warranty.

The warrnaty that is made by Dedi & Concessi, or Dedi only in a Co. 4. 81. 5. 17. feoffement, is and shall be taken for a generall warranty against all persons to the feoffee and his heires, during the life of the feoffor onely, albeit there be no service reserved by the deed nor heir named: but it shall not extend to the assignee of the feoffee. And if there be any service reserved on the deed, then it shall extend against the heir also.

The warranty in Law that is made upon a gift in tail, or lease for Co. 4. 81. super Litt. 384. life, rendring rent, is a speciall warranty against the donor and lessor, and his heirs and assignes, so that the donee or lessee may vouch the grantor after the grant of the reversion, or the grantee of the reversion after the atturnment of the tenant at his election.

The warranty in Law that is made upon an Exchange, is special in Co. 4. 121. super Litt. 384. divers respects, for it extendeth reciprocally to, and against the heires of both parties, and it doth extend only to the same land that is given in exchange and none other; and no use can be made of it but by voucher, for no Warrantia Cartae doth lie upon it. So also the warranty that is made in dower is taken to extend only to the other two parts of the land.

The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel, extendeth reciprocally to the heires, and against the heires of both parties.

If a feoffement be made of land to three jointly, and the feoffors Co. 5. 59. doe warrant the land to the feoffees, and every of them; this warranty shall be joint and not severall. But if the estate be severall, as if one grant white acre to A, and blacke acre to B, and grant to warrant the land to them, and either of them; in this case the warranty shall be severall.

If a man of full age, and an infant join in a feoffement with warranty; Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant, and not void in part and good in part. Co. super Litt. 386.

If a man make a feoffment in fee, & bind his heirs but not himself to [Page 197] warranty; in this case and by this his heirs shall not be bound, and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant, and not his heirs by the feoffement; in this case the feoffor himselfe is bound to the warranty but not his heirs, for it is a maxime of Law, That the heir shall never be bound to any expresse warranty, but where the Auncestour was bound by the same warranty. If one make a feoffment to B and his heirs, and thereby doth grant to warrant the land, and doth not say to B▪ and his heirs; yet this warranty shall be taken to extend to them. But if the feoffor doth grant to warrant the land to B, and doth not say to his heires, this shall not extend to his heirs. And if in this case the warranty be to B and his assignes, it shall not extend to his heirs, neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs, and not to his assignes also; this shall not extend to his assignes. If one make a feoffment to A, habendum to him and his heirs, and binde himselfe and his heirs to warrant the land in forma praedicta; in this case the warranty shall extend to the feoffee & his heirs.

If one grant to warrant land to another and his heirs, and doth Co. 1. 1. not say against what persons, this shall be taken for a generall warranty against all men.

If one make an estate and grant to warrant the land, but doth not say how long; this shall bee taken for as long as the estate to which the warranty is knit doth last.

If a warranty be made against any speciall persons, it shall extend Dier 328. to them and no further, and it shall extend in all cases for and to all titles, and entries upon title; and it shall not in any such cases extend to tortious and unlawfull entries.

If a man bee seised of a rent-seck, issuing out of the Manor of Co. super Litt. 366. Dale, and hee take a wife, and the husband doth release to the terre-tenant, and warranteth tenementa praedicta and dieth; this warranty shall extend to the rent as well as to the land; and therefore if the wife sue for her thirds of the rent, the terre-tenant may vouch the heire. And regularly the warranty doth extend to all Co. super Litt. 388, 389. things issuing out of the land, viz. to warrant it in the same manner and plight as it was in the hands of the feoffor, and hee shall vouch as of lands discharged. And therefore if grantee of a rent grant it to the tenant of the land on condition, and the tenant doth make a feoffment of the land with warranty; in this case the warranty shall not extend to the rent, albeit the feoffment be made of the land discharged of the rent. And if a woman have a rent-charge in fee, and she doth intermary with the tenant of the land, and a stranger doth release to the tenant of the land with warranty; this warranty shall not extend to barre any action to be brought after the death of the wife for the rent. But if in this case the tenant [Page 198] make a feoffment in fee with warranty and dieth, the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made. So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent, the tenant shall not vouch, &c.

All those that are parties to the warranty, i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty. And how. And against whom it may bee taken. Assignes. in the deed regularly, shall take advantage of the warranty; as if one doth warrant land to another, his heires and assignes; in this case both the heirs & the assigns may take advantage of it, and they both may vouch, or [...]ebut, or have a warrantia cartae, so as they come in in privity of estate, for otherwise the heire or assignes cannot vouch, or have a Warrantia Cartae, and yet he may rebut notwithstanding in divers cases. But those that are are not named for the most part shall not take advantage of the warranty, and therefore if land be warranted to I S, and not to him and his heirs, or to him and his assigns, or to him, his heires and assigns; in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae; and yet in some cases where it is so, the assignee or tenant of the land may rebut.

The warranty annexed to an Exchange, a Partition, by Dedi, Co. super Litt. 384. and by homage Auncestrell, doth alwayes goe in Privity, and therefore an assignee in these cases can take no advantage of it. And yet in the cases of Exchange, and Dedi, an assignee may rebut. But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate.

If one grant to warrant land to another, his heirs and assigns; in Co. 5. 17. super Litt. 384, 385. this case the heirs, or assignes, heire of the assignee, or assignee of the heirs of the feoffee, or assignees of assignees in infinitum, shall take advantage of the warranty. And therefore if one infeoffe I S to have and to hold to him, his heires and assignes, and warrant the land to him, his heires and assignes, and A doth infeoffe B and his heires, and B dieth; in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B, Habendum to them and their heires, and warrant the land to them, their heirs and assignes, and A die, and B doth survive and die, and his heire infeoffe C; in this case C shall take advantage of this warranty as assignee. If one infeoffe A with warranty to him, his heirs and assignes, and A doth infeoffe B, and B doth reinfeoffe A; in this case neither A or his assignes shall ever take any advantage of this warranty. And yet if B infeoffe the heire of A, he may take advantage of the warranty.

If one make a feoffment by deed with warranty to the feoffee, his heirs and assignes, and the feoffee doth make a feoffment over to another by word without deed; in this case the second feoffee shall [Page 199] have all the advantage of this warranty, for an assignee by word shall have the same advantage that an assignee by deed shall have.

If a feoffment be made with warranty to a man and his heirs and assignes, and he make a gift in tail the remainder in fee, and the donee make a feoffement in fee; this feoffee shall not vouch as assignee, but he must vouch his donor upon the warranty in Law; and yet he may rebut.

If lands be given to two brethren in fee simple, with warranty to the eldest and his heirs, and the eldest die without issue; in this case albeit the other brother be his heire, yet he shall have no advantage at all by the warranty, because he comes in above the warranty. But generally all that claime under the warranty shall take advantage thereof by way of rebutter, albeit they can take no other advantage by it.

If one make a feoffment to two their heirs and assigns, and one of them doth make a feoffment in fee, this feoffee in this case shall not take advantage as assignee.

An assignee of part of the land shall take advantage of a warranty, Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him, his heirs and assigns, and the feoffee doth make a feoffment of one acre of it to another; in this case the second feoffee shall take advantage of the warranty as assignee. And therefore herein there is a difference between the whole estate in part, and part of the estate in the whole or in any part, for if a man have a warranty to him, his heirs and assigns, and he make a lease for life, or gift in tail; in these cases the lessee or donee shall not take advantage of the warranty as assignes: but they may vouch the lessor or donor upon the warranty in Law. But if a lease for life bee made the remainder Co. super Litt. 384. in fee; such a lessee may vouch as assignee upon the first warranty. If the father have a feoffment made to him and his heirs with warranty, and he make a feoffment to his son and heire with warranty; in this case the son may take advantage of the first warranty after his fathers death. If a man infeoffe a woman with warranty, Co. super Litt. 390. and they intermary and are impleaded, and upon the default of the husband the wife is received; in this case she may vouch her husband. Et sic è converso. If a woman infeoffe a man with warranty, and they intermary and are impleaded; the husband in this case shall vouch himself and the wife.

He that comes into the land meerly by act of Law in the post, as 26 H. 8. 3. 22 Ass. pl. 37. 29 Ass. 34. Co. 3. 62, 63. the Lord by Escheat, or the like, shall never take advantage of a warranty, and therefore if tenant in dower infeoffe a villain with warranty, and the Lord of the villaine enter; or a feoffment bee to a bastard with warranty, and hee die without issue, and the Lord enter by Escheat; in these cases the Lord shall never take advantage of these warranties. But otherwise it is where a [Page 200] man comes to the land by limitation of use or a common recovery, which is by the act of the party, for if tenant in taile being in of another estate, i. by disseisin, or feoffement of a disseisor suffer a common recovery, and a collaterall Auncestor of the tenant in taile doth realease with warranty to the recoveror, and after the recoveror doth make a feoffment to uses which are executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth; in this case the terre-tenants may take advantage of the warranty by way of rebutter, albeit the estate be transferred in the post. So if hee to whom the warranty is made, suffer a common recovery, and after the Auncestor dieth; the recoveror may take advantage of this warranty by way of rebutter, for any man that hath the possession of land, albeit he have no deed to shew how he came by the possession of it, or how he is assignee, may rebut the demandant, and so barre him and defend his owne possession; And therefore the tenant by the curtesie, donee in taile that is in of another estate, an assignee by force of a warranty made to a man and his heirs, feoffee of a donee in taile may rebut and bar the demandant by the warranty.

If one infeoffe another of an acre of ground with warranty, Co. super Litt. 376. 1 Ed. 3. 13. 5 H. 7. 2. and hath issue two sons, and dieth seised of another acre of land of the nature of Burrough English; in this case albeit the warranty descend upon the eldest sonne onely, yet both the sonnes may be vouched. And so also it is of heires in Gavelkind; the eldest shall be vouched as heire to the warranty, and the rest in respect of the inheritance. And in like sort the heire at the Common law, and the heire of the part of the mother shall bee vouched, or the heire at the Common law may bee vouched alone at the election of the tenant. And in like sort the heire at the Common law shall be vouched with the heire in Burrough English. And so also a bastard shall be vouched with a mulier. And if a man die seised of certain lands in [...]ee, having issue a sonne and a daughter by one venter, and a sonne by another, and the eldest sonne entreth and dieth, and the land doth descend to the sister; in this case the warranty doth descend on the son, and he may be vouched as heir, and the sister also may be vouched as heir to the land.

If two make a feoffment with warranty, and the one die; the survivor shall not be charged alone with the warranty, but the heir Co. 3. 14. [...]uper Lit. 386. 16 H. 7. 13. 48 Ed. 3. 5. of him that is dead shall be charged also. And if two be bound to warrant land, and both of them die; the heires of both of them ought to be vouched, and shall be equally charged. And if the heir be vouched in the ward of three severall persons, the one of them onely shall not be charged, but they shall be charged equally.

If a woman an heir of the disseisor, infeoff me with warranty, & af [...]er she is maried to the disseisee; in this case I may take advantage of Co. super Litt. 365. [Page 201] this warranty against the disseisee, and rebut him upon it if he sue me for the land. So if the husband and wife sue me for the land of his wife, and I have a warranty of a collaterall Auncestor of the husbands descended to him; in this case I may make use of this to barre the husband and wife.

A warranty lineall or collaterall may be defeated, determined or 13. When a warranty shall be said to be defeated, determined or avoided. And how. Or not. Co. super Lit. 392. 393. avoided in all or in part. And this is sometimes by matter in law, and sometimes by matter in deed.

If the estate to which the warranty is annexed be gone the warranty annexed thereunto is gone also. And therefore if an estate Co. 10. 96. 1, 2, 3. 62 Lit. Sect. 741. Co. super Lit. 392. tail towhich a waranty is annexed be spent, the warranty is determined. And if a man make a gift in taile with warranty, and after the donee doth make a feoffment and die without issue; the warranty is gone. So if tenant in taile discontinue the taile and the discontinuee be disseised, or make a feoffment on condition, and a collateral auncestor of the issue release to the disseisor or feoffee on condition, with warranty, and after the discontinuee doth enter upon the disseisor, or on the feoffee for the condition broken; in these cases the warranty made by the collaterall auncestor is gone. So if a Seigniory be granted with warranty, and the tenan [...]y escheat so that the Seigniory is extinct; hereby also the warranty is defeated. So if a collaterall Auncestor heretofore had released with warranty, and then had entred into Religion; this warranty had bound, but if after he had been dearaigned the warranty had been defeated.

If the father make a feoffment to his sonne and heire apparant Co. super Lit. 384. Bro. Garranty 27. with warranty and die, so that the warranty doth descend upon the sonne; hereby the warranty is gone. And yet if a feoffment be made to a man and his heires, and he dieth leaving issue daughters; in this case the warranty shall be divided and is not determined.

If tenant in taile doth make a feoffment to his Uncle, and after Lit. Sect. 743. Co. super Lit. 390. Lit. Sect. 744. the Uncle doth make a feoffment in fee with warranty &c. to another, and after the feoffee of the Uncle doth reinfeoffe againe the Uncle, and after the Uncle doth infeoffe a stranger in fee without warranty and dieth without issue, and the tenant in taile dieth; hereby the warranty made to the first feoffee is defeated. So if the Uncle make the warranty to the feoffee, his heires and assignes, and take backe an estate in [...]ee and after doth infeoffe another. But if one make a feoffment with warranty to the feoffee, his heires and assignes, and the feoffee doth reinfeoffe the feoffor and his wife, or the feoffor and a stranger; in these cases the warranty is not defeated but doth continue still. So if two doe make a feoffment with warranty to one, his heires and assignes, and the feoffee doth reinfeoffe one of the feoffors; in this case the warranty is not gone. And [...]f in the first case the feoffee make an estate to his Uncle in tail or for [Page 202] life saving the reversion, or a lease for life the remainder over &c. in this case the warranty is only suspended.

If one make a feoffment or release with warranty, and after is Co. super Lit. 391. attained of treason or felony; hereby the warranty is gone; and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived.

If a feoffment with warranty be made to two or more, and they Co. 6. 12. being Jointenants doe after by deed make Partition; by this the warranty is determined. So if two Jointenants be, and one of them disseise the other, and he that is disseised doth recover in an assise and hath Judgement to hold in severally; hereby the warranty is determined, Adjudge Hil. 22 Jac. B. R. Eustace & Sholes case. So if A and B be Jointenants of white acre for life, and A by fine doth grant to B totum & quicquid habet in tenemeutis▪ hereby the warranty is gone. But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them, but it shall be divided between them, and they shall all of them take advantage of it.

If one enfeoffe three with warranty to them and their heires, Co. super Lit. 385. and one of them release to one of the other two; hereby the warranty is gone for that part. But if one of them release to the other two; in this case the warranty is not gone but doth continue, and they may vouch upon it.

If one enfeoffe two men and their heires, and one of them doth Co. super Lit. 385. make a feoffment in fee; hereby the warranty is not determined, but the other may take advantage of it notwithstanding.

If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release. warranty is annexed release to him that is bound to warrant all warranties, or all covenants reall, or all demands; by either of these releases the warranty is gone. So also if by a defeasance made Deseasance. between the parties it be agreed the warranty shall be void, by this defeasance the warranty may be avoided also. Or if it be so agreed that the warrantee or his heires &c. shall not vouch, or have a Warrantia cartae; by this the warranty is avoided in part.

If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in [...]ee with warranty, if in this case the feoffee release the warranty to his Uncle; hereby the warranty is extinct. But if a gift in taile be made with warranty, in this case a release made by the tenant in taile of this warranty will not extinguish it.

If the parties between whom the warranty is intermary, hereby Co. super. Lit. 390. the warranty is suspended during the coverture in some cases.

If tenant in taile doth make a feoffment in fee with warranty, Co. super Lit. 330. and disseiseth the discontinuee, and dieth seised, this doth suspend the warranty.

If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. [Page 203] feoffee and his heires, and the feoffee doth release the warranty to one of the feoffors; this doth not determine the warranty of the other as to the moity. So if one doth infeoffe two with warranty, and the one of them doth release the warranty; this doth not extinguish the warranty for the other moity, but it doth continue still.

A warranty also may lose his force by taking benefit or making use thereof; for after a man hath once taken advantage thereof in some cases he can make no further use of it: of which read Co. super Lit. 393.

And now having done with Deeds in generall and some of the parts thereof in speciall, we are in order to come to some speciall kinds of deeds, wherein we will first begin with a deed of Feoffment.

CHAP. IX. Of a Feoffment.

FEoffamentum. i. Donatio feodi, strictly and properly is the gift 1. Feoffment. Quid. New termes of the law. Co. super Lit. 9. Lit. Sect. 57. or grant of any honors, castles, manors, messuages, lands, houses, or other corporall immovable things of like nature which be hereditable to another in fee simple. i. to him and his heirs for ever by the delivery of seisin and possession of the things given. And from hence comes the word Infeoffe, for by this word and the Infeoffe. words Give, and Grant, (as the most apt words for that purpose) is this kind of conveyance most commonly made. Hence also it is, that he that makes this feoffment is called the feoffor, and he to whom it is made the feoffee. Also it is sometimes but improperly Feoffor▪ Feoffee. called a feoffment when an estate of freehold only doth passe.

This kind of conveyance albeit it may be made in most cases by 2. Quotuplex▪ See West Sym. 1. part. Sect. 235. Co. super Lit. 6. word without any writing, [...]et it is most commonly done by writing, and this writing is then called a Deed or Charter of feoffment, but hence is the division of a feoffment by word, or a feoffment by writing. The ancient formes and examples of these deeds are very briefe; and and yet they had these parts contained in them. 1. The Premisses. 2. The Habendum. 3. The Tenendum. 4. The Reddendum. 5. The Clause of warranty. 6 The In cujus rei testimonium. 7. The Date. 8. The clause of Hiis testibus. Haec fuit candida illius aetatis [...]ides & simplicitas quae pa [...]c [...]lis lineis omnia fidei firmament a posueruut.

Co. super Lit. 49. 9. Co. 1. 111, 112. Plow. 554. 9 H. 7. 24. 39 H. 6. 43. Co▪ super Lit. 237. Perk. S [...]ct. 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias. 88. Plow. 423, 424. And this manner of conveyance, as it is the most ancient kind 3. The nature and operation of it. of conveyance, so is it the best and most excellent of all others, and in some respects doth excell the conveyance by [...]ine or recovery: for it is of that nature and efficacy by reason also of the livery of [Page 204] Seisin evermore inseparably incident to it, that it cleereth all disseisins, abatements, intrusions, and other wrongfull and defeasible titles, and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull, which neither fine, recovery, nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession. And it passeth the present estate of the feoffor, and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed, insomuch that if one have divers estates all of them passe by his feoffment, and if he have any interest, rent, common, or the like into or out of the land, it is extinguished and gone by the feoffment. And further it barreth the feoffor of all collaterall benefits touching the land, as condition, power of revocation, writs of error, attaint and the like, insomuch that if a man make an estate of his land upon condition, or with power to revoke it, and after he make a feoffment of the land; by this he is barred for ever of taking advantage of the condition or power of revocation. It destroyeth contingent uses, gives away a future use inclusively, gives away a Seigniory inclusively, and gives away a right of action: for both the feoffment and livery of seisin incident thereunto are much favoured in law, and shall be construed most strongly against the feoffor and in advantage of the feoffee. And besides all this because it is so solemnly and publiquely made it is of all other conveyances most observed and therefore best remembred and proved.

If the feoffment be made by deed then must the deed be so made, 4. Who may make or take a feoffment. And what shall be said a good feoffment. Or not. And what things are requisite thereunto. 1. In respect of the persons thereunto and the quality of their estate. Men de non sane memorie. written, read, sealed, and delivered as all other deeds that are well made must be. For which see Deed supra cap. 4. Numb. 5.

And in every good feoffement that is made there must be a See Grant Numb. 4. Co. super. Lit. 2. 42, 43. Perk. Sect. 182, 183. 185 Bro. Feoffments 2. 7. 8, 9. 17. 39 H. 6. 43. 21 H. 7. 7. feoffor. i. a person able to grant the thing passed by the feoffment; a feoffee. i. a person capable of it and able to take it, and a thing grantable, and it must be granted in that manner as law requireth. And for this therefore observe that whosoever is disabled by the common law to take is disabled also to make a feoffment, gift, grant, or lease, and many also that have capacity to take by such conveyances have no ability to grant by them, as men attainted of treason, felony, or in a Premunire, aliens borne, the Kings villaines, Ideots, mad men, a man deafe, blind and dumbe from his nativity, a feme covert, an infant, and a man by duresse, for the feoffments, gifts, &c. of such persons may be avoided. But such persons as have Feme covert. Infant. committed treason or felony if attainder doe not follow, such as are attaint of heresie, a leper removed by the Kings writ from the Attaint persons. society of men, bastards, such as are deafe, dumbe or blind, that have understanding and sound memory, albeit they cannot expresse their intentions otherwise then by signes, those that are drunken, the villaines of a common person before entry &c. also excommunicate [Page 205] persons, and outlawed persons, albeit the King take the profits Outlawed persons. of their lands, all these may make feoffments, gifts, &c. and all these have capacity to take by such conveyances.

A woman that hath a husband alone and by her selfe without Feme covert. her husband cannot make a feoffment of her owne land, and if she Perk. [...]ect. 185, 186. doe so it is void albeit her husband agree to it.

Neither the head alone, nor any one or more of the members of Corporation. Fitz. faits & feoffments 29. Perk. Sect. 205. 224, 225. a Corporation aggregate of many alone may make a feoffment of any of the land belonging to their corporation. But all of them together may make a feoffment: and if any of them be seised of land in his owne right and in his naturall capacity, he may make a a feoffment of this land as another man may doe; yea he may make a feoffment of this land to the same corporation whereof he is a head or member, and so give and take also in a divers capacity.

Ecclesiasticall persons cannot make feoffments, gifts, &c. of their Ecclesiasticall persons. ecclesiasticall lands for longer time then three lives, or twenty one Co. super Lit. 43. years, for all feoffments, gifts, grants and leases by Bishops albeit they be confirmed by Deane and Chapter, or by any of the Colledges or halls in either of the Universities or elsewhere, or by Deane or chapters, masters or gardians of any hospitalls, Parsons, vicars, or any other having spirituall or ecclesiasticall living, are avoidable.

A man cannot make a feoffment to his owne wife after the mariage Husband and wife. is consummate. But after a contract made, and carnall knowledge Perk. Sect. 194. had he may make a feoffment to her, and such a feoffment will be good.

One Jointenant cannot make a feoffment of his part of the land Jointenants, Tenan [...]s in common. to his companion, for a man cannot give a possession to him that Perk. Sect. 197. Fitz. faits & feoffments 26. hath it before. And hence it is also that the lessor cannot make a feoffment to his lessee for life, years, or at will. And yet perhaps a feoffment in this case if it be in writing may worke as a confirmation. But one tenant in common, or one coparcenor may make a feoffment of his part of the land to his companion.

If a man make a feoffment of anothers land, it is a disseisin, but Disseisor and Disseisee. a good feoffment against all men but the disseisee himselfe. And if Bro. feoffment 4. Perk. Sect. 222. foure joine in a feoffment of land, and three of them have nothing in the land, and the fourth hath all the estate; this is a good feoffment.

A disseisor cannot make a feoffment of the land to the disseisee, but it will be void, for the disseisee will be remitted. But a disseisee Perk. Sect. 197. Co. super Lit. 48, 49. may make a deed of feoffment and a letter of atturney to enter and give livery; and if the atturny doe so, this will be a good feoffment.

No feoffment, or livery of seisin can be made to the King, for he Fitz. faits & feoffments 31. doth alwaies give and take by matter of record.

A feoffement may be made at this day of any thing which doth Prerogative. [Page 206] lie in livery, by whatsoever tenure it be held, notwithstanding the 2. In respect of the matter whereof it is made. Statute of Magna Carta cap. 32. But in some cases where a man Co. super Lit. 49. 21 H. 7. 7. See infra at Numb. 9. Grant 5. doth alien his land held of the King, he must have the Kings licence before hand to doe it, or else he must pay a fine to the King afterwards for not having a licence. But of such things whereof no livery of seisin can be made no feoffment can be made.

One may make a feoffment of a moity, third, fourth, or fifth part Co. super Lit. 190. of his Manor or other land, and that by the name of a moity, third, or fourth part.

A feoffment may be made of an upper chamber over another Co. super Lit. 48. mans house beneath.

If there be a meadow of one hundred acres which time out of Co. super Lit. 4. 48. minde hath been divided amongst divers persons, and each person hath a certaine number of acres, but in no certaine place, the custome being to allot each person his number one yeare in one place and another in another alternis vicibus; in this case either of these persons may make a feoffment of his part by the name of so many acres lying in such a meadow without any bounding or describing of it.

If parceners have made partition of their land, that the one Co. super Lit. 4. 48. shall have it from Easter to Lammas to her and her heires, and the other shall have it from Lammas to Easter to her and her heires, or that the one shall have it one yeare and the other the other yeare alternis vicibus: Or if they have two Manors descended, and they agree that the one shall have the one Manor one yeare, and the other the other Manor the same year, and the next year that he that had the one shall have the other alternis vicibus for ever; in these cases the parceners may either of them make a feoffment of this land or Manor.

If there be any lease for life or years in being of that land or Co 2. 32. Dier 340. 18 Perk. Sect. 221. 21 H. 7. 7. Perk. Sect. 220. 46 E. 3. 2 5. Bro. Feoffments de terre 68. Co. super Lit. 48. 49. 52. thing whereof the feoffment is made, and he that hath this lease for 3. In respect of the presence or possession of other persons on the land at the time of the feoffment made. life or years, or in his absence his bailife or servant keeping in the house or land whereof the feoffment is to be made doth give leave and agree that livery of seisin shall be given upon the house or land by the lessor himselfe or by his atturny, and for this cause doth leave the possession of the house or land, and thereupon livery of seisin is made; this is a good feoffment and a good livery of seisin and yet it doth not prejudice the estate of the lessee. And if the lessor make a feoffment of the land to a stranger by assent or licence of the lessee the lessee then being on the lād; this is a good feoffment. In like manner as it is, where the lessor doth enfeoffe a stranger to which the termor doth agree saving his terme. And if the lessor make such an entry upon the lessee for life or years as to put him out of possession of the house or land, and then he doth make a feoffment and livery of seisin of it, or if the lessor in the absence of the lessee his wife, servants and children enter upon the thing in lease and make [Page 207] a feoffment and livery of seisin thereof; in these cases there is a good feoffment to passe the reversion, for in these cases when the lessee for life or years doth reenter, the law doth adjudge this to be an atturnement in law. But if a lessor will enter upon his lessee, and against his will (the lessee being still in possession of the land) Atturnement. make a feoffment of the land and give livery; this is void and can never take effect as a feoffment. And therefore if there be a conveyance made of a house and land thereunto belonging in lease, and the feoffor come into part of the land without the leave of the lessee, and there make livery of seisin of that part in the name of all the rest of the land, (the lessee himselfe, his wife, child, or servant being then upon any other part of the land, and especially if they be in the house) this is no good feoffment for any part of the land but void for the whole. Veynors case Tri [...]. 7 Jac. B. R. And yet if the lessee for years make an under-lease of part of the land to another, and the feoffor doth make a feoffment of this part, and give livery of seisin upon this part, in this case the possession of the first lessee in the residue will not hurt the feoffment or livery for this part, but it is a good feoffment. Also if the lessee give the lessor leave to make livery and depart and Co. super Lit. 48. leave a servant of the lessee upon the land; in this case it seemes his presence upon the land whiles the livery is made will not hurt. And so if the lessee leave the poss [...]ssion and leave nothing upon the land but his cattell; they will not keep his possession nor prejudice the livery of seisin.

If a lease be made of one acre to one, and another acre to another, 21 H. 7. 7. Dier 18. and the lessor make a feoffment of both these acres, and make livery in one of them in the name of both acres; this is no good feoffment for the other acre, for by this livery he is not put out of possession of that acre. So if one make a feoffment of two Manors the one in possession and the other in lease, and give livery of seisin of the Manor in possession in the name of both the Manors; this is no good feoffment for the other Manor, neither will it passe by this feoffment. So if one make a lease for years of a house, and after make a feoffment in fee of the house and of a close adjoining, and give livery of seisin of the house the termors wife and children being then in the house; in this case this is no good livery neither to passe the house nor the close.

If lessee for life, or years make a feoffment of the land, the lessor Perk. Sect. 2 [...]2. Dier 362. being then upon the land and not contradicting it; it seemes this For [...]i [...]ure. is a good feoffment, and that the presence of the lessor upon the land especially if he doe not contradict it will not hinder the virtue of the feoffment as against the feoffor and all others: but the lessor may enter afterwards for the forfeiture notwithstanding if hee please.

If the husband alone make a feoffment of the land, he hath in the Perk. Sect. 223. Husband and wife. [Page 208] right of his wife, or that he hath jointly with his wife, his wife being then upon the land and disagreeing to it; in this case the feoffment is good against the feoffor and all others but the wife notwithstanding her presence and disagreement, but the wife may after his death avoid it.

If one jointenant make a feoffement of the whole land, his companion Perk. Sect. 220. Iointenant. being then upon the land; by this there doth passe no more but a moity, and the feoffement is void as to the moity of his companion, for the feoffment doth not give his moity.

If a man enter into my land by wrong, and make a feoffement Perk. Sect. 219. of it to a stranger, I being then upon the land; this feoffement is void, for in this case the Law doth adjudge me to be alwayes in, and never out of the possession.

If the King have any possession of the land by wardship or otherwise, Prerogative. Perk. Sect. 219. Bro. Feoffment. 3. 17. 21 H. 7. 7. 2 H. 6. 5. 1 H. 7. 5. Stamf. prer. Regis 40. the owner of the land can make no feoffement of it. And therefore if the King be entituled to land by wardship, or primer seisin after office found after the death of an Auncestor of one of his tenants; in this case it is said the feoffement of the heire is void and passeth nothing, for the King is still in possession. And if it be before office found it will be all one, for the office shall relate to the death of the Auncestor. And yet in these cases the feoffment is good against the heire himself, and all others besides the King. If the heir before office found, enter and make a feoffment, and then the King doth pardon the feoffee; in this case the feoffement is good. And yet such a feoffement after office with a pardon is void. And the like law is if the entry bee before office, and the pardon after the office; for this is void also. But if a man bee outlawed for debt or trespasse, and thereupon the Outlawed persons. King hath the profits of the lands; in this case the owner may make a feoffment of this land notwithstanding.

Divers persons cannot make a feoffement but it must be by deed, Fitz Faits & Feoffements 32. See Grant Numb. 4. 4. In respect of the manner of making of it. as corporations, and such like: Also divers things cannot be granted by a feoffement, but the feoffement must be made by deed, for a feoffement cannot be made of a reversion of land but it must be by Reversion. deed. But a lease may be made of land to one for life, the remainder to another in fee, and this may be done without any writing by word only. Also a feoffment may be made of the moity, third, or 4^th Litt. Sect. 60. super Litt. 190. part of a manor, or of a peece of land without deed. And yet if one be seised of a manor, whereunto an Advowson is appendant, and he make a feoffment of three acres parcell of the manor, together with the Advowson to two men, Habendum the one moity with the Advowson to one of them, and the other moity to the other; in this case the feoffment cannot be well made unlesse it by deed.

If a lease be made for five years, on condition that if the lessee pay Litt. Sect. 250. to the lessor within the two first years ten pound, then that he shall [Page 209] have the land to him and his heires, or otherwise but for five years; in this case if livery of seisin be made to the lesse before his entry this is a good feoffment. Et sic de similibus.

Every feoffment also whether it be made by deed or without Livery of seisia. deed must be made with livery of seisin, and this livery of seisin must Lit. Sect. 59. 66. Co. super Lit. 52. Doct. & Stud. 13. be made according to the rules of livery and seisin herein after laid downe, for this is of the essence of a feoffment, and a feoffment is not accounted perfect untill livery of seisin be made, for untill then the feoffee hath only an estate at will in the land, and the feoffor may put him out when he will. And if either of the parties die before the livery of seisin be made the feoffment is void, and no warrant of atturny to make livery can be executed after the Equity. death of the feoffor or feoffee, neither is there any remedy in this case to get the assurance to be made perfect but in a Court of Equity. But in case where there are many feoffees there the death of one or some of them will not hinder the livery but it may be made to him or them that doe survive, we must see therefore in the next place what this livery of seisin is.

Livery of seisin, or giving of possession is a solemnity or overt 5. Livery of seisin. Quid. New terms of the law. ceremony required by law and used for the passing of lands or tenements corporall as an evidence or testimoniall of the willing departing by him that makes the livery from the thing whereof livery is made and the willing acceptance thereof by the other party. And West 2. part Symb. Sect. 251. Co. super Lit. 48. this is as ancient as a feoffment, for no feoffment is made without livery of seisin, albeit livery of seisin be sometimes made upon other conveyances. And it was first invented as an open and notorious act to this end, and that by this meanes the country might take notice how lands doe passe from man to man and who is owner thereof, that such as have title thereunto may know against whom to bring their actions, and that others may know that have cause of whom to take leases, and of whom to require wardships &c. And by this means if the title come in question the Jury can the better tell in whom the right is. And of this livery of seisin there are two kinds. 1. A livery in deed. 2. A livery in law called a livery Co. super Lit. 48. 6. Quotuplex. within view. The livery in deed is when the feoffor, donor &c. by himselfe or another taketh the ring of the doore of the house, or a turfe, or twig of the land, and delivereth the same upon the land unto the feoffee, donee, &c. in the name of seisin of the house, or seisin of the land. And this is done sometimes by the parties themselves if they be present, & sometimes in their absence by their atturnyes or procurators. The livery in law is where the feoffor saith to the feoffee being in view of the land, I give you yonder house to you and your heires, goe enter into the same and take possession thereof accordingly, or the like.

Because this manner of conveyance by feoffment is so ancient Bio. estates 4. Plow. 28. 29. 7. The nature and operation of it. [Page 210] therefore this ceremony (being inseparably incident to a feoffment) is much favoured in law: And therefore it is expounded and taken strongly against him that doth make it and beneficially for him to whom it is made. And for this cause it worketh not only to transmit the present estate but also to barre all present and future rights and possibilities. If therefore one make a lease for life to I S the remainder to the right heires of I D (which I D is then living) and give livery of seisin according to the deed; in this case albeit he in remainder be not capable of this remainder, yet by the livery it shall passe out of the feoffor, and shall be in Abeyance during the life of I S. So if a feoffment be made to one & heredibus, without the word [Suis,] and livery of seisin be made of the deed; this livery perhaps may make the estate good.

Livery of seisin is needfull and must be had and made in all cases Co. 5. 92. Lit. Sect. 70. Co. 6. 26. Doct. & Stud. 13. Co. super Lit. 49. 8. Where and in what cases it is requisite. Or not. where any estate of see simple, fee taile, or for a mans owne or another mans life is made or granted by writing, or word in the country of any lands or tenements corporall. And so also where one doth make a lease of land to another for years the remainder to a stranger in fee simple, fee tail, or for life; in these cases livery of seisin must be had and made to the lessee for years or else nothing will passe to him in remainder; and yet the lease for years will be good. And so also where a lease for yeares is made upon condition Co. super Lit. 216. that if such a thing happen the lessee shall have the fee simple; in this case the lessee must have livery of seisin before his entry, otherwise the estate will not increase. And so also if the King Plow. 214. 2. 9. make a feoffment of the land he hath in the right of the Duchy of Lancaster that is not within the county Palatine; in this case livery of seisin must be made as in the case of a Subject. And in all these cases where livery of seisin is requisite and it is not made, there doth passe no estate by the conveyance but an estate at will at the most.

But livery of seisin is not needfull or requisite to bee had and Co. 2. 23. Lit. Sect. 59. Co. super Lit. 49. made in cases where any estate of see simple, fee taile, or for life is made or granted of any lands by matter of record, as by the Kings Letters Patents, Fine, Recovery, Deed indented and inrolled, and the like; nor is it needfull where any such estate is created by way of covenant and raising of use, by way of Exchange, Indowment ad ostium Ecclesiae, or ex Assensu patris; nor is it needfull where any such estate is passed or granted by way of Surrender, devise, release, or confirmation, or by way of increase or executory grant, as when the fee simple is granted to the lessee for life or yeares in possession; neither is it requisite or can be made where any incorporeall hereditaments, as reversions, rents, commons, or the like are granted in fee simple, fee taile, or for life: for in some of these cases there is an atturnement to be made that doth [Page 211] supply a livery. Neither is it requisite in some cases where an estate of freehold is made of a corporall thing, as if a house or land belong to an office, and the office be granted by deed; in this case the house or land doth passe as incident thereunto. So if a house or chamber belong to a corody; in this case by the grant of the corody the house or chamber passeth without any livery of seisin. Neither is it requisite upon a lease for yeares, for if a man make a lease for one thousand yeares; this lease is perfect by the delivery of the deed without any livery of seisin. Neither is it needfull where one doth grant to me and my heires all the trees growing Co. 8. 137 11. 49. on his ground; for these will passe without any livery of seisin at all.

Livery of seisin may and must be made either by the party himselfe Perk. Sect. 184. Co. super Lit. 48, 49. 52. that maketh the estate, or if it be a livery in deed, it may in his 9. How it may & must be made. And what shall be said a good livery of seisin. Or not. absence be made by his atturney sufficiently authorized by writing. And he that may make an estate, to the perfection whereof livery is requisite, may himselfe and in his owne right make livery thereupon: and in the right of another, and as atturney to another so 1. In respect of the persons that make it, & to whom it is made, and the quality of their estate. Woman covert Infant. divers that cannot make any estate may notwithstanding make livery of seisin. And therefore the husband albeit he may not make a feoffment in fee, or lease for life, &c. of land to his wife, yet he may as an atturney make livery of seisin to her upon a conveyance made by another. And so also may the wife upon a conveyance made to the husband or her. And so also Monks, Infants, Aliens, and such like persons disabled to make feoffments &c. may notwithstanding make livery of seisin as atturneys upon conveyances made to others. And so likewise may he in remainder in fee make livery to the lessee for years. Et sic de similibus. And this livery of Co. super Lit. 48. 49. seisin may and must be made to the party himselfe that taketh the estate, or in his absence to his atturney or procurator sufficiently authorized: and in this case any one may be an atturney to take that may be an atturney to give livery. If a feoffment be made to Dier 35. Co. super Lit. 49. 359. Co. 5. 95. divers by deed and livery of seisin is made to one or some of them; this is a good livery to execute the estate to them all. But if a feoffment be made to divers without deed, and livery of seisin is made to one or some of them in the name of all the rest; in this case the feoffment is good to execute the estate in him or them to whom the livery is made and voidas to the rest. If a lease for years be made Co. super Lit. 217. to A and B without deed, the remainder to D in fee, and livery of seisin is made to A or B; in this case this is a good livery to make the remainder to passe to D. But if a lease be made for years to A, the remainder to the right heires of I S in fee I S being then living, and livery of seisin is given to A, this remainder is void, for nemo est heres v [...]vētis. One Jointenant cānot make livery of seisin Perk. 40. 10 E. 4. 3. to his companion as a tenant in common may. And a lessor cannot [Page 212] make livery of seisin to his lessee for life or years. See before Num. 4.

In all cases where this ceremony is requisite, whether it be done Co. super Lit. 52. 2. In respect of the time when it is made. by the parties themselves in person or their deputies it must be done and made, 1. in the life time of the feoffor, donor, or lessor, and in the life time of the feoffee, donee, or lessee; for if either of them die it cannot be done afterwards, neither can a warrant of atturney be be made to deliver seisin after the death of the feoffor &c. But if there be more feoffees, donees, or lessees, then one; in such cases albeit all of them die but one the livery of seisin may be made to that one that doth survive, and it will be good to him to execute the estate in all the land. And so it is if there be a warrant of atturney made by a Corporation aggregate, as a Mayor and Communalty, Deane and Chapter, or the like, to give livery of seisin, in this case the death of the Mayor, &c. will not determine the authority, and therefore in that case the livery of seisin may be made after his death. 2. If it be a lease for years with a remainder over in fee, the livery must be made to the lessee for yeares before his entry or at the time Co super Lit. 49. 216. Perk. Sect. 205. when he doth enter for that purpose, for afterwards it cannot be made. Quod semel meum est amplius meum esse non potest. Quere also whether the law be not so in all other cases, and let men take A caveat. heed they doe not (as commonly they doe) enter into the land before they have livery of seisin made thereof unto them. And yet it seemes the livery of seisin is good when it is made afterwards, by Co. 2. 55. 3. It must not be made before the estate begin, for Co. super. Lit. 217. if a lease be made for years to begin at Michaelmas with a remainder over, and the livery of seisin is made before Michaelmas; this livery of seisin is void, for if a livery worke at all it must worke presently, and so it cannot in this case because it is before the estate doth begin.

If an estate be made of divers peeces of land in divers villages in Co. super Lit. 48. Perk. Sect. 227. 228. Doct. & Stud. 3. Lit. Sect. 61. 418. Perk. Sect. 226. Fitz. feoffments & Faits, 111. the same county; in this case the making of livery of seisin of and 3. In respect of the place or thing wherein it is made. in any part thereof in the name of all the rest, or of one parcell according to the deed, albeit he doth not say in the name of &c. sufficeth for all, if all the peeces be in the grantors possession and out of lease. But if the peeces of land lie in divers counties, or in the same county, and they be in lease, or out of the possession of the feoffor contra, for in that case the making of livery in one part in the name of all the rest is not sufficient for the rest, for in this case it is requisite that livery of seisin be made upon and in some of the lands in both counties, and upon every parcell of land that is out of possession, or at least in some parcell of the land in the occupation of every severall tenant. And yet if one part of a Manor be in one county, and theother part in another county in view of that part; in this case it seemes livery of seisin in the one part in the one county in view of the other part in the other county is good & sufficeth for all. [Page 213] So if the seite of a Manor lie in one county, and the rest of the Manor in another county; in this case the making of livery in the scite of the Manor is sufficient for the whole Manor. If a feoffment be made of the Manor of Dale in Sale, the which Manor Perk. Sect. 228. doth extend in Dale and Sale, and livery of seisin is made accordingly in Dale only and not in Sale also; by this feoffment there doth passe no more of the Manor but that which is in Dale only. If I 9 H. 7. 25. per Frowick. be seised of one acre in fee, and of another acre for life, and I make a feoffment of both acres, and make livery of seisin in that acre whereof I am seised in fee in the name of both acres; in this case it seemes this sufficeth to passe both the acres. But if I be seised of one acre in fee, and possessed of another acre for years, and I make a feoffment of both acres and livery of seisin in that acre only whereof I am seised in fee in the name of both the acres contra, for this is as If I make a feoffment of land whereof I am seised and of other land whereof I am not seised &c. If I be seised of two acres Fitz. Faits & Feoffments. 2. of land, and let one of them for years, and then make an estate of both of them to another, and make livery of seisin in that I have in possession in the name of both the acres; this will not serve to passe the other acre, but livery must be made in that acre also. And accordingly it was agreed in a case in the Kings Bench Hil. 38 Eliz. which was, that a man was seised in fee of a Manor and Mountague versus Jefferies. other lands called Groves, and he made a feoffment of it (Groves being then in lease for years) and a letter of atturny to give livery and the atturny made livery of the Manor in the name of the rest, the lessee being still in possession of Groves; in this case it was agreed that this was no good feoffment for Groves.

When a feoffment is made of a house and land, the livery of See infra. seisin is most aptly to be made of and in the house in the name of the rest, and at the doore of the house &c. And when a feoffment is made of a Rectory or Parsonage; the livery of seisin may be made in the Parsonage house, or if there be no house, it may be made upon the Glebe, or if there be neither, it may be made at the ring of the Church doore.

In the making of every livery of seisin it is requisite that all persons 4. In respect of the presence or possession of others. See before Numb. 4. that have any lawfull estate and possession in the thing whereof livery is to be made, as lessees for life, years, and such like joine in the making thereof or be removed thence, for every livery ought to bring an immediate possession to the feoffee, donee, &c.

If lessee for years make a feoffment and a warrant of atturny to Dier 362. give livery of seisin, and the atturny make livery of seisin the lessor being present upon the land and not contradicting it; it seemes this is a good livery of seisin.

The presence of the feoffor, donor, &c. upon the land after he Bro feoffments 24. hath delivered seisin to the feoffee, donee, &c. albeit he stay upon the [Page 214] land a while and doe not depart and leave the feoffee &c. in possession will not hurt the livery. See more supra Numb. 4.

Livery of seisin may be made of any corporall thing, as Manors, Co. super Lit. 49. 5. In respect of the matter whereof it is to be made. houses, lands, meadowes, pastures, woods, chambers, or the like. And these things therefore are said to lie in livery. But of incorporall things, as rents, advowsons, commons, estovers, and such like things livery cannot be made. And these things therefore are said to lie in grant and not in livery. And therefore when a livery is made of these nil operatur. See more above Numb. 4.

To every good livery of seisin is requisite either such an act as the Co 9. 137. super Lit. 49. 6. In respect of the manner & order of making it. And how livery of seisin is to be made. law doth adjudge to be a livery, or apt words that doe amount unto it, for a livery may be good by words without any act or deed at all. But it cannot be good by an act or deed without any words at all: howbeit that livery that hath an act or ceremony in it is the best because it taketh the deepest impression in the witnesses.

The most usuall formall and orderly manner of making of livery West. Symb. 1. part. Sect. 251. Perk. Sect. 209. 210. Co. super Lit. 48. of seisin is thus, that the feoffor, donor, &c. and the feoffee, donee, &c. if they be present, or in their absence their atturneys or servants that have authority doe come to the doore, backside or garden if it be a house, if not, then to some part of the land where seisin is to be delivered, and there in the presence of many good witnesses doe show the cause of their meeting, openly and plainly, doe read the deed or declare the contents thereof and of the letter of atturny if there be any. And then the feoffor, &c. or his atturny (if it be a house) doe take the ring, latch or haspe of the doore (all the people, men, women and children being out of the house,) or (if it be of a peece of ground) doe take a clod of the ground or a bough or twig of a tree or bush growing thereupon; and (all the people being out of the ground) the same ring &c. clod, bough &c. with the deed doe deliver to the feoffee, donee, &c. or to his atturny: and in the delivery hereof doe use these or some such like words. viz. I deliver these to you in the name of seisin of all the lands and tenements contained in this deed To have and to hold according to the forme and effect of the same deed. Or, I deliver you seisin and possession of this house or ground in the name of all the lands contained in the deed according to the forme and effect of the deed. And then if it be a house the feoffee, &c. doth enter in first alone and shut to the doore, and then he doth open it and let in others. And if the feoffment, gift, or lease be made without deed, then they doe and must withall expresse the very estate it selfe which the feoffee, donee, or lessee is to have: as for example, the feoffor, donor, or lessor must come to the house or land which is to be granted and where livery of seisin is to be made and there must by apt words grant the house or land to him that is to have it in fee simple, or in taile, or for life, (as the agreement is) and in seisin thereof must [Page 215] deliver him the ring of the doore, or a turfe or twig of the land. And if the feoffment &c. be made by writing then it is wisdome to indorse and set downe on the back of the same how, when, and where the same is made, and the names of the witnesses thereunto. But a livery of seisin that is not so exactly made may be good notwithstanding. And therefore if the feoffor, donor, &c. or his atturny Co. 9. 137. Fitz. feoffments & faits. 111. take any thing else that comes from off the land, as a stone, or the like, and therewithall doth make the livery of seisin; or if he take a turfe, or twig from off another mans ground and not from the same whereof possession is to be given, and deliver that upon the ground in the name of seisin; Or if he take a peece of silver or gold, or a rod, stick or the like, and deliver this upon the land in the name of seisin; all these are good deliveries of seisin and possession. So Co. 6. 26. 41 E. 3. 17. if the feoffor &c. be at the doore of the house, or by the land, or in the house, or upon the land, and after he hath delivered the deed he say to the feoffee, donee, &c. [Here I deliver you seisin and possession of this house or land in the name of seisin and possession of all the lands and tenements contained in the deed.] Or [have and enjoy this house or land according to the deed.] Or [enter into this land or house and God give you joy of it.] Or [I am content you shall enjoy this land;] in all these cases there is a good livery of seisin. Et sic de similibus.

If I being seised of a house in fee make a feoffment of it and of Bro. feoffment 28. divers lands to a man then present with me in the same house, and there deliver him the deed in the name of seisin of all the lands contained in the deed; in this case this is a good delivery of the deed, and a good livery of seisin also, albeit I continue in possession of the house still and goe not out of it. And if I be Lord of a Manor, and Perk. Sect. 211, 212. lying sicke within some part of the Mannor I make a feoffment of the Manor, and deliver the deed to the feoffee saying to him, I will that you take seisin presently; and thereupon command all my tenants of the manner to atturne to him, and they doe so; this is a good livery of seisin. So if I make a deed, and after I have read it, Perk. Sect. 215. Co 6. 26. being upon the land I deliver it to the feoffee, donee, &c. and say, Here I deliver you this charter as my deed in the name of seisin of all the lands therein contained, or the like; this is a good delivery of the deed and of seisin. But if I doe only seale and deliver the deed upon or in view of the land without saying or doing any more; this will not amount to a livery of seisin. Cromwals case Adjudged in the exchequer 15 Eliz. And therefore if a man make a feoffment with a letter of atturny to give livery of seisin, and then he deliver the deed upon the land; this is no good making of livery of seisin. And so also if there be no letter of atturny.

If I be seised of a house in fee, and being in the house say to Co. 6. 26. I S, Here I S. I demise you this house for terme of my life; this [Page 216] will not amount to a livery of seisin; and therefore it is no good lease untill livery of seisin be made, but it is a good beginning of a lease.

If the father infeoffe his sonne of land, and the sonne suffer Perk. Sect. 216. his father to enjoy it, and after the sonne doth come to the Parish Church where the land doth lie, and there in the audience of the parishioners useth these words to his father, [Father you have given me such and such lands (and doth name them) as freely as you gave them to me I give them to you againe;] this is no good livery of seisin neither doth any estate passe hereby. So if one being upon his Hil. 37 Eliz. B. R. Callards case. land say to I S, [I S stand forth, I doe here reserving an estate to me for mine owne life give this land to thee and thy heires for ever;] this is no good livery of seisin, neither doth any estate passe thereby. So if one make a charter of feoffment to me and make no livery of seisin thereupon, and after I make a feoffment of the land Fitz. Fait. & feoffments. to I S and the feoffor hearing and having notice of it saith [I doe willingly agree to it and am contented that I S shall have it,] or I doe agree to the feoffment, or the like; in this case this doth not make the feoffment that was made to me good.

If divers parcells of land be conveyed and livery of seisin is made Co. super Lit. 48. Fitz. Estoppell. 177. in one; or there be divers feoffees, and livery of seisin is made to one of them according to the deed, without using any more words; this is good. But the best forme and order of making of livery in this case is to adde these words, [in the name of all the rest &c.]

If the feoffor, donor, &c. deliver the deed in sight or view of Co. 9. 137. 6. 26. super Lit. 48. 253. the land, and use these or any such like words, [I will that you Livery in law, or within the view. shall enter into the land and have it according to the deed;] Or, [take and enjoy the land according to the deed;] Or, [I deliver you this deed in the name of seisin;] Or, [enter you into the land and take seisin of it;] Or [take the land and God give you joy of it;] Or, (if the estate be made without deed) [I give you yonder land to you and your heires and goe & enter into the same and take possession thereof accordingly;] Or [enter into the land and enjoy it in fee simple to you and your heires, or for your life &c.] in all these cases the estate and the livery is good albeit the feoffor &c. stand in one county and the land in view be in another county. But in all these cases of livery within the view, 1. It must 1] New terms of the Law. Co. super Lit. 48. Dier 18. 2] 18 H. 6. 16. be made by the person himselfe that doth make the estate, for it cannot be made by his atturny. 2. There must be a relation to to the land, for if the feoflor doe deliver the deed only to the feoffee in sight of the land; this is not a good livery within the view. 3. The parties must stand within view of the land, for if the feoffor &c. being out of the sight of the land say to the feoffee 3] Co. super Lit. 48. &c. Goe and enter and take seisin of the land and God send you joy of it; this is no good livery of seisin. 4. There must be some [Page 217] body capable of a freehold to take by the livery, for if it be made to a lessee for years the remainder to the right heires of I S and I S is then living, it is void. 5. The feoffee &c. must enter presently, 5] Co. 1. 156. Perk. Sect. 214. Fitz. faits & feoffments. 47. for if either the feoffor, donor &c. or feoffee, donee &c. die before entry; the livery cannot be made good. And yet if the party dare not enter for feare, in this case if he claime it only, and doe not enter it is sufficient.

Livery of seisin in deed may be made or taken by the deputies or 10. Where livery of seisin made or taken by an atturny shall be good. And where not. And what warrant is sufficient. Co. super Lit. 52. Celw. 51. Co. 9. 76. terms of the law. tit. Livery. atturnyes of the parties, and this livery by them is as good as that livery of seisin which is made by the parties themselves; and that also as it seemes albeit the parties themselves be upon the land at the time of the making thereof if they doe not contradict it. But in the making of this livery care must be had, 1. That there be a deed of feoffment, for otherwise a letter of atturny to deliver possession availeth nothing. 2. That there be a good authority in writing, which may be either in the deed of feoffment it selfe, The opinion therefore in Co. super Lit. 52. 6. as to this point is held not to be law. whether it be Poll, or Indented, and that albeit the atturny be not party to it, or else by a single deed besides the feoffment &c. 3. That the atturny doe pursue his authority at least in the substance and effect of it. 4. That the atturny doe it in the name of the feoffor, donor, &c. who doth give the authority. 5. That it be done in the life time of the parties. But a livery in law may not be made by an atturny. And therefore if a letter of atturny be to deliver seisin generally and the atturny by virtue thereof deliver seisin in view; this livery of seisin is void.

If an Infant, or woman covert make a feoffment and letter of atturny Bro. Feoffments. 25. Ass. pl. 4. Perk. Sect. 23. Infant. Woman covert. to make livery, and the atturny doe so; this is void, for they are not able to give such an authority. And if a man whiles he is of sound memory make a feoffment with a letter of atturny to give livery and after he become paralytique and so dumbe, but by signes he doth declare himselfe to be willing to have livery of seisin made, and it is made; this is a good livery of seisin. But if a letter of atturny be made to deliver seisin of certain land by one that is de non De non sane memoris. sane memorie, and the deed of feoffment was made whiles he was of sound memory, and afterwards he doth come to his memory again, and then the livery is made upon the first warrant without any new assent &c. in this case the livery is not good.

That for the most part which for the manner and order of making it is a good livery of seisin if it be made & taken by the parties Dier 283. themselves is good being made and taken by their atturnies or deputies that have a good authority and do well pursue it. And therefore if the conveyance be made of divers lands, and they lie in one county, and a warrant of atturny is made to give livery generally, and the atturny doth make it in one part of the land in the name of all the rest; this is a good livery. Et sic de similibus.

[Page 218]

If a man be seised of black acre, and white acre, and he make a Co. super Litt. 52. deed of feoffment of both these acres, and a letter of Atturney to enter into both these acres, and to deliver seisin of both of them according to the form and effect of the deed, and he doth enter into black acre and deliver seisin secundum formam cartae; in this case the livery of seisin is good, albeit he doe not enter into both the acres, nor into one acre in the name of both. And if the feoffment bee made to two or more, and the warrant of Atturney is to make livery to them both, and the Atturney doth make livery of seisin to one of the feoffees secundum formam & effectum cartae; in this case the livery is good to both, and yet he that is absent may wave the livery.

And yet if a man be disseised of black acre and white, and a warrant Co. super Litt. 52. 258 Perk. Sect. 187, 188, 189 of Atturney is made to one to enter into both these acres, and to make livery, and the Atturney doth enter into one acre onely, and make livery of seisin there secundum formam cartae; in this case the livery of seisin is void for all, for in this case he doth lesse then his authority. So if a man make a letter of Atturney to deliver seisin to I S upon condition, and the Atturney doth deliver seisin absolutely; this livery of seisin is void. And so in all such like cases where the Atturney doth lesse then the authority and commandement, all that he doth is void. But for the most part where the Atturney doth that which he is authorised to doe, and more also, it is good for so much as is warranted, and void for the rest. And therefore if the letter of Atturney be to give livery of Perk. Sect. 109. Co. super Lit. 258. seisin to I S, and the Atturney give it to I S and W S; this livery is good to I S and void to W S. So if the letter of Atturney be to give livery of seisin of white acre only, and he make livery of white acre and black acre also; this livery is good for white acre, and void for black acre. So if the letter of Atturney be absolute, and the Atturney give livery upon condition; some hold this to be good, and the condition to be void.

If a letter of Atturney be made to two jointly to make or take Co. super Litt. 49. livery of seisin, and one of them alone doth it without the other; this is a void livery. But otherwise it is when it is made to two jointly or severally, for there one of them alone may doe it.

If a letter of Atturney be to make livery of seisin after the death of another man, and the Atturney doth make livery of seisin during that mans life; this livery is void. Litt. Sect. 359. Co. super Litt. 48. 122. Fitz. Estoppel 177. 7 Ed. 4. 25. Co. super Litt. 49. Fitz. feoffments & faits 23.

Livery of seisin is sometimes made single, and without any relation to the deed whereby the estate upon which the livery is made is 11. How it shall enure, and be taken, and construed. created at all: and sometimes and most commonly it is made with reference to the deed in these or such like words [secundum formam cartae]. In the first case the estate is oftentimes made upon the livery; and then there may bee one estate contained in the [Page 219] deed, and another made by the livery, also there may passe more land by the livery then is in the deed, and by this means when there is a fault in the deed, so that the land will not passe by the deed, it may perhaps passe by the livery: but in this case then there must be apt words used in the making of the livery to create the estate also, as well as to give the possession. But where the livery of feisin is made with relation to the deed, there it must take effect according to the deed or not at all, for these words secundum formam cartae, are to bee understood according to the quantity and quality of the effectuall estate contained in the deed. And therefore if one make a deed of feoffment to another, and in the deed there is contained no condition at all, and when the feoffor doth make livery he doth make livery upon condition; or if the deed contain an estate to him and his heirs, and he maketh livery of an estate in taile or for life; in these cases there doth passe nothing by the deed. And yet if there be apt words used to create such an estate at the time of the livery made; such an estate may be made by the livery without the deed, and then the deed shall be void. But if in these cases the feoffor say when he doth make livery on condition in taile, or for life, secundum formam cartae; in this case there is a good feoffment made according to the deed, and the additionall words are void. So if a man make a lease for years, and make livery secundum formam cartae; this is but a lease for years still. And if A give land to B To have and to hold after the death of A to B, and his heires; this is a void deed, and therefore if the livery of seisin be made secundum formam cartae, the livery of seisin is void also. But if when he doth give livery of seisin, he give it to him and his heires without these words secundum formam &c. or if in the making of livery he say, Here I deliver you seisin of this land, To have and to hold to you and your heirs for ever, or the like; this may make a fee simple. And so if one make a deed of feoffment of two acres, and after make livery of feisin of four acres; in this case if there bee words in the livery of seisin sufficient to make a new estate, the other two acres may passe also.

If A by deed give land to B, to have and to hold after the death Co. 2. 55. 5. 94. & Greenewoods case, B. R. Mich. 17 Jac. of A to B and his heirs; this is a void deed, and therefore if upon this deed livery of seisin be made before the day by the party himself, or at, or after the day by his Atturney secundum formam & effectum cartae; the livery is void also, for it cannot enter so. And yet if a lease be made for life to begin in futuro, and at, or after the day come the lessor himself in person doth make livery of seisin secundum formam cartae; in this case the lease perhaps may become good by this livery of seisin.

If an agreement be between two that the one shall enfeoff the other Co. super Litt. 222. [Page 220] upon condition for surety of money, and afterwards livery of seisin is made generally without any such condition; in this case it is said by some the estate shall be on condition still.

If there be a fault in the deed, as by the mis-naming of the feoffor Perk. Sect. 42. &c. feoffee &c. or the like, and afterwards the feoffor &c. doth himselfe in person make livery of seisin upon this deed to the feoffee &c. by this the fault of the deed may be holpen and cured.

If one make a feoffment to himself and another, and give livery Perk. Sect. 204. 203. 7 H. 7. 9. of seisin to the other; this is a good feoffment and shall enure to the other wholly, and hee shall take the whole by the feoffment and the livery. And so if the livery be made to one that is capable, and to another that is not capable; hee that is capable shall take the whole, and the other shall have nothing. So if a feoffment be made to two, and one of them die before the livery is made, and after the livery is made to the survivor; in this case the livery shall enure to the survivor only, & he shall have all the estate thereby. So if a feoffment be made without deed to a Corporation and to I S, and livery is made to I S alone; in this case I S shall have the whole and the Corporation nothing at all.

If a feoffment be made to four, and livery of seisin is made to one, Dier 35. 10 E. 4. 1. Co. 5. 95. two or three of them; this shall enure to them all. But if the feoffment be without deed, it shall enure to him wholly to whom the livery is made. And if one of them give warrant to the rest to take livery for him, and they doe so; this shall enure to them wholly, and not to him at all for any part.

If the tenant make a feoffment to his Lord and another, and give 10 E. 4. 12. livery of seisin to the other; this shall enure wholly to the other untill the Lord agree to it, and then to them both.

If one make a deed of feoffment of one acre of land to A and his Co. super Litt. 21. heirs, and another deed of the same land to A and his heirs of his body, and deliver seisin according to the form and effect of both deeds; in this case it shall enure by moities, i. he shall have an estate taile, and the fee simple expectant in the moity, and a fee simple in the other moity.

If two severall deeds of feoffment be made to two severall persons of one and the same thing; he that can get the seisin first shall have it. Rem domino vel non domino, vendente duobus, In jure est potior traditione prior.

If lessee for life make a feoffment, and a letter of Atturney to the lessor to make livery, & he doth make livery accordingly; in this case Co. super Litt. 52. this shall not enure to bar him of his entry upon the feoffee for the forfeiture of his lessee. But if lessee for years make a feoffment in fee, and such a letter of Atturney to the lessor, and he doe deliver seisin accordingly; this livery shall bind him, for it shall be said as in his own right, because the lessee had no freehold whereof to make livery.

[Page 221]

If a lessor make a deed of feoffment, and a letter of Atturney to Co. super Litt. 52. the lessee for years to give livery, and he doth it accordingly; this shall not be construed to extinguish or hurt his term. See more in Exposition of Deeds, supra ch. 5.

And so we come to another kinde of Deed of Common Assurance called a Bargain and Sale.

CHAP. X. Of a Bargain and Sale.

THis word doth signifie the transferring of the property of a Terms of the Law, Plow. 301. Co. 2. 35. thing from one to another upon valuable consideration. And 1. Bargain and Sale. Quid. herein only it doth differ from a Gift; that this may bee without any consideration or cause at all, and that hath always some meritorious cause moving it, and cannot be without it. This word also is sometimes applied to the assurance or conveyance whereby this is done and made, which is called a deed of Bargaine and Sale, for this may be done by writing or without writing.

And sometimes this is and may be of lands, tenements, and hereditaments, Terms of the Law, Plow. 301. Co. 2. 35. 2. Quotuplex. and to this the terme is most properly applied. And then it is said to be, where a recompence is given by both parties to the bargain. As where one doth bargain and sell his land to another for mony; in this case the land is a recompence to the one for the money, and the money to the other for the land. And this now also is become one of the common assurances of the kingdome, Per Ch. Just. Hide. 3 C. 1. Co. 2. 54. so that such an assurance may now bee averred to bee fraudulent within the Statute of 27 Eliz. as well as any other assurance, a rent may be reserved upon it, or a condition made by it, as well as by any other kind of assurance. And sometimes this is and may be of moveable things, as trees, corn, grasse, oxen, kine, houshold-stuffe, and the like: the property whereof is and may be altered by this kind of conveyance, as well as by gift, or grant. And this kind of bargain and sale is that which is commonly called a Contract: Terms of the Law. Agreement. which largely taken, is an agreement between two or more concerning something to be done, whereby both parties are bound each to other, or one is bound to the other. But strictly it is the buying and selling of some personall goods whereby the property is altered. And in both these cases he that doth sell is called the bargainor, and hee to whom the sale is made is called the bargainee. Bargainor, Bargainee.

The effect of this is to transfer the property, and this it will as Co. 8. 94. 5. 113. 3. 62. effectually doe as any other kind of conveyance whatsoever. And 3. The effect of it. therefore the bargainee of a reversion howsoever he may not have [Page 222] benefit of a condition upon the demand of a rent without giving notice of the bargain and sale to the lessee. And howsoever if A conusee by a fine of a reversion before atturnment of the tenant bargain and sell the reversion to B, that B cannot distraine for this rent untill he can get an atturnment of the tenant; yet the bargainee shal have benefit of a condition as an assignee within the Statute of 32 H. S. And it seems he may vouch by force of a warranty annexed to the estate of the land, because he is in partly in the per, and partly in the post.

All things for the most part that are grantable by any other way See West Symb. tit. Bargain and Sale. 4. Of what things a bargain and sale may be. Or not. from one man to another are grantable, and may be transferred by way of bargain and sale from one to another. And therefore lands, rents, advowsons, commons, tithes, profits of Courts, and the like, may be granted by way of bargain and sale in fee simple, fee tail, for life, or years. And all manner of goods and chattels, as leases for years, wardships, cattell, corn, housholdstuffe, wood, trees, merchandises, and the like, are grantable by way of bargain and sale. But it seems Estovers, and such like things de novo, and that 6 Jac. B. R. Adjudged. 21 H. 6. 43. per Yelverton. have not essence before are not grantable by way of bargain and sale, as they are by way of grant or lease, and therefore that a bargain and sale of such things is void.

If any estate of freehold or inheritance be made of land by way 5. What shall bee said a good bargain & sale. And what things are requisite to make such a bargain and sale. Or not. Of lands. of bargain and sale, the same must be made by a writing or deed Stat. 27 H. 8. ch. 16. indented, and cannot be made by word of mouth onely, as a lease for years, whether it be created de novo, or be in esse before, may be. But lands in London by a speciall Proviso within the Statute may be bargained and sold by word of mouth without any writing. 2. The very words Bargain and Sell, are not necessary to a good bargain & sale, for words equivalent will suffice to make land Co. 8. 94. 7. 40. 2. 36. passe by way of bargain & sale. And therefore if a man seised of land in fee do by deed indented, and by the words alien, or grant, sell them to another; or if such a man covenant to stand seised of his land to the use of another, and these deeds are made in consideration of money, and the deeds be after inrolled; these will amount to good bargains and sales. And if a man by a deed indented and inrolled in consideration of ten pound paid to him by the words, demise and grant, passe his lands to another for twenty years; this is a good bargain and sale. 3. There must be some good consideration Co. 1. 176. given, or at least said to be given for the land. And therefore if A (for divers good considerations) Ward versus Lambert Pasche 37 Eliz. or (in consideration that the bargainee is bound for the bargainor, and for divers other good causes) 41 El. Adjudged. or (for divers great and valuable considerations) bargaine and sell his land by deed indented and inrolled to B and his heirs; nihil operatur. But if in these cases in truth there be money or other good consideration given, albeit it be not expressed upon the deed, Dier 169. [Page 223] the bargainee may aver it, and being proved the bargain will bee Averment. good. And if the deed make mention of money paid, as in consideration of an hundred pound or the like, and in truth no money is paid, yet the bargain and sale is good. And no averment will lie against this which is expresly affirmed by the deed. And if the deed Dier 90. mention and say (for a certain sum of money) or (for a certaine competent sum of money), these are good considerations. 4. There needs no livery of seisin or atturnment in this case. And therefore Co. 7. 40. 8. 94. if one bargain and sell a reversion by deed indented and inrolled for good consideration; the reversion will passe without any atturnment of the tenant. And if it be onely a lease for years of a reversion that is granted, there needs no atturnment nor inrolment. And in case of a bargaine and sale the bargainee is in actuall possession before any entry, so that the lessee may atturn to the grant of the reversion, as hath been ruled in Mittons case, Mich. 18 Jac. in Cur'Ward. by the two Chief Justices and the whole Court. And yet I think he hath not such a possession as to bring any possessory action for trespasse, or the like, untill an actuall entry: for where the Statute of 27 H. 8. of uses provides, that the actuall possession shall be adjudged according to the use, yet it ought to have a circumstance Co 5. 112. which is requisite by the common law, viz. an actuall entry in deed. But there must be an inrolment of the deed in case Stat. 27 H. 8. ch. 16. Pl. 307. where any freehold doth passe, for it is provided, That no lands Inrolment. Where necessary. And how it must be done. (except in some Corporations only) shall passe from one to another by any deed whereby any estate of inheritance or freehold shall be made or take effect in any person or persons to be made by reason only of any bargain and sale thereof, except the same be made and done by writing indented, sealed and inrolled in one of the four Courts [the Chancery, Kings Bench, Common Pleas, or Exchequer], or else within the same County or Counties where the lands so bargained and sold, doe lie before the Custos Rotulorum, and two Justices of the Peace, and the Clerk of the Peace of the same County or Counties, or two of them at the least, whereof the Clerk of the Peace to be one. And the same inrolment to be within six moneths next after the same writing or deed is dated. And this Statute was made in the same Parliament wherein the law of transferring of uses into possession was made, to the end that mens lands might not suddenly and privately passe upon payment of a little money in an alehouse, or the like. And herein these things must be observed, 1. The inrolment upon such a deed as to make this estate to passe, must be in parchment, for an inrolment in paper is not good. 2. The deed inrolled must be indented, for if it be but poll, the estate will not passe. 3. It must be inrolled within six moneths of the purchase or sale. Co. 5. 1. And this account must be, 1. From the date, and not from the time of the [Page 224] delivery of the deed. 2. After twenty eight days to the moneth 2] Dier 218. Adjudge Franklin & Garters case Mich. 37 & 38 Eliz. 4] Dier 218. and no more. 3. The day of the date to be taken exclusive, and for none of the days of the six moneths. And yet if a deed be inrolled the same day it bears date, it is good. 4. If it be inrolled any part of the last day of the six moneths, it is sufficient. And thus the deed may be inrolled within the sixe moneths, albeit either of the parties die within the time. And if the deed be not thus inrolled, Ruled in the Court of Wards. Co. 11. 48. it is of no force at all. So that if one bargain and sell his land to mee, and the trees upon it; in this case albeit the trees might have been sold alone by deed without inrolment, yet now being not inrolled, because the sale is not good for the land, it shall not be good for the trees also. And no subsequent act will help in this case, for if one by words of bargain and sell, onely without any other words in the deed grant a reversion, and the deed be not inrolled, and after the tenant doth atturn; hereby nothing doth passe, neither shall it enure as a confirmation. But yet this must be noted that in some cases where a deed will not enure by way of bargain and sale for some of the causes aforesaid it may enure to some other purposes. A bargain and sale may be made of goods, Experientia. Of goods and cattels. and cattels, without any such solemnity as before, for it may bee by word as well as by writing, with or without any words of bargain and sell as well as by those words, by a deed poll, as well as by a deed indented, and that without any inrolment at all, and without any delivery of any part of the things sold, or of any peece of money (as the manner is) in the name of seisin. But in this case also Plow. 308. some respect is to be had unto the cause and consideration of the bargain, as well as in the case of the bargain and sale of lands. For howsoever perhaps in the case of a grant or bargain, and sale of goods or cattels by deed in writing, the consideration is not materiall. And that if a man doe by his deed under his hand and seal bargain and sell timber, trees, or any other thing without any consideration at all, the same may passe well enough; yet if the contract Dier 29, 30. 14 H. 8. 19. 9 H. 7. 21. 21 H. 7. 6. 10 H. 7. 6. Plow. 432. be by word, or by writing sealed and not delivered, if there be no consideration, or no good consideration of it, it is of no effect at al. And therefore if a man by word of mouth sel to me his horse, or any other thing, and I give him or promise him nothing for it; this is void and will not alter the property of the thing sold. But if one sell me a horse, or any other thing for money, or any other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money, or all, or part of the money is paid in hand, or I give earnest money (albeit it be but a penny) to the seller, or I take the thing bought by agreement into my possession where no money is paid, earnest given, or day set for the payment; in all these cases there is a good bargain and sale of the thing to alter the [Page 225] propertie thereof; and in the first case I may have an action for the thing, and the seller for his money; in the second case I may sue for and recover the thing bought; in the third I may sue for the thing bought, and the seller for the residue of the money; in the fourth case where earnest is given we may have reciprocall remedies one against another; & in the last case the seller may sue for his money. If A sell cloth to B for ten shillings, and B takes away the cloth against the will of A; in this case A shall have an action of trespasse against B. And if A sell cloth to B for ten shillings in his election to make it a bargain or not, and if he will he may keep his cloth untill the other pay him, and if A say nothing, but doth suffer B to take it away; he may make it a bargain if he will, and bring an action of debt for his money. If I offer money for a thing in a Market or Faire, and the seller agree to take my offer, and whiles I am telling the money as fast as I can hee doth sell the thing to another: Or when I have bought it we agree that he shall keep it untill I can goe home to my house to fetch the money; in both these cases, especially in the first the bargains are good, so as the seller may not sell them afterwards to another, and upon the payment and tender and refusall of the money agreed upon, I may take or recover the things.

If one doe bargain and sell his land to me for money, To have 6. How a bargain and sale shall be taken. Co. 1. 87. super Litt. 10. Dier 169. and to hold to me generally, and doth not say to me and my heirs; by this I have but an estate for life and no more.

If one in consideration of ten pound paid by me doth bargaine Of lands. Dier 155. and sell his land to me and my heirs To have and to hold to me to the use of the bargainor for life, the remainder in tail to me, the remainder to the right heirs of the bargainor; this Habendum in this case is void, and I and my heirs shall have the land for ever.

If one in consideration of ten pound sell me land for the term Co. 6. 33. of twenty years, and doth not say when this term shall begin; in this case it shall begin presently. See more in Exposition of Deeds, chap. 5. in toto.

If one sell me any thing by the tod, pound, bushel, yard, or ell; Kelw. 87. Plow. 140. 41. it shall be accounted me assured, and reckoned according to the Of goods custome of the country and place, and not according to the statutes or the measures of other countries.

If one sell me twenty barrels of ale, or ten pottles, or cups of Plow. 86. 27 H. 8. 27. Brob. Contract. 4. wine; by these bargains I shall not have the barrels, pottles, or cups, with the ale or the wine. But if one sell me a hogshead, or a firkin of wine, it seems by this bargain I shall have the hogshead and firkin with the wine.

If one sell me all his trees in such a wood, and that I shall not 27 Ass. 29. cut them untill Michaelmas, and in the interim hawks doe breed in the trees; it seems in this case that the vendor shall have them, [Page 226] and that I may not meddle with them. And yet see Co. 11. 58. which seems to be to the contrary.

The inrolment of a deed of bargain and sale, when it is done within 7. How and to what purposes a deed of bargain and sale of lands and the inrolment thereupon shall relate. And how and to what purposes not. Co. 4. 71. Bro. fait Inrol. 9. the sixe moneths shall to most purposes relate to the time of the delivery or of the date of the deed. And it is given as a rule, That it shall have relation to the time of the delivery of the deed, viz. to avoid all meane estates and charges made to a stranger by the bargainor after the delivery of the deed before the inrolment, but not to devest any estate lawfully settled in the interim in the bargainee himself. And therefore if one bargain and sell his land by deed indented to one, and after before the deed is inrolled, he enter into a statute, or grant a rent-charge out of this land, or make a lease of the land to another, and then the deed is inrolled within the time; in this case the relation shall avoid all the mean charges and estates. And if A bargain and sell his land by deed indented to B, and afterwards doth sell the same land by deed indented to C, and the deed made to C is first inrolled, and then the deed made to B is inrolled also within the six months; in this case B shall have the land, and the relation of his inrolment shall make the inrolment of the other deed void. So if A levy a fine Dier 218. of the land to C, yet B shall have the land. But if the first deed Curia M. 3 Jac. B. R. made to B, be not inrolled within the six moneths, and the deed to C be inrolled within the six moneths contra.

If A bargain and sell land to B, and after levy a fine to B of the Co. 4. 71. same land, and after within the sixe moneths the deed is inrolled; in this case B shall take by the fine and not by the bargain and sale.

If one jointenant alien all his lands in Dale to A, and before the Bro. fait Inroll. 9. inrolment the other jointenant die, and after the deed is inrolled; in this case but a moity and not the whole land doth passe.

If A bargaine and sell his land to B, and after this A doth become So held 4. Car. B. R. Bankrupt, and the Commissioners sell the land to C, and [...]. after the deed is inrolled within six months; in this case B and not C the purchasor shall have the land.

If A bargain and sel his land held in capite to B in fee, & B dieth Pasche 15. Jac. Ward. before inrolment, and then the deed is inrolled; in this case the heir of B shall be inward. And so was it held by all the Justices in Sir Walter Earls case, Pasch. 15 Iac. Curia Ward. And yet in this case the wife of the bargainee shall not have dower, as was held Contrarium tent. per Iust. Berkley, Hil. 11 Cat. Dower. by Anderson Chief Justice, and Justice Walmsley 3 Iac. Co. B. and again in Sir Robert Barkers case, 6 Iac. And if one bargain and sell [...]. his land to I S, and after this the rent incur, and then the deed is inrolled; the bargainee and not the bargainor shall have the rent. Per Curiam B. R. Hil. 11 Car.

If A bargain and sell his land to B in fee, and then mary C and 22 Eliz. die, and C is endowed, and after the deed is inrolled; in this case [Page 227] the dower of the woman shall be taken away by relation, as was held in Baron Frevils case, 22 Eliz. Co. B.

If A bargain and sell land to B and C in fee, and B release to C Release. 3 Jac. Co. B. before the inrolment; this release is void.

If A disseisor bargain and sell the land disseised to B in fee, and So held in Mockets case 10 El. the disseisee doth release to the bargainor, and after the deed is inrolled; in this case this release shall avail B.

If A bargain and sell his land to B, and B before inrolment doth bargain and sell the land to C; the first deed is inrolled, and then the second deed is inrolled; in this case the last bargain and sale is void, and shall not be made good by relation, as was held by the Court 6 Jac. in Sir Robert Barkers case.

If a lease be made rendring rent on condition to reenter for not So was it held in Sir Christopher Hattons case. payment, and the lessor bargain and sell the reversion by deed indented, and after the deed made the rent is arere, and then the deed is inrolled; in this case it shall not relate to give a reentry for the condition broken.

If A bargain and sell land to B in tail, and B before inrolment of So hath it been adjudged. the deed doth make a lease according to the Statute of 32 H. 8. and after the deed is inrolled; this is a good lease.

And now we come to a Gift.

CHAP. XI. Of a Gift.

THis word importing no more, then the transferring of the property of a thing from one to another, is of larger extent then Gift. Quid. a feoffement, which is always applied to an immoveable thing; for this is often applied to moveable things also, as trees, cattell, houshold-stuffe &c. the property whereof is, and may be altered as well by gift, as by sale or grant. And in this sense a gift is sometimes by the act of the party, as when one man doth give a thing to another. And this is, or may be either by word or by writing. And sometimes it is by act of Law, as when a woman is maried to a husband, or one is made Executor to another; in these cases by the mariage onely, and taking of the Executorship the Law gives all the goods of the woman to the husband, and of the Testator to his Executor. So where one doth take my goods as a trespasser, and I recover damages for them upon a suit in Law; in this case the Law doth give him the property of the goods, because hee hath paid for them. But this word Gift is sometimes taken more strictly, [Page 228] and applied to a conveyance or passing of an estate of lands or tenements to another in tail, wherein this word Dedi is most commonly used. And then hee which doth so give the land is called the donor, and hee to whom it is given the donee. And this for the most part is by deed though it may be otherwise. Donor. Donee. And for these deeds of gift of immoveable or moveable things, see Deed and Grant in toto, wherein all the learning touching this matter is involved. And so we passe to a Grant.

CHAP. XII. Of a Grant.

THis word taken largely is, where any thing is granted or passed Grant. Quid. from one to another. And in this sense it doth comprehend Co. super Litt. 172. 9. Finchesley 29. feoffements, bargaines and sales, gifts, leases, charges, and the like, for he that doth give, or sell, doth grant also. And thus it is sometimes in writing or by deed, and sometimes it is by word without But the word being taken more strictly and properly, it is the grant, conveyance, or gift by writing of such an incorporeall thing as lieth in grant, and not in livery, and cannot be given or granted by word onely without deed. Or it is the grant of such persons as cannot passe any thing from them but by deed, as the King, bodies corporate &c. And this albeit it may be made by other words, yet it is most commonly made by this word [grant] as being most proper to this purpose. Know therefore that amongst Co. super Litt. 49. hereditaments, some are such as are said to lie in livery, i. such as whereof livery of seisin may be made, as Manors, houses, lands &c. And some are such as doe not lie in livery, i. whereof no livery of seisin can, nor need to be made, but they passe by the delivery of the deed without any more, and of this sort are rents, reversions, services, advowsons in grosse, and the like, which things cannot passe from man to man without deed or matter of record, which is of a higher nature then a deed. And hee that makes this grant is called the grantor, and hee to whom it Grantor, Grantee. is made is called the grantee.

It is taken here in the largest sense as that which doth comprehend 2. Quotuplex. both. And so some grants are of the land or soile it selfe: and some are of some profit to be taken out of or from the soile, as rent, common &c. And some are of goods and chattels, and some are of other things, as authorities, elections &c. And they are made sometimes by matter of record, & sometimes by [Page 229] deed or writing in the country, and sometimes by word without either. Some grants also tend to charge the grantor with something he was not charged with before, and some to passe something out of him to the grantee, and some tend to discharge the grantee of something wherewith he was charged or chargeable before, and whereof he is now hereby discharged.

Regularly these things are requisite in every good grant or 3. Things necessarily requisite to every good grant. Co. 11. 73. Plow. 555. gift. 1. That there be a grantor, donor &c. and that he be a person able to grant, and not disabled by any legall or naturall impediment. 2. That there be a grantee, donee &c. and that he bee a Perk. Sect. 1. person capable of the thing granted, and not disabled to receive it. 3. That there be a thing granted, and that the thing be such a thing as is grantable. 4. That it be granted in that order and manner that Law requireth: as where the thing is not grantable without deed, that it be done by deed. And if it be by deed, that the deed have apt words to describe and set forth the person of the grantor, and grantee, and thing granted &c. and that all necessary circumstances, as sealing, and delivery, and livery of seisin, and atturnment where it is needfull bee observed. 5. That there bee an agreement to, and acceptance of the grant or thing granted by him to whom it is made, and for default in either of these particulars a grant may be void. In acquirendo rerum dominio scilicet quod donationes non valent licet sint inceptae nisi sint perfectae. But if grants Bro. Grant 89. be very ancient and the things granted have been enjoyed according to the grant ever since the making of it; in this case the grant may be good notwithstanding some legall defect in some of these particulars.

Corporations as Dean and Chapter, Maior and Communalty, and 4. What shall bee said a good and sufficient grant, gift, or sale. Or not. 1. For the manner of it. And what may bee granted without deed. Or not. And how. Rents, Services &c. Perk. Sect. 64. 4 H. 7. 17. Plow. 150. 16 H. 7. 3. Litt. Sect. 60. such like regularly can neither grant lands, goods, or chattels, but it must be by deed. But the grantees of such persons, and all other common persons may grant or give any thing which doth lie in livery, as manors, houses, lands, and such like things in fee simple, fee tail, for life, for years, or at will, by word without deed. And if a lease be made of any such thing for life or years, with a remainder over in fee simple, fee taile, or for life; it is good, albeit the same be done by word without any deed in writing.

Such things as are said to lie in grant and not in livery, generally Co. super Litt. 49. Dier 139. Perk. Sect. 61. 60. 63. Bro. Grant 59. cannot be granted or given, had or taken without deed unlesse it be in some speciall cases. And therefore rents and services, and such like things which are in grosse, and not incident to some other thing may not be granted without a deed. And therefore if a rent-charge be granted unto me for years, I may not grant this rent over without deed. And if there be Lord and tenant of errable land by fealty, and the service of yeelding the tenth sheaf of corn before it be sowed; the Lord cannot grant this service for [Page 230] years without deed. But if a rent, or any service be parcell of, or incident to a manor or any other thing which is grantable without deed; in this case by the grant of the principall by word this thing may passe as belonging thereunto without any deed. Also rents or services may be granted upon a partition by one coparcenor to another without deed.

A reversion cannot be granted in fee simple, fee tail, for life, or Perk. Sect. 61. Dier 174 Plow. 433. Bro. Grant 104. years without deed unlesse it be in casewhere it is parcell of a manor. Reversion or Remainder. But a reversion may be granted upon a partition by one coparcenor to another without any deed. And the same law is of a remainder. And therefore if one make a lease for life or years to one, the remainder in fee simple, fee taile, or for life, to another without deed, howsoever this be a good remainder in the first creation without deed, yet this remainder cannot be granted over without deed.

A Parsonage or Rectory, albeit it consist of nothing but Tithes, 15 H. 7. 8. 16 H. 7. 3. 19 H. 8. 12. 21 H. 6. 43. Advowson, Tithes &c. and the like, besides the Church and Church-yard, and it hath no house nor glebe belonging to it, yet may be granted without deed in fee simple, for life, or years: and then the tithes and offerings will passe as incident. But the tithes alone, or a portion of tithes, oblations, mortuaries, or obventions are not grantable by themselves without deed. And therefore a lease paroll of tithes, albeit All this was agreed 36 El. B. R. it be but for years is not good. And if the Parson agree with one of his Parishioners, that he shall have his own tithes; this is not a good grant of the tithes, neither may it be pleaded or used so; but perhaps by way of agreement a Parishioner may retain his tithes. And if a lessee for years of tithes will grant it over to another at will only, it cannot be done without deed, as was held by Baron Denham, 2 Car. at Sarum Assises. And yet it is held that a Parson Mich. 8 Jac. Dr. Longworths case. may grant his tithes from year to year to him that is to pay them without any deed, but this is by way of retainer. But this grant or agreement must be made to and with the party himself that is to pay the tithe, and not with another: neither can this interest bee assigned or a stranger take advantage of it, as hath been agreed in the case of Hawkes and Brafield, Pasch. 3 Jac. B. R.

An Advowson in grosse cannot be granted without deed; yea 21 Ed. 3. 38. 11 H. 4. 3. Dier 29. 10. Co. 1. 1. the grantee of the grantee of an Advowson is to shew both the deeds. But an Advowson is grantable upon a partition between coparcenors without deed. And an Advowson incident to a manor, or peece of land is grantable with the manor or land without any deed. The next avoidance to a Church is not grantable without Plow. 150. 9 Ed. 4. 47. deed.

Common of Pasture, of estovers, turbary, fishing, &c. cannot be Perk. Sect. 61. granted in fee simple, fee tail, for life, or years, unlesse it be in case Common of pasture &c. of partition, or of appendancy as incident to some corporall thing [Page 231] without deed. And therefore if a man grant by word of mouth to me Common for twenty beasts in his manor; this is not good. Neither if it be granted to me by deed may I grant this over to another without deed. But if a man have Common of pasture appendant or appurtenant to his land; in this case he may grant his land with the Common appendant by word only without any deed. Franchises, as Fairs, Markets, Courts, Warrens, and the like, Franchises, and such like things. 15 H. 7. 8. or the profits thereof are not grantable without deed. But it seems a Hundred is grantable without deed, for that is liberum tenementum. The profits of a Mill, County, Ferry, Corody, or the like, are not grantable without deed.

Things in action, as a right or title of action that doth only depend 6 H. 7. 9. Dier 91. 126. Doct. & St. 16. in action, and things of that nature, as rights and titles of Things in action, and such like things. entrie to any reall or personall thing are not grantable at all, but by way of release to the tenant of the land &c. by which means it may be extinguished: but this may not be neither without deed. And therefore if a man take my goods as a trespassor, or I deliver him my goods to keep, and after I will give these goods to him; I cannot doe this without deed.

An election, condition, covenant, assent, licence, or liberty, Dier 281. cannot be created and annexed to an estate of inheritance or free-hold without deed.

A priviledge to hold land for life without impeachment of wast, Offices. Co. 9. 9. is not grantable without deed. Offices for the most part are not grantable without deed. And yet some inferiour offices, as Stewardships, Bailiwicks, and the like are, for such officers a Lord of a Manor may retain by word without deed.

Most chattels reall and personall, may be given and granted without Perk. Sect. 57. 60. Bro. Done i. Dier 370. 5 H. 7. 35, 36. Plow. 150. deed. And therefore if a man by word of mouth grant, give, or Chattels. sell me his lease for years, the wardship of body and land, or the wardship of land that he hath by reason of a tenure by Knights service, or by grant from the King, or grant or sell mee the trees standing upon his ground, the corn growing upon his land, his horse, sword, plate, or other houshold stuffe; this is a good grant or gift. But the wardship of the body of an heir only, cannot be granted without deed. So a next presentation cannot be granted without deed.

If one grant his reversion of land to one, and by the same deed What by the same deed. Plow. 540. granteth a rent out of the same land to another, and delivereth the deed to both of them at one time; this is good, and shall enure first as a grant of the rent to one, and then as a grant of the reversion to the other.

If one convey land to another, and the grantee by the same Dier 6. deed doth grant a rent or common to the grantor out of the same land conveyed; this is as good as if it were by another deed. [Page 232] Dedi & Concessi be the most apt words for all kind of grants, yet Co. super Litt. By what words of grant. it may be by other words, and the grant as good as by those words.

The best way in grants is to grant by words of present time in 35 H. 6. 11. the present tense as well as in the preterperfect tense. But a grant by words of the preterperfect tense only, as by Dedi & concessi only without words of the present tense is good.

Touching this part two things are requisite: 1. That the grantor 2. In respect of the person of the grantor &c. and the naming of him. And who may be a grantor. And how. See Feoffement ca. 9. Numb. 4. be a person able. 2. That if the grant be by deed, that he be sufficiently described and set forth either by his proper names or else by some other matter of distinction. Note therefore that whosoever Perk. Sect. 3. may be a feoffor, may be a grantor. And any natural, politique, or corporate body (not prohibited by law, as Monke, Frier, woman covert, infant, and such like) may be a grantor, donor &c. And the grants of such persons will be good.

An alien may, and is able to grant or give any thing that he is Alien. capable of to have or take by grant or gift.

A person attainted of treason or felony may give or grant his land; Perk. Sect. 26. See ch. 2. Numb. 6. Person attaint or outlawed. and this is good against all others besides the King, and the Lord of whom his land is held. And he may grant or give his goods to relieve himself in prison, and this will be good against all others, and the King and Lord also. A person outlawed in a personall action may give or grant his goods or chattels, and the gift or grant will be good against all others but the King.

The Queen may without the agreement of the King make grants, Co. super Litt. 3. Per. Sect. 8. 20. 41. See ch. 2. Numb. 6. Woman covert. gifts &c. of her lands or goods, but another woman that hath a husbands cannot give, or grant her lands or goods without her husbands consent, unlesse it be in some speciall cases. And albeit shee doe recite by the deed that she is sole and not covert, yet this will not help. And if the case be so that by agreement between her and her husband there be a certain portion of her husbands lands or goods allotted unto her to dispose of, and manage at her pleasure, yet she alone without her husband can make no good grant or gift of any part of these lands or goods. But if she grant any thing by fine, and the husband doe not avoid it during the coverture; this grant will binde her after his death. And if she make a gift or grant of her husbands goods, it is thought this is not good untill her husband agree to it.

An infant cannot make any gift or grant &c. that is good but in 9 H. 7. 24. 26 H. 8. 2. Perk. Sect. 12, 13, 14. 19. 7 H. 4. 5 See cha. 2. Num. 6. speciall cases, for if he maketh any grant or gift that taketh effect by the delivery of the deed onely, as if he grant a rent-charge out of his land, or make a feoffement with a letter of Atturney to give livery of seisin, or give or sell his horse, and the buyer or donee take him himselfe; these are void ab initio. And if the grant, or gift take effect by the delivery of his own hand, as if hee [Page 233] make a feoffment and give livery of seisin himselfe, or sell a horse and deliver him with his owne hands; this is voidable by the Infant himselfe, or others that shall have his right &c. But if an Infant grant any thing by fine; this must be avoided during his minority or else it cannot be avoided at all.

All grants that are made by Duresse, are voidable by the parties Perk. Sect. 16. themselves that make it or others that have their estates &c. But Duresse. if it be done by fine, it is good and unavoidable.

All gifts, grants, &c. made by deed in the country by those that Non sane memsrie. Co. 123. 124. See cap. 2. Numb. 6. are de non sane memorie are good against themselves but voidable by those that are their heires, executors, or have their estate. But if it be by fine it is good and unavoidable.

A man that is borne dumbe, or dumbe and deafe if he have understanding Perk. Sect. 25. may by delivery of the deed and making of signes make a good grant, gift, &c. But a man that is borne deafe, dumbe and blind cannot.

A Bastard may give or grant as well as any other man after he Bastord. hath gotten a name by reputation. Perk. Sect. 26.

A Parson may grant any thing belonging to his Parsonage for Parson. See Lease. no longer time then for his owne life, and therein likewise but during his residency, albeit he have the consent of the Patron and ordinary.

Neither the head without the members of a Corporation, nor the Corporation. members without the head, as Dean without the Chapter, or Chapter Perk. Sect. 31, 32, 33. without the Deane, may give or grant any of the lands belonging to their Corporation.

One executor or Administrator may give or sell any of the Executors. goods of the deceased, and this is good to bind all the rest. See Execuors.

What Grants Ecclesiastaicall persons may make of their Ecclesiasticall lands, husbands of the lands of their wives and tenants in taile of their lands intailed. See in Lease.

The name of the persons in Grants is set downe only to distinguish Co. 6. 63. super Lit. 3. persons and to make the person intended certaine: and therefore Misnaming. howsoever it be best and most safe to describe the person by his true and proper name of Baptisme, and also by his Sirname, and if it be a Corporation by the true name whereby the Corporation is made, yet mistakes in this case unlesse they be very grosse will not make void the grant. Nihil facit error nominis cum de corpore constat. And therefore if one that is a Bastard hath gotten a name by reputation in the place where he doth live, or another man hath gotten another name by common esteeme then his owne right name, or is usually called by another name then his true name in the place where he lives, in these cases they may grant by this name and the grant is good. And if a man be baptized by one name and after Perk. Sect. 41. Co. super Lit. 5. be confirmed by another; some have said he may grant by either [Page 234] of these names. Sed Quere. And if John at Stile grant by the name Perk. Sect. 89. Co. super Lit. 3. of William at Stile; this grant is good. Et sic de similibus. Fitz. grant 67. Perk. Sect. 42. And these grants are good especially when there is some other addition to make it more certain, as when a Duke, Marquesse, Earle, or Bishop grant by their names of honour or dignity, and grant without any name or with a false name of baptisme, as when the Duke of Suffolke by the name of the Duke of Suffolke, without any more words, or by the name of William Duke of Suffolke, when his name is John, or the Bishop of Norwich grant so; these are good grants, because there is but one such Duke and one such Bishop within the kingdome. So if a Deane and Chapter, Mayor and Communalty grant by the name of their Corporation without any addition of Christian or Sirname; it is good. And especially then also are these Perk. Sect. 40. grants good when the true name doth appeare in some other part of the deed. As when John at Stile reciteth by his deed that his name is John at Stile, and by the same deed doth grant by the name of Thomas at Stile. Or Alice at Stile reciting by her deed that she is a feme covert when in truth she is sole. But if an ordinary man 3 H. 6 26. Perk. Sect. 38. 42. grant by his Sirname only without any name of baptisme, or by his name of baptisme without any sirname at all; in these and such like cases for the most part the grant will be void for incertainty unlesse there be some other matter in the deed to helpe it, or some matter done ex post facto to supply it; for in some cases where the thing granted doth lie in livery such a mistake or incertainty in the grant may be holpen by the livery of seisin upon the deed afterwards. And so also it is in the names of Corporations, for if the variance Co. 6. 65. 10. 122. 11. 19. Dier 150. Co. 10. 124. and mistake by omission or alteration be only in some small matter so as it is literall and verball only the grant will not be hurt by it. But if the mistake or omission be in the substance of the name; the grant may be void by it. And therefore if Decanus & Capitulum ecclesiae cathed sanctae & individ. Trin. Caerlil. grant by the name of Decanus ecclesiae cathed. sanctae Trin. in Caerlil. & totum capitulum ecclesiae predict: this is good: Et sic de similibus: for if the sense doth still remaine either expresly or by necessary implication, and the description be such as doth import a sufficient and certaine demonstration of the true name of the Corporation according to the foundation thereof, it sufficeth. But if any of the substance or essence of the name be omitted contra. And therefore if a Corporation incorporate by the name of Prepositi & collegiiregalis coll. beate Mariae de Eaton juxta Windsor grant by the name of Prep, & sociorum Colleg. regalis dc Eaton &c. leaving out Collegium et beatae Mariae; this grant is void.

3 In respect of the grantee and the naming of him. And who may de a grantee &c. And how. Touching this part three things are requisite. 1. That the Co. super. Lit. 2. 3. Perk. Sect. 43. See in feoffment. cap. 9. Numb. 4. grantee be a person capable. i. that he be a person in being at the time of the grant made and not disabled by any legall impediment [Page 235] to take by the grant. 2. That if the grant be by deed the grantee be sufficiently named or at the least set forth and distinguished by some circumstantiall matter, and that he be so named or described as that he may be capable by that name whereby he is set forth. 3. That he himselfe and not a stranger doe take by the same grant. Note therefore that all naturall and politique or corporate bodies that are not disabled by law may be grantees. And all persons that may be grantors may be grantees: And some others that cannot grant or give yet may take or receive. And a grant made to one, two, three, or twenty such persons is good. A grant of land or rent in possession to the right heires of I S, I S Co. 1. 101. Perk. Sect. 52. 54. Co. 2. 31. being then living is void, for there is nor can be any such person in rerum natura, for no man can be an heire to another that is living. But such a grant to one in remainder is good if so be that I S die before the the particular estate end and before the remainder happen. So if a grant be to him or her that shall be the first child of I S, and he have no child at the time of the grant, this is void. So if a grant be made to the wife or child of I S when there is none such, it is void. As if a grant be to I S, and to his first borne sonne, or to I S and her that shall be his wife, and he hath at the time of the grant neither wife nor sonne; in these cases the grant is void as to the wife and sonne, and I S shall have all by the grant.

An alien may be a grantee; but if any thing be granted unto him Co. super Lit. 2. whereof he is uncapable, as any estate of lands in fee simple, for life, Allen or years, he cannot hold it, but the King will have it from him. Prerogative. Persons attain [...].

A person attainted of treason or felony before or after attainder Co. super Lit. 2. Perk. Sect. 48. may be a grantee, but he cannot hold the thing granted, for if the King or Lord will he may have it from him. So also persons out-lawed in personall actions may be grantees of lands, or goods but the King will have the profits of the lands & property of the goods.

A woman covert may be a grantee; but her husband may by Perk. Sect. 43. Co. super Lit. 2. his disagreement a void the grant. And yet if he doe not avoid it Woman cover. in his life time the grant will be good: and he that will have the grant to be void must shew that the husband did disagree to it.

An Infant may be a grantee, for this is presumed to be for his advantage. Perk. Sect. 4 Co. super Lit. 2. Infant. And yet at his full age he may agree to it and perfect it or disagree to it and avoid it without any cause shewed.

A man de non sane memorie may be a grantee as well as any other Men denon sane memori. Co. Idem. man, and it seemes these grants cannot be afterwards avoided. But such men may not be grantees of offices of trust and such like things.

A Bastard, persons deformed having humane shape, leapers, and Co. Idem. such like may be grantees of lands or goods &c. as other men Bastard. may be.

An Hermaphrodite may be a grantee according to the most prevailing Co. Idem. Sex. Herrmaphrodite.

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A clerke convict, and a man imprisoned may be a grantee as well Co. super Lit. 3. Perk. Sect. 48. 51. Clerk convict. Villaine. as any other. And so also may a villaine of the King or of a common person, but he cannot retaine the thing granted, for the King or Lord may have it from him if he will. But Monkes, Friers, and such like persons cannot be grantees, for they are utterly disabled.

Regularly it is requisite that the grantee be named by his names Co. super Lit. 3. Misnaming or not naming. of Baptisme and Sirname, and so it is most safe, and speciall heed must be taken to the name of Baptisme, for that a man cannot have two or more names of Baptisme as he may of Sirnames. And yet in some cases though the name be mistaken the grant is good. Bro. Nosme. 9. As if a grant be to I S, and Em his wife and her name is Emelin, Bro. Confirmation. 30. or a grant is made to Afred Fitzjames by the name of Etheldred Fitzjames; Co. 6. 65. 27 E. 3. 85. or a grant be to Robert Earle of Penbrooke where his name is Henry; or to George Bishop of Norwich where his name is Iohn; Co. supu Lit. 3. or a grant be to a Mayor and Communalty, or a Deane and Chapter, and Mayor or Deane is not named by his proper name; Dier 119 or a grant be to I S wife of W S where shee is sole; all these and such like grants are good, for in this case the rule doth hold utile per inutile non vitiatur. Co. super Lit. 3. And if one be baptized by one name and after confirmed by another; yet a grant to him by his first is good. And so also some thinke of a grant to him by his second name. Sed Quere of this. Also when a Bastard hath gotten a name by reputation, a grant may be made to him by that name and it is good.

If a grant be made to W. at Stile by the name of W. at Gappe; 9 E. 4. 43. Fitz. Grant. 23. this is a good grant notwithstanding this mistake.

But where a grant doth intend to describe the person of the Co. super Lit. 3. Perk. Sect. 54. Bro. Grant. 65. Done 17. Dier 337. Perk. Sect. 55, 56. Bro. Don. 31 Grant. 172. Done 50. Fitz. Donet. Perk. Sect. 55. 52. grantee by his proper name and doth omit or mistake his christian name or sirname; in this case for the most part the grant is void unlesse there be some speciall matter to help it as in the cases before. And yet if the grant doe not intend to describe the grantee by his known name, but by some other matter, there it may be good by a Incertainty. certaine description of the person without either sirname or name of Baptisme. And therefore a grant to the wife of I S, or primogenito filio, or to the second sonne, or to the youngest sonne, or Seniori puero, or omnibus filiis, or filiabus I S, or omnibus liberis I S, or omnibus exitibus I S, or to the right heires of I S, or to the next of bloud of I S; in these cases grants made to these persons in these words are good, for the person is certainly enough described. And if a lease be made to I S for life, the remainder to him that shall come first to Pauls such a day, or to him that I S shall name in three daies; if in these cases any one doe come to Pauls that day, or be named by I S within three daies and the particular estate doth so long continue; this is a good grant of the remainder. Id certum est quod certum reddi potest. But if a grant be made [Page 237] in these words, viz. To foure of the parishoners of Dale; or Deo & ecclesiae de D; or to two of the sonnes of I S and he hath many sonnes; or to I S, or W S in the disjunctive; these and such like Grants as these are utterly void for incertainty. And if a gift or grant of goods be to the parishioners of Dale in these words; it seemes this is good; but if a grant or gift of land be made to them by these words, it seemes this is void. And so also it is of a grant of goods to the Churchwardens of a parish, this is held to be good, but otherwise it is of a grant of land to them. Abastard is capable by that name whereby he is usually called, and therefore a grant to him by that name is good. And a right heire, or one that shall be the first issue of I S that hath no child, is capable of a remainder by that name, but of land in possession he is not capable by that name. And a bastard as the reputed sonne of I S may take by a grant to I S and his issue. A Bishop may take by the name of a Bishop without any other name. But if a grant be made to the parishioners or inhabitants of Dale, or probis hominibus de Dale, or to the commoners of such a wast or to the Lord and his tenants bond and free; these are not good grants; for albeit these persons are capable yet are they not capable by these names.

If there be two grantees and one of them doe take by the deed it Doct. & Stud. 94. Co. 1. 15. super Lit. 231. New terms of the law. 251, 252. 5 E. 3 17. Co. super Lit. 21. is sufficient, but if the grant be to one that is no party to the deed and not to the grantee himselfe; in this case albeit the grantee and he to whom the grant is made be capable and never so well described by their names yet is the grant void, for no grant can be made but to him that is party to the deed except it be by way of remainder. And therefore if a man make a lease for terme of life, and after the lessor grant to a stranger that the tenant for life shall have the land to him and his heires; this Grant is void. Et sic de similibus. And yet it seemes in some cases if one of the grantees be party to the deed that another Grantee that is no party to the deed may take with him. And therefore the case was. Robert gave the reversion of lands which Agnes his wife did hold for her life to Stephan de la Moore, Habendum postmortem dictae Agnetis in liberum maritagium cum Johanna filia ejnsdem Roberti; in this case it was adjudged that albeit Joane were not named before the Habendum yet that she should take in taile with her husband.

Touching this point these things are requisite. 1. That the 4. In respect of matter touching the thing granted, charged &c. thing whereof the grant is made be grantable, and that both in respect of the nature of the thing it selfe, and also of his estate that doth grant it, for in some cases albeit the thing for the quality of it be grantable yet in respect of the estate and property that the owner hath in it, it is not grantable. 2. That if it be by deed it be sufficiently distinguished and named.

Amongst things that are grantable some are grantable de novo [Page 238] and in their first creation, but not transmissible nor assignable afterwards. 1. In respect of the nature of the [...]ing granted. And what things are grantable over or chargeable. Or not. 1. In respect of the nature of the thing it selfe. And some are grantable at first in their originall creation and assignable over afterwards from man to man in infinitum.

All things that may be granted by fine and whereof a fine may See Fine Numb. 6. part. 3. See in exposition of the termes of Grants supra cap. 5. Numb. 15. Bro. Done 10. be levied may be granted over from man to man.

All the things that are before observed to be grantable by or without deed are grantable over from man to man. And therefore all corporall and immovable things that lie in livery, as Manors, mesuages, cottages, lands, meadowes, pastures, woods and the like are grantable in fee simple, for life, or years at first and assignable over againe at the pleasure of the grantee. Also trees, and emblements are grantable. And a man may grant the vesture or herbage. i. the grasse of his ground and not the ground it selfe. And a man that is seised in fee of a house may give or sell the timber, stone &c. of the house, and the donee or grantee may take it after the death of the donor. Also all incorporeall things that lie in grant, as rents, Perk. Sect. 103. Bro. grant 3. 3 H. 6. 20. 9 H. 6. 12. Perk. Sect. 91. 87. 101. Fitz. grant 145. Co. super Lit. 144. Rents, Services. services and the like are grantable over in fee simple, for life, or years, and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum. And if a man have a rent reserved on a particular estate he may grant over parcell of it. But a rent or Service suspended cannot be granted. Neither can a man grant a rent issuing out of a rent. If a rent be granted to me I may grant it over to a stranger before I be seised of it; and this grant is void. But an Annuity it seemes is not grantable over after the first creation of it. And yet if an Annuity be granted to I S and his assignes pro consilio; it seemes this Annuity is grantable over. Advowsons are grantable in fee simple, for life, Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons &c. or years, from man to man in infinitum. Also the presentation to a Church before the Church is void is grantable; but when the Church is void that Turne is not grantable, for it is then in the nature of a thing in action. Also Rectories, and tithes, and portions of tithes, and pensions are grantable from man to man in infinitum.

Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple, fee tail, for life or years. And if I have a tenant for life of three Reversions and Remainders. houses; I may grant the reversion of two of them. And if I have the reversion of three houses & four acres of land; I may grant the reversion of two houses & of two acres of land. And if tenant in taile be of an acre of land the remainder to his right heires, he may grant over this remainder by it selfe; and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery. But if a grant be of land to I S for years the remainder to the right heires I D, & I D is living; this remainder is not grantable so long as I D doth live. Commons, of pasture, of turbary, of fishing, of estovers, are grantable Perk. Sect. 103. Common. in fee, for life or years, from man to man in infinitum. Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and [Page 239] his heires; it seemes this is not grantable over to another man. But if common for a certaine number of beasts be so granted, it seemes the law is otherwise, and that this is grantable over in case where the first grant is to the grantee only, and not the grantee and his assignes.

Offices are grantable at first; but the great Judiciall offices of Offices. Perk. Sect. 101. the kingdome, as the offices of the Lord Keeper, Chiefe Justices, or Chiefe Baron, or of other of the Justices or Barons, and such like are not grantable over to others, neither may they be executed by deputies. But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy. Per Lord Keeper & 2. Chiefe Just. M. 5 Car. in cancellaria. The reversion of an office is Prerogative. not grantable by a Subject as it is by the King, yet a Subject may grant an office Habendum after the death of the present officer; and this is good. Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust, especially if they concern the person of the grantor, howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes, and of this sort are the offices of Steward, Bailife, Receiver, Sewer, Chamberlaine, Carver, and the like, neither may these be executed by deputy but where the grant is so.

Licences, and authorities are grantable at first for the lives of the Licences, Authorities, &c. 12 E. 7. 25. 13 H 7. 13. parties or for years. But the grantees of them cannot assigne them over. And therefore if power be given to me to make an award or livery of seisin; I may not grant over this power to another. And if licence be granted me to walke in another mans garden, or to goe through another mans ground; I may not give or grant this to another.

A bare possibility of an interest which is incertaine is not grantable. Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land, and by Possibilities. his will devise it to I S for his life, and afterwards to me for the residue of the yeares; or devise it to I S if he live so long as the terme shall last, and if he die before the terme end the remainder to me; in these cases so long as I S doth live I cannot grant over this possibility. So if a lease be made to me and my wife for life, the remainder to the survivour of us; I may not grant this remainder over to another man. But such a possibility being coupled with some present interest is grantable over. And therefore if A have foure houses in execution upon a Statute, and by course of time it will endure thirteene years, and after two of the houses are evicted by Elegit for fifteen years; in this case he that hath this execution upon the Statute may assigne over his interest in these two houses, for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied. The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living.

Those things that are inseparably incident to others are not 1 E. 4. 10 [Page 240] grantable without the thing to which they are so incident and belonging. Incidents. And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe: common appendant to land is not grantable without the land it self to which it doth belong: and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong.

A rent, service, or other thing whiles it is wholly in suspense is Suspended things. not grantable. And therefore if the Lord disseise the tenant, or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88, 89. the tenant enfeoffe the Lord upon condition; the Lord cannot grant over the Seigniory during this suspension. But if one have a rent in fee out of my land, and he purchase the same land for life or years; in this case it seemes the rent is grantable even whiles the estate of the land doth continue. So if the tenant make a lease for yeares or life of the tenancy to the Lord; in this case the Lord may grant the Seigniory notwithstanding. And yet if the tenant make a lease to another man for life, and the Lord grant the Seigniory to this tenant for life in fee; in this case it seemes the grantee of the seigniory cannot grant it over because it was never in esse.

Franchises, as views of Frank pledge, Perquisites of Courts, Leets, Conusance of Pleas, Faires, Markets, goods of felons, waifes, estrayes, Franchises. Hundreds, Ferries, or Passages, Warrens, and the like are grantable over from man to man in fee, for life or years, in infinitum.

Things in action, and things of that nature, as causes of suit, Co. 5. 24. 10. 48. Co. super Lit. 214. Dier 244. Perk. Sect. 86, 87. 85, Bro. Done, 27. 24. 48. Co. 6, 50. Things in action. rights and titles of entry are not grantable over to strangers but in speciall cases. And therefore if a man have disseised me of my land or taken away my goods; I may not grant over this land or these goods untill I have seisin of them againe. Neither can I grant the Suit which the law doth give to me for my reliefe in the cases to another man. So if I make a feoffment to another man on condition that if I doe such a thing I shall have the land againe; in this case I may not before or after the time of performance of the condition grant over the condition to another. But all these things I may release to the parties themselves, for it is a maxime in law, that every right title, or interest in presenti or in futuro by the joint act of all them that may claime any such right, title or interest may be barred or extinguished. And in some cases a grantee of a reversion may take advantage of a condition annexed to an estate for See condition. Co. super 232. Perk. Sect. 86. life or years. If a man owe me money on an obligation, or the like; I cannot grant this debt to another: but I may grant a letter of atturney to another man to sue for it and receive it, or I may grant the writing it selfe to another, and he may cancell it or give it to the obligor. Dier 283. A presentation to a Church after the Church is become void is not grantable, for it is in the nature of a thing in action. Perk. Sect. 92. Fitz. Done 3. 7. And if a man take my goods from me, or from another man in whose hands they are, or I buy goods of another man and [Page 241] suffer them in his possession and a stranger taketh them from him; it seemes in these cases I may give the goods to the trespassor, because the property of them is still in me.

Trusts and confidences which are personall things for the most Personall things. part are not grantable over to others. And hence it is also that offices Perk. Sect. 99. Plow. 379. of trust & confidence are not grantable over but in some speciall cases where they are granted to a man and his assignes; or where they are granted to a man and his heires. And hence it is also that a Wardship by reason of a terme in socage, which by the law is Plow. 293. given to the next of kin is not grantable over to any other person by the Gardian in Socage.

Some things are so entire that they cannot be severed by grant. Entire things. Fitz. Grant 19. 76. And therefore if a man hold three acres of land of me by twelve pence rent, and I grant the services of the third acre; this is void, and he shall have all or none, for I cannot sever the tenure. But if a man hold land of me by homage, fealty, escuage, and a certain rent; in this case I may grant the rent and keep the Seigniory.

A villaine is grantable for life, or years; and if the villaine during the estate of the grantee purchase land in fee, the grantee shall have Villaines. Perk. Sect. 94. it for ever as a Perquisite albeit he have but an estate for life in the villaine it selfe.

All chattells reall and personall regularly are grantable from man Chattells reall and personall. to man in infinitum, as leases for years be they present or future, Dier 58. Plow. 142. 147. Perk. Sect. 91. Dier 305. Perk. Sect. 90. wardships of tenants in Capite, or by Knights service, trees, oxen, horses, plate, housholdstuffe, and the like. Also trees, grasse and corne growing and standing upon the ground, fruit upon the trees, wooll upon the sheeps backe is grantable.

If a man sell me ten load of wood in his wood to be taken by his Distresse. assignment; or sell me three acres of wood towards the north side of Co. 5. 24. the wood; by this grant in these words I have such an interest as is grantable over. If I make a lease by deed of a house to another, and Fitz. Barre 280. therein it is agreed between us, that if the rent be not paid me by such a time I shall enter into the house and take and sell the goods there as mine own to pay the rent; it seems this is a good grant of the goods and that I may doe according to the agreement. And if one that doth hold land of me grant to me by deed indented that I shal distraine for my service in all his land, this is a good grant. Fitz. Grant 6.

A man may give or grant mony, as if I deliver one mony on condition Money. that if he assure me of such land he shall have it, otherwise that Fitz. Done 11. he shall redeliver it to me again, in this case if he make the assurance he shall have the mony, if not I may have an accompt for it.

Such things as are ferae naturae as Conies, Hares, Deere, and such Ferae natur [...] Bro. Done 34. like are not grantable at all.

A Parson of a Church may grant his tithes for years, and yet they Tithes. Perk. Sect. 90. are not in him.

A man may give or grant his deeds. i. the parchment, paper & wax Deeds. [Page 242] to another at his pleasure, and the grantee may keep or cancell them. Co. super Lit. 232. Trin. 38 El. B. R. 25 H. 8. 5. 1 H. 7. Doves case. And therefore if a man have an obligation he may give or grant it away and so sever the debt and it. So tenant in fee simple may give or grant away the deeds of his land, and the executor in the first case, and the heire in the last case hath no remedy. But a tenant in tail of land cannot give or grant any of the deeds belonging to the land intailed no more then the land it selfe. One may give or grant Apparell. apparell, and it is said if one make apparell for another, and put it 1 H. 4. 31. Fitz. Barre 179. upon him to use & weare; this is a gift or grant of the apparel it self.

If one grant to another all the wooll of his sheep for seven years; Perk Sect. 90. Wooll. this is a good grant.

If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year; this is a good grant.

If one grant to another his horse or his cow in the disjunctive; Bro. Done 19. Incertainty. this is a good grant not withstanding this incertainty, and the donee shall have election and by that make the grant good.

Any estate that a man hath in fee simple, fee taile, for life, or years 2. Inrespect of the estate, property & possession of the grantor. in any lands &c. or any rent, or profit apprender out of the same is grantable from man to man in infinitum. And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last. But an estate at will is not grantable over. And if an estate be made to a man and his heires without the word Assignes, yet he may assigne it at his pleasure, for Assignes is included within Heires.

An Interesse termini. i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin, whether it be a lease of the land it selfe or any rent or other profit out of it.

The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure.

The reversion upon an estate taile is grantable. And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case. in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it.

If an estate be made of land upon condition, as if A make a feoffment Co. 1. 147. 10. 48, 49. Lit. chap. Confirmation. to B on condition that if A pay twenty pound he shall have the land againe: in this case A and B together may at any time before the performance of the condition joine together and grant this land, or charge it with any rent, &c. and this will be good, for it is a maxime in law, Fee simple land may be charged one way or other. And in this case B may grant over his estate alone, but it will be subject to the condition. And if B grant a rent out of the land to a stranger, and after the condition is performed and the feoffor enter; in this case he shall avoid the rent. But in this case A cannot grant, Co. 1. 147. for he hath nothing but a possibility. If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land, this is a good grant or charge.

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If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48, 49 in the grant of a rent charge in fee, and after the tenant in taile doth die without issue; in this case this is a good grant and charge against him in remainder. And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed; in this case this is a good charge and grant whether there be any inrolment or not. And so if donor and donee in taile grant a rent charge out of the land, & then the donee die without issue; in this case the grant is good to bind the donor.

If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten; in this case albeit they have severall inheritances after their death, yet neither of them can grant away his estate after his life, for they are divided only in supposition of law.

One coparcener of a seigniory may grant his part to a stranger. Perk. Sect. 73. Perk. Sect. 103.

If two Jointenants be of a plow land, and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land; this is void.

If two Jointenants be of a reversion, & one of them grant the whol, Iointenants. Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity. If a man grant, or charge that which is none of his, and that wherein he hath no property it being in the grantee or a stranger; the grant is void. And therefore if a man grant a rent charge out of the Manor of Dale, or grant a reversion of land, and in truth the grantor hath nothing in the Manor of Dale, or in the land; in this case the grant is void. And albeit the granter doe afterward purchase the Manor, or the land, yet this will not make the grant good. But if the grant be by fine, or by indenture, there in some cases it shall be good by way of estoppell. And in this case Estoppell. albeit the party recite that it is his owne yet this will not mend the cases. And therefore if a man recite that he hath a rent of tenne pound a yeare, and then grant five pound a year parcell of it; in this case if he have no such rent the grant is void.

A Shepherd, Bailif, or Parker cannot give or grant away the Servant. Bro. Done 56. 4. goods of his master without authority. And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares. And if a wife give or grant the goods of her husband; Husband and Wife. this is a good gift or grant untill the husband disagree to it, and by his agreement it is made good for ever.

If a man have a lease for yeares of land, and make a lease for life Plow. 524. 525. of it, or charge it for longer time then the lease for yeares doth last; in this the grant is good for so long as the lease for yeares doth last and no longer. But if he make a lease for life and give livery of seisin he doth forfeit his estate.

Regularly a man cannot grant, or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it: And therefore if a man be disseised of his land, and before he hath entred into or recovered [Page 244] the land he doth grant or give the land or his right to the land to a stranger, or grant a rent charge out of the land to a stranger; in these cases the grants are not good. And yet such grants by fine may be good by way of estopell. And by a release also the right may be extinct. But if one that hath a reversion upon an stoppell. estate for life, and he grant a rent issuing out of this land; in this Perk. Sect. 92. 98. Co. super Lit. 46. case the grant is good, and the charge shall fasten upon the land after the estate of the tenant for life is ended. And if a man grant common, or rent, notwithstanding that a stranger take the rent or use the common at the time of the grant, yet this grant is good, for a man cannot be out of possession of these things but at his pleasure. Hil. 18 Jac. B. R. per. 2 Justices. And if a lease for years be made to me, I may grant away my estate before my entry. And if the lease be to begin at a day to come; I may assigne over my interest before the day come, for in this case the interest is in me from the time of making of the lease. Perk. Sect. 92, 93. Fitz. Done 3. Bro. Done 13. Dier 90. 30. Co. 4. 62, 63. Dier 305. 20 H. 6. 22. Perk. Sect. 59. Co. 11. 50. Also I may give or sell my goods that I have not in possession, and therefore if a man take my goods out of mine or another mans possession; I may afterward give or grant these goods to him or another man, and this grant or gift is good.

A lessor cannot give or grant the trees growing on the ground Tenant for life. Trees. of his lessee for life, or yeares without the licence of the lessee, except they be first cut downe by the lessee or some other, for then he may. And if there be lessee for life, and the lessor give the trees growing on the ground, and after the lessee for life dieth; in this case the donee cannot take them, for that at the time of the gift a property of them was in the lessee. But if a tenant in fee simple give or grant the houses standing, or trees growing on the ground he hath in his possession; in this case the grantee or donee may take them after the death of the grantor, and that albeit they be not cut or taken downe before his death. And yet if the tenant in taile give or grant the trees growing upon his intailed land, and Tenant in taile. the donor die before the trees be cut; in this case the donee or grantee cannot cut them afterwards. Howbeit if such a tenant in taile give or grant his emblements of corne growing on the Emblements. ground; the donee may cut and take them after the death of the tenant in taile. And if the tenant in taile give or grant his trees, and die before they be cut, and afterwards before the issue in taile enter into the land the donee or grantee cut them and take them away, in this case the issue in taile can bring no action of trespasse against the donee or grantee for the trees. But perhaps if the trees be not removed off the ground he may take them.

If two coparceners be of an advowson, and the one doth present, Presentation. Dier 35. 15 H. 7. and then he doth grant the next presentation; this is a good grant, but by this grant doth passe the next he hath to grant, for his companion must have the next. So if one be seised in fee of an [Page 245] advowson, and he hath a wife, and he grant the third presentation; this is a good grant, but it shall be taken for the third he may grant, which is the fourth, for the wife is to have the third for her dower.

If a man have granted a thing once he cannot afterwards grant 3. In respect of a former grant of the same thing. it again. And therfore if a man give or grant me a horse first by word Perk. Sect. Dier 35. 350. Lit. Bro. Sect. 298. Perk. Sect. 102. of mouth, and after grant him to me by deed; this second grant is void, and therefore if there be any fault in this grant in writing it is not materiall. And if a man grant to me common of pasture without number in his ground, and after make the like grant to another; this second grant is void as to me, albeit it be good against the grantor. And if one grant the next presentation to a Church after the death of the present Incumbent, and after grant the same to another; or make a lease of land to one for tenne years, and after make a lease of the same land to another for the same tenne years; or give a horse to one and after give the same horse to another; in all these cases the second grant is void. But if the first grant or gift be only of part of the thing granted afterwards, or of part of the time only, the second grant will be good for the overplus. And therefore if one be seised of a Manor and demise ten acres of the demesne to tenne years, and after demise the whole Manor to another for twenty years; this is a good grant for the overplus of the Manor besides the tenne acres, presently, and for the whole Manor for the last tenne years. So if the second grant be to beginne after the first is determined; it is good. And if the second be such as may be satisfied and not impeach the former, both shall stand good. And therefore if one that hath an Advowson grant the next Presentation to one, and after he doth grant the next Presentation to another, and doth not say [after the death of the Incumbent;] in this case the second grant is good, and the grantee thereby shall have the second avoidance after the death of the present Incumbent.

By the grant of an acre of land or of any other thing by the 4. In respect of naming or description of the thing granted. Milnaming or Misrecitall. Co. 4. 122. Perk. Sect. 114. 116. Co. 10. 106. 107. 11. 47. a] Plo. 190. b] Co. super Lit. 46. See also Co. 2. in Lanes case which doth seeme to warrant this opinion also. Dier the grant is good in a common persons case Bro. Grant. name whereby it is called the reversion of that thing if the grantor have no more but a reversion will passe and this mistake will not hurt. But it is not so è converso. a And yet some have said, if one grant a thing in possession by the name of the reversion of the thing this is good to passe the possession. Quod non est lex. b For if one make a lease for years and before the lessee enter the lessor grant the land by the name of the reversion or the land; this grant is void. If If one make a lease for life of the demesnes of a Manor rendring rent, and after he doth grant the Manor by the name of the Manor; this is a good grant for the reversion of the demesnes as well as for the residue of the Manor. But if one grant common by the name of the reversion of the common, it seemes this is not good. And yet if one have common and grant it for life, and during that [Page 246] estate he doth grant the common by the name of totam illam Communiam suam &c. some doe hold this grant to be good.

Any thing may be granted by the name whereby it is and hath Co. 6. 65. 45 E. 3. 6. Bro. grant. 7. Perk. Sect. 116. been usually called of latter times within nine or tenne years or thereabouts albeit it be an improper name, and not the ancient name of the thing but a name newly gotten. And so a Manor may passe by the name of a mesuage or farme, or a farme or Manor by the name of a mesuage if it be so usually called and reputed. So the great houses in London called Exceter and Dorset houses may be granted by those names. And if a man grant that which in deed is a pasture ground by the name of a wood; Or granr that which in 14 H. 8. 1. 27 H. 6. 2. deed is a wood by the name of a pasture ground, and the things are called by those names; these are good grants of those things. And if one grant by the name of a great field that which in deed is but a little close but it is usually called by the name of a great field: this is a good grant of this thing. So if one grant by the name of a plow land that which in truth is but an acre of land, or grant by the name of a Manor that which is but a plow land; these grants are good. And so as it seemes it is è converso. But if a man grant a house, or a mesuage; by this grant an acre of land will not passe.

By the grant of services, a rent reserved upon an estate taile Co. super Lit. 150. Mic. 7 Jac. Curia. B. R. will passe.

If a man make a lease of one house to another for years, and the lessee divide it and make two houses of it, and after the lessor doth grant the reversion of it by the name of one house; this is a good grant to passe it. And if one lease three houses to three severall men at severall times, and they divide them into twenty nine tenements and housholds in them all; and the first lessor doth grant them by the name of three mesuages: this is a good grant to passe them all. But if he grant by the name of fifteene mesuages or tenements only: it seemes this is good for no more but for fifteene of the subdivided tenements.

If one recite that he hath a rent charge issuing out of blacke acre Perk. Sect. 72. and white acre, and then grant the same rent, and in truth it doth issue out of blacke acre only: or if he doe recite that it doth issue out of one acre when in truth it doth issue out of both: in both these cases the grant is good notwithstanding these mistakes.

If one be Patron of the Church of S. Peter and Paul in D, and Bro. Grant. 12. he grant the next Presentation of the Church of S. Peter, or of the Church of S. Paul: these are void grants to passe the Presentation.

Perk. Sect. 79. Per Ch. Justice Hutton & Yelverton Co. B. Mic. 3. Car. in the case of Edward Crew. If one grant a rent out of white acre by the name of a rent out of blacke acre, this grant is void as to charge white acre.

If one have a Manor called Steeple Lavington, and he grant it by the name of west Lavington alias Steeple Lavington by the [alias] [Page 247] especially if the grant say [lying in Lavington] and the Manor of Steeple Lavington doth lie in that parish, and the grantor hath no other land there.

If one grant all his lands which he hath in D in this manner, [All my lands in D which I had of the grant of I S;] this is a Mic. 2 Jac. in Brownes case agreed. good grant of all his lands in D albeit he had them not of the grant of I S but of the grant of another. But if the words be [all my lands which I had by the grant of I S in D;] in this case the grant is not good to cary any other lands in D but such as he had of the grant of I S. So if one grant in this manner [all my Manor Plow. 169. 395. And so was the opinion of Ch. Justice Popham 2 Jac. B. R. of Sale in Dale which I had by descent] and in truth he had it not by descent but by purchase; this is a good grant of the Manor. So if one grant all his lands in Dale, and say no more; this is a good grant to passe all his lands there. But if one grant in this manner [all my lands in Dale which I had by descent from my father,] and in truth I had them not by descent but by purchase, this grant is void and will not passe those lands. So if I grant in this manner Dier 87. [all my lands that I had by the attainder of I S] and in truth I had no land by that meanes: this grant is void. And if I grant after this manner [all my lands in B in the tenure of D which I had of the gift of I S] and in truth it doth lie in B and is in the Mic. 2 Jac. Adjudge Brownes case. tenure of D but it was not purchased of I S; this is a good grant to passe the land.

If a parish lie in two Counties, viz. Berk. and Wilts, and one Dier 299. Co. 3. 10. grant in this manner [all his close called Callis in the parish of Hurst in the county of Berk.] and in truth the close doth lie in the county of Wilts; this is a good grant to passe the close. But if one grant in this manner [All his houses in the parish of S. Buttolphes extra Algate late in the tenure of R] where in truth he hath no houses there, but he hath some houses in S. Buttolphes extra Aldersgate; this is a void grant. And yet if the grant be in this manner, [All that my house in the occupation of I S in S. Andrews parish] whereas in truth it is in the parish of K. but in the occupation of I S; it seemes this grant is good to passe the house. But if it be thus [All that my house in S. Andrews parish in Holborne in the occupation of I S] and in truth it is in another parish but in his occupation: this grant is not good to passe the house.

If one grant in this manner [my Manor of Dale which appeareth by office found to be of the value of tenne pound per Annum] and Hil. 2 Jac. B. R. per Tanfield. in truth in the office it is found at twenty pound per Annum; this grant is good notwithstanding this misprision.

If one grant in this manner [all my Manor of W late parcell of Pase. 7 Jac. B. R. Co. 2. 32. the possession of the Abbot of S and late in the possession of K] and in truth it was never in the possession of K, this grant is good notwithstanding. But if the grant be thus [omnia illa terras &c. [Page 248] in tenura I S jacen. in W nuper prioratui de S spectan.] and in truth the land doth lie in S and not in W; this is no good grant to passe the lands in S. And if the lands doe lie in W but are in the tenure of I D and not in the tenure of I S; the grant is void to passe the lands in the occupation of I S.

If one purchase land of I S in T and have no other land there, Dier 376. Bro. Grant 92. and he grant his land in T late the land of R S, or late the land of S and mistake or omit the christian name; this grant is good notwithstanding this mistake. And so also it is where there is a blanke left for the christian name. And if in this case he grant all his land in T and say no more, this is a good grant to passe the land. And if one grant [all his lands in D called N which were the lands of I S,] this is a good grant to passe the lands called N though they were never the lands of I S. But if the grant be [of all his lands in D which were the lands of I S] by this none but those lands that were the lands of I S will passe.

If one grant in this manner [all my meadow in D containing Dier 80. tenne acres] whereas in truth his meadow there doth containe twenty acres, it seemes this is a good grant for the whole twenty acres. So if one grant thus [All those forty seven acres of land by the Sleight whereof fifteen lie in D, twenty in E and twenty five in F] and in truth all of them doe lie in F and none of them in D or E: this is a good grant to cary the whole forty seven acres.

If one grant twenty load of wood and say in his grant [of which Bro. Grant 69. twenty load of wood he had sixteene load by the grant of his father I S] and in truth I S did not grant any wood to him at all, or did not grant unto him sixteene load only: this is a good grant of the twenty load of wood notwithstanding this false recitall.

If one grant his Manor of D and doth not say in what towne or Bro. Grant 53. 7 H. 4. 41. townes it doth lie, this is a good grant. But it is best to say in what townes the Manor doth lie, for if it lie in divers places (as it may) and any of the places into which it goeth be omitted and the rest are set downe; no part of the Manor lying in the towne that is not expressed will passe.

If one grant a Manor and that which in truth is but one Manor Co. 1. 46. by the name of the Manor of A and B; this is a good grant of the Manor. And so also it is if it be two Manors, as if a man be seised of the Manors of Ryton and Condor in the county of Salop, and he grant in this manner [totum illud Manerium de Ryton & Condor cum pertinen. in Com. Salopiae;] this is a good grant of both the Manors. Otherwise it is in case of the King. Prerogative.

If one have a farme of land, meadow, &c. by lease called Curia. Co. B. Pasc. 9 Jac. Inter Plat. & Sleepe. Bro. Grant 53. Hodges lying within the parishes of S. Stephen and S. Peter in S. Albons, and he reciting the said lease grant to C his terme and interest in the house, lands, &c. called Hodges in the parish of S. Peter [Page 249] and S. Albons; this grant is good only for so much as doth lie in the parish of S. Peter and not for that which doth lie in S. Stephens. But if he grant the farme and doth not say in what parish it doth lie; this is a good grant of the whole farme. As in the case before of a Manor that doth lie in divers parishes. And if in the case here the farme lie within the parish of S. Peter only; the grant is good for the whole farme. If one recite that whereas he hath such lands by forfeiture, or whereas such a one hath an estate of his land, or whereas the grantee hath paid him tenne pound or done him such service, or the like, and these things are not true, and afterwards he doth grant the land by apt words; this mistake in these cases will not hurt the grant. But otherwise it is in case of the King in some of these cases. Prerogative.

If one have a Manor in which he hath Parkes and Fishponds, and he grant the Manor for life except the game and fish, and after Co. 11. 50. grant the reversion of the Manor; this is a good grant of the game and fish also.

If a grant be of [Centum libratas terrae, or 50 libratas terrae, or Co. super Lit. 5. of Centum solidat terre] it seemes these are good grants, and that hereby doth passe land of that value, and so of more or lesse.

If a grant be of an acre of land covered with water, this is a Co. super Lit. 4. good grant,

If a grant be of a certaine portion of land or tithes, or of the Dier 84. 34 E. 3. fourth part of land or tithes, and there be a sufficient certainty in the description of it, this grant is good. And therefore if the grant be of the fourth part of the tithes, and of the offerings of the Church of S. Peter, this is a good grant.

If one seised of an Advowson in fee grant to I S that as oft as Bro. Grant. 101. 121. the Church is void he shall name the Clarke to the grantor, and he shall present him to the Ordinary; this is a good grant of the Advowson.

A reversion may be granted by the name of a remainder, or a Dier 46. Plow. in Hil. & Granges case. remainder by the name of a reversion, and such a grant is good. As if one grant land to I S, the reversion to I D: this is a good grant of the remainder.

If one make a lease of land to husband and wife for their lives, Fitz. Grant. 63. and after grant the reversion of this by the name of the reversion of the land which the wife doth hold for life: this grant is void. So if one grant to two for life, and after grant the reversion of one of them, this is void.

A Fulling or grist mill may be granted by the name of a mill only. 21 Ass. pl. 23

If one grant in this manner [All that his mesuage &c. And all Ince [...]ainty. the lands, meadowes and pastures thereunto belonging:) this is 27 H. 6. 2. Plow. 164. Bro. Lease 55. a good grant and certaine enough to passe all the lands, meadowes and pastures usually occupied therewith.

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If the Lord grant his Manor by the name of [his Manor with the Fitz. Grant 68. Perk. Sect. 68. reversion of all his tenants:] or by the name of [the reversion of all his tenants bond and free which hold for life or years] and doe not name them by their particular names; these grants are good in these cases and certaine enough.

If one grant land, and say not in what parish or county or village Bro. Grant 53. Co. 9. 47. it doth lie; yet if there be any other matter to describe it; it seems the grant is good enough, and it may be averred where it lieth. But if there be no circumstantiall matter in the grant to denote and decipher out where it doth lie; it seemes the grant is void for incertainty. And therefore if one grant his Manor of Dale; or his lands in the occupation of I S; or his lands that descended to I S; or his lands that did belong to the priory of S, or the like; these are good grants and certaine enough. Id certum est quod certum reddi potest.

If there be tenant for life of three houses and foure acres of land, Perk. Sect. 73. and he in reversion grant the reversion of two houses and of two acres of this land; this is a good grant and hath sufficient certainty in it.

If a grant be incertain altogether and have not sufficient certainty Perk. Sect. 67. in it, & cannot be made certain by some mater ex post facto, it is void. And therefore if there be Lord and tenant of three acres of land by fealty and twelve pence rent, and the Lord grant [the services of the third acre] to a stranger; this grant is meerly void. So if Perk. Sect. 68, 69. husband and wife hold an acre of land jointly of I S for their lives and I S grant the reversion of the acre of land which the husband alone doth hold for his life; this grant is void. So if there be Lord and three Jointenants, and the Lord grant the services of one of them to a stranger; this grant is void. So if one have twenty tenants 9 H. 6. 12. that doe pay him twelve pence a peece rent, and he grant five shillings yearly out of these rents, and doth not say of which tenants, this grant is void for incertainty. So if conusance of pleas 44 E. 3. 17. Bro. Grant 52. be granted and it is not said before whom; this is utterly void. So if one have two tenants, and doth grant the reversion of one of them, and doth not say which; this is void for incertainty. So if Dier 91. one grant estovers to another, and say not what nor how; this is void. So if one grant me so many of his trees, or of his horses as may be reasonably spared; this grant is void. And yet if one grant me so many of his trees as I S shall thinke fit, it seemes this grant is good. And if one grant me one hundred load of wood to be taken Co. 5. 24. by the assignement of the grantor, or to be taken by the assignment of I S; these are good grants. So if one grant me three acres of wood toward the North side of the wood; this is a good grant and certaine enough.

If one grant to one of the children of I S and I S hath more Bro. Done 31. [Page 251] then one, and he doth not describe which he doth intend; this grant is void for incertainty.

If one grant to me a rent or a robe; twenty shillings or forty shillings; or common of pasture or rent; in the disjunctive which 9 E. 4. 36. Perk. Sect. 74. is at first very incertaine; yet this grant may become good, for if I make my election, or he pay the rent, or performe the grant in either part; the grant is now become good. So if one be seised of Perk. Sect. 76. two acres of land, and he doth lease them for life, the remainder of one of them, and doth not say of which to I S; in this case if I S make his election which acre he will have, the grant of the remainder to him will be good. So it is when a man hath six horses in his stable, and he doth grant me one of his horses but doth not say which of them; in this case I may choose which I will have, and in these cases when I have made my election and not before the grant is good. And if in these cases the grantee doe not make his election during his life it seemes the grant will never be good. If one be seised Bro. Grant. 77. of land and lease it for yeares rendring tenne shillings rent, and after he doth grant a rent of tenne shillings out of this land to a stranger; in this case albeit there be some incetainty in the grant yet this is a good grant of a rent of tenne shillings, but it shall be taken a grant of a new and not of the old rent, and therefore shall not take effect untill the particular estate be ended.

See more to this point in Deeds and their Exposition chap. 5. Numb. 15. and Fine chap. 2. Numb. 7.

In some cases albeit there be in a Grant a good grantor, and a 5. In respect of matter in some other parts of the Grant. 1. In the commencement of the estate: good grantee, and a thing granted, and all these are duly and certainly described, yet the grant may be void for some fault in some other thing touching the grant: as, 1. In the commencement of the estate. For if a man be possessed of a terme of yeares, albeit it Bro. Grant. 154. Co. 1. 155. Plow. 520. be one hundred yeares or upwards, and grant to another all the residue of this terme of years that shall be to come at the time of his death; this grant is void for incertainty. And yet if a man possessed of such a terme in land, grant the land to another To have and to hold to him after the death of the grantor for fifty yeares, or for two hundred years; these are good grants, and in the first case the grantee shall have fifty yeares if there be so many to come of the terme of one hundred years at the death of the grantor, and in the last case the grantee shall have the land for the whole one hundred years or so many of them as are to come at the death of the grantor. So if one grant any thing that doth lie in livery or in grant, and that is in esse at the time of the grant in fee simple, fee taile, or for Dier 58. Co. 5. 1. life, and the estate is to begin at a day to come: this for the most is void: howbeit in some cases the livery of seisin will helpe it. But Incertainty. Pase. 7 Jac. De [...]s case. a lease for years to begin in futuro is good enough. And if a lease be made to one for yeares, or for yeares determinable upon lives, [Page 252] and after a lease is made to another of the same thing To have & to hold from the end of the former lease, this is a good lease & the commencement certaine enough. So if a lease be made of land to one for life, and after the reversion thereof is granted to another for life cum post mortem vel alio modo vacare contigerit; this is good. So if a lease be made to one for twenty years if he live so long, and Craddocks case. Pasc. 7 Jac. Co. B. after a lease is made to another Habendum after the end of the term granted to the lessee, for twenty yeares to be accompted from the date of the deed last made, this is a good grant for 20. years after the first lease ended, and the words [to be accompted &c.] shall be rejected. And if one grant a rent to me, Habendum from the time of Co. 9. my full age for my life, and I am of full age at the time of the grant, this grant is good for my life. If a woman sole have a lease for years Plow. 192. Co. 6. 36. and take a husband, and then he in reversion grant the land to another Habendum after the terme granted to the husband &c. where in truth it was never granted to the husband but by an act of law, viz. the mariage, yet this is a good lease. 2. In the limitation 2. In the limitation of the estate. Or in the Habendum of the Grant. 22 H. 6. 15. Plow. 28. of the estate. For if a grant be to two & heredibus, without Suis, this is void for incertainty. And yet a grant to one & heredibus, is good. And if a man grant two acres To have and to Perk. Sect. 75. 77. Plow. 152. hold the one in fee simple & the other in fee taile, or the one in fee simple and the other for life, and doth not set downe which in fee simple &c. in certaine, yet this grant is good, and the grantee hath the election. And yet if one grant two acres to two men Habendum Incertainty. the one to the one and the other to the other, and say not which either of them shall have, this is void for incertainty. And if one have a reversion of land after a lease for yeares, and grant the land Co. 10. 107. Plow. 147. Habendum the reversion, or grant the reversion Habendum the land, this is good.

In some cases a grant or gift may be void at least to some persons and purposes when there are none of the defects aforesaid in it, as 6. In respect of the end or ground of the Grant. when it is made upon a corrupt contract, or to the end to defraud creditors of their debts, or purchasors of their lands bought, or the like, whereof see before in Deed chap. 4. Numb. 5.

And in some cases albeit there be no other fault in the grant, yet 21 H. 7. 5. Co. super Lit. 7. In respect of omission of some ceremony &c. it may become void for want of some other matter that ought to be done, as inrolment, livery of seisin, atturnement, &c. for where these things are requisite the grant is not good untill it be had, neither for that thing which will not passe without that ceremony nor yet for that which otherwise would passe by the deed. And therefore if a feoffment be made of a Manor to which an Advowson is appendant, and no livery is made so that the Manor doth not passe; the Advowson will not passe neither. Where a grant may be void by the refusall or waiver of the grantee, See before in Deed Num. 6. chap. 4.

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If one make a feoffement with warranty, and after the feoffee 7H. 6. 43. 21 H. 7. 23. Perk. Sect. 69. Bro. Grant 175. Kelw. 88. doth grant to the feoffor that neither he nor his heires shall vouch 5. What shall bee said a good grant in the nature of a release or discharge. Or not. the warrantor or his heirs upon the warranty; this is a good discharge of the benefit of voucher, and doth bar the feoffee of it. And yet he may bring a Warrantia Cartae still. So if one grant to mee a rent-charge, and afterwards I grant to him that he shall not be sued for this rent; this is a good grant to bar me of bringing an annuity for the rent. And yet I may distrain for the rent still. And so è converso if I grant to the grantor he shall not be distrained for the rent, by this I am barred of a distresse, but not of bringing an annuity for the rent. So if the Lord doth grant to his tenant holding by knights service, that his heirs shall not be in ward &c. or a man doth grant to his debtor that he will not sue him for the debt at all, or until such a time; or one grant to his lessee for life or years that he shall not be impeached for wast; all these are good discharges, and may be pleaded by way of bar to avoid circuity of action.

And now because Atturnment as hath been shewed is necessary in some cases to the perfection of some conveyances & grants of things lie in grant and not in livery, we must therefore here ere wee can goe further, as a necessary appendix to Grant, adde the learning of Atturnment which followeth next in order.

CHAP. XIII. An Atturnment.

AN Atturnment is the agreement of the tenant to the grant of Co. super Litt. 309. Terms of the Law. Plow. 25. Litt. Sect. 551. the Seigniory, or of a rent, or the agreement of the donee 1. Quid. in tail, or tenant for life, or years, to a grant of a reversion or of a remainder made to another. As where the Lord, or one that hath a rent out of land doth grant over his Seigniory, or his rent to another, or one that hath a reversion or a remainder after an estate for life or years doth sell or give the same away to another; in these cases the tenant of the land must have notice of this sale or gift, and of the alteration of the party to whom he must attend in his services, and he must give his consent to the same gift or grant, or else generally the same is not good. And this yeelding of consent is called an Atturnment. And it is either actuall, or verball, or actuall and verball both. 2. Quotuplex.

That which is actuall, is either implied and in Law, or expressed and in Fait. Of all which there are divers examples hereafter following.

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The end, effector fruit of this agreement is to perfect a grant and Lit. Sect. 551. Co. super Lit. 302. Lit. Bro. Sect. 267. 129. 379 39 H 6. 24. Co. super Lit. 323. 315. Lit. Sect. 608. 3. The effect of it. to make a good conveyance of an estate, for where this is needfull no rent nor reversion will passe without it, neither can the grantee of the Seigniory, rent or reversion bring any action of wast for wast done in the land, nor distraine for any rent or service upon the land before this is done. But this is but a bare assent and therefore it shall not nor will enure or worke to passe any interest, to make a bad grant good, to enfranchise a villaine, nor to give a man a tenancy by disseisin, intrusion, or abatement, neither shall it worke by way of estoppell. And therefore if a man gaine a rent issuing out of land by cohersion of distresse or otherwise, and the tenant of the land atturne to him; this will not amend his estate. But otherwise a grant and the atturnement of the tenant doe as effectually passe the freehold and inheritance of the reversion of land as a feoffment and livery of seisin of land doth passe the possession of land.

In most cases where the grantee hath meanes to compell the tenant to atturne there the atturnement of the tenant is at least to Lit. Sect. 579, 580, 581. Co. 6. 68. Co. super Lit. 309. 314. 320. 4. Where and in what cases the atturnment of the tenant is necessary. Or not. And how. And to what intents. some purposes needfull, for howsoever it be true that if a seigniory, rent, services, reversion, or remainder be granted by fine, in this case the rent, seigniory, &c. doth passe, so as the grantee may enter for a forfeiture upon the alienation of the tenant being tenant for life, years, by statute, or elegit, or upon an escheate of the tenant, or seise a ward or heriot if it happen before any atturnment be made: And if the reversion of a lease for years be granted by fine, and the lessee be ousted and the lessor disseised, the conusee may have an assise: and therefore as to all these purposes the atturnment of the tenant is not needfull. But the grantee, his heire, or assignee, cannot distraine the tenant for rent, or bring any action that doth lie in privity between him and the tenant, as wast upon a wast done by the tenant, writ of entry ad communem legem, or in casu proviso, or in consimili casu upon the alienation of the tenant, escheate upon the dying of the tenant without heirs, or ward upon the death of the tenant his heire within age, or writ of customes and services, untill he have the atturnement of the tenant: and therefore as to all these purposes the atturnement of the tenant is necessary. And hence it is that the conusee of a fine hath meanes appointed him by the law to compell the tenant to atturne, for in case where the Lord doth grant his seigniory to another and the tenant will not atturn, the conusee before the fine be ingrossed may have a writ called a Per que servitla and thereby compell him to atturne. And in case Old. N. B. 170. Co. super Lit. 252. where a man doth grant a rent to another and the tenant of the Per que servitia. land out of which the rent doth issue will not atturne, the conusee of the rent may have a writ called a Quem redditum reddit and thereby compell him to atturne. And in case where a man doth I dem. Quem redditum reddit. grant a reversion or a remainder of his tenant for life to another [Page 255] and the tenant will not atturne, the conusee of the reversion or remainder may have a writ called a Quid Juris clamat and thereby Idem. Co. super Lit. 310. compell the tenant for life to atturne. Co. super Lit. 321. And if the conusee of the Quid Iuris clamat. fine die in these cases before he have the atturnment of the tenant, his heire albeit he come to the thing descended by act of law, yet shall be in no better case then his auncestor was. And if the conusee Co. 6. 68. Lit. Sect. 584. 583. of a fine by which he hath a reversion granted to him before he hath gotten the atturnment of the tenant bargaine and sell the reversion by deed indented and inrolled; the bargainee shall be in no better case then the bargainor was. And if a reversion be granted by fine, and the conusee before atturnement enter and make a feoffment, and the lessee reenter; in this case the feoffee cannot distraine for the rent. And yet if there be Lord, mesne and tenant, and the mesne grant the services of his tenant by fine to another in fee, and after the grantee die without heire, and by this meanes the services of the mesne escheate; in this case the Lord may distraine for them without any atturnement of the tenant.

In these following cases atturnement in law or in deed is absolutely and to all intents necessary, viz. a] Co. 2. 66. Lit. Sect. 551. 567. 571. Co. super Lit. 316. Where one doth make a lease for life, or years to one, and after doth grant the reversion or remainder after the same lease ended to another by deed in fee simple, fee taile, for life, or years; in this case the lessee for life, or yeares must atturne. Lit. Sect. 551. Co. super Lit. 315. Perk. Sect. 636. So where the Lord doth grant his seigniory or the services of his tenant by deed in fee simple, or otherwise in fee taile, for life, or years to a stranger; in this case the tenant must atturne. Co. 6 68. Doct. & Stud. 35. Lit. Sect. 553. So where the Lord of a Manor doth make a feoffment of his Manor; in this case the services of the tenants will not passe without their atturnement. Co super Lit. 312. Lit. Sect. 572. So if another man have a rent service, rent charge, or rent seck, issuing out of my land, and he doth grant this rent to a stranger; in this case I must atturn to this grant to the stranger. And if in these cases the tenant doe not atturn the grant of the reversion &c. is meerly void.

If a reversion bee granted after an estate of a tenant by Statute Co. super Lit. 315. Merchant, Staple, or Elegit, or after an estate that any one hath untill debts be paid, or the like; in these cases these tenants must atturn, or this grant will not be good.

If one make a lease for years of land rendring rent, and after hee Co. 2. 35. Lit. Bro. Sect. 298. Dier 307. Co. super Lit. 312. Lit. Bro. Sect. 151. 379. Bro. Attur. 59. Dier 26. Lit. Bro. 349. doth grant the reversion to another for years, to begin after the death of the grantor; in this case it is needfull that the lessee for years in possession doe atturn to make this grant good. But if one make a lease of his land to one for tenne years, and after make a lease of it to another, To have and to hold from the end of the said terme of tenne years for the terme of twenty years, in this case it seemes it is not needfull that the first lessee doe atturne but that the grant is good enough without it. If one make a lease to another [Page 256] for twenty years, and he make a lease over to a third for ten years rendring a rent, and then doth grant the reversion to a stranger; in this case it is needfull that the lessee for tenne years doe atturne: but if the lease for tenne years be made without any reservation of rent contra. For it is a rule, That where there is no tenure, attendancy, remainder, rent, or service to be paid or done there atturnment is not necessary. And hence it is, that where one doth grant common of pasture appendant or appurtenant, or estovers out of land, that there needes no atturnment of the tenant to make this grant good. And if a rent or common be granted to one for life, and after the reversion of it be granted to another; that in this case there need no atturnment to make this second grant good. And so it was agreed in M. 37. 38 Eliz. B. R. And if one make a lease to one for tenne years, and then make a lease to another for twenty years; in this case the second lease is good for the ten years to come after the first ten years ended, without any atturnment of the first lessee.

If a Lord exchange the services of his tenant with another for Perk. Sect. 249. 259. land; in this case the atturnment of the tenant by whom the service is to be done is necessary to perfect this Exchange.

If there be Lord and tenant in fee simple, and the tenant doth Lit. Sect. 562. make a lease to another man of the tenancy for life, and the Lord doth grant the Seigniory to the tenant for life in fee; in this case the tenant in reversion must atturne to the tenant for life upon this grant of the reversion, or the grant is not good.

If I be seised of a reversion after an estate for years, and I grant Hil. 8 Jac. it to the use of my selfe for life, and after to the use of another and his heirs in fee, and after I grant my reversion for life to another; in this case it is needfull that the tenant for yeares atturn to this grant.

If a lease be made to I S for his life, and afterwards another Dier 118. lease is made of the same land to I D for his life; in this case it seems that I S must atturn to this second grant, or that the grant will not be good.

An estate of a Seigniory cannot be gained by a disseisin, abatement, Lit. Sect. 587. or intrusion without an atturnment. And therefore if one disseise another of a Manor which is part in demesne and part in services, the services are not gained untill the tenants atturn.

In all cases for the most part where there is no means provided Co. 6. 68. Lit. Sect. 580. 583. 586. Co. super Lit. 321. 314. by law to compell the tenant to atturn, there their atturnment in law or in deed is not necessary unlesse there be some speciall default in the grantee. Quod remedio destituitur ipsa re valet si culpa absit. And therefore an atturnment is not necessary in these cases following. viz. F. N. B. 121. M. Where one doth grant a rent, reversion, remainder, service, or seigniory to another by way of devise by a last will and testament, or by Letters Patents from the King, or where such [Page 257] things are granted by matter of record from a subject to the King. Co 6. 68. super Lit. 321. 2. 35. So when the thing granted doth passe by way of use and doth vest by force of the statute of uses. As if one that is seised of land in fee doth make a lease of it for life or yeares to I S and after levieth a fine, or doth covenant to stand seised of the reversion of this land (or of the land it selfe which is all one) to the use of another, or doth bargaine and sell the reversion in fee, or for yeares; in these cases the tenant need not to atturne: Agreed in the Court of Wards Hil. 18 Jac. But if A grant a reversion to B to the use of C and the deed is not inrolled or the use arise not upon consideration of bloud &c. in this case if the tenant doe not atturne the reversion will not passe. Calvins case. Pasch. 7 Jac. B. R. If one by a common recovery suffered grant a reversion to the use of himselfe, his wife, or children; in this case there needsno atturnment of the tenant by the Statute of 7 H. 8. chap. 4. Lit. Sect. 583. 5 H. 7. 18, 19 Co. super Lit. 321. So where one doth come to any such thing by title or seigniory paramount, as by escheate, surrender, or forfeiture; or by descent, in all these cases and the rest before the atturnment of the tenant is to no purpose, neither to passe the thing as to the estate, nor to make a privity to distraine or bring action of debt. And therefore if there be Lord, mesne, and tenant, and the mesne grant the services of his tenant by fine to another in fee and after the grantee dieth without heire; in this case the services of the mesnalty shall come to the Lord paramount and he may distraine for them or bring any action that lieth in privity for them without any atturnment. So if lessee for life of a Manor surrender his estate to the lessor; there needes no atturnment of the tenants of the Manor to make this estate to passe. So if the reversion of a tenant for life be granted to another in fee, and the grantee die without heire so that the reversion escheate; in this case the Lord may distraine or bring any action of wast &c. without any atturnment. So if a reversion descend to an heire from his auncestor; in this case it will vest in the heire without atturnment, and atturnment in this case is not necessary. So if the conusee Co. super Lit. 321. of a Statute Merchant extend a seigniory or rent for debt, the seigniory or rent shall be vested in him without any atturnment of the tenant.

If a Copiholder in fee make a lease for yeares by licence of the Lord rendring rent, and after surrender the reversion to the Per 3 Justi. Trin. 4 Jac. B. R. use of I S; in this case it seemes an atturnment of the tenant is not needfull, but I S shall have the rent without any atturnment.

If one grant the reversion of Copihold lands for life, or yeares, Curia M. 37 & 38 Eliz. B. R. Co. 2. 35. super Lit. 311. or grant the seigniory of Copihold lands of inheritance; in these cases there needs no atturnment of the tenants to make the grants good. And so also is the law for an estate at will by the common law.

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If a lease be made to one for life, the remainder to another in Lit. Sect. 578. taile, the remainder over to the right heires of the tenant for life, and the tenant for life doth grant his remainder in fee; in this case there needs no atturnment of the tenant in taile, but the remainder will passe by the deed presently without any atturnment at all.

If one lease for life the remainder for life, and after the lessor Lit. Sect. 575. release all his right in the land to him in remainder for life; in this case there needs no atturnment of the lessee for life to perfect this release.

If two Jointenants or more make a lease for life rendring rent, Lit. Sect. 574. and one of them doth release the rent to the other; in this case there needs no atturnment to make the rent to passe.

In all cases where the grant is in the personalty there Agreed in Curnocks case. M. 3 Jac. Co. B. needs no atturnment. And therefore in grants of annuities which doe charge the person of the grantor only and not his land, there needs no atturnment. And in all cases where there is an atturnment in law there needs no atturnment in deed.

If there be Lord, mesne, and tenant, and the Lord grant the fee Lit. Sect. 555. of the Seigniory; in this case the mesne and not the tenant must 3. By whom anatturnment may & must be made, Or not. atturne.

If one make a lease for life, and then grant the reversion for life, Co. super Lit. 319. and the lessee atturne, and after the Lord grant the seigniory; in this case it seemes the grantee and not the first lessee for life must atturne.

If there be Lord and tenant and the tenant make a gift in taile, Lit. Sect. 554. 556. Co. super Lit. 311. or lease for life of the land, and after the Lord grant the services to a stranger; in this case the tenant for himselfe and not the tenant in taile, or for life must atturn: For it is a maxime in law That no man shall atturne to any grant of any seigniory, rent service, reversion, or remainder but he that is immediately privy to the grantor. But to the grant of a rent seck or rent charge issuing out of such land as before, the under-tenant in taile, or for life and not immediate tenant himselfe must atturne.

If there be tenant for life the remainder in fee, and the Lord Lit. Sect. 556. grant the services to a stranger; in this case the tenant for life and not him in remainder must atturne.

If there be tenant for life the remainder in taile, and he in the Idem. reversion after their estates doth grant his reversion to a stranger; in this case if either of them need to atturne it must bee the tenant for life.

If a woman that hath a husband be to atturne, the husband Co. super Lit. 312. Lit. Sect. 558. may and must doe it for her, and the atturnment of the husband Husband and wife. for the wife, whether it be expressed or implied, will binde the wife.

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If one make a lease for yeares of land the remainder for life; Lit. Sect. 571. Co. super Lit. 316. 317. and after the lessor doth grant the reversion; in this case the tenant for life or yeares either of them may atturne.

If a rent charge be issuing out of land, and the tenant be disseised of the land; in this case the disseisor must atturne. But in case of Co. super Lit. 312. the grant of a rent service the disseisee may atturne if he will, for the privity is betweene the Lord and the disseisee only.

If a man make a lease for life to I S of land, and after grant Co. super Lit. 312. a rent charge out of it to I D, and after he grant over this rent to another; in this case the lessor and not I S must atturne.

The tenant in dower after shee hath assigned over her estate and Co. super Lit. 316. 8 E. 4. 10. not the assignee must atturne to the grant of the reversion. And yet some hold that the assignee also may atturne. The same law is also of the tenant by the courtesie: but it is not so in other cases, for if the reversion of lessee for life be granted, and lessee for life assigne over his estate, the assignee and not the lessee must atturne.

If lessee for life assigne over his estate upon condition, and then Co. super Lit. 316. the reversion is granted; in this case the assignee and not the lessee for life must atturne.

If a tenant in fee simple that ought to atturne to a grant of a Co. super Lit. 315. Perk. Sect. 231. Seigniory or rent die before he make an atturnment, his heire must atturne, and an atturnment made by him is good. So if he grant away his land before he make his atturnment, his grantee may atturne, and an atturnment made by him will be good enough.

If a Lord of a Manor make a lease of his Manor for life or years, Co. super Lit. 311. and the freeholders and others doe atturne to the lessee, and after he grant away the reversion of the Manor to a stranger; in this case the lessee for life or yeares must atturne, and this will bind all the freeholders.

If there be Lord and tenant by homage, fealty and rent, and Co. super. Lit. 311. the tenant is disseised, and then the Lord granteth the rent to another; in this case the disseisor and not the disseisee must atturn, but if he grant the whole Seigniory the disseisee may atturne.

A voluntary Atturnment where it is needfull may be made by Infant. Co. super Lit. 315. an infant, or one that is deafe and dumbe (who may doe it by signes). But one that is non compos mentis cannot make an Atturnment. Non compos mentis.

The Atturnment must always be made to the grantee of the reversion, 6. To whom an atturnment may & must be made. Or not. Co. super Lit. 310. 312. 20 H. 6. 7. rent &c. according to the grant whether the Atturnment be expresse or implied But if divers doe take by the grant, the atturnment may be made to one of them, and this shall avail the rest, as if a reversion or a rent be granted to two or more, and the tenant atturn to one of them, this is good to vest and settle the thing [Page 260] granted in them all according to the grant. And if a lease bee made by deed of a reversion to A for life, the remainder in fee to B, and the tenant atturn to A; this is a good atturnment to settle the remainder in B. But if the tenant atturn to B, during the life of A, this is not good for A; howbeit if the tenant for life die before the atturnment be made, in this case the atturnment may bee made, and this shall be sufficient to perfect the grant of the remainder to B.

If I grant a reversion to one man, and before the atturnment of Co 6. 68. 11 H. 7. 12. the tenant had to perfect the grant, he doth sell this reversion to a third man; in this case the tenant may atturn to the second grantee, and this will make the grant good to him. But if the atturnment be made to both the grantees, it is void for incertainty.

An atturnment may as well be made to cestuy que use of a reversion, as to the grantee of the reversion himself. And it seemes it Co. super Lit. 310. must be made to him, and not to the grantee of the reversion. For Hardings case. it was agreed in the Court of Wards, Hil. 18 Iac. That if a reversion be granted to B to the use of C, that the atturnemnt must bee made to C, and not to B who is but an instrument.

In all cases regularly where atturnment is necessary, it must Co. 1. 151. super Lit. 310. Lit. Sect. 551. Perk. Sect. 263. 231. Co. super Lit. 315. 2. 35. 7. When and at what time the atturnment must be made. be made in the life time of the parties Grantor and Grantee, or Exchangor or Exchangee, for if either of them die before the atturnment be made the grant or exchange is void. And therefore if a Manor be granted and livery of seisin be given upon the demesnes thereof, and one of the tenants die before atturnment be made by him, his tenement will not passe and the grant as to that part will be void, for in this case all the tenants but tenants at will must atturne. And albeit the grant of the reversion be to begin at a day to come and after the death of either of the parties, yet must the atturnment be made in the life time of the parties or otherwise the grant will not be good. And yet an atturnment may be made after the death of the tenant by his heire, and after the Conveyance of the tenant by his assignee.

If a lease be made of a reversion to beginne at a day to come; Co. 2. 35. in this case the atturnment may be made before or after the day so it be made in the life time of the parties.

If one grant his reversion of white acre or black acre, and Co. super Lit. 310. the tenant atturne to the grant before the grantee have made his election which acre he will have, this is a good atturnment.

If a man grant his reversion by deed to one, and after and before the tenant doe atturne he levy a fine or make a feoffment Co. super Lit. 309. 310. 8. 82. 4. 61. Kelw. 163. of the land to another; in this case it seemes the atturnment after comes too late; but if the fine or feoffement be [Page 261] but of part of the land granted before in reversion; in this case the first grant after atturnment shall bee good for the residue. And if a woman sole grant a reversion, and after the before atturnemnt shee mary with a stranger, and after the tenant atturne; in this case the atturnment comes too late, for the mariage is a countermand of it. And if a reversion of an estate for life or yeares be granted, and the grantor before atturnment doth confirme the estate of the tenant for life or yeares and so change the estate, and after the tenant atturne, in this case the atturnment comes too late.

To the making of a good atturnment where it is needfull divers 8. The manner of making an atturnment. And what shall be said a good atturnment. Or not. Co. super Lit. 309, 310. 315. Lit. Sect. 551. Plow. 344. things are required. 1. It must be made by the person that ought to make it. 2. It must be made to the person that ought to take it. 3. It must be made in time convenient. 4. If it be an expresse atturnment the tenant must first have notice of the grant of the reversion, rent, &c. to which he must atturne; but otherwise it is of an atturnment in law, for there notice in all cases is not necessary. 5. And it must be done in that manner the law doth prescribe. Notice. And for this it is to be knowne that it may be made by words or by deeds and without any writing, or by deed or writing (and this is the safest way to doe it.) And any words written or spoken by the tenant that doe import an assent and agreement to the grant of the reversion, rent, &c. in such manner as the same is made after notice given to him of the grant whether it be in the presence or the absence of the grantee of the reversion, rent, &c. will make a good atturnment in deed. And therefore if the tenant after knowledge of the grant use these words following or any others to the like effect to the grantee, viz. I doe atturne, or turne tenant to you according to the grant; or, I become your tenant; or, I agree to the grant; or, I am well content with the grant; or, God send you joy of it; these are good expresse atturnments. And if the tenant Lit. Sect. 563. 551. 513. Co. super Lit. 315. 49 E. 3. 15. after knowledge of the grant pay, doe, or deliver all, or any part of the rent, or service, before, or at the time when the same is due, to the grantee, or give a penny, or farthing, an oxe, or a knife or any such like thing, or any other valuable thing, in the name of atturnment, or in the name of seisin of the rent; this is a good expresse atturnment, and that atturnment which is made by words and deed or signe both is the best, for that doth leave a more deep impression in the minde of the witnesses. But if one have a rent charge issuing out of my land, and he grant it to a stranger; and I give him an oxe to put him in possession of the rent; it seemes this is no good atturnment.

If a man grant his reversion of my living to I S and his Baylife M. 2 Car. in the Court of Wards. Co. super Lit. 310. that doth use to gather his rents saith to me that I S hath bought it and I must hereafter pay my rent to him, and I tell him I am glad of it; this is a good atturnment. And that albeit it be in the absence [Page 262] of I S. Curia B. R. Hil. 11 Car. B. R. Hiltons case. And it is not materiall whether the stranger know of the grant or not, so the tenant know of it. And an atturnment made to the Lords Steward in the Court in the absence of the Lord is a good atturnment. For it is sufficient if the tenant have notice, that he atturne to the grant in the presence of any whomsoever. Tenant for life was, the remainder in tail, he in the remainder granted his remainder, the tenant for life having notice of the grant saith to a stranger in his absence, That is the party, I am well pleased that the grant is made to him; it was adjudged to be good.

If a reversion be granted to one for life, and after the same reversion Co. super Lit. 310. 11 H. 7. 12. be granted to him for yeares, and the tenant atturne to both the grants at once; this atturnement is void for incertainty. So if one grant his seigniory to I S Bishop of London and his heires by one deed, and grant the same to I S Bishop of London and his successors by another deed & the tenant atturn to both grants at once; this atturnment is void for incertainty. So if a reversion be granted to two severall persons by severall deeds, and the tenant atturne to both the grants at one time; this atturnment is void for incertainty, and neither of the grants are perfected by the atturnment in these cases. The implied atturnment which also doth amount to an expresse atturnment is made divers manner of wayes. For if the tenant after notice of the grant of the reversion pay his rent to the 14 H. 8. 15. 34 H. 6. 41. grantee, or surrender his estate to the grantee, or pray in aid of the grantee, or accept a grant of the reversion or remainder from him that hath it, this is a good atturnment in law. But if the tenant Co. super Lit. 312. after the grant of the reversion, not having notice of the grant pay his rent to the grantee as a receiver, Bailife, &c. this is no good atturnment. Calvins case. Adjudged Pase. 7 Jac. B. R. Co. super Lit. 309. Co. 2. 67. Dier 302. And therefore if the Bailife of a Manor shall purchase the Manor or the reversion of one of the tenements and the tenant not knowing of this purchase pay his rent to him as he was wont to doe, this is no good atturnment in law. So if a man seised of a seigniory levie a fine of it, and then taketh backe an estate in fee, and the tenant having no notice of all this doth pay his rent to the conusor as he was wont to doe; this is no good atturnment in law to perfect either of these grants.

If there be Lord and tenant, and the tenant let the land to a woman Lit. Sect. 558. 560. &c. for life the remainder in fee, and the woman doth take a husband, after the Lord doth grant the services to the husband in fee, in this case this acceptance of the deed by him that ought to aturn is a good atturnment in law. So if in this case the tenant lease to a man for life the remainder over and the Lord grant the services to the tenant for life, and he accept thereof; this is a good atturnemnt in law.

If the Lord by deed grant his seigniory to the tenant of the land Co. super Lit. 313. and to a stranger, and the tenant doth accept of this deed; this is [Page 263] a good atturnment in law to extinguish a moity and to vest the other moity in the other grantee. So if one make a lease to I S for life, and after confirme his estate, the remainder over to I D and Co. super Lit. 313. Lit. Sect. 573. the lessee for life doth accept of the deed of this confirmation and grant; this is a good atturnment in law and doth vest the remainder in I D.

If there be Lord and tenant and the tenant take a wife, and after the Lord doth grant the services to the wife and her heires, and the Lit. Sect. 559. husband doth accept of the deed of this grant; this is a good atturnment in law.

If the conusee of a fine of services sue a Scire facias to have execution Lit. Sect. 564. of the services, and hath Judgment to recover; this is a good atturnment in law.

If a woman grant a reversion to a man in fee, and after mary Co. super Lit. 310. with the grantee, this is a good atturnment in law to perfect this grant made to the husband.

If a Lord grant his seigniory, & there be twenty manner of services, Lit. Sect. 563. and the tenant with what intent soever it be, pay or performe in deed any parcell of the services to the grantee; this is a good atturnment in law for all the services.

If I be seised of land in fee, and make a lease for life or yeares of it, or it be extended by a Statute or Elegit, and then I make a feoffment Lit. Sect. 576, 577. Co. super Lit. 319. Dier 212. Co. 6. 68. 5 113. of this land and give livery of seisin upon it, and so put out the tenant, and after the tenant (or one of the tenants, if there be many) reenter; this is a good atturnment in law. And so also it seemes is the law if the lessee for life recover in an assise. But if a man make a lease for life, and then the lessor grant the reversion for life, and the lessee atturne, and after the lessor enter and make a feoffment in fee, and so disseise the lessee for life, and then the lessee reenter; this is no good atturnment in law by the grantee for life. And if the conusee of a reversion by fine disseise the lessee for life and make a feoffment in fee, and the lessee reenter, this is no good atturnment in law to the feoffee to enable him to distraine &c.

If one grant the reversion of a lease of a terme of yeares, and before Hil. 8 Jac. any atturnment made, the lessee for years doth grant his terme to the grantee of the reversion; in this case this is no good atturnment in law to make the reversion to passe.

If one have land and a rent issuing out of other land both in one county, and he grant both by deed, and give livery of seisin of the Perk. Sect. 231. land in the name both of the land and of the rent; this is no good atturnment in law to make the grant of the rent good.

If lessee for life or yeares, subscribe his name as a witnesse to the So was it held in Bro. kenbury & Martials case. 5 Eliz. sealing and delivery of the grant of the reversion made by the lessor to a stranger; this is no good atturnment in law, for he may doe this and not have notice: But if he have notice of the grant and [Page 264] then put his hand to it; this is an atturnment, Curia B. R. H. 11. Car.

If a reversion be granted of two acres, or for forty years, or if Co. 2. 68. super Litt. 297. 314. 309. Lit. sect. 564. Atturnement to part of the grant good for the whole. services be granted, and the tenant doth atturn for one acre, or for part of the forty yeares, or for part of the services, this shall extend to all, and is a good atturnment for both the acres, all the forty yeares, and all the services. And that albeit the tenant say expresly it shall be good but for a part and not for the whole. And so also it is of an atturnment in law. And therefore if the grantee by fine of services sue a Scire facias to have execution of any part of the services, and have judgement to recover any part, or a lessee of three acres surrender one of them to the grantee of the reversion of all the three acres; this is a good atturnment for the whole. But if one atturn for part of the land, or for part of the services in case of the grant of a reversion of land, or the grant of services, and have no notice of the grant of any more, this atturnment is not good for any part, but void for all.

If a seigniory, reversion, or the like, be granted to two or more, Co. super Lit. 297. 2. 68. 67. Atturnment to one good to others. and the tenant after notice thereof doth atturn to one of them; this is a good atturnment to perfect the grant to both or all of them. But if one die before atturnment, and the tenant atturne to the survivor or survivors; this shall not availe the heire of him that is dead, but it is good to perfect the grant to the survivor or survivors, to whom it is made.

If a reversion be granted to husband and wife, and the tenant Calvins case Pasc. 7 Jac. B. R. Co. 2. 68. atturne to the wife in the absence of the husband; this is a good atturnment to perfect the grant to them both. But if a reversion bee granted to two men, and the tenant have notice onely of a grant made to one of them, and he atturn to him onely; this atturnment is void, and not good to perfect the grant to either of them.

If two jointenants be for life, or years, and the reversion of their Co. 2. 66, 67. Litt. Sect. 566. Atturnment by one good for others. estate is granted to a stranger, and one of them atturn to the grant of the reversion; this is a good atturnment for both of them. The like law is for tenants in common. But if A, B, C and D, be lessees 6 Car. in the Lord Brooks case in the Court of Wards. for years, and C and D be outlawed, so as they forfeit their parts to the King, and the King become tenant in common with A and B, and after the reversion is granted to a stranger, and A, B, C and D atturn; this is no good atturnment to perfect the grant of the reversion, for C and D cannot atturn, and the atturnment of A and B for the King and themselves is not good.

Atturnment made by the husband is good for the wife: whereof see before at Numb. 5. 9. Who shall bee compelled to atturn. Or not. And where.

In all cases for the most part where atturnment is needfull, the Co. 6. 68. 9. 84. super Litt. 315. tenant whether he be tenant in fee simple, for life, yeares, by Statute, [Page 265] Elegit, or as executor untill debts be paid, shall be compelled to atturn. And albeit the tenant be an infant, and come to the land by purchase or descent, yet may he be compelled to atturn, but then in this case his atturnment shall not prejudice him, for when he is of full age he may disclaim or say he doth hold by lesse services.

If there be tenant in tail of a reversion, and he grant this over to Co. super Litt. 316. 318. a stranger; in this case the tenant in possession may be compelled to atturne. But if the reversion upon the estate of the tenant in tail, or upon the estate of the tenant in tail after possibility of issue extinct be granted, such a tenant may may not be compelled to atturn; and yet such a tenant may atturn gratis if he will. And the assignee of the estate of such a tenant in taile after possibility &c. is compellable to atturn. And if one make a gift in tail, the remainder in fee, and the Seigniory, or a rent charge issuing out of the land, is granted in see by fine; in this case the tenant in tail may bee compelled to atturn.

In al cases for the most part where atturnment is not needful, there Co. 6. 68. super Litt. 318. is no means to compell the tenant to atturn. And therefore the tenant cannot be compelled to atturn to him that comes to a reversion or remainder by escheat, forfeiture &c.

If one grant his reversion of land in Mortmain without a licence, Co. super Litt. 318. 3. 86. the tenant may not be compelled to atturn untill there bee a licence had from the King.

Also it is a generall rule, that when the grant by fine is defeasible, Co. super Lit. 318. 3. 86. there the tenant shall not be compelled to atturne. As if an infant levy a fine, this is defeasible by writ of Error during his minority, and therefore the tenant shall not be compelled to atturn. So if the land be holden in ancient demesne, and he in the reversion levieth a fine of the reversion at the Common Law; the tenant shall not be compelled to atturn, because the estate that passeth is reversable by a writ of deceit.

If the grant be absolute, and the atturnment be on condition; 10. How an atturnment shall enure and be taken. Co. super Litt. 309. 310. 297. See before. yet this shall enure according to the grant. So if the atturnment be but to part of the things, or part of the time granted; this shall enure to perfect the grant for all. So if the atturnment be made but to one of the grantees, it shall enure to the rest. So if the atturnment be made to the particular tenant, it shall enure to him in the remainder to perfect his estate also.

If the estate of the tenant be with a priviledge annexed, as without Co. super Lit. 320. impeachment of wast, or the like, and the tenant atturn generally without any saving of his priviledge, if the atturnment bee gratis and voluntary, whether it bee an atturnement in law or in deed; this shall not enure to extinguish his priviledge: but if the atturnment be made by the compulsion of a writ in this manner, [Page 266] and without this saving, he hath lost his priviledge for ever.

If a reversion &c. be granted to two severall men one after another, Co. super Lit. 310. and he that hath the latter grant get the atturnment of the tenant to his grant before the other; in this case this shall enure to perfect the latter, and the first grant now cannot be made good.

If a reversion be granted to a man and woman unmaried, and before atturnment made they entermary, and then the tenant atturn; Co. super Lit. 310. in this case they shall have the estate by moities.

An atturnment as to the party grantor shall have relation to the Co. super Lit. 310. 11. How an atturnment shall relate. time of the grant to make the thing to passe out of the grantor ab initio, albeit it be made many years after the grant, and therefore all acts done by him after the time of the grant, and before the atturnment to the prejudice of his own grant, as granting of rents, entring into Statutes, or the like, are void, as to the land to charge it: and hence it is that if a reversion be granted to an alien, and before the atturnment of the tenant he is made denizen; in this case the King upon office found shall have the land, and yet it shall not so relate as to make the tenants chargeable to the grantee for any mean arrearages, or for any wast in the lands from the time of the grant to the time of the atturnment. But in respect of a stanger it shall not relate at all. And therefore if two deeds be of a reversion at severall times, and hee whose deed was made last gets atturnment first, the reversion doth passe to him, and though the other get atturnment afterwards, yet this will not help him by relation, and albeit the former grant of the reversion be in fee, and the latter for life onely, yet the law will be allone in both case.

And now having done with this we come to a Lease.

CHAP. XIV. Of a Lease.

A Lease doth properly signifie a demise or letting of lands, rentcommon, 1. Quid. Terms of the Law. Co. super Lit. 43. 45. Justice Dodridge Treatise called The use of the Law. Bro. Leases 60. 437. Plow. 421. 432. Dier 125. or any hereditament unto another for a lesser time then he that doth let it hath in it. (For when a lessee for life or years doth grant over all his estate or time unto another, this is more properly called an Assignment then a Lease.) And this albeit it may be made and done by other words, yet it is most commonly Assignement. and aptly made by the words Demise, Grant, and Let. And in this case he that letteth is called the Lessor, and he to whom it is let Lessor. Lessee. the Lessee. This word also is sometimes although improperly applied to the estate, i. the title, time or interest the lessee hath to the [Page 267] thing demised, and then it is rather referred to the thing taken or had, and the interest of the taker therein: but in this place it is applied rather to the manner or means of attaining or coming to the thing letten. And in this sense it is sometimes made and done by record, as fine, recovery &c. and sometimes and most frequently 2. Quotuplex. by writing called a Lease by Indenture, albeit it may be made also by deed poll. And sometimes also it is (as it may bee of land, or any such like thing grantable without deed for life or never so many years) by word of mouth without any writing, and then it is called a Lease-paroll. And hence comes the division of a Lease-paroll, and a Lease in writing. And all these ways it may be made either for life, i. for the life of the lessee, or another, or both: or for years, i. for a certain number of years, as ten, an hundred, a thousand, or ten thousand years, moneths, weeks, or days, as the lessor and lessee doe agree. And then the estate is properly called a Term of years: for Term of years. this word Terme doth not onely signifie the limits and limitation of time, but also the estate and interest that doth passe for that time: These Leases also for years doe some of them commence in presenti, and some in futuro, at a day to come: and the Lease that is to begin in futuro, is called an interesse termini, or future interest. Interesse termini, or Future interest. Or at will, i. when a Lease is made of land to be held at the will and pleasure of the lessor, or at the will and pleasure of the lessor and lessee together: and such a lease may be made by word of mouth as well as the former.

Regularly these things must concurre to the making of every See Grant Numb. 4. Co. 6. 36. 34, 35. 1. 154, 155. Co. super Litt. 45, 46. Plow. 273. 523. good lease. 1. As in other grants, so in this there must be a lessor, 3. Things necessarily required in every good lease. and he must be a person able, and not restrained to make that lease. 2. There must be a lessee, and he must be capable of the thing demised, and not disabled to receive it. 3. There must be a thing demised, and such a thing as is demisable. 4. If the thing demised be not grantable without a deed, or the party demising not able to grant without deed, the lease must be made by deed. And if so, then there must be a sufficient description and setting forth of the person of the lessor, lessee, and the thing leased, and all necessary circumstances, as sealing, delivery &c. required in other grants must be observed. 5. If it be a lease for years it must have a certaine commencement, at least then when it comes to take effect in interest or possession, and a certain determination either by an expresse enumeration of yeares, or by reference to a certainty that is exprest, or by reducing it to a certainty upon some contingent precedent by matter ex post facto, and then the contingent must happen before the death of the lessor or lessee. 6. There must bee all needfull ceremonies, as livery of seisin, atturnment, and the like, in cases where they are requisite. 7. There must be an acceptance of the thing demised, and the estate by the lessee. But whether any [Page 268] rent be reserved upon a lease for life, years, or at will, or not, is not materiall, except only in the cases of leases made by tenant in tail, husband and wife, and Ecclesiasticall persons. Of which see infra.

For the ability and capacity of the lessors and lessees, and what 4. What shall bee said a good and a sufficient lease for life or years. Or not. shall bee said a good lease or not, in respect of the ability of the lessor, and the capacity of the lessee, and the description of their persons, the nature and description of the thing demised, and what mis-recitall, or misnosmer will hurt, or not. See Grant Num. 1. In respect of the persons of the lessor, and the lessee, the thing leased, & the estate, property, or poslession of the lessor therein. 4. and infra Numb. 5. 6, 7.

Leases for life, or years, or at will may be made of any thing corporall Bro. Leases 23. or incorporall, that lieth in livery or grant. Also leases for years may bee made of any goods or chattels. See for this Grant Numb. 4.

A man seised of an estate in fee simple in his own right of any Co. 7. 11. 1. 44. Plow. 524. lands or tenements, may by deed or writing in the country, or without writing by word of mouth make a lease of it for what lives or years he will. And hee that is seised of an estate in tail of any lands or tenements, may make any lease out of it for his owne life, but not longer unlesse it be by fine or recovery, or it be such a lease as is warranted by the Statute of 32. H. 8. (whereof see more infra). And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it, and it will be good as long as the lease for life doth last. And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years, and these are good leases. The tenant for life or years may also assigne over all their estates if they please. And if such tenants make leases for longer time, as if lessee for years make a lease for life; it seemes by this the land will passe for life, if the term of years last so long. But if he give livery of seisin upon it (as he must to make the lease for life good) this is a forfeiture of the estate for years. Forfeiture. Infant.

If an infant be seised of land in see simple, and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow. 545. for years of it rendring no rent; this lease is void. But if there be a rent reserved upon the lease, then the lease is but voidable, and may by the acceptante of the rent by the infant after his full age bee Acceptance. made good.

Jointenants, tenants in common, and parcenours may make leases Litt. cap. tenant in common, F. N. B. 62. G. Iointenants. Tenants in common. for life or years of their own parts, and purparties at their pleasures, and these leases will binde their companions. And one coparcenour, or tenant in common may make a lease of his part to his companion if he will.

If a feoffment be made upon condition, and before the time of performance of the condition, the feoffor and feoffee doe joyne to make a lease for life or years of the land; this is a good lease.

[Page 269]

A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs, may make what lease he will of the land, and this will be good against all men but his wife onely, and that for her time.

If there be lessor in fee, and lessee for ten years; in this case they Co. 10. 49. two may joyn together and make a lease for lives, or for any terme of years; and this is good.

A disseisee cannot make a lease of that land whereof he is disseised Plow. 133. untill he make his entry or recover the possession of the land again. So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower, make any lease of it before she be in possession by execution. And yet if a lease be made Co. super Lit. 46. to me for years, I may make a lease of part, or an assignement of all the term before I have made my entry into the land demised. So if the father die, and the son make a lease to a stranger of the land Plow. 137. 142. descended to him before his entry; this is a good lease: but if a stranger had entred and abated into the land, and then the sonne had made the lease contra.

In some cases also such persons as are not seised in see simple &c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra. nor able to derive such estates for life or years out of their owne estates, By speciall power or proviso to make leases. may lawfully notwithstanding make such leases for life &c. And this is sometimes by some speciall Act of Parliament enabling them so to doe. And hence it is also that a tenant in tail may make leases for three lives or twenty one years. And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him, or given to some other to doe it in his name, and leases thus made may bee good. And therefore if any Act of Parliament enable a tenant in tail, or a tenant for life to make leases for three lives, or twenty one years, leases that are so made in pursuit of that authority, are good. And if a man be seised of land in fee, and convey it to the use of himself for life, or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years; in this case he or they may make such leases and they will be good. But in both these cases care must be had to pursue the authority strictly, i. that the leases made be according to the power and direction given by the statute or proviso, for if it differ and vary ever so little from the sense and meaning of the same; the lease will not be good. And therefore in the case before of a power to make leases for twenty one years, if the party make more leases for twenty one yeares at one time then one, they are all void but the first, because it is against the intent of the parties, though it be not against the words. And so if the power be to make leases for three lives; he cannot by this make a lease for ninety nine yeares if three lives so long live. But if the power be thus, Provided &c. that he may make any lease in possession [Page 270] or reversion, so as it doe not exceed the number of three lives or twenty one years; in this case a lease may be made for ninety nine years if three lives live so long. But where uses are raised by way of covenant, and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years; in this case this power is void, and therefore no lease can bee made hereupon: neither will any averment help in this case. And if a man have a Averment. letter of Atturney, or other authority to make leases for another, and doe make them accordingly; such leases are good. But herein also caution must be had of three things: 1. That the authority be Co. 9. 76. good. 2. That he that is the Deputy or Atturney doe pursue the authority strictly. 3. That he doe it in the name of his master, and not in his own name.

A lease made for a thousand days, moneths, or weeks, is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement, and the words whereby the same is set down. And what words will make an estate for life or years. for so long as it endureth as a lease for an hundred or a thousand years. So a lease for half a year, or a whole year is good. So if Plow. 422. a lease be made from day to day, or from weeke to weeke for four years; this is a good lease for four years, Et sic de similibus. So if Plow. 272. Bro. Leases 49. one make a lease for ten years, & so from ten years to ten years, during an hundred years, or untill an hundred years are incurred; this is a good lease for an hundred yeares. So if one make a lease from Dier 24. three years to three years, during the life of I S; in this case if livery of seisin be not given, this is a good lease for sixe years, but if livery Livery of seisin. be given, it is a good lease for the life of I S. And if a lease be made from my death untill Anno Domini 1650; this is a good lease.

If I say to I S being in my house [Here I S, I demise to you my Co. 6. 26. Livery of seisin. house and land so long as I live;] this is a good lease for life to him if livery of seisin be made. Et sic de similibus.

If one make me a lease of land until an hundred pound be paid me, 21 Ass. pl. Livery of seisin. & make livery of seisin upon it; this is a good lease for life determinable upon the payment of the hundred pound. But if no livery be made it is no good lease.

If one make a lease to me for my life, and for four, ten, or twenty Bro Leases 27. 51. Executors. yeares after; this is a good lease for life first if livery of seisin bee made, and then a good lease for years for so many years as are agreed upon afterwards, which my executors shall have. And if no livery of seisin be made; yet it seems it is a good lease for so many years after my death.

If an Indenture of lease be made between A of the one part, and Co. 1. 153. Dier 253. B, C, and D of the other part, and therein A doth demise land to B, To have and to hold to him for eighty years, if B shall live so long, and if he die, or alien the premisses within the term, then that his estate shall cease, and then the lessor doth grant the land to C for so many years of the said term as shall be then to come after [Page 271] the death or alienation of B, if he live so long; in this case this is a good lease to B for so many years as he shall live of the eighty years, but the lease to C after is not good, for the terme is ended by the death of B, but if the words of the second demise be To have and to hold during the residue of the eighty years, and not during the residue of the term; in this case the second demise is good to C also.

If one make me a lease for sixty years if I live so long, provided Co. 1. 155. Dier. 150. 253. that if I die within the term, that my executors shall have it during the residue of the sixty years; in this case this is a good lease for the sixty years determinable upon my death, but not a good lease for the residue of the sixty years after my death. And yet it may amount to a good covenant for that time.

If A covenant to levy a fine to B and his heirs, provided that if he Evans case, Trin. 5. Jac. B. R. pay B and his heirs ten pound at the end of thirteen years, that then Covenant. the fine shall be to the use of A and his heirs, and A doth covenant with B by the same deed, that B his heirs, executors, and assignes, shall quietly hold the premisses from Michaelmas next for thirteen years and yearly from thenceforth for every if the ten pound bee not paid according to the intent; in this case this covenant doth not make a good lease for the thirteen years, and it is but a covenant. Covenant.

If one make a lease for a certain number of years, and it is further Plow. 272. Lit. Sect. agreed that upon some contingent the lessee shall have the see simple, and livery of seisin is given hereupon; in this case the lease for years doth continue good for the time agreed upon.

A lease for years cannot by the agreement of the parties be made Co. 2. 24. 10. 87. to the heirs of the lessee, nor intailed to the heirs of his body. And therefore if a lease be made to I S and his heires, or to I S and the heirs male of his body, yet the executors of I S, and not his heirs Executors. shall have it, and the executors may sell the term.

If two agree by word that one of them shall have such a peece of Per Justice Jones at the Assises at Glouc. land for twenty years; this is a good and perfect lease that is made by this agreement, albeit they doe agree to have a writing made of it afterwards, for in this case the writing is but the confirmation of it. But if the agreement be that such a writing shall be made, or that a lease shall be made of such a thing between them and put in writing, so that the agreement hath reference to the writing, and implieth an intent not to perfect the agreement till the writing be made; in this case the lease is not a perfect lease untill the writing be made.

Albeit the most usuall and proper making of a Lease is by the Co. super Lit. 5. F. N. B. 270. e. Br. Leases 71 words, Demise, grant, and to ferme let, and with an Habendum for life or yeares, yet a Lease may be made by other words, for whatsoever word will amount to a Grant will amount to a Lease. And [Page 272] therefore a Lease may be made by the word, Give, Betake, or the like. The word Locavit also is a good word. And the use in the Exchequer is to make Leases by the word Committimus, which is a good word to make a lease. Bro. Leases 60. And if A doe but grant and covenant with B that B shall enjoy such a peece of land for 20. yeares; this is a good lease for twenty yeares. Mic. 9 Ja. B. R. Curia. So if A promise to B to suffer him to enjoy such a peece of land for twenty years; this is a good lease for twenty yeares. 5 H. 7. 1. So if A license B to enjoy such a peece of land for twenty yeares; this is a good lease for twenty yeares. And therefore it is the common course, if a man make a feoffment in fee, or other estate upon condition that if such Agreed by all the Judges Mic. 20 Jac. et per Just. Bridgman. And 8 Car. B. R. a thing be, or be not done at such a time, that the feoffor, &c. shall reenter, to the end that in this case the feoffor, &c. may have the land and continue in possession untill that time, to make a Covenant that he shall hold and take the profits of the land untill that time; and this Covenant in this case will make a good lease for that time, if the incertainty of the time (whereunto care must be had) doe not make it void. And therefore if A bargaine and sell his land to B on condition to reenter if he pay him an hundred pound, and B doth covenant with A that he will not take the profits untill default of payment, or that A shall take the profits untill Covenan [...]. default of payment; in this case howbeit this may be a good Covenant yet it is no good Lease. And if the Mortgagee covenant with the Mortgagor that he will not take the profits of the land untill the day of payment of the money; in this case albeit the time be certaine, yet this is no good Lease but a Covenant onely. If one give a Bond for the quiet holding of a Close for three yeares; it seemes this is no lease in Law. See the opinion of the Parliament for Bonds and Covenants both Stat. 14 Eliz. cap. 11.

A Lease for yeares may begin at a day to come, as at Michaelmas Co. 5. 1. sup. Lit. 48. Plow. 156. 197. 3. In respect of the Commencement, & continuance & end of the term or estate. Incertaintie. next, or three or ten yeares after, or after the death of the lessor or of I S, and it is as good as where it doth begin presently. But a lease for life of any thing whatsoever whether it lye in Livery, or in Grant if it be in esse before, cannot begin at a day to come. And therefore if a lease be made Habendum, from Michaelmas next, or from the day of the making of it, or after the death of the lessor, or after the death of I S to the lessee for life; this lease is not good: but in case of a lease of land made thus, it is sometimes holpen by the Livery of seisin. For which see Livery of Seisin chap. 9. Num. 11. But all leases for yeares whether they begin in presenti, or in futuro, Co. sup. Lit. 45. Co. 1. 155 must be certaine, that is, they must have a certain beginning, and certain ending, and so the continuance of the term must be certain, otherwise they are not good. And yet if the years be certain when the lease is to take effect in interest or possession it is sufficient, for untill that time it may depend upon an incertainty, viz. upon [Page 273] a possible contingent precedent before it begin in possession or interest, or upon a limitation or condition subsequent: but in case when it is to be reduced to a certainty upon a contingent precedent, the contingent must happen in the lives of the parties. And albeit there appear no certainty of years in the lease, yet if by reference to a certainty it may bee made certaine it is sufficient. Id certum est quod certum reddi potest. As for examples, if A seised of lands in fee grant to B, that when B shall pay to A twenty Co. super Lit. 45. Plow. 83. 524. Co. 6. 35. 1. 155. shillings, that from thenceforth he shall hold the land for twenty one years, and after B doth pay the twenty shillings; in this case B shall have a good lease for twenty one years from thenceforth. And if A grant to B, that if his tenant for life shall die, that B shall have the land for ten years; this is a good lease. And if one make a lease for years after the death of C, if C die within ten years; this is a good lease if C die within the ten years, otherwise not. But if A be seised of land in fee, and lease it to B for ten years, and it is Plow. 270. agreed between them that B shall pay to A an hundred pound at the end of the said ten years, and that if he doe so and shall pay the said hundred pound, and an hundred pound at the end of every ten years, that then the said B shall have a perpetuall demise and grant of the premisses from ten years to ten years continually following extra memoriam hominum &c. in this case this albeit it be a good lease for the first ten years, yet it is void for all the rest for incertainty. And if a lease be made to begin from the Nativity of Hil. 16 Jac. in the Ex. chequer. Christ, and he doth not say which Nativity, as next &c. it is void for incertainty. And yet if a lease for years be made of land in lease Plow. 192. 523. for life To have and to hold from the death of the tenant for life; this is a good lease: So if it be To have and to hold from Michaelmas next after the death of the tenant for life, or from Michaelmas next after the determination of the estate of the tenant for life; these are good leases. So if there be a former lease in being for life Co. 6. 36. or years, and another lease for years is made of the land To have and to hold from the end of the former estate by surrender, forfeiture, or otherwise for twenty years; or to have and to hold from the surrender, forfeiture, or other determination of the former lease if there be any, and if there be none for twenty years; these and such like leases are good, and this commencement is certain enough. And if one make a lease to begin after the death of I S, and to continue Plow. 523. & 17 Jac. B. R. Agree. untill Michaelmas, which shall be in Anno Domini 1650. this is a good lease.

If a man have a lease of land for an hundred years, and he make a Lit. Bro. Sect. 437. Bro. Grant 154. Co. 1. [...] 155. Plow. 520, 521. See Exposition of Deeds. lease of this land to another To have & to hold to him for 40 years to begin after his death; this is a good lease for the whole forty years, if there shall be so many of the hundred years to come at the time of the death of the lessor. But if the lessor grant the land to [Page 274] another To have and to hold to him for & during all the residue of the term of an hundred years that shall be to come at the time of the death of the grantor; this is void for incertainty. And yet if in this case he grant withall all his estate, or all his term, or all his interest in the premisses of the deed, and then say To have and to hold the land &c. to the grantee for all the residue of the terme of an hundred years that shall be to come at the time of his death; by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed. And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years; this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death.

If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman. of A, on condition to be avoided upon the doing of divers acts by others, and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease; it seems this is a good lease and certain enough. But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long, and if he die within the said term or alien the premisses, that then his estate shall cease, and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A, or alienation to B for the residue of the said term of eighty years if he shall live so long; in this case the lease to B is void, for after the death of A the term is at end, but if he say for the residue of the eighty years, it is otherwise.

If A doth make a lease of land to B, for so many years as B hath Plow. 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale, and B hath then a lease for ten years of the Manor of Dale; in this case this is a good lease for ten years. But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution; this lease is void for incertainty. And if a lease be made during the minority of I S, or untill I S shall come to the age of twenty one years, these are good leases; and if I S die before he come to his full age, the lease is ended. But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years; this lease is not good. And if a lease be made for so many years as I S shall name; in this case if I S do name a certain number of years in the life time of the party lessor, this is a good lease. But if a lease be made for so many years, as the executor of the lessor, or of the lessee shall name; this lease is void.

If a man make a lease for twenty one years, if I S live so long, or Co. super Li [...] 45. Plow. 27. if the coveroure between I S and D S shall so long continue, or if I S shall continue to be Parson of Dale so long; these and such like leases are good. But if A make a lease to B for so many yeares as A [Page 275] and B, or either of them shall live, not naming any certain number of years; this cannot be a good lease for years. So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there; this is not certain, neither can it be made so by any means. And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson; this is a good lease for six years if he continue Parson so long, and for the residue void for incertainty. So if I make another a lease of land untill he be promoted to a Benefice; this is no good lease for years, but void for incertainty.

If I have a rent-charge of twenty pound per annum, and let it to Co. 6. 35. 14 H. 8. 10. Plow. 274. another untill he have levied an hundred pound; this is a good lease for five years. But if I have a peece of land of the value of twenty pound per annum, and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound; this is no good lease for years but void for incertainty.

But here note in all these cases of incertain leases made with such Note. limitations as aforesaid, as untill such a thing be done, or so long Plow. 27. Co. 6. 35. as such a thing continue &c. that if livery of seisin be made upon them, they may be good leases for life determinable on these contingents, albeit they be no good leases for years.

And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it, for a lease may cease for a time and revive again, as if tenant in tail make a lease for years reserving twenty shillings, and after take a wife and die without issue; in this case as to him in reversion the lease is meerly void, but if he indow the wife of the tenant in tail of the land as to the wife it is revived again. So if tenant in taile make a lease for yeares rendring rent, and die without issue, his wife enceint with a sonne, and he in reversion enter, in this case as against him the lease is void, but after the sonne is born the lease is good again if it be within the Statute. So if tenant in fee simple take a wife, and then make a lease for years and dieth, the wife is indowed; in this case she shall avoid the lease, but after her decease the lease shall be in force again.

If a lease be made for life or years to A, and after the lessor doth 4 In respect of another lease then in being of the same thing. Plow. 433. [...] 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow. 521. Co. 4. 58. make a lease for years by word or in writing to B; regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement, as if the first lease to A be for twenty years, and the second lease to B be for thirty yeares, and both begin at one time; in this case the second lease is good for the last ten years. And yet the reversion will not passe without the atturnment of the tenant, and therefore if any rent be reserved on the first lease, the second lessee shall not have it untill the first lessee doth atturn. But if the second lease be for the same or for a lesse [Page 276] time, as if the first lease be for twenty years, and the second lease be for twenty or for ten years to begin at the same time; these second leases are for the most part void. And yet herein a difference Dier 58. 356 Plow. 421. 422. Co. 1. 155. is taken between leases made by matter of record and by writing, and leases that are made by word of mouth: for if the second lease be made by fine, deed indented, or poll, albeit it be but for the same or for a lesser time, and albeit it be a lease of the land it self, and not of the reversion, yet it will passe the rent reserved upon the first lease if the first lessee atturn, and so also it will do without atturnment where atturnment is not needfull. But if the second lease be made by word of mouth it is otherwise, for a reversion and a rent in this case will not passe without deed, and therefore a grant by word doth not passe them. And if the second lease be by fine or deed indented, then also it will Estoppel. work by way of Estoppel both against the lessor and against the lessee, so that if the first lease happen by any means, as by surrender or otherwise, to determine before it be run out, then the second lessee shall have it; and if there bee any rent reserved upon the second lease, the lessee must pay it from the time of the making of the lease. And therefore if one make a lease of Dier 112. Plow. 432. land to A for ten years, and after make a lease to B of the same land from Michaelmas next for ten years, and before Michaelmas the first lessee doth purchase the fee simple, so that now by this means his term is drowned; in this case the second lease shall begin at Michaelmas. So if one make a lease to A for twenty years, and A make a lease of the land to B for two years rendring Co. 4. 53. rent, and after A makes a lease for the rest of his time to C by deed; this lease if the lessee for two years doe atturn, is a good lease of the rent and reversion; and so it is also without Atturnment, if there be any consideration given for it, for then it is also a good lease for all the rest of the term after the two years. So if one make a lease to A for twenty years, if he Co. 1. 155. Plow. 432. 434. Hil. 6 Jac. Adjudge Finch versus Vaughan. live so long rendring rent, and after he doth make a lease to B by Indenture for eighty years to begin presently, or grant the reversion to beginne at a day past, or the like; in all these cases if the first lessee atturne the rent will passe, but if not it will be a good lease for the land for so many of the yeares as shall bee to come after the first lease ended. But if the second lease bee by paroll without a deed, the reversion as a reversion will not passe, and the grant will bee void if there bee nothing else to help it. And in cases where the second Dier 112. lease is void, albeit the first lessee surrender his estate, or his estate end by a condition; yet the second lease is not hereby made good. But if the second lease for yeares after another Co. 2. 35, 36. lease for life or years be made for mony, so as it may be said to passe [Page 277] by way of bargain and sale; this may help the matter, for in this case albeit it be by word onely, it may passe the reversion and the rent also: but in most cases it is good for the remainder of the term after the first lease ended. And if the second lease be to begin after the end of the former lease; in this case the former lease is no impediment at all to the validity of the latter lease, but the latter lease is good notwithstanding.

Any person whatsoever of full age that hath any estate of inheritance Stat. 32 H. 8. cap. 28. Co. super Lit. 44. in fee taile in his owne right of any lands, tenements, or 5. What Leases or other acts may be made or done by a tenant in tail. And what leases made by such a tenant shall be good to binde the issue, or him in remainder, or others after the death of the tenant in tail. And how they shall bind. hereditaments, may at this day without fine or recovery make leases of such lands for lives or years, and such leases shall be good so as these conditions and incidents following be therein observed and kept.

1. Such leases must be by deed indented, and not by deed poll or by paroll.

2. They must be made to begin from the day of the making thereof, Co. 5, 6. Dier 246. or from the making therof. And therfore a lease made to begin from Michaelmas which shall be three years after for twenty one years, or a lease made to begin after the death of the tenant in tail for twenty one years is not good. But if a lease be made for twenty years to begin at Michaelmas next; it seems this is a good lease.

3. If there be an old lease in beeing of the land, the same must Co. 5. 2. be surrendred, or expired and ended within a year of the time of the making of the new lease; and this surrender must be absolute and not conditionall, also it must be reall, and not illusory, or in shew onely. For factum non dicitur quod non perseverat.

4. There must not be a double or concurrent lease in being at Co. 5. [...]. one time, as if a lease for years bee made according to the statute; he in the reversion cannot afterwards expulse the lessee and make a lease for life or lives, or another lease for years according to the Statute, nor è converso. But if a lease for years be made to one, and Sparks case Trin. 4 Jac. B. R. afterwards a lease for life is made to another, and a letter of Atturney is made to give livery of seisin upon the lease for life, and before the livery made the first lease is surrendred; in this case the second lease is good.

5. These leases must not exceed three lives, or twenty one years Co. 5, 6. Dier 246. from the time of the making of them. And therefore if tenant in tail make a lease for twenty two or for forty years, or for four lives; this lease is void, and that not only for the overplus of time more then three lives or twenty one yeares, but for that time of three lives or twenty one years also. And it hath been resolved, that if tenant in tail make a lease for ninety nine years determinable upon three lives; that this is not a good lease. But if a lease be made Co. 1. by a tenant in tail for a lesser time, as for two lives, or for twenty years, this is a good lease. And if a lease be made for four lives, and [Page 278] it happen that one of the lives die before the tenant in tail die; yet this accident will not make the lease good, but it remains voidable notwithstanding.

6. These leases must be of lands, tenements, or hereditaments manurable Co. 5. 3. or corporall, which are necessary to be letten, and whereout a rent by law may be issuing and reserved. And therefore if a tenant in tail make a lease of such a thing as doth lie in grant, as an Advowson, Fair, Market, Franchise, or the like, out of which a rent cannot bee reserved, especially if it be a lease for life; this lease is Tallentines case, Pasch. 3 Jac. B. R. Co. 11. 60. void, and that albeit the thing have been anciently and accustomably letten. And a grant of a rent-charge therefore out of such lands is void. Trin. 2 Ja. B. R. Adjudg Doddingtons case. And if tenant in tail make a lease for three lives of a portion of tithes rendring rent; this lease is unquestionably void. And so also it seems it is if it be a lease for twenty one years.

7. They must be of such lands, or tenements, which have been most commonly letten to farm, or occupied by the Farmors therof by the Co. 6. 37. Dier 271. space of twenty years next before the lease made, so as if it have been letten for eleven years at one or severall times within twenty years before the new lease made it is sufficient. And albeit the letting have been by copy of Court roll only, yet such a letting in fee. for life, or years, is a sufficient letting, and so also is a letting at will by the Common Law. But these lettings to farm must be made by such as are seised of an estate of inheritance, for if it have been only by Guardian in Chivalry, tenant by the curtesie, in dower, or the like; this will not serve to be a letting within the intent of the statute.

8. There must be reserved upon such leases yearely during the Co. 5. 8. 6. 6. 37. same leases due and payable to the lessor and his heirs to whom the reversion shall appertain so much yearly farm or rent, or more as hath beene most accustomably yeelded or paid for the lands &c. within twenty years next before such lease made. And therefore if the rent be reserved but for part of the time of the new lease, this lease is void. And if the tenant in taile have twenty acres of land that have been accustomably letten, and hee make a lease of these twenty acres, and of one acre more which hath not been accustomably letten, reserving the usuall yearly rent, and so much more as to exceed the value of the other acre; this is not a good lease by the Statute. So if the tenant in tail of two farms, the one at twenty pound rent, the other at ten pound rent, and he make a lease of both these farms together, at thirty pound rent; this is not a good lease within the Statute. But if besides the Co. 6. 37, 38. Trin. 3 Jac. B. R. Adjudg annuall rent there have beene formerly reserved things not annuall, as hariots, fines, or other profit upon the death of the Farmors, or profit out of anothers soil, as pasturage for a colt &c. Adjudg Tr. 18 Jac. B. R. if upon the new lease the yearly rent be reserved, albeit these collaterall [Page 279] reservations be omitted, yet these leases are good. And so Co. 5. 6. also if there be more rent reserved upon the new lease then the rent that hath been anciently paid, the lease is good notwithstanding. And yet if tenant in tail of land let a part of it that hath been accustomably letten, and reserve the rent pro rata, or more then after the rate; this is not a good lease. And yet if two coparcenours Co. 5. 5. And yet Co. super Lit. 44. b. is contra. have twenty acres of land of equall value between them in tail, and these have been usually letten, and they make partition of these land, so as each of them hath ten acres; in this case they may make leases of their severall parts reserving the half of the accustomable rent. And if upon the old lease the rent were payable at foure Trin. 3. Jac. B. R. Co [...] wals case. Co. 5. 5. days in the year, and by the new lease it is reserved to be paid at one day; this is not a good lease. But if the rent upon the old lease be payable in gold, and the new rent be payable in silver; it seems the lease is not good. And if a tenant in tail be of a Manor Co. 5. 6. that hath been usually demised for ten pound rent, and after a tenancy escheat, and then he doth make a lease of the Manor rendring ten pound rent by the year; in this case this is a good lease, but if the lessor purchase a tenancy, then it seems otherwise.

9. Such leases must not be without impeachment of wast. And therefore if tenant in tail make a lease of his land intailed without impeachment of wast; this lease is void. And if a lease be Wast. Co. 6. 37. & Meers case Adjudge. made for life, the remainder for life &c. this is not a good lease, for in this case during the remainders, the tenant for life cannot be punished for wast done. But if such a tenant of land make a lease of it to I S for the lives of three others; this is a good lease, albeit it may afterwards become an occupancy.

10. Such leases must not be against any speciall Act of Parliament. Stat. 11 H. 7. 20. Co. 3. 51. And therefore if a woman that is tenant in tail of the gift of her deceased husband or any of his Auncestors whiles she is sole, or after with another husband make any such lease warranted by this Statute; yet this lease is not good.

11. They must have all due ceremonies and circumstances for the perfection of them, as other such like leases have, as livery of seism, and the like, where they are needfull. And then only when Co. 7. 7. 8. 34. Dier 7. 8. The twomans Lawyer [...]73. Plow. 435. leases have these conditions, and are made according to these provisions, are they said to be within this statute of 32 H. 8. and such only as doe binde the tenant in tail himself, and the iss [...]e in tail, for otherwise if it be not warranted by this statute, albeit it will bind the tenant in tail himselfe that made it, yet it will not binde his issue, but as to him it will be void, or voidable at the least [...] for if tenant in tail of land make a lease of it for an hundred yeares without any rent reserved thereupon; this lease as to the issue in tail is void: but if he make a lease of his land for an hundred years Plow. 436 [Page 280] rendring rent, and have issue and die; in this case the lease is onely Acceptance. voidable by the issue at his pleasure, and therefore if the issue accept the rent after the death of the tenant in tail; by this means the lease is affirmed and become good. But howsoever the lease bee made it will not binde him that comes in of a remainder over, nor him that is the donor. And therefore if a tenant in tail make a lease warranted by the statute, and after die without issue, so that the land doth remain over to another, or revert to the donor; in these cases neither he in the remainder, nor the donor shall be bound by this lease, for as to them the lease is void. And yet by a common recovery the tenant in tail may make leases of, or lay charges upon the land to binde the donor and him in remainder also. But otherwise it is of a fine, for if tenant in tail make a lease for years by fine, this will not barre the donor, not the remainder in any case where it is in a stranger. And yet if the remainder be in the tenant in tail himself, and he make a lease for years by deed according to the Statute or by fine; this lease is good and shall bind his own remainder.

The husband may at this day without fine or recovery make leases 6. What leases or other acts may be made or done by the husband with the lands he hath in fee simple, or fee tail in the right of his wife, or joyntly with her. And what leases made by him of such lands are good. Or not. And how. Stat. 32. H. 8. cap. 28. Co. super Litt. 44. of the lands, tenements, or hereditaments, whereof he hath any estate of inheritance in fee simple, or fee tail in the right of his wife, or jointly with his wife made before or after the coverture, so as there be in such leases observed the eleven conditions or limitations before required in the leases made by tenant in tail, and so that the wise doe joyn in the same deed, and be made party thereunto, and doe seal and deliver the same deed her self in person. For if a man and his wife make a letter of Atturney to another to Pasch. 7 Jac. B. R. deliver the lease upon the land; this lease is not a good lease from the wife warranted by the statute. And yet then as in other like cases of leases not warranted by this statute it is a good lease against the husband. And when the lease is such a lease as is warranted by the statute, it doth bind the husband and wife both, and the heirs of the wife; but if it be an estate tail, it doth not bind the donor nor him in remainder.

If the husband and wife at the Common Law had joyned in a 26 H. 8. 2. lease of her land without rendring of rent; this lease had been void as against the wife, and so is the law still.

If the husband at the Common Law had been seised of land in 26 H. 82. Co. 2. 77. the right of his wife, and hee had made a lease for yeares rendring rent and died; this lease had been void, and so is the law still.

If the husband and wife at the Common law had made a lease Dier 92. by word rendring rent; this lease had been void as against the wife; and so is the law still.

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The husband and wife together may by fine, or recovery, make Stat. 32 H. 8. ch. 28. See the womans lawyer 163. what leases they will of her land, or charge it for what time they will; and such leases and charges will be good against the husband and wife both and their heires also. But if the husband alone doe levie any fine of his wives land, and thereby make any estate whatsoever; this will not bind the wife after her husbands death but she may avoid it. And if the husband and wife make a lease of her land rendring rent to them and the heires of the wife (as in such leases it ought to be;) in this case the husband cannot by fine or otherwise grant or discharge this rent longer then during coverture unlesse the wife join in the fine, but the rent shall descend, remaine or revert in such sort and manner as the land should have done.

Bishops with the confirmation of the Deane and Chapter, Parsons Co. super Lit. 44. Co. 5. 14. 11. 66. or Vicars with the consent of their Patrons and Ordinaries, 7. What leases or other acts Bishops or other spirituall or ecclesiasticall persons may make or doe with the lands they have in the right of their churches or houses. And what leases made by such persons will bind their successours and others, Or not. Archdeacons, Prebends, and such as are in the nature of Prebends, as Precentors, Chaunters, Treasurers, Chancellors, and such like, also Masters and governours and Fellowes of any Colledges or houses, (by what name soever called) Deanes and Chapters, Masters or Gardians of any Hospitall and their brethren, or any other body politique, spirituall and ecclesiasticall (Concurrentibus hiis quae in jure requiruntur) might by the ancient common law have made leases for lives or yeares, or any other estates of their spirituall or ecclesiasticall living for any time without stint or limitation. And at this day the Bishops, and the rest of the said Spirituall Stat. 32 H. 8. ch. 28. 13 El. ch. 10 1 Jac. chap. 3. 1 El. ch. 19. 14 El ch. 11. 18 El. ch. 10. 20. persons, except Parsons and Vicars, may make leases of their spirituall livings for three lives, or twenty one years, and such leases will be good both against themselves and their successors. But such persons may not make leases or estates for any longer time then for three lives or twenty one years, and if they doe albeit it be by fine or recovery, or it be confirmed by the Dean and Chapter &c. yet it is void as against the successor. Neither will the leases made by such persons for three lives or twenty one years be good, unlesse they have certain conditions and properties required in them. These things therefore are necessarily required to be observed in the making of such leases: 1. That they have the effect of all the qualities or properties before mentioned and required by the Statute of 32 H. 8. Co. super Litt. 44. Co. 11. 66. 5. 3. 15. in the lease made by the tenant in tail, and be made after that pattern, viz. That they be by deed indented. 2. That they do begin from the time of the making of them. 3. & 4. That the old lease be surrendred, and there be not a concurrent lease (save in case of a Bishop). And therfore if any such person make a lease for 21 years to one, & then make a lease for three lives to another; this second lease is void. And yet if a Bishop make a lease for 21 years to one man, & then within a year after make another lease to another for [Page 282] 21 years to begin from the making of it, this so as it be confirmed by Dean & Chapter is resolved to be a good lease. 5. That they doe not exceed three lives or twenty one yeares, but they may be for a lesse time. 6. That they be of lands or tenements manurable or corporall. 7. That they be made of lands that have been commonly let to farm by the space of 20 years before. 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time. 9. That they be not made without impeachment of wast. 10. That there be livery of seisin upon them &c. where it is requisite. 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease, and it be made by a Bishop or any sole Corporation, it must be confirmed by the Deanes and Chapters or others that have interest. And if a Parson or Vicar make a lease, it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all. 12. Some of the leases that are made by the Colledges and houses of the University &c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them. Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just. Whitlock at Lent Assises at Gloc. 6 Car. But Bishops, Deanes, Parsons and such like spirituall persons cannot grant the next advowsons of Churches, neither can they grant rents out of their spirituall livings but the same charges will be void after their death. And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession, or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered; this will not bind the successor. And yet a Bishop, or any such spirituall person may grant ancient offices of trust of necessity or conveniency, as the offices of Chancellor, Register, Steward, Bailife, or the like, with the ancient fees incident thereunto for the life or lives of the grantees, and such grants are good, albeit they be made by the Bishops of the new erected Bishopricks, and that there be not in them the conditions and properties required in the leases before mentioned, so as they be confirmed by the Deane and Chapter. But they may not grant any new office nor yet adde any new fee to the old offices. And therefore if a Bishop grant an annuity pro consilio impenso & impendendo where none was before; this will not bind the successor. And yet if there be an old fee, and there is a new fee added to it; in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted. And therefore where the ancient grants of the office have been to one; it cannot be now granted to two. And where the ancient grants have been to two jointly, they may not be now granted in remainder one after another. Neither may the grants of these offices be longer then for [Page 283] the life or lives of the grantees. And in case where the grant is void, the confirmation of the Deane and Chapter will not make it good.

But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note. shall be void, yet this is to be understood as against the successors and not against the lessors themselves, for the leases are good so long as the lessors live, or at least so long as they continue in the place. And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate; it is good as against the Deane or other head of the Corporation, so long as he doth continue in his place. And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter, Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors. So as if a private Act of Parliament doth entaile land upon a man, and appoint him what estates he shall make, and that if he make any other estates they shall be void; in this case they shall not be void as to the tenant in taile himselfe that doth make them.

Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident.

Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20.

If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will. Or not. Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth, or him that taketh, or both (for so in effect is every lease at will;) this is a good lease at will. So if one make a feoffment in fee, or lease for life, &c. and doe not make livery of seisin and so perfect the estate; the feoffee or lessee hath only an estate at will. But if a bargaine and sale be made of land, and the same is void, or a Corporation grant land, and the grant is void; by this there is no lease at will made.

Leases for lives or yeares are of three natures, some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes. Or not, but voidable by entry &c. And how. Co. super Lit. 45. 3. 59. 65. 7, 8. law, some be voidable by entry, and some void without entry. And of such as be good in law, some be good at the common law, as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares; some by act of Parliament, as leases made by tenant in taile, leases made by a Bishop seised in fee in the right of his Church alone without the Chapter, leases made by a man seised in fee simple or fee taile of land, in the right of his wife together with his wife, for twenty one yeares, or three lives according to the Statutes. And of such leases as be void also, some are void at the common law, and that sometimes in presenti, as in the cases before of leases for yeares that have no certainty in them, or leases for lives made without livery of [Page 284] seisin, and the like. And some are void in futuro, as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute, and after die without issue; this lease is void as to him in reversion or remainder: Cessante statu primitivo cessat derivativus. So if a Prebend, Parson, or Vicar make a lease for yeares not warranted by the Statutes; this is void by the death of the lessor, and the successor need not make any entry or claime to avoid it. So if a tenant for life make a lease for yeares and after die; in this case the lease for yeares is void. And therefore in all these and such like cases no acceptance of rent after will affirme such leases. But Acceptance. otherwise it is in cases of leases for yeares made by Bishops albeit they be confirmed by Deane and Chapter; and of leases made by Deanes and Chapters, or tenants in taile as to their successors and issues when the leases are not warranted by the Statutes: And otherwise it is also in the case of leases for life made by these or any of the former lessors, for in all cases of leases for life it must be avoided by entry &c. and therefore such leases are not void but voidable. viz. The leases of Bishops and Deanes after their death by their successors and that by the Statute law, and the leases of tenants in taile by their issues after their death, and that by the common law. And in these and such like cases the acceptance of the Acceptance. rent by the issue or successor will make good the lease at least for their time.

If a lease be made for yeares on condition that upon such a contingent Co. 3. 65. it shall be void; in this case so soone as the thing doth happen the lease is void ipso facto without any reentry &c. But if a lease for life be made on such a condition; in this case the lessor must enter &c, before the lease will be void.

CHAP. XV. Of a Feoffment, Gift, Grant, and Lease.

A Feoffment, Grant or Lease in writing may become void by 1. Where and bv what meanes a feoffment, gift, grant or lease and the estate thereby made being good at first becometh void by matter ex post facto, and may be avoided. Or not. And how. rasure, interlining, and the like, as hath been shewed before in Deed, supra. And a feoffment, grant, or lease and the estate thereby made may become void by forfeiture, or upon a breach of a condition, or by a limitation. For which See Condition and Vses. Also Co. 3. 26, 27. 5. 119. Doct. & Stud. 119. Perk. Sect. 44. 45. Fitz. Done 4, 5. Bro. Done 29. 30. 59. they may become void by disagreement or refusall: And this may be either by the disagreement of the party himselfe to whom it is made, or by the disagreement of another: Of the party himselfe, for no estate can be made to a man of any thing in see simple, for [Page 285] life, or otherwise against his will: And therefore by his disagreement or refusall of it the estate it selfe and the deed whereby it is conveyed may become void. By the disagreement of another, as the husband in case of a feoffment &c. made to his wife may by disagreement avoid it. And for the first of these the law is thus, That all such acts that give estates directly or by way of use are good at first, and the thing granted when the deed of grant is delivered to his use shall vest in the grantee before he hath notice of the grant or agree to accept of the thing granted, so that if lands be limited to a man by way of use, or granted immediately by feoffment, gift, grant, or lease, or goods or chattels be given or granted to a man; in these cases the things granted shall be said to be in the grantee and the grant good before notice and agreement untill disagreement. And before agreement the grantee may waive it, and so avoid the estate and the deed also whereby the estate is made. And if it be but a lease for yeares that is made; he may waive and avoid that by word of mouth in the country as well as a gift of goods, or an obligation delivered to his use. But if it be an estate of free hold that is made by feoffment it seemes he cannot waive and avoid that but in a Court of Record.

When the cause of a grant faileth and the thing granted is executory, Co. super Lit. 204. Plow. 134. 15 E. 4. 4. Dier 76. 9 E. 4. 20. the grant is become void. As if one grant an annuity for an acre of land, for tithes, or for counsell; in this case pro is conditionall, and therefore if the land be evicted by an elder title, or the grantee disturbed in the tithes, or he refuse to give counsell, the annuity is determined. But if a feoffment, or lease for life or yeares be made of an acre of land pro una acra &c. as in the case before; albeit the acre be evicted &c. yet the grant in this case of the acre of land is good. And if one grant an annuity for counsell, if the grantee will not give counsell, the grant is not of force. So if one grant to make new pales in a place for the old pales; if in this case he cannot have the old pales it seemes the grant shall not bind him to make new pales. So if one grant a rent for a way; stop the way and the rent shall be stopped.

If one that hath a lease for life or yeares of a Manor to which an advowson is appendant grant the next avoidance that shall happen Co. 8. 144, 145. during the lease, or grant a rent out of the Manor, and then surrender the Manor so that his estate is gone, in this case notwithstanding the grant of the next avoidance, and of the rent doth continue good, and the grantee shall enjoy it according to the grant as long as the estate that is surrendred should have had continuance.

If the heire of the Kings tenant enter and make a lease before livery sued, and after an intrusion is found against him; by this it seems the lease is avoided. So if tenant in taile make a lease warranted by the Statute, and after dieth without issue; by this the lease H. 7. is determined.

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If a tenant in taile make a feoffment to his heire within age, and Co. super Lit. 349. he after he is of full age make a lease for yeares of the land, and after the tenant in taile dieth and the heire is remitted; the lease in this case is not avoided.

If an annuity be granted to one untill he be advanced to a benefice Plow. 272. 15 H. 7. 1. by the grantor, and the grantor die, and the heire or executor of the grant or tender a benefice; it seemes this will not determine the grant.

If A be lessee for yeares of an advowson, and grant the next avoidance Co. 8. 145, 7. 39. to B if it shall happen to become void during the terme, and A doth surrender the terme to C who hath the inheritance, and the Church become void before the end of the terme; in this case the grant is good to B and he shall have the next avoidance, for a man cannot derogate from his owne grant. So if A be lessee for years, and he grant a rent charge to a stranger, and after surrender his terme to the lessor; in this case albeit the terme be extinct yet the rent doth continue and the stranger shall have it duing the terme. So if A have a rent charge out of the land of B and acknowledge a Statute to C and then release the rent to B; in this case albeit the rent be gone as to A and B, yet it is in esse as to the conusee and he may extend it.

If a man be seised of a great wood and grant to I S six hundred Co. 5. 24. coards of wood out of the same wood to be taken by the assignement of A; in this case if A will not upon request assigne where the wood shall be taken, yet the deed will not lose his effect, but I S may take it without assignment.

If A be lessee for life on condition to have see, and he make a Co. 7. 14. lease to B for yeares and after he performe the condition and so his estate for life is turned into a fee simple; in this case the lease for years is good still notwithstanding: but otherwise it is in case of the King.

If A tenant in taile enfeoffe B on condition to the use of A in Co. 1. 147. 148. 11 H. 7. 21. fee, and A had granted a rent charge or acknowledged a Statute, which by the Statute of 1 R. 3. cap. 5. was extended, and after A had performed the condition; in this case albeit the estate had been changed yet the interest of the grantee or conusee had continued.

If A be tenant for life, the remainder to B in taile, the remainder 5 E. 4. 2. Pethouse & Cranes case. Mic. 36. 37 El. Co. B. to A in fee, and A doth grant a rent charge or acknowledge a Statute and die; in this case and hereby the grant is not become void, but if B die without issue the heire of A shall be charged.

If a corody be granted for a service to be done, the omission of Davis Rep. 1. the service doth determine the corody.

If one grant lands with his daughter in frank mariage, or goods 20 E. 4. ult. Dier 13. 126. with his daughter in mariage, and after the mariage is dissolved and [Page 287] they are divorced; in this case the grant is now become of no force: Cessante causa cessat effectus.

If one man grant to another an office of charge only to which there is no benefit or fee incident; in this case he may avoid and 2. Where a man may avoid his own grant. Or not. And when. Bro. Grant 103. determine his owne grant at his pleasure without any cause given. But if there be any fee or profit incident to the office then he may not avoid the grant of it or put out the officer without some cause of forfeiture: and if he doe the grantee may have an assise. And yet in this case also he may put him out of the office albeit he may not deprive him of the fee or profit incident thereunto.

If one grant a Ward to another to mary, or for his service; it Bro. Grant. seemes he may not afterwards avoid this grant. But if one grant him to another for instruction or education, contra.

If one make a lease for years of his land rendring rent, and after grant the rent to I S and the termor atturne, and after the lessor Bro. Grant 128. accept of a surrender of the estate of the termor; yet this doth not avoid the grant of the rent but the same shall continue still.

If a disseisor grant a rent, common, or other profit apprender out of the land, and after the disseisee doth enter and enfeoffe him Lit. Sect. 477. of the land; in this case the rent is avoided and the common is gone. But if the disseisee release to the disseisor; in this case he shall not avoid his owne grant.

An Infant, and other disabled may impeach and avoid their own grants in divers cases, which see before in Grant.

A deed of feoffment &c. in some cases is holpen, and a fault 3. Where and by what meanes a feoffment, gift, grant, or lease or the estate thereby made being void or voidable at the first may become good by matter ex post facto. Or not. therein cured by the making of livery of seisin. For which see Feoffment and Lease. But an atturnment will not help the grant of a reversion &c. for it is a maxime in law, That atturnment cannot make a void grant good.

If a tenant in taile make a lease for life or years of land and this lease is voidable, and after the tenant in taile doth suffer a common Co. 1. Capels case. Dier 373. Co. 1. 48. 76. recovery of the land to whomsoever it be; by this the lease is affirmed & made good during the terme as wel against the issues & heirs by the entaile as against him in reversion or remainder: And so it is of a charge of a rent upon the land. And if tenant in taile make a lease of the land or charge it, and after levy a fine of the land to a stranger, by this the lease or charge is become good against the issue in taile also.

If a tenant in taile make a lease for forty yeares rendring rent So held in the Exchequer Hil. 16. Jae. and die, and his issue doth lease to another by indenture for twenty one yeares rendring rent to begin after the expiration, forfeiture or surrender of the first lease; it is said this doth affirme the first lease. Sod quere.

Acceptance of rent reserved on a lease for life or yeares which is voidable only and not void, may make the lease good.

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A feoffment, gift, &c. that is made by duresse or manasse, and Bro. Defeasance. 17. therefore voidable may by another deed of defeasance afterwards made between the same parties become good.

Also grants, leases, and the estates thereby made that are not good may be made good and perfected by release or confirmation. For which see Release and Confirmation.

A feoffment may be good against some persons and void against Co. super Lit. 46. 7. 8 others, but cannot cease and revive and be good and void at severall 4. Where & when a feoffment, gift, grant or lease may begood for one time and void for another, and good against one person but void against another, and good in part and void in part. Or not. times, as a lease for years, or a grant of rent &c. may in many cases, for a grant may be suspended, and a lease for yeares may cease and revive againe, as if tenant in taile make a lease for yeares rendring twenty shillings rent, and after taketh a wife and dieth without issue, and he in reversion or remainder endoweth his wife (as he may;) in this case the lease as against the woman is revived albeit it be void as to him in reversion or remainder. So if tenant in taile make a lease for yeares and die without issue his wife enceint with a sonne, and he in reversion enter, and after the sonne (being heire to the entaile) is borne; in this case the lease which was before avoided by him in reversion if it be such a lease as is warranted by the Statute is good against the issue in taile, and therefore is revived againe. So if the King make a gift in taile to W to hold by Knights service, and W doth make a lease to A for thirty yeares reserving rent, and then W dieth his sonne and heire of full age; in this case as to the King this lease is void, but after livery sued out the lessee may enter againe, and if the issue accept the rent the lease is affirmed. So if tenant in taile make a lease not warranted by the Statute and die, and his heire is in ward; in this case the Gardian in the behalfe of the heire may avoid the lease during the wardship, but afterwards the heire may affirme it againe if he accept of the rent. So if tenant in see simple take a wife, and then make a lease for years and dieth, and the wife is endowed, she shall avoid the lease for her estate, but after her death the lease will be in force againe. But if the Patron grant the next avoidance, and after the Parson, Patron and Ordinary before the Statutes had made a lease of the Glebe for years, and after the Parson had died, and the grantee of the next avoidance had presented a Clerke to the Church who had been admitted, instituted and inducted, and had died within the terme, and the Patron had presented a new Clerke to the Church who had been admitted, instituted and inducted; in this case the lease had not revived againe. No more then if a feme covert levy a fine alone, and the husband doth enter and avoid the fine, the estate shall revive against the wife after his death, for it is avoided as to her also as well as to the husband by his entry. See more in Deed supra cap. 4. Numb. 7.

Where a feoffment, gift, grant, or lease is voidable, in some [Page 289] cases it may be avoided by the party himselfe that made it and not 5. Who may avoid a feoffment, gift, grant or lease, that is voidable. Or not. And how. Co. super Lit. 45. Co. 7. 8. Dier 337. 239. by others albeit they be privies as heires, executors, or administrators, and in some cases it is voidable by others and not by the party himselfe, and in some cases it is voidable by the party himselfe and by others. And in some cases it is avoidable only at some times, and in some cases it is avoidable at all times: as for examples, an Infant if he grant by fine must avoid it during his minority if he live to be of full age, otherwise he himselfe or any other shall never Infant. avoid it. But if he grant by deed, this may be avoided at any time by himselfe, his heires, executors, or administrators, or his Gardian in his right as the case is. But a Lord by escheate cannot avoid a voidable estate made by his tenant being an Infant, And if a woman Woman covert. covert doe any such act by deed; it may be avoided by her husband during the coverture, or her selfe after the coverture, or her heires &c. that are privies after her death. And if a man de non sane De nonsane memorie. Co. super Lit. 7. 8. memorie doe any such act it may not be avoided by himselfe that is the party denying it, but it may be avoided by his heires &c. that are privies. And if tenant in taile make a voidable lease not warranted by the Statute; he may not avoid it himselfe, but his issue Tenant in tail. may. And if he be in ward by reason of a tenure in Capite or Knight service, the gardian of the issue during his time may avoid it. And if a Corporation spirituall sole or aggregate make leases not warranted Corporations. by the Statutes, they may not avoid it themselves, but their successors after their death, translation, or other remotion may avoid it; or if a Bishop make such a voidable lease, the King when the Bishoprick doth come into his hands may avoid it.

And now we passe to another sort of Assurances that are for some speciall purposes and in some speciall cases only wherein we shall first begin with an Exchange.

CHAP. XVI. Of an Exchange.

AN Exchange is the mutuall grant of equall interests the one in 1. Exchange or Eschange. Quid. exchange for the other. Or it is, where a man is seised or possessed Terms of the law tit. Exchange Finches ley 27. of land in fee simple, fee taile, for life, or yeares, or is possessed of goods, and another is seised or possessed of other lands or possessed of other goods in the like manner, and they doe exchange their lands or goods the one for the other. And in this there is a doble grant, for each of them doth grant that which is his to the other.

This manner of conveyance (which heretofore was very frequent) is sometimes made by word without any writing: and sometimes * Co. super Lit. 50. Perk. Sect. 253. it is made by deed or in writing: and which way soever it be made it must be made by this word Exchange, which is a word so appropriated [Page 290] to this thing as the word Frankmariage is to a gift in Frankmariage, neither of which can be made or described by any circumlocution.

The fruit and effect of an exchange is, that it doth give the interest Co. 4. 121. 15 E. 4. 3. 9 E. 4. 21. Bro. Eschange in toto. Fitz. Eschange in toto. and after the property of the things exchanged to either party 2. The effect and fruit of it. according to the agreement. And if the exchange be of lands or tenements of any estate of Inheritance or freehold whether it be by word or deed, it hath a condition and a warranty in law incident and annexed to it as a thing made by the word Exchange and tacite implied in every grant of exchange: A condition, to give a reentry upon all the land given in exchange if he be put out of all or part Condition. of the land taken in exchange, and a warranty, to enable him to vouch and to recover over in value so much of his own land againe Warranty. given in exchange as shall be recovered from him of the land taken in exchange if he be sued for it: So that upon every exchange either party if he be put out of or lose by action the land he taketh in exchange hath a double remedy against the other, and yet this remedy doth goe only in the privity and shall not goe to an assignee: As if Assignee. A exchange land with B and B be put out of all or part of the land upon a title paramount by a recovery in a reall action or otherwise, in this case B may either enter upon his owne land againe which he gave in exchange, or else if it be in an action brought he may vouch A upon the warranty in law, and shall recover as much in value against him of the land he gave as he hath lost of the land he tooke in exchange. But if B alien his land taken in exchange to C and C be put out of all or part of the land upon a title paramount, C in this case can neither enter upon the land given to A in exchange upon the condition in law, nor vouch A to warranty and recover over in value upon the warranty in law. And yet A in this case shall have the like remedy against C the alienee upon the condition and warranty both as he had against B. But if A himselfe implead C for the land he gave to B in exchange, C may make use of this warranty in law by way of Rebutter against A. And in all these cases where one of the parties is put out of all or part of the Rebutter. land or out of part of the estate by entry, and the other party enter upon the others land upon the condition in law, he may enter upon the whole land and avoid the whole exchange: but if he be impleaded for a part only or for the whole, and a part only be recovered from him; in this case he shall recover so much in value of the other land only as he hath lost and no more: As if an exchange be of three acres for three acres, and after one of the parties is put out of one of the acres by the entry of a stranger; in this case he may enter upon the whole three acres he had given in exchange and so avoid the whole exchange if he will. And if A and B be Jointenants for life and the fee simple to the heires of A and A exchange this land with C in fee, and then die, and B enter and [Page 291] avoid the exchange for his life (as he may) in this case C may avoid the whole exchange and enter upon his owne three acres againe. So if he in reversion disseise his tenant for life, and then exchange the land, and after the tenant for life enter; in this case the other party may defeate the whole exchange. But in this case of an exchange of three acres for three acres, if one of the acres were gained by disseisin, and the disseisee bring an action and doth recover it against the disseisor, in this case if he vouch over the other party to the exchange, he shall recover so much in value only of the three acres he gave in exchange as the acre he hath lost and no more.

To the perfection of an exchange and to make things to passe 3. How an exchange must be made. And what shall be said a good excha [...]ge Or not. See Grant Numb. 4. by this kind of conveyance these things are requisite. 1. That the persons or parties thereunto be able to give and take, and not disabled by any speciall impediment. And for this it must be known that such persons as may be grantors and grantees may make exchanges, and such persons as are disabled to grant are disabled to 1. In respect of the parties therunto and their estates. make exchanges.

An exchange made between the King and a subject is good albeit Co. super Lit. 51. the King hold his land in one capacity and the subject in another.

An exchange made between an Infant and another is not void Infant. Idem. but voidable only, for the Infant at his full age may affirme or avoid it at his election.

An exchange made between a tenant in taile and another is not Tenant in tail Bro. Eschange 9. Perk. Sect. 279. void but voidable, for it is good against himselfe during his life, and his issue at his full age may affirme or avoid it at his election.

An exchange made between a man de non sane memorie and another Bro. Eschange 9. De non sane memorie. is not void but voidable, for it is good against him, but his heir may avoid or affirme it at his election.

A man that doth hold land in fee simple, fee taile, or for life in Bro. idem. Perk. Sect. 279. the right of his wife, may exchange this land, and the exchange will Husband in right of his wife. be good as long as he and his wife doth live. And he with his wife may exchange it for longer time and the exchange is good against him, but his wife after his death may affirme or avoid it if she will.

One Parson or Vicar may exchange his Church or Benefice with Parson. Perk. Sect. 288. another, and this exchange is good.

The disseisor and disseisee may joine together and exchange the Perk. Sect. 280. 273. land whereof the disseisin was made with a stranger for other land: but if it be made out of the land and before the entry of the disseisee it shall not bind the disseisee, for he may avoid it. And a disseisor cannot exchange the land he hath gotten by disseisin with the disseisee for other land, for this exchange is void, unlesse it be by Indenture, or fine, that it may work by way of estoppell.

The lessor and lessee may joine together and exchange the land Surrender. Perk. Sect. 279. leased for other land, and this is good; for it shall be said to be the surrender of the lessee to the lessor, and the exchange of the lessor; and therefore the lessee (as it seemes) shall have nothing to doe [Page 292] with the land taken in exchange. Sed quere of that.

Jointenants for life the fee to one of them may exchange their Iointenants. Terants in common. land with a stranger for other land to hold in the same nature, and Perk. Sect. 277. 281. the exchange is good. But Jointenants, tenants in common, and coparceners cannot exchange the lands they doe so hold one with another before they have made partition.

If A and B be Jointenants for life the fee to A and A exchange Perk. Sect. 277. the whole land with another for other land, this is good only for his moity as some have said: But it seems notwithstanding it is good for the whole untill it be avoided by the other Jointenant.

The second thing required in a good exchange is, that the things Perk. Sect. 263. 261, 262. 266. 258. Lit. Sect. 62. Co. super Lit. 51, 52. 2. In respect of the matter whereof it is made or the nature of the thing exchanged. And of what things and estates an exchange may be made. exchanged be such as whereof an exchange may be made. And for this it must be known that an exchange may be made of things of the same nature, as of a temporall thing for a temporall thing, a spirituall thing for a spirituall, as a house for a house, land for land, a Manor for a Manor, a Church for a Church, rent for rent, common for common, a horse for a horse, one peece of plate for another or the like: or it may be made of things of a divers nature, as of a temporall thing for a spirituall, as of a house for land or rent, a chamber in a house for common, or for a reversion, seigniory, or advowson, of land or rent for a right of land or release of right, of an advowson for land, of a rent for a way, of a horse for a peece of plate, of a gowne for a horse, or the like. And exchanges made of these things albeit the things exchanged doe lie in divers counties are good. Also a seigniory by homage and fealty or the like which is not valuable Perk. Sect. 259, 260. 258. may be exchanged for land, rent, or any other such like thing. So may a seigniory by divine service. But a seigniory in frankalmoigne cannot be exchanged with any but the tenant of the land that doth hold by the tenure. And houses, manors, lands, rents, commons, seigniories, reversions, and the like may be exchanged in fee simple, fee tail, for life, or years. So that an exchange may be of an Inheritance for an Inheritance, of a franktenement for a franktenemant, and of chattells reall for chattells reall.

If one grant white acre in exchange for black acre lying within Perk. Sect. 244. Idem. 263, 3 E. 4. 10. 9 E. 4. 21. 9 E. 4. 21. Perk. Sect. 262. the same or in two counties, this is a good exchange. So if I grant a rent charge issuing out of my land in exchange to I S for an acre of his land &c. this is a good exchange. So if I have a rent issuing out of the land of I S and I grant this to I K in exchange for land or other rent; this exchange is good when the tenant hath atturned to the grant of the rent. So if one have a rent out of my land in fee, & I have the land in fee & I grant the land in exchange for the rent, it seems this is a good exchange. But if one grant me a Manor or land, & I in exchange for the same Manor or land grant unto him a rent de novo issuing out the same land or Mannor, this cannot take effect as an Exchange. So if one release his Estovers that hee hath in Perk. Sect. 266. Fitz. Eschange 16. such a Wood, and deliver the Release in Exchange for land given [Page 293] to him in exchange for the same release; this is a good exchange. Perk. Sect. 271. If there be a disseisor and disseisee, and the disseisee release his right to the disseisor in exchange for other land; this is a good exchange. Idem. 282. So if the disseisor of an acre of land enfeoffe a stranger of the same acre of land, and the feoffee give to the disseisee an acre of land in fee in exchange for a release of all his right in the acre of land of which he was disseised; this is a good exchange. Idem Sect. 271. But if the disseisee grant his right to a stranger that hath nothing in the land in exchange for an acre of land; this exchange is not good, neither shall the stranger take any thing by this grant. Perk. Sect. 260. If there be Lord and tenant by fealty and 12 d. rent, and the Lord exchange the seigniory with the tenant for the tenancy, or è converso, by deed indented; this is held by some to be a good exchange. Perk. Sect. 267. If I have a rent issuing out of the land of I S & I grant or release the same rent to I S in exchange for other land; this is a good exchange. So if I release the same rent unto him in exchange for a way over his ground; this is a good exchange. Perk. Sect. 268, 269. If I be seised of lands to which I S hath a right of action, and I give to him other land for a release of his right; this is a good exchange. And the same law is of an exchange of land and an advowson by deed indented for a release of right in another advowson to an usurper when his Incumbent hath been in possession of the Church six moneths. Perk. Sect. 257. If two Parsons of a Church make an exchange of their benefices by words of exchange, and each of them resigne his benefice into the hands of the Bishop to the same intent, and the Patrons present accordingly and the Presentations are per viam permutationis; this is a good exchange. Perk. Sect. 264, 265. If three acres of land with an advowson appendant be given in exchange by T K to I S for a chamber to be assigned by the said I S at the election of T K and he assigne two chambers, and T K choose and enter upon one, and I S enter upon the land; this exchange is good notwithstanding the incertainty. So if I S give his Manor of A to T K in exchange for his Manor of B or for his Manor of C & he enter upon one of these Manors, and T K enter upon the Manor of A; this exchange is good. Out of all which these things by the way may be observed. 1. That the things exchanged need not to be in esse at the time of Co. super Lit. 50. Perk. Sect. 265. exchange made, for a man may grant a rent de novo out of his land in exchange for a Manor. And yet if I grant to another the Manor of A for the Manor of B which he is to have after his fathers death by descent, it seems this exchange is void. 2. There needs no transmutation of possession, for a release of rent, estovers, or right of land for land is good. 3. The things exchanged need not to be of one nature so as they concerne lands or tenements, for land may be exchanged for rent, common, or any other inheritance which doth concerne lands or tenements, or spirituall for temporall things, as [Page 294] tithes; a tenure by divine service for land or a temporall seigniory. But annuities and such like things which charge the person only and doe not concerne lands or tenements, or goods and chattels, cannot be exchanged for land.

The third thing required in a good exchange is, that it be made Perk. Sect. 244. Co. super Lit. 51, 52. Lit. Sect. 62. Co. 9. 14. Perk Sect. 247, 248, 249, 250. 246. in that manner and order that law doth require: wherein these 3. In respect of the manner of the making of the exchange. And where it shall be good without deed or [...]ot. things are to be known. 1. That if all or part of the things whereof the exchange is made doe lie in severall counties: or if all or part of the things whereof the exchange is be such as lie in grant and not in livery, albeit it be in the same county: in these cases the exchange must be made by deed indented in writing. But where the exchange is of lands, and of lands lying in the same county, albeit it be of any estate of inheritance or free hold, yet it may be by word of mouth without writing. And so also may it be when the things exchanged doe lie in divers counties, when the exchange is made only for a terme of years. And therefore if an exchange be made between I S and T K of lands lying in one and the same county in fee, or for life, it may be by word of mouth: but if all or part of the lands of I S lie in one county, and all or part of the lands of T K doe lie in another county, the exchange must be made by deed indented. If an exchange be made of rent for land, and the land out of which the rent is issuing and the land given in exchange for it doe both lie in one county; this exchange cannot be good without deed. So if an exchange be made of the reversion of an acre of land for three shillings of rent issuing out of another acre of land, and both acres are in one county; this exchange must be made by deed indented or it will not be good. So if an exchange be made of an acre of land and a rent out of another acre for another acre of land and common for three beasts, and all is in one and the same county, this exchange must be by deed indented, or it will not be good. But if I be seised of a Manor to which I have common appendant or appurtenant, and T K is seised of another Manor to which he hath a villaine regardant, and both the Manors are in one county, an exchange may be made of these Manors by word of mouth without writing, and the common and villaine will passe as incidents well enough. And yet if I S hath an office whereunto land doth belong and T K hath rent issuing out of the land of a stranger and all the land is in one county and the office is to be used and occupied in the same county; if these things be exchanged it must be by deed indented. 2. The word [Eschange] or [Exchange] Co. super Lit. 50, 51, Perk. Sect. 252, 253. 9 E. 4. 21. Fitz. Exchange. 13. must be had and used between the parties in the making of the exchange. As I grant to you white acre To have and to hold to you and your heires in exchange for blacke acre. And in consideration hereof you grant to me and my heires blacke acre in exchange for [Page 295] white acre, for this word is so individually requisite as it cannot be supplied by any other word, neither will any averment that it was in exchange helpe in this case. And therefore if A by deed indented give to B an acre of land in fee simple, or for life, and by the same deed B doth give to A another acre of land in the same manner, this cannot enure as an exchange; And therefore if no livery of seisin so as it may take effect by way of Grant, it is utterly void. Livery of seisin. But by this meanes lands may be granted from one to another, for there needs no livery of seisin. So if an exchange be made by words betweene two of lands in one county, and before their entry Indentures are made betweene them of the same lands without words of exchange, and no livery of seisin is made; this shall not passe by way of exchange. And yet it hath been held by some that Permutatio, or some other word of like effect may supply this word exchange. 3. That if any rent, reversion, seigniory, or the like Perk. Sect. 259. 263. 289. 276. be granted by either party, that then the tenant doe atturne to the grant, for that atturnment is requisite in this case. And yet in Atturnment. the case of the grant of land in possession in exchange no livery of seisin is needfull. Neither is it needfull that either party to the exchange come to the thing given to him in exchange by the same Livery of seisin. meane and manner of assurance: for if lessee for life of one acre give another acre to his lessor in taile in exchange for a release from him of that acre, To have and to hold in taile in like manner, this is a good exchange.

An exchange may be made to take effect in futuro as well as in Perk. Sect. 265. presenti, for if an exchange be made betweene me and T K that after the Feast of Easter T K shall have my Manor of Dale in exchange for his Manor of Sale, this is a good exchange.

If an exchange be made in writing of land, and it doth limit and expresse no estate that either party shall have in the thing exchanged, 19 H. 6. 27. Perk. Sect. 275. yet this is a good exchange. But if an estate for life be limited expressely to one, and no expresse estate is limited to the other; this is not a good exchange, as shall be shewed in the next place.

The fourth thing required in a good exchange is equality of Fitz. Exchange 15. Lit. Sect. 64, 65. Co. super Lit. 50, 51. Perk. Sect. 276. estate, viz. that either party have the like kind of estate of the 4 In respect of the quality or equality of the estates or interests exchanged. thing exchanged, so that if one have an estate in fee simple the other have so likewise, and so for other estates. For if the one grant that the other shall have his land in fee simple for the land which he hath of the other in fee taile: or that the one shall have in the one land fee taile, and the other in the other land but for terme of life: or that the one shall have in the one land fee taile generall, and the other in the other land fee taile speciall: or that the one shall have in the one land for life, and the other in the other [Page 296] land but for yeares; these exchanges are void and cannot take effect as exchanges. Perk. Sect. 283. And therefore if the Lord release to his tenant his services in taile in exchange for other lands given to the Lord in exchange in taile also; this exchange is void, for by this release made by the Lord the services are gone for ever. Perk. Sect. 275. Finches ley 27. So if tenant for his owne life exchange with him that is tenant for life of another; this is not a good exchange. (And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares, that this should not be a good exchange.) Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life, To hold to him and the heires of his body engendred; this is a good exchange. Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct; this exchange is good. Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange, and no estate is expressed to the other party; it is said that this exchange is not good, and yet where no estate is expressed the party shall have an estate for his owne life.

But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280, 281. Husband and wife. Tenant in tail. exchange be seised of an equall estate at the time of the exchange made, for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple; this is a good exchange untill it be avoided by the issue or the wife. Idem. Neither is it necessary that both estates be in possession, for one may grant an acre in possession in exchange for an acre in reversion, and this exchange is good. Idem. Neither is it necessary that there be an equality in the value or quantity of the lands exchanged, for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound, or the land of one of the parties be one hundred acres and the land of the other but tenne acres, if the estates given be equall, the exchange is good. Idem. Neither is equality in the quality or manner of the estates requisite. For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires, and a moity to the other and his heires, which is an estate in common: or two men give lands in exchange to A and his heires for lands from A to them two and their heires, albeit the one party hath a joynt estate and the other a sole estate, yet the exchange is good. The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title, this exchange is good till it be avoided.

[Page 297]

The fifth and last thing required in a good exchange is, that there Co. super Lit. 50, 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it. in the life time of the parties, viz. That both the parties to the same exchange do enter into the things taken in exchange, if they be such things as they may enter into, for untill the exchange be executed by entry, or the like, the parties thereunto have no freehold in deed or in law in the things exchanged, albeit the same things do lie in one County: And if either of the parties die before he enter into the lands by him taken in exchange; hereby the whole exchange is become void, if his heir will; but if one of the parties enter, he shall not first begin to avoid the exchange. But if the parties enter at any time during their lives it is sufficient, unlesse the possession be before devested by an elder title, as by entry for a condition broken, entry by a disseisee or his heir, or the like, and not revested again before the entry. As if an exchange be had betweene two of land, and before their entry by force of the exchange they are, or one of them is disseised of the land exchanged, and the disseisor die seised thereof, and then they enter according to the exchange, and put out the heir of the disseisor, this shall not be said to be an execution of the exchange, but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry, and have execution, then he may execute the exchange by entry. And in case where a reversion, rent, or seigniory is granted in exchange, it must be perfected and executed by the atturnment of the tenant in the life time of the parties, otherwise the exchange is not good; but in this case after atturnment is made, it seems the exchange is perfect without any entry or claim.

If two Parsons exchange their Churches, and resigne them into Perk. Sect. 257. the Bishops hands, this is not a perfect exchange untill they be inducted; and therefore if either of them die before they be both inducted, the exchange is void.

Where a deed shall take effect as an exchange, there must be all Perk. Sect. 255, 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case. And yet note that 4. When a deed shall take effect as an exchange. Or not. where one thing is granted for another in the nature of an exchange, and for some of the causes aforesaid, the things cannot passe by way of exchange, there they may passe notwithstanding by way of grant, and the deed may take effect to other purposes, albeit it may not enure and take effect as an exchange. And therefore if two be seised of severall acres of land, and the one of them by deed doth give his acre to the other, and the other his acre to him without any word of exchange, and each of them doth make livery of seisin to the other; in this case albeit the acres will not passe by way of exchange, yet will they passe by way of grant. And in this case if no livery of seisin be made, either of them shall hold the lands granted at will only. And in like manner it is if two [Page 298] agree to exchange land, and after each of them levy a fine or make a feoffment of the land to other; by this the land will passe each to other, but not by way of exchange. So if A and B his wife, and C and D his wife agree to exchange lands, and A and B enter into the land they are to have in exchange, and then they doe make a feoffment of their own land unto C and his father, and not to C and D his wife; this shall not enure as an exchange, and therefore C and D may enter upon their own land again, but the feoffment is good. And if one assign a woman her dower in exchange for land; this shall not take effect as an exchange, but it shall enure to be a good assignment of dower.

If two doe exchange land by deed, and limit no estates, this shall 19 H. 6. 27. Perk. Sect. 275. 5. How an Exchange shall be construed and taken. be taken for estates for life, and the exchange is good; but if an expresse estate be limited to one, and no expresse estate to the other, it is said this is not good, and that construction of law wil not help it.

If an exchange be made between two men of two acres of land Perk. Sect. 251. by deed, and in the Habendum, it is set down that each of them shal have the acres given in exchange with divers other acres not expressed in the premisses, this addition shall be taken as surplusage, and the exchange shall be good for the two acres. See more in Exposition of Deeds.

If after an exchange is made before or after the parties enter, all, Perk. Sect. 286. Co. 4. 122. Perk. Sect. 299. Bro. Exchange 12. 6. Where an Exchange shall be determined, or the nature of it changed by matter ex post facto. And how. And where not. or part of the land given to either party be recovered from him upon an elder title, as by an entry upon a condition broken, alienation in Mortmain, or upon a disseisin, in these cases if that party enter again upon his own land which he gave in exchange (as hee may) hereby the whole exchange is determined. But if after the exchange is perfect, one of the parties doe enter upon the land he doth give in exchange, this doth not make void the exchange, neither may the other party hereupon enter upon the land he doth give in exchange, but he may have an assise, or an action of Trespasse against the other. And yet if an exchange of a common for a way, Perk. Sect. 299. or a rent, or the like, if the one party deny the common, it hath been said the other party may deny the way or the rent. Sed quaere.

If an exchange be made of fee between two of a Manor, whereof Bro. Exchange 8. Perk. Sect. 297. the one half is in tail, and the other half is in fee simple, and the tenant in tail that made the exchange die, and his issue disagree to it, so that the exchange of the tailed land is become void; this doth determine the whole exchange, for when an exchange becometh void in part, it becometh void in all, and untill it be avoided it is good for all. As if one be seised of white acre, and he exchange white acre and black acre (which is none of his) with another for two other acres, this shall continue for a good exchange, and not be avoided untill he that hath right to black acre doth evict him that hath it in exchange.

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If an exchange be made by tenant in tail, and his issue after his Co. 4. 122. Perk. Sect. 296. 294. 290. 298. death waive the possession of all or part of the land taken in exchange, and disagree to the exchange, hereby the whole exchange is determined. So if the wife after the husbands death, the infant at his full age, or the heir of him that is de non sane memorie disagree to the exchange of the husband, the infant, or him that is de non sane memorie; hereby the whole exchange is determined, and no subsequent agreement can make it good again.

If two doe make an exchange by word of mouth, and after before 15 E. 4. 3. either of them enter, they make Indentures of the lands exchanged, and grant the same from one to another; it seems hereby the nature of the exchange is changed, and the exchange determined.

The parties themselves, and all privies and strangers for the most Perk. Sect. 285. Co. 1. 105. Dier 285. Perk. Sect. 290. 294. 298. Co. 1. 98. part may take advantage of such exchanges as are void for the defects 7. Who may take advantage of a void or voidable Exchange. Or not. And when. Infant. before named: But when the exchange is only voidable, contrà. And therefore when an exchange is made by an infant; the infant himself at his full age, or his heir, and none other may avoid it. And when an exchange is made by a tenant in tail, the issue in tail after the death of his auncestor, and none other may Tenant in tail. avoid it. And when an exchange is made by the husband, or husband and wife of the wives land, the wife after the husbands death, Husband and wife. Home de non sane memorie. or heir of the wife after her death, and none other may avoid it. And when an exchange is made by a man of nonsane memorie, his heir after his death and none other may avoid it. But in all these cases of infant, tenant in tail, woman covert, and a man de nonsane memorie, and where lands are recovered by an elder title, the other party may not enter and avoid the exchange untill the infant, issue in tail, woman, or heir of him that is de nonsane memorie, or him that doth lose the land by an elder title, doth first enter.

If an infant exchange lands, and after at his full age occupy the 8. Where an Exchange voidable at first doth become good by matter ex post facto. Or not. lands taken in exchange for his own lands; hereby the exchange is Co. super Lit. 51. 12 H. 4. 11. Perk. Sect. 290. 294. Fitz Eschange 13. Perk. Sect. 291. 279. 293. 298. made good. So if tenant in tail exchange his intailed lands with another, and after his death the issue occupy the lands taken in exchange by his auncestor; hereby the exchange is made good for the life of the issue in tail. So if the husband and wife exchange the lands of the wife for other land, and she after her husbands death Tenant in tail, Husband and wife. agree to it, and enter into and agree to the lands taken in exchange; hereby the exchange is made good: but if the husband alone make an exchange of his wives land, and she after his death agree to this, and enter into the land; it seems this will not make the exchange good. And if a man seised of land in right of his wife in fee thereof infeoff a stranger, and take an estate back again to him and his wife, and a third person in fee, and they three join in exchange of the same land in fee for other lands to a stranger in fee, and the exchange is executed, and the husband dieth, and she doth occupy [Page 300] the land taken in exchange with the other third person; hereby the exchange is made good. If a man de nonsane memorie make an exchange, and his heir after his death enter into the land taken by his auncestor in exchange, and agree to the exchange; hereby the exchange is made good. And in all these cases when the exchange is once by agreement made good, it can never by any subsequent disagreement be afterwards made void.

And now from hence we come to a Surrender, a speciall way or means for the giving or transferring of something to another, that hath already some interest into the same thing.

CHAP. XVII. Of a Surrender.

A Surrender properly taken is the yeelding or delivering up of Co. super Lit. 337. 1. Surrender, Quid. lands or tenements and the estate a man hath therein unto another that hath a higher and greater estate in the same lands or tenements. But it is sometimes improperly applied to other things. He that doth surrender is called the surrendror, and he to whom it Surrendror. Surrendree. is made is called the surrendree.

And there be three kinds of surrender, viz. A surrender properly 2. Quotuplex. Co. super Lit. 337, 338 Co. 6. 69. Plow. 106, 107. West Symb. 1. part. lib. 2. chap. 460. taken at the Common law. 2. A surrender by custome of lands holden by custome or of customary estates, whereof we speak not here. 3. A surrender improperly taken, as of a deed, or grant of a rent-charge, of a patent, and of lands in fee simple to the King. The surrender properly taken is of two sorts: 1. Expresse or in deed, which is when it is done by apt words, and the expresse agreement of the parties. 2. In law or implied, which is when it is wrought by consequent and operation of law, or when the law doth interpret or enure something done to another intent to make a surrender of it. And in the first case it is sometimes by word only, and sometimes by writing. And when it is by writing, it is said to be an instrument testifying by apt words that the particular tenant of the lands or tenements for life or years doth consent and agree that he which hath the next and immediate remainder or reversion thereof shall also have the particular estate of the same in possession, and that he yeeldeth the same unto him.

The fruit and effect of a surrender is, that it doth passe the estate Co. super Lit. 338. Co. 1. 96. Bro. surrender 47. Perk Sect. 591. 3. The effect of i [...]. of the surrendror to the surrendree, and that hereupon the estate of the surrendror is drowned and extinct in the estate of the surrendree; And yet not so but that to some purposes it shall bee [Page 301] said to have continuance still. And therefore if tenant for life grant a rent-charge, and after doth surrender his land; in this case the rent-charge shall continue notwithstanding the surrender. So if lessee for life make a lease for years rendring rent, and the lessee for life surrender his estate; in this case albeit the primitive estate Extinguishment. for life be yeelded up, yet the derivative estate for years shall continue notwithstanding, but the surrendree shall not have the rent reserved upon the lease for years. So if lessee for life or years break a covenant with his lessor, and after surrender his estate to him, his Covenant. breach of covenant is not hereby salved, for the lessor may have an action of covenant still notwithstanding the surrender. And if one seised of land grant a rent out of it in fee, and this rent is extended Co. 8. 145. 2. 39. Bro. Sur. 42. on a statute or granted for lesse time to another, and then the grantee doth surrender the deed of the grant of the rent to the tenant of the land; in this case the rent shall continue as to him that hath execution and the grantee. And if one make a lease for years rendring rent, and the lessee surrender his estate to the lessor; hereby the rent is extinct: but if the lessor grant the rent to a stranger before the surrender contrà. And if one lease for years, and the lessee let parcel of his term to his lessor rendring rent, and after the lessee surrender his whole estate; in this case it seems the rent is determined.

If lessee for life or years take a new lease of him in reversion of 14 H. 8. 15. Plow. 194. Dier 28. Co. 10. 67. the same thing in particular contained in the former lease for life 4. What shall be said a surrender in law of lands. And by what means an estate shall be surrendred in law. Or not. By acceptance and taking of a new estate. or years; this is a surrender in law of the first lease. As if lessee for his own or anothers life in possession or reversion take a new lease for years; Or a lessee for forty years take a new lease for fifty years; the first lease in both these cases is surrendred. And this rule holdeth, albeit the second lease be for a lesse time thē the first, as if lessee Perk. Sect. 617. Co. 5. 11. for life accept a lease for years, or lessee for twenty years accept a lease for two years. And albeit the second lease be voidable, as being Fitz. Surrender 3. Co. super Lit. 218. 37 H. 6. 17. made upon condition, as if lessee for twenty years take a new lease for twenty years upon condition that if such a thing happen the second lease shall be void, and the thing doe after happen; in this case both these leases are become void: As where the lessor doth grant the reversion to the lessee upon condition, and after the condition is broken. Or if the second lease be made by tenant in tail, Dier 140, 141. or the like: as if a man make a lease for years of land, and then make a feoffment to another of the land, and then take back an estate to him and his wife of the land, and then make a new lease to the lessee for ten years; this is a surrender in law of the first lease: But if the second lease be meerly void, then it is otherwise. And therefore if the lessor doe by words of covenant only promise to Dier 272. his lessee that he shall have a new lease, and doe never actually make him; this is no surrender in law, Dier 178. 177. Co 5. 54. 55. Kelw. 70. And this rule as it seems [Page 302] holdeth also, albeit the second lease be to the lessee and a stranger, or to the lessee and his wife: and albeit the second lease be by Dier 140. 141. 1. word only, and the first lease be by deed, if so be that the thing granted by the lease be such a thing as may passe by word without writing; and albeit the second lease be in another right, as if the Dier 178. husband have a lease for yeares in the right of his wife, and then take a new lease to himself in his own name: and albeit the first Pasc. 40 El. Co. super Lit. 338. Co. 6. 69. 10. 53. 67. 5. 11. Dier 280. lease be to begin presently, and the second be to begin at a day to come, or è converso: Dier 93. 112. and albeit there be a mean estate between, as if land be let to A for years, and after let to B for years, to begin after the first term, and the assignee of A doth take a new lease: So if one demise land for ten years to one, and after demise it for ten years to another, to begin at Michaelmas, and after the first lessee accept a new lease. For in all these cases there is a surrender in law of the first leases. And if there be two lesses for life, or Dier 46. Co. 2. 60. years, and one of them take a new lease for years, this is a surrender of his moity; whereby it doth appear that a surrender in law Co. 6. 69. 10. 67. may be made of some estates w^ch cannot be surrendred by a surrender in fait; for fortior est dispositio legis quam hominis. And hence it is that a corporation aggregate may make a surrender in law without deed, although it cannot make an expresse surrender without deed. But if the lessee doe only licence the lessor to make a feoffment, and to give livery of seisin: or doe give livery of seisin for Perk. Sect. 608. Bro. Surrender 48. Trin. 5 Jac. him as his Atturney. or doe licence him to enter into the land and no more, neither of these things shall be said to be a surrender in law. So if the second lease be made of another, and not of the same thing whereof the first lease is made, as where the first lease is of the land, and the second is made of a rent or other profit to be Co. 6. 69. taken out of the land, or the first is of a Manor, and the second of Adjudged. the Bayliwick or Stewardship of the Manor, or the first is of a Park, and the second is of the Keepership of the Park; in these cases there is no surrender of the first lease. Also if the second lease be not a good lease, perhaps it shall not be construed a surrender. See Co. 2. Lanes case 17.

But if the first lease be of the land it self, and the second lease is Trin. 5. Jac. Sir Jo. Chamberlain. case. See Dier 200. of the vesture of the same land, this is held to be a surrender of the first lease. Co. 5. 11. So if the second lease be not to begin untill the first lease end, the taking of this second lease is no surrender of the first lease. So it hath been said if one make a lease of black acre in Dale, and the lessee accept a second lease of all the lands of the lessor in Dale in generall words, and the lessor that doth make the lease have divers other lands there besides this acre, that this is no surrender of the first lease. Sed quere of this, for others do much doubt Per Curiam B. R. 9. Jac. it. So if one enter into land, & make a lease for the triall of the title only, and after the lessor (he and the lessee being both out of possession) [Page 303] make another lease of the same thing to the lessee; it seems this is no surrender of the first lease: but if the lessor enter before he make the lease contra. To make a good surrender in deed of See Perk. in his chap. of Surrender in toto. Bro. Surrender in toto. Fitz. Surrender in toto. Co. super Lit. 338. lands, and to make them to passe by such a surrender, these things 5. What shall be said a surrender in deed of lands. And when they shall be said to passe by such a surrender, Or not, 1. In respect of the person between whom it is made, and their estate and possession. are first of all required. 1. That the surrendror be a person able to grant and make, and the surrendree a person capable and able to take and receive a surrender, and that they both have such estates as are capable of a surrender. And for this purpose, 1. That the surrendror have an estate in possession of the thing surrendred at the time of the surrender made, and not a bare right thereunto only. 2. That the surrender be to him that hath the next immediate estate in remainder or reversion, and that there be no intervenient estate coming between. 3. That there be a privity of estate between the surrendror and the surrendree. 4. That the surrendree have a higher and greater estate in the thing surrendred, then the surrendror hath, so that the estate of the surrendror may be drowned therein. 5. That he have the estate in his own right, and not in the right of his wife &c. 6. And that he be sole seised of this estate in remainder or reversion, and not in jointenancy. As for examples, infants, women covert, mad and lunatick men, and all such like persons, as are disabled to grant, are disabled to make a surrender, and none but such as may grant their land may surrender their land. A Corporation aggregate of many cannot make an expresse surrender without a deed, but it may make such a surrender Co. 10. 67. by deed. And such persons as are disabled to take by a grant are disabled to take by a surrender, and such as may bee grantees, may be surrendrees; and therefore a surrender made to an infant is good. If the husband have a lease or estate for years in the right Husband and wife. of his wife, he alone, or he and his wife together may surrender Perk. Sect. 613. 612. Bro. surrender 44. this; but if the husband have an estate for life in the right of his wife, being tenant in dower or otherwise, and he alone, or hee and shee together surrender this; this surrender is good onely during the life of the husband, except it bee made by fine. One 21 H. 7. 25. execut or may surrender an estate or lease for years which the executors Executors. Tenant in common. have in the right of their testator. If there be two tenants in common, and one of them have the particular estate, and the other Perk. sect. 586, 587. Fitz. sur. 2. the fee simple; as where an estate is limited to two and the heirs of one of them, and he that hath the estate for life doth alien his part to a stranger; in this case the alienee may surrender to the other jointenant: So if there be three jointenants for life, and the fee simple is limited to the heirs of one of them; and one of the jointenants for life doth release to the other, and he to whom this Iointenant. release is made doth surrender to him that hath the fee simple; this is a good surrender of a third part. But otherwise one jointenant cannot surrender to another jointenant, albeit he be tenant for life [Page 304] which doth make, and he tenant in fee simple, that doth take the Perk. Sect. 584. Co. super Lit. 338 Per sect. 600 Bro. sur. 4. surrender. A lessee for life or years, may surrender to him that is next in remainder in fee simple, or fee tail, or to him in reversion in fee, and this is a good surrender, and a surrender as it seems may be made to the grantee of the reversion before atturnment, so as atturnment be afterwards made. And in case of the surrender of Dier 251. 358. 280. an estate for life there needs no livery of seisin as in case of the grant Livery of seisin. of an estate for life. A lessee for years of a term to begin at a day Perk. Sect. 601, 602. 4 H. 7. 10. Co. 6. 69. to come cannot surrender it by an actuall surrender before the day the term begin, as he may by a surrender in law. Perk. Sect. 600, 601, 602, 603. If lessee for life be disseised, or lessee for years be ousted, and before his entry or the getting of the possession again, he surrender his estate to him in reversion; this surrender is void. So if a woman that hath title of dower surrender it to him in reversion before she hath recovered it; this surrender is void. And yet if lessee for years after his term is begun & before his entry, when no body doth keep from him the profits, doe surrender his estate; it seems this is a good surrender; but if another enter before him, and keep him out, it seems otherwise. If there be lessee for years, the remainder for life, the remainder or reversion in fee, & the lessee for years be outsted, & he that Perk. Sect. 605. Dier 251. outsted him die seised, & then the lessee for years enter, and then the tenant for life surrender to him in remainder or reversion in fee; this is not a good surrender, for there is in this case but a bare right of remainder for life and in fee; but if the lessee for years had not been ousted, it had been a good surrender. If there be lessee for years, the remainder for life, the remainder in fee; the lessee for years may surrender to the lessee for life, and so may the tenant for life to him in remainder or reversion in fee, but if there be tenant for life, the remainder for life, the remainder in fee; in this case the second tenant for life cannot surrender to him in remainder in fee. If a lease Perk. Sect. 588. bee made for life or years to A, the remainder for life to B, the remainder in fee tail to C, and the first tenant for life or years doth surrender to C, or to the lessor, B being the next in remainder for life being then living; this is not a good surrender, neither can it take effect as a surrender in respect of the intervenient estate. And so some say the law is if the middle remainder be but for years only: as if a lease be made for years, the remainder for years, and the first termor surrender his interest to the lessor; this is no good surrender. Sed quere. For it should seem that a future iuterest will Dier 112. Plow. 190. Dier 93. Plow. 432, 433. no more hinder an actuall surrender of the first lessee, then a surrender in law. And so also it seems the law is for a concurrent lease, which for the latter part of it is in the nature of a future interest. But if in this case it fall out the middle remainder be void; as where a lease is made to A for life, or years, the remainder to a monk (who is a person uncapable) for life or years, the remainder to I S in [Page 305] fee; in this case A the first tenant may surrender to him in remainder in fee, and the surrender is good. If lessee for 20 years make a Perk. Sect. 604. 14 H. 7. 3. Plow. 541. Bro. Sur. 16. lease for 5 years, and the lessee for 5 years enter, and after the lessee for 20 years surrender to him in reversion or remainder; this is a good surrender. So also if the two lessees join in the surrender. So also if the first lessee surrender first, and the lessee for 5 years surrender after. But if the lessee for five years surrender to him in the reversion or the remainder before the surrender of the lessee for 20 years; this cannot take effect as a surrender for two causes: 1. Because there is a remnant of the term as an intervenient estate to hinder the drowning of the terme. 2. Because there wants a privity between the lessee for five years, and him in reversion. If tenant Bro. sur. 9. Fitz. sur. 10. in fee simple surrender to the Lord Paramount of whom the land is held; this can never take effect as a surrender, unlesse it be in a speciall case where the Lord hath cause to have a Cessavit. So if tenant in tail surrender to him in remainder or reversion in Perk. Sect. 590. Perk. Sect. 589. Co. super Lit. 42. 3. 61. Perk. Sect. 590. fee simple; this cannot take effect as a surrender. So if lessee for life surrender to him in remainder for years: or tenant for the life of B surrender to him that hath an estate for the life of C, these are void surrenders, for the estates of them to whom they are made, are not capable of such surrenders, for they are not greater then the estates of the surrendrors, and therefore not able to drown the estates surrendred. And yet if lessee for the life of another, or for his own life surrender his estate to him in remainder that is tenant for his own life; this is a good surrender, for an estate for a mans own life is greater in judgement of law, then an estate for another mans life. And hence it is that if a lease bee made to two for their lives, the remainder to a third person for his own life, and one of the first tenants for life surrender his estate unto him in remainder for life; this is a good surrender for a moity. If lessee Co. 2. 66. for life or yeares surrender to him in remainder or reversion that hath no good estate in the remainder or reversion, as where the remainder or reversion is granted by word only, or being granted by deed there is no atturnment of the tenant to the grant, or the the like; this surrender is not good. And yet if tenant in taile Co. super Lit. 338. make a lease for life whereby he gaineth a new reversion (but defeasible) and the tenant for life doth surrender to the tenant in tail; this shall be a good surrender. So if a woman inheritrix have a husband, and they have issue a sonne, and the husband dieth, and she take another husband, and he letteth the land for life, and the wife dieth, and the tenant for life doth surrender his estate to the second husband; this is a good surrender to most purposes.

If a feme sole be seised of land in fee, and she make a lease thereof Perk. Sect. 622. to a stranger for life, and then take a husband, and the lessee surrender [Page 306] to the husband; this is no good surrender, neither can it enure so, because he to whom it is made hath not the reversion in his own but in his wives right.

It is further also required in every good surrender, that if it be Bro. sur. 2. 8. Fitz. Partition 5. Perk. Sect. 583. 2. In respect of the place where it is made. And where the surrender of lands in one County may be good for the lands that doe lie in another County. Or not. 3. In respect of the matter or thing. And of what things a surrender may be made. Or not. made by word and without deed, that then it be made in the same County where the land to be surrendred doth lie, but by writing a man may make a surrender of lands that doe lie in any other County, and in what place soever it doth lie. And a surrender may be by word or writing of lands lying within the same County in any place out of the land. And therefore if tenant for life surrender to him in reversion in any place out of the land within the same County, and the surrendree agree to it, the freehold is in him presently. 3. That it be made of such things, of which a surrender Bro. surrend. in toto. Per. chap. Sur. in toto. Co. 5. 11. super Lit. 338. may be made. For surrenders may not be made of estates in fee simple, or fee taile, nor yet of rights or titles onely of estates for life or years, nor yet of part of an estate for life or years, as if a man have a lease for ten years, he cannot surrender the last seven years, and keep to himself the three years. But otherwise one may surrender any kinde of estate for life, as by dower, by the curtesie, or as tenant in tail after possibility of issue extinct, or for years, or years determinable upon lives, and that of any mesuages, houses, lands, commons, rents, or the like, that are grantable from one to another, and such surrenders are good. 4. That there be Perk. Sect. 607, 608, 609. Dier 251. Bro. sur. 1. 35. 37. 17. 21 H. 7. 7. 4. In respect of the manner. And how and by what words a surrender may be made. And where it may be made without deed, and upon condition. Or not. words, or words and deeds sufficient to make the mind of the surrendror to appear that he is willing and desirous to part with and yeeld up the thing surrendred into the hands of the surrendree. And herein it is to be known that albeit the words Surrender, Give, or Yeeld up, be the most significant & proper words whereby to make a surrender, yet any other words, especially if it be in the surrender of a lease for years, that do testifie and declare the will and assent of him that is the particular tenant that he in the remainder or reversion shall have the estate of the tenant, be sufficient to passe the estate by way of surrender. And therefore if lessee for life or years doe by word or writing say, That he will hold the land no longer, and wish him in reversion or remainder therefore to enter: Or that it is his desire that he shall enter into the land, and have it and his estate therein: Or that he is content that he shall have his estate, or have his lease; such, or any such like declaration as this made to him in reversion or remainder, will be a good surrender. So if Hil. 37 El. B. R. Sleigh & Batemans case. lessee for years deliver his Indenture to a stranger, to deliver it and all his estate up to him in reversion, and doe appoint the stranger to deliver and surrender it to him in reversion, and he doe so, and he in reversion accept thereof; this is a good surrender; but otherwise it is of an estate for life. So if the particular tenant doe by the words Give, Grant, or Confirm, passe his estate [Page 307] to him in reversion, and he doe enter and agree to it; this is a good surrender: And by all these surrenders the estates wil passe by way of surrender, except it be in some speciall cases where the intent of the parties doth plainly appear to bee that the estate shall not passe by way of surrender. But if a lessee for life or years doe onely goe from the house or land, and carry away his goods and cattell, and so waive the possession for a time, either because the lessor shall not distrain them for rent behind, or the like, and thereupon the lessor doth enter and enjoy it; this is no surrender, neither is this a good yeelding up of his estate. And in such a manner and by such words as before, any thing that may be Perk. Sect. 581, 582. 583. Fitz. sur. 1. Co. super Lit. 338. granted by word without writing, may bee surrendred by word without writing, so as it be made within the same County where the thing surrendred doth lie. And this holdeth true albeit the estate to bee surrendred were created by deed: But such things, as commons, rents, advowsons, reversions, remainders, and the like, that cannot bee granted without deed cannot bee surrendred without deed. And therefore if a lease be made for life, the remainder for life by word of mouth without any writing; he in the remainder for life cannot surrender his remainder for life without deed. So where one hath a rent, advowson, or the like, as tenant in dower, or by the courtesie; this cannot bee surrendred Dier 251. Bro. Sur. 16. without deed. And in case where there is any speciall matter to be contained in the surrender, as reservation of rent, condition, or the like, there for the most part it must be by deed; or it will not be good. And therefore if tenant for life declare himself by word of mouth to be contented and agreed that he in the reversion shall have the land and his estate therein, rendring ten shillings a years rent; or paying such a summe of money, or upon condition that if he survive the lessor he shall have it again Perk. Sect. 624. 623. Co. super 218. &c. this is no good surrender. And a surrender may be made also upon a condition precedent or subsequent, as if it be with reservation of rent that if it be not paid it shall be void; but if it be an estate for life that is so surrendred, it seems it must be made by writing indented, and so likewise it should seem the law is of the surrender of a lease for years upon a condition, or however it is most safe so to doe. 5. That the surrendree doe agree to, and Perk. Sect. 608. Lit. Bro. 163. accept of it, for untill then the surrender is not perfect, but if the 5. In respect of the agreement of him to whom the surrender is made. And what agreement is necessary. Agreement. Trespasse. surrendree doe once agree to it, he cannot after disagree, for his first agreement doth perfect the surrender. But the actuall entry of the surrendree into the land is not necessary. And therefore if tenant for life or years surrender to him in reversion out of the land, and he agree to it, he hath the land in him presently. And yet he may not bring any action of Trespasse against any man [Page 308] for any Trespasse done upon, the land untill he have made his entry.

But here note, that in the cases before where things may not Perk. Sect. 588, 589. passe by way of surrender, either because of an intervenient estate, or the like; if there be sufficient words in the deed, it may avail to other purposes, and may enure and passe the thing by way of grant; but then if it be an estate for life that is intended to bee surrendred, there must be livery of seisin made upon the deed. And wherefore if there bee lessee for yeares, the remainder for life or years, the remainder in fee, and the lessee for years in possession doth surrender and grant all his estate to him in remainder in fee; howsoever this deed cannot enure as a surrender, yet it shall enure as a good grant of the estate of the lessee for years unto him in remainder in fee.

A surrender in generall shall be taken most strongly against the Perk. Sect. 610, 611. 6. How a surrender shall be construed and taken. surrendror, and most beneficially for the surrendree. And therefore if I hold of the lease of A one acre for life, and another acre for years, and I surrender to A all my lands, or all my lands I hold of his lease; by this surrender both the acres are surrendred. But if the surrender be of all the lands I have or hold for life, or of all the lands I have or hold for years of the lease of A, contra. And if I hold one acre for life of the lease of the father of I S, and I hold another acre for life or years of the lease of I S himself, and I surrender to I S all the land I hold of his lease; by this the land that I had by the lease of his father doth not passe. A surrender to Perk. Sect. 615. Bro. Sur. 54. Co, super Lit. 192. one jointenant shall be construed to enure to them all. But if tenant for life or years grant his estate to one of the jointenants in reversion, it seems this shall not enure as a surrender to them all, but as a grant to him alone.

If the lessor make, and the lessee take a new lease upon condition, Co. super Lit. 218. this surrender in law is absolute, and albeit the condition be broken, yet the first lease is gone. But if the lessee surrender or grant his estate to the lessor upon condition; this condition if it be broken may revest the estate.

See more in the next question, and in Exposition of Deeds.

If any kind of tenant for life of land infeoft him in remainder or Bro. sur. 3. 5. Perk. sect. 616. 620. 623. Co. super Lit. 42. Bro. Sur. 49. 7. Where a feoffment, lease, grant, or other act made, or dōe by the tenāt for life or years, shall be a surrender or not. And how it shall enure or be co [...]strued and taken. 1. When it is made to him in reversion or remainder. reversion of the land, or grant his estate to him in remainder or reversion; this shall enure as a surrender. And if lessee for years before his term doe begin, make a feoffment to him in reversion or remainder, or grant his estate to him; this shall enure as a surrender. And if lessee for life grant his estate to him in reversion, the remainder in fee to another; this shall enure as a surrender, and this remainder is void. But if such a tenant for life make a lease to him in remainder or reversion for the terme of the life of him in remainder or reversion; this shall not enure as a surrender [Page 309] because it doth not give the whole estate, but it shall enure by way of grant. So if lessee for life make a lease to him in remainder in tail for term of the life of him in remainder; this shall not enure as a surrender, but as a grant, and shall end with the life of the grantee. If lessee for forty years make a lease for thirty seven Pasch. 7 Jac. B. R. years on condition, and after grant his estate to him in reversion, and the second lessee atturn; this shall enure as a surrender. If there be tenant for life, the remainder in tail to a stranger, and Perk. sect. 6 [...]. the remainder in tail to another stranger, the remainder in fee to the tenant for life, and the tenant for life doth make a feoffment to the first tenant in tail; this shall enure as a surrender of the estate for life, and as a grant of the reversion in fee also. If tenant Co. super: Lit. 42. for life being a woman take a husband, and then her husband and she by deed indented make a lease to him in reversion for the life of the husband; this shall not enure as a surrender, but as a grant. If there be tenant for his own life, the remainder to I S for his life, Bro surrender 17. and the first tenant for life surrender to him in remainder for the life of him in remainder; it seems this shall enure as a surrender, and is no forfeiture; but if he grant it to him for the life of a stranger, and make livery of seisin, this is a forfeiture. If lessee for Forfeiture. Perk. sect. 615. life, the reversion being in jointenants, grant the land to one or all of the jointenants for twenty years; this shall not enure as a surrender, but as a grant, for there remains an interest in the lessee still as a mean estate. If lessee for years make him in reversion or Bro. surrender 52. remainder his executor; this shall not enure as a surrender, albeit it doe give him the whole estate. If lands be given to the husband Bro. surr. 36 and wife, the remainder to I S, and the husband discontinue in fee, and take back an estate to him and his wife, the remainder to W N, and die, and the wife claim in by the second estate, and surrender to W N; this shall not enure as a surrender, but as a grant. If lessee for life or years grant his estate to him in remainder or Bro. surr. 11. Co. 2. 61. 3. 61. reversion and a stranger; this shall enure as a surrender of the one 2. When it is done or made to him and a stranger. half to him in reversion, and as a grant of the other moity to the stranger. And yet it is said, that if lessee for life of land grant his estate Perk. sect. 619. to him in the reversion and two others, that hereby they have a joint estate, and the survivor shall have the whole. If lessee for Co. super Lit. 335. life make a lease for his own life to the lessor, the remainder to the lessor and a stranger in fee; this shall enure as a surrender of the one moity, and a forfeiture of the other moity. If tenant for life Forfeiture. Perk. sect. 622. Bro. Sur. 20. 34. 23. surrender to the husband of a woman tenant in tail or in fee; this shall enure as a grant, not as a surrender. And so also it seems is the law when the surrender is to the husband and wife. And if B Bro. sur. 46. be tenant for life, the remainder to C in tail, the remainder to D in tail, and B infeoff C and S his wife in fee; this shall not enure as a surrender, but it is a forfeiture: so that if C die without issue, [Page 310] D may enter. If there be lessee for life, the reversion to two coparcenours, Perk. Sect. 623. 21. H. 7. 40. and one of them take a husband, and the lessee doth grant his estate to her and her husband; this shall not enure as a surrender, but as a grant. And yet if tenant for life doe grant his Bro. sur. 34. estate to the husband and wife, she having the reversion if she be an infant and within age at this time; it seems this shall enure as a surrender, not as a grant. If tenant for life, or years, and he in Plow. 140. Dier 358. 3. When it is done with him in reversion or remainder. reversion or remainder by word without deed join in a feoffment; it shall be said the surrender of the estate for life or years to him in the reversion, and the feoffment of him in reversion. But if he in reversion infeoff the tenant for life without any deed; this shall enure first as a surrender of the lease for life, and then as a feoffment. See more in Deed: Numb.

If I have a rent in fee, for life, or years, issuing out of another mans 14 H. 7. 2. Perk. Sect. 591. 585. 606. 590. 596. 598. 8. Where a deed or rent may be surrendred. And how such a surrender shall enure or be taken. Manor, or other lands, I may surrender it, for if I deliver the deed of the grant of the rent to be cancelled unto any one that hath any estate of the Manor or land in fee simple, for life, or yeares, in possession or remainder, either solely by himself, or jointly with others, this is a good surrender, and hereby the rent is extinct and gone. But one that is tenant in tail of a rent cannot surrender it, neither wil the delivering up of the deed in this case determine the rent. And if one be seised of land out of which a rent is issuing in fee, and Perk. Sect. 594. is disseised, and during the disseisin the grantee of the rent surrender his rent, and give up his deed; it seems this doth not extinguish the rent, yet hath the grantee no remedy for his rent when he hath delivered up his deed. And yet if one be seised of land in fee out of Perk. Sect. 595. which a rent is issuing in fee, and he die without heir, so that the land escheat, and before the Lord enter upon his escheat, he that hath the rent doth surrender the deed of the rent to the Lord; it seems this is a good surrender to extinguish the rent. And if the Perk. Sect. 597. grantee of a rent-charge in fee grant the same to him in fee that is seised of the land in fee; this shall enure to extinguish the rent; but if he grant it to one that hath only an estate for life contrà.

And now by this time it is high time we come to Confirmations and Releases, which serve to enlarge and amend the estate and interest that a man hath in a thing already.

[Page 311]

CHAP. XVIII. Of a Confirmation.

A Confirmation is the conveyance of an estate or right that one 1. Confirmation. Quid. Terms of the law. Co. super Lit. 295. hath into lands or tenements to another that hath the possession thereof, or some estate therein whereby avoidable estate is made sure, and unavoidable, or whereby a particular estate is increased and enlarged. And this albeit it may be made by other words, as by Dedi or Concessi, which are generall words, and serve to make a grant, feoffment, lease, release &c. yet it is most commonly and properly made by these words Confirmasse, Ratificasse & approbasse, which doe signifie ratum & firmum facere & supplere omnem defectum. And he that makes the confirmation is sometimes Confirmor. Confirmee. 2. Quotuplex. called the confirmor, and he to whom it is made the confirmee.

There are two kinds of confirmations, viz. a confirmation implied Co. super Lit. 295. Plow. 140. Lit. Sect. 515. Co. 9. 142. or in law, which is when the law by construction makes a confirmation of a deed made to another purpose, and a confirmation expresse or in deed, which is when the act done or deed made is intended for a confirmation. And both these are always in writing. The latter is properly called a deed or instrument of confirmation, and is made after this manner, Noveritis universi &c. me A de B ratificasse, approbasse & confirmasse C de D statum & possessionem quos habeo de & in uno Mesuagio &c. cum pertinen. in F &c. A confirmation is also distinguished by his effects, for sometimes it doth tend and serve to confirm and make good a wrongfull and defeasible estate, or to make a conditionall estate absolute. And then it is said to be confirmatio perficiens. And sometimes it doth tend and serve to increase and enlarge a rightfull estate, and so to passe an interest. And then it is called confirmatio crescens. And sometimes it doth tend and serve to diminish and abridge the services whereby the tenant doth hold. And then it is called confirmatio diminuens.

The nature and work of this where it doth find a foundation to 3. The nature and operation of it in generall. Co. 146, 147 Dier 109. 7 H. 6. 7. Lit. Sect. 539. Co. 9. 142. work upon is, either to increase and enlarge the estate of him to whom it is made from a lesser to a greater, and to give him some new interest he had not before, or to corroborate and perfect the estate that was imperfect before, or to change the quality of it from an estate upon condition to an absolute estate or otherwise, for this a confirmation will doe. In some cases also it will extinguish rights and titles of entry. But it will not make an estate good that is meerly void; nor add, nor take from an estate a descendible quality, and make a man capable of it that is uncapable in himself, [Page 312] or è contra. In some cases also it wil lessen and diminish rents or services. But it cannot ne will change the nature of the service into some other kind of service, nor increase it into a greater service.

If a Bishop, Dean, Archdeacon, Prebend, or the like, make any Co. super Lit. 300, 301. Co. 10. 62. 5. 3. Dier 145. 273. 349. 338. 339. 61. 4. Where the confirmation of some persons is needfull to perfect the grant of others. Or not. And how it may i [...] done. lease of the land they have in the right of their Bishoprick, Deanery, Archdeanery, or Prebendship not warranted by the Statute of 32 H. 8. and within the other Statutes; it seems this lease must be confirmed by the Dean and Chapter by their common seal, and if there be two Chapters it must be confirmed by them both, or otherwise it is not good. But if the lease bee such a lease as is warranted by the Statutes, the Bishop may make it without the confirmation of the King, the Patron, and Founder of Bishopricks, or the Dean and Chapter. And so also it seems of the rest. And a Corporation aggregate as Dean and Chapter, Master and Fellows, and the like, may grant without any confirmation of the Founder, and this grant will be good. If a Bishop &c. grant an ancient office belonging Co. 10. 62. to his Bishoprick, albeit it be but for the life of the grantee, yet it must be confirmed by the Dean and Chapter, otherwise it is not good. If a Parson or Vicar had made any lease for longer time Dier 52. stat. 13 El. ch. 2 [...]. then his own life, it must have been confirmed by the Patron & Ordinary. But at this day albeit it be confirmed by the Patron and Ordinary, yet the lease is good for no longer then during the Parsons ordinary residencie, except it be impropried.

If tenant for life grant a rent-charge to I S and his heirs; in this Co. 1. 147. case he in reversion must confirm it, otherwise the grant of the rent will be good for no longer then the life of the tenant for life.

Where a man hath an interest in any lands, tenements, rents, commons, Co. 8. 167. Dier 277. felons goods, or the like, by grant of any of the Kings of the Realm, he need not have the confirmation of any or of every succeeding King. Also it seems grants of Fairs, Markets, Warrens, Dier 327. Lit. Bro. 203. Kelw. [...]45. 188. and the like, made by one King, will be good in law against his successors without any confirmation. But all such as have any judiciall or ministeriall offices, commissions and authorities derived from the King, must have the confirmation of every succeeding King, otherwise they may lose them.

5. What confirmations may be made. And what shall be said a good expresse or implied confirmation. Or not. And by what words it may be made. 1. To confirm or alter the quality of the estate of him [...]o whom it is made. In every good confirmation tending to confirm an estate or alter the quality of it, these things must concur: 1. There must be a good confirmor, and a good confirmee, and a thing to be confirmed as in other grants, and the deed must bee well sealed &c. 2. There must be a precedent rightfull or wrongfull estate in him to whom the confirmation is made in his own or in anothers right, or at least he must have the possession of the thing whereof the confirmation is to be made that may be as a foundation for the confirmation to work upon. As if feoffee on condition make a feoffment Co. 1. 146. 9. 142. 7 H. 6. 7. over, and the feoffor confirm his estate to him to whom the second [Page 313] feoffment is made and his heirs; this is a good confirmation to make his estate absolute. And if lessee for life make a feoffment in fee, or Lit. sect. 516. lease for years, and the first lessor confirm this second estate; it seems this is a good confirmation. And if one disseise me of land, Co. 9. 142. 6. 15. Perk. sect. 86. Lit. sect. 518. 521. 11 H. 7. 29. 28. I may after confirm the estate of the disseisor, or of his heir if he be dead, or of his feoffee if he have aliened it, and this will make his estate good for ever: And if the disseisor make a lease for life, or years of it; I may confirm the estate of the lessee, and this will make it good for the time. Co. 1. 144. Lit. sect. 527. 529. 11 H. 7. 28. Co. super Lit. 300. Lit. sect. 547. 11 H. 7. 28. And if one make a lease for life absolute, or a feoffment in fee, or lease for life on condition, or be disseised of land, and the lessee for life, feoffee, or disseisor doth grant a rent out of the land in fee, and the lessor, feoffor, or disseisee doth confirm the estate of the grantee; this doth make good the grant for ever. And so also if the heire of a disseisor that is in by descent grant a rent-charge, and the disseisee confirmeth it; this is a good confirmation. And if an Infant make a lease for 20 years, and the lessee doth make a lease to another for all or part of the time, and Infant. the infant at his full age doth confirm this second lease; this is a good confirmation, and doth perfect the lease, for it is a rule, That which I may defeat by my entry, I may confirm by my deed. But if there Co. super Lit. 295. 301 Dier 263. be no precedent estate on which the confirmation may work, or the estate be such an estate as is meerly void; then is the confirmation void, and cannot take effect as a confirmation: as for example, If a man assign dower to a woman that hath nothing to do with it, or a Court that hath not power doth make leases by commission, or an estate that was upon condition is avoided by entry, or a lessee surrender, or a disseisee enter upon a disseisor, and afterwards he that hath the rightfull estate confirm their estates so defeated and gone; these confirmations are void: Debile fundamentum fallit opus. And a confirmation to him that hath nothing in the land is void. And hence it is that if one confirm all his estate that he hath granted to another, when in truth he hath granted none at all; this is void. And so also it is if there be an estate and no possession: as if a disseisor make a lease for years to begin at Michaelmas, and before 4 H. 7. 10. the day the disseisee doth confirme the estate of the lessee for years; it is said this is not a good confirmation, sed quaere. 3. The Dier 109. confirmor must have such an estate and property in the thing wherof the confirmation is made as he may be thereby enabled to confirm the estate of the confirmee, as the lessors, feoffors, and disseisees in the cases before have, otherwise the confirmation is void. And therefore if the heir of the disseisee during the life of the disseisee 29 H. 6. 62. confirm to the disseisor; this is no good confirmation to perfect his estate, albeit the disseisee die & the right of the land descend to his heir afterwards. So if lands be given to A & B his wife & the Co. 9. 138. heirs of their bodies issuing, the remainder in fee to A, & A levy a fine [Page 314] with Proclamations and die, and she within five yeares doth enter and claime, and after the conusee doth confirme the estate made by the first gift to the wife To have and to hold according to the same; this confirmation is to no purpose. So if lessee for life make a lease for thirty yeares, and after he in reversion and the Co. super Lit. 296. lessee for life lease for sixty yeares; in this case he cannot confirme the lease for thirty yeares because he hath granted it before for sixty yeares. And hence it is also that the confirmation by one Jointenant Jointenants. Fitz Confirmation 15. Lit. Sect. 523. Dier 263. of the estate of his companion worketh nothing, for their estates are equall, and each hath interest in the whole land. And yet if one Jointenant confirme the whole land to his companion To have and to hold the land to him and his heires; this shall amount to a Grant, and so will be good to passe his moity. And hence Lit. Sect. 543. Co. super Lit. 308. it is also, that if a man grant a rent charge out of his land to another for life, and then confirme his estate without any clause of distresse (for by a clause of distresse a grant of a new rent may be made) To have and to hold to him in fee simple, or fee taile; that this is void, for the confirmor hath no reversion of the rent in him. 4. The precedent estate must continue untill the confirmation come, as in all the cases of voidable estates made the confirmation must be before the estates be made void by entry &c. or otherwise the confirmation will be void. And therefore if lessee for life or yeares surrender, or the disseisee enter upon the disseisor, and after the lessor or the disseisee confirme the estate of the lessee or disseisor; this confirmation comes too late. 5. The estate precedent and Co. 5. 15. Lit. Sect. 607. that which is to be confirmed must be lawfull and not prohibited by any act of Parliament. And therefore if a spirituall person, as Prebend, or the like make a lease not warranted by the Statutes; the confirmation of the Deane and Chapter will not help nor amend it. And if tenant in taile make avoidable lease, and after confir [...] it himselfe; this is voidable still. 6. There must be apt words of confirmation in the deed or Instrument. And herein note Lit. Sect. 531. 532. 10 E. 4. 3. Co. super Lit. 295. Dier 116. Co. 1. 147. 5. 15. that albeit the words Confirmavi, ratificasse & approbasse be the most significant and proper words to make this conveyance, yet such as are made by other generall words may make a good confirmation. And therefore it is agreed, that a deed made by the words Dedi, Concessi, or Demisi, may make a good confirmation. And therefore that if the disteisee, coparcener, or lessor make a deed of the land by the word Dedi, or Concessi to the disseisor, other coparcener, or lessee for life, and deliver the deed; this is a good confirmation without livery of seisin. Also if a feoffment be made to A Livery of seism. to the use of B and his heires upon condition, and before the condition broken the feoffor and B doe joine in the grant of a rent charge, and after the condition is broken; in this case the law doth interpret this a good grant from B and a good confirmation of [Page 315] the feoffor without any words of confirmation. So if tenant for life doe grant a rent to him in reversion, and he by deed doth grant it to another and his heires in fee; in this case the law doth construe this a good grant and a confirmation also. And in these cases Lit. Sect. 519. Co. super Lit. 296. of confirmations of estates, if it be by the disseisee to the disseisor, it is good without any words of heires, as if the disseisee confirme the estate of the disseisor, or confirme the land unto him, and say not To him and his heires; this is an effectuall confirmation to him and his heires for ever. And if a lessee for life or a disseisor make a lease for life, or yeares, &c. and he in the reversion, or the disseisee confirme their estates, and not the land, and without any Habendum or limitation of estate; this is good for so long as the estates do continue. But it is most safe alwayes to expresse the estate. i. to say Co. 1. 147. To have and to hold the land to him and his heires, or for life &c. as the agreement is. If lessee for life grant a rent to one and his heires out of the land, and the lessor doth confirme the estate, or this rent charge, this doth make the estate of the rent sure. And so also if he doe confirme the rent, and say To have and to hold to him and his heires; this is a good confirmation. But if he confirm the rent, To have and to hold to him in fee, without naming his heires, hereby his estate is not bettered.

If the lessor confirme the estate of his lessee for life with this Co. 9. 139. F. N. B. 136. Co. 8. 76. Dier 10. clause, To hold without impeachment of wast; this is a good confirmation to change the quality of the estate so farre as to make it dispunishable of wast. So if the Lord paramount confirm the estate of 2. To enlarge the estate of him to whom it is made. the mesne with clause of acquitall. And so if lessee for yeares, or for anothers life be without impeachment of wast, and the lessor confirme to him for his own life, and omit that clause; hereby this priviledge is gone and the estate is become punishable for the wast.

This kind of confirmation Crescens must have all the qualities of the former: and there must be also in this case a privity between Co. 9. 142. super Lit. 305. Dier 145. 290. Co. 6. 15. Lit. Sect. 533. 532. 523. Dier 263. the confirmor and the confirmee. And then it may enlarge the estate of him to whom it is made, as from the estate at will to an estate for yeares, or to a greater estate; from an estate for yeares to an estate for life, or to a greater estate; from an estate for life to an estate in taile, or in fee; and from an estate taile to an estate in fee; and these confirmations are good. But in all these kind of confirmations care must be had of the manner of penning them, and that in every such deed there be a limitation of the estate. i. That these words be inserted To have and to hold the tenements &c. to him and his heires, or to him and the heires of his body, or to him for terme of life, or yeares, as the agreement is; for if lessee for life make a lease for yeares, and then lessee for life and he in reversion confirme the land To have and to hold to him for life, or to him and his heires; these words will make the estate to increase. But [Page 316] if the confirmation be made to the lessee for life or for yeares of Lit. Sect. 524. 545. Plow. 540. his terme or estate and not of the land. As when he doth confirme his estate To have and to hold his estate to him and his heires, this doth not increase the estate. And yet if he confirme the land To have and to hold the land to him and his heires; this will increase the estate. Et sic de similibus.

If the husband have an estate of land for life or yeares in the Co. super Lit. 299. plow. 160. Lit. Sect. 525. Fitz. Confirmation 7. 17. right of his wife, or to them both for life, and a confirmation to him alone, of his estate, or of the land To have and to hold the land to him and his heires; this is a good conveyance of the fee simple to him after the death of his wife. And if I let land to a woman sole for the terme of her life, who taketh a husband, and after I doe confirme the estate of the husband and wife To have and to hold for terme of their two lives; this is good, but it shall enure only to enlarge his estate for terme of his life it he survive his wife. But if one lease to another for life, and after confirme the estate of the lessee to him and his wife for terme of their two lives; this is void as to the wife.

If one grant a rent-charge out of his land for life, and after the Lit. Sect. 548, 549. grantor confirme the estate of the grantee in the rent without any clause of distresse To have and to hold to him in fee simple or fee taile; this confirmation is not effectuall to enlarge the estate. But if a man be seised of an old rent-charge or rent-service, and grant the same first for life, and after confirme the estate of the grantee in fee simple, or fee taile; this is good and will enlarge the estate accordingly.

If tenant for life grant a rent out of the land to one and his heirs Co. 1. 147. during the life of the lessee for life, and after the lessor confirme the rent to the grantee and his heires; it seems the estate is not hereby enlarged, but when the tenant for life doth die the rent shall cease.

This kind of confirmation may be made by the same words as Co. super Lit. 301. Fitz. Confirmotion 23. the former, viz. by the words, Give Grant, or Demise. But neither of these may be made by the words, Surrender, Release, Exchange, or the like, for these are peculiar words destined to a speciall end being proper and peculiar manner of conveyances. And yet if I that am a lessor do say to my lessee for yeares by my deed, I will that you shall hold the land for your life; this is a good confirmation to increase the estate by this word volo only. So if I grant to my lessee for yeares, that he shall hold the land for terme of his life; this without any other words is a good confirmation.

By a confirmation the Lord may confirme the estate of his tenant Co. 9. 142. Lit. Sect. 538. which holdeth by Knights service to hold in Socage, or to hold for 3. To diminish or a bridge the services, &c. a lesse rent, or to hold at common law where before he did hold in ancient demesne, and such a confirmation is good. But such a confirmation [Page 317] as is to hold by new services, as a rose for money, or the like, is not good for that purpose. And in this case there must be also a privity. And therefore if there be Lord mesne and tenant, and the Lord confirme the estate of the tenant to hold by lesse services; this is void. And if the Lord confirme to his tenant after he is disseised before his entry, to hold by lesse services; this is void.

A confirmation may be by apt words in case of a lease for yeares for part of the time, but in case of a free hold it cannot be so. And 6. Where a confirmation may be good for part of the estate or for part of the thing. Or not. Co. 5. 81, 82. Lit. Sect. 5 19. Co. super Lit. [...]97. Lit. Sect. 520. so also it may extend to part of the thing before in estate. And therefore if a disseisor, tenant in taile, husband of the land he hath in the right of his wife, or lessee for life make a lease for yeares, and the disseisee, issue in taile, wife, or less or make a confirmation of all the land for part of the time, or of part of the land for all the time; this confirmation is good. But if any such person make a lease for life, gift in taile, &c. the disseisee cannot confirme part of the estate but he must confirme all. And therefore if he confirme his estate for one houre, it is a confirmation of the whole estate. And so also if he confirme the land to the disseisor himselfe but one houre, one week, one yeare, or for his life, &c. this is a good confirmation of the estate for ever. And if it be a lease for yeares that is confirmed care must be had to the manner of the confirmation, for if the confirmation be of the estate or the terme for one houre; this is a good confirmation for the whole time: and therefore the confirmation must be had of the land To have and to hold for part of the terme; and being so made it may be good for that time only and no longer.

If I make a feoffment on condition and before the condition broken 11 H. 7. 29. Co. 1. 146. 9. 142. 7. The force and virtue of it. And how it shall enure and be construed and taken. I confirme the estate of the feoffee absolutely; this will not extinguish the condition. And yet if the condition be broken first so as my entry is lawfull; in this case the confirmation will extinguish the condition. And if the feoffee make a feoffment over absolutely to another, and I confirme the estate of the second feoffee whether it be before or after the condition broken; by this the condition is discharged.

If the Lord confirme the estate of his tenant in the tenements, or one that hath a rent, common, or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate; in these cases notwithstanding this confirmation the signiory, rent, common, &c. doe continue, and this shall not enure to extinguish it.

If the disseisee and a stranger disseise the heire of the disseisor, Co. super Lit. 298. and the disseisee confirme the estate of his companion; this shall not enure to extinguish the suspended right of the disseisee, but when the heire of the disseisor shall reenter it shall be revived. And if the grantee of a rent charge and a stranger disseise the tenant of the land, and the grantee confirme the estate of his companion [...] [Page 318] this shall not enure to the rent suspended to extinguish it, but after the reentry of the tenant the rent shall be revived.

If a man hold his land of me by Knights service, rent, suit of court Co. super Lit. 305. &c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands; in this case albeit this doe abridge the service yet it shall not be construed to take away wardship, reliefe, aid to mary my daughter and make my sonne Knight and the like.

If I have an estate in land for my life, and he in the reversion doth See before. confirme the estate to me and my wife for the terme of our lives; this shall enure only as a confirmation of my estate and not so as to give any estate to my wife. But if I have a lease for life or yeares in right of my wife, and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives; this shall enure not only to confirme the estate but also to create an estate to me after my wives death: And in the case of a lease for yeares it maketh our estate joint, but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death. And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires; this shall enure to us in fee simple as Jointenants. If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life, and the lessor confirme to them both their estate in the land To have and to hold to them and their heires; in this case as to the one moity it doth enure only to the husband and his heires, but as to the other moity they shall be Jointenants. And yet if such a lease for life be made to two men by severall moities, and the lessor confirme their estates in the land To have and to hold to them and their heires; by this they are tenants in common of the inheritance.

If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred, or To have and to hold to him for terme of his life; this shall enure to him as a fee simple and shall confirme his estate for ever.

If my disseisor make a lease for life the remainder over in fee, and Co. super Lit. 298. 297. I confirme the estate of the tenant for life; this shall not enure to, nor availe him in remainder. And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile, and the disseisee confirme the estate of the tenant in taile; this shall not extend to the fee simple, no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile, and the disseisee confirme the estate of the tenant in taile; for this shall extend only to the estate taile, and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder; this shall enure [Page 319] to and availe the tenant for life. And so if a disseisor make a lease for life and keepe the reversion, and after the disseisee doth confirme to the disseisor; this shall enure to the tenant for life. And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A; this shall enure to B and make his estate good also in the other moity. And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more; this shall enure to them both. But if the confirmation be of the land To have and to hold the land to one; in this case it may enure to him alone. So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B, albeit it be but for his life; yet this shall enure to both and to the whole fee simple.

If a lease be made for life to A the remainder to B for life, and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires; this shall enure as to the one moity to A in fee after the death of B, and as to the other moity in fee to B after the death of A.

If lands be given to two men and the heires of their two bodies Co. Idem. begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires; it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances.

If the lessee for life, or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519, 520. 541. Co. 579. for yeares, and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares; this makes the lease good for all the time. So if the disseisor makes a lease for life, and the disseisee doth confirme the estate of the lessee for life; this makes the estate good for the life. And if he in reversion confirme the estate of the termor but one houre; this doth make it good for all the terme. And if an estate for life or in fee be confirmed but for one houre; it is a good confirmation for all the estate. And if the disseisee confirme the estate of the disseisor To have and to hold for one houre, yeare, or for life, or in taile; this is a good confirmation for ever and makes his estate unavoidable. And yet if the disseisee confirme the land Habendum the land for life, or in taile, &c. contra.

If a voidable lease be made for forty yeares, and the lessor confirme [...]ier 52. 339 Co. 5. 81. the terme for twenty yeares; this is a good confirmation of the whole terme. But if he confirme the land for twenty yeares, it No [...]e. may be good for that tine only and no longer; wherein as in divers other cases before observe that the very words whereby the confirmation is made are much to be heeded, for Parols font plea.

If tenant in taile or for life of land letteth it for yeares, and after Lit. Sect. 606, 607. 610. confirme the land to the lessee for yeares To have and to hold to the lessee and his heires for ever; by this the lessee hath only an [Page 320] estate for terme of the life of the tenant in taile or for life, and therein his lease for yeares is extinct.

If tenant for life doth grant a rent to another and his heires during Co. 1. 147. super Li. 301. the life of the tenant for life, and the lessor confirme to the grantee and his heires; this shall be construed to be an estate for life only and no enlargement of the estate. But if tenant for life grant a rent-charge in fee, and the lessor confirme it; this shall be construed to be a confirmation of the fee simple.

See more in Exposition of Deeds cap. 5. in toto. And more also in the chapter of Release, whereunto we are now come in the next place.

CHAP. XIX. Of a Release.

A Release is the giving or discharging of the right or action Terms of the law. West Symb. lib. 2. Sect. 466. 1. Release. Quid. which a man hath or may have or claime against another man or that which is his. Or it is the conveyance of a mans interest or right which he hath unto a thing to another that hath the possession thereof or some estate therein. And this albeit it may be made by other words, as Dedi, Concessi, or Renunciasse, or such like, yet it is most commonly and properly made by these words Remisisse, Relaxasse, & quietum clamasse, all which are much to one purpose. He that Relessor, Relessee. makes the release is sometimes called the relessor, and hee to whom it is made the relessee.

There are two kindes of releases like unto those of confirmation, Co. super Lit. 264. 265. 2. Quotuplex. viz. a release expresse or in deed, and that is a purposed release, when the act done or deed made is intended a release. And this is alwaies done by writing. And then it is defined by some to be an Instrument whereby estates, rights, titles, actions, and other things be sometimes extinguished, sometimes transferred, sometimes abridged, and sometimes enlarged, which is after this manner. Noverint &c. me A de Bremisisse, relaxasse & omnino de me [vel prome] & hered. meis quietum clamasse C de D totum jus, titulum & clameum que habui, habeo vel quovismodo in futuro habere potero de & in unto mesuagio cum pertin in F &c. And a release implied or in law, and that is when the law by intendment and construction and by way of consequent doth make a release of an act done to another purpose. And this is sometimes by writing, and sometimes without writing. These releases also are sometimes of a bare and naked right, and sometimes of a right accompanied with some estate or interest. And sometimes they are of actions reall or in lands or tenements, and sometimes of actions personall of or in goods or chattells, and sometimes of actions mixt partly in the realty and partly in the personalty.

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A release is much of the nature of a confirmation, for in most 3. The nature and operation of it in generall. Co. super Lit. 193. 273. 277. Co. 1. 147. Lit. Sect. 606. 459. 465, 466. 446. things they agree and produce the like effects. This therefore is said sometimes to enure by way of mitter le estate. i. by way of giving or transferring or enlargement of an estate or interest, and so doth give some new interest or estate to him to whom it is made. And sometimes it is said to enure by way of mitter le droit only. i. by way of giving, transferring and discharging of a right title or entry unto him to whom it is made. And so it doth sometimes perfect an estate that was imperfect and defeasible before, and enure by way of entry and feoffement. And sometimes also it doth enure to make a conditionall estate absolute. And sometimes also it doth worke and enure by way of extinguishment or discharge: And then also sometimes it doth enure by way of discharge or extinguishment as against all persons, and so as that whereof all persons may take advantage. And sometimes it doth enure only as a discharge against some persons only, and as to or against other persons by way of Mitter le droit. And some of these in deed enure by way of extinguishment, for that he to whom the release is made cannot have the thing released. And some of them have some quality of such releases and are said to enure by way of extinguishment, but in truth doe not, for that he to whom the release is made may receive and take the thing released. And in some cases also a release like a confirmation doth enure by way of abridgement. But a man cannot barre himselfe hereby of a right that shall come to him hereafter. And therefore it is held that these words used in releases [quae quovismodo in futuro habere potero] are to no purpose.

Lands, tenements and hereditaments themselves may be given 4. What things may be released. Or not. And how. and transferred by way of release, and all rights and titles to Co. 10. 48. super Lit. 268. 269. 266. lands may be given, barred and discharged by release, and so also may rights and titles to goods and chatte [...]ls. Also all actions, reall, personall and mixt, may be given, discharged or extinct by release; for howsoever rights and titles of entry cannot be granted by act of the party, nor any action may be granted from one man to another by act of the law or the party, yet all these may be released to the terretenant. And a right to a free hold or Inheritance, seigniory or rent in presenti or futuro may be released five manner of waies, and the first three waies without any privity at all. 1. To the tenant of the free hold in deed or in law. 2. To him in the remainder. 3. To him in reversion. The other two waies in respect of privity without any estate or right, as by demandant to vouchee, donor [Page 322] to dones after the donee hath discontinued.

Also conditions annexed to estates, powers of revocation of Bro. Release in toto. uses, warranties, covenants, tenures, services, rents, commons, and other profits to be taken out of lands may be discharged, extinguished & determined by release to the tenant of the land &c.

Also possibilities of land &c. if they be neere and common Co. 10. 47. 51, 52, 5. 7 [...]. 71. super Lit. 265. Lit. Sect. 446. Co. 1. 111. 111. Dier 57. Co. 1. 113. 174. possibilities albeit they be not grantable over to another person, yet may they be released to him that hath the present estate of the land. And therefore if a man possessed of a terme devise it to A for life, the remainder to B and his heires males during the terme; in this case albeit B may not grant his interest over yet he may release it to A. And if A devise to B twenty pound when he comes to the age of twenty foure years, and die; in this case B after he is of the age of twenty one years may release this legacy. So a covenant to doe a future act may be released before it be broken. And it seems also the conusee of a Statute or recognisance may release to a feoffee of part of the land and so barre himselfe of execution of that land. And if I grant to I S that if he doe such a thing he shall have an annuity of twenty pound for his life; in this case it seems I S may release this before the condition be performed. And if I make a feoffment to I S to divers uses with power to revoke it; I may release this power to one that hath an estate of free hold in possession, reversion or remainder in the land. And yet if I make a feoffment to I S with proviso that if B revoke that the uses shall cease; in this case B cannot release this power. And a remote possibility that is altogether incertaine cannot be released. And therefore if the sonne of the disseisee release to the disseisor in the life time of his father; this release is void. And so if the conusee of a Statute release his right to the land of the conusor before execution; this release is void. And so if a plaintife release to a Baile in the Kings Bench before Judgement given, this release is void.

So if one promise to pay me tenne pound upon the surrender Adjudge Tr. 14. Jac. B. R. of my land to him, and that if he shall sell it for above fifty pound that then he shall pay me tenne pound more, and I release this to him before he doe sell it and before I do surrender; im this case this doth not release the second promise because it is not releasable.

Also debts, legacies, and other duties may be released and See in [...] discharged thereby before or after they become due. And therefore a rent or annuity may be released before the day of paiment. And so also may a debt due by obligation: Judgements, Executions, Recognisances, and the like, by apt words be discharged by release.

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If the charge or duty grow by record the discharge and release 5. How and after what manner these things may be released. thereof must be by record also. And if it grow by writing the discharge and release must be by writing also. Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo constatum est. And therefore a duty growing by a verball agreement may in some cases be released by word without writing. But regularly lands and tenements cannot be given, nor rights and titles to lands, and actions be discharged by release without a deed in writing.

A release that doth enure by way of mitter le estate, mitter le Condition. Defeasance. Co. super Lit. 274, Perk. Sect. 718. Lit. 467. Co. 1. 111. 21 H. 7. 24. droit, or extinguishment, may be made upon condition or with a defeasance, so as the condition or defeasance be contained in the release or delivered at the same time with it, for no defeasance made after can avoid the force of a release made before. And yet a release may be delivered as an escrow, and so the force of it may be suspended for a time. But a release of a condition may not be made upon a condition. Nor may a release of a chattell be upon a condition subsequent, but it may be upon a condition precedent. Curia. B. R. Hil. 9 Car. Barkley & Perkes case. Dier 307. 21 H. 7. 24. Co. super Lit. 274. Lit. Sect. 467. And therefore if a man release a debt to another upon condition that the relessor may have such a debt owing from a third person to the relessee; this is a good cōdition.

A release of all actions may be made untill a time past, as untill the first of May last, or untill the day of the date of the release; and this will discharge all actions till then and none after. But a release cannot be made of a right or action for a part of an estate or for a time only, as for one year, or untill Michaelmas next, or the like, for a release of such a thing for one day or for one hour is a release of it for ever. And yet a man may release his right in a part of the land. And therefore if a man be disseised of two acres, he may release his right in one of them and enter into the other acre. Also a release in the nature of an acquitance may Adjudged Barkley & Perkes case. Hil. 9 Car. B. R. be of part of a debt. And therefore if one be bound in an obligation of foure hundred pound to pay two hundred pound at Michaelmas, and at Christmas after the obligee by his deed releaseth three hundred ninty pound parcell of the said foure hundred pound; this is a good release for so much and no more.

6. What releases may be made of lands or tenements. And what shal be said a good release in deed. Or not. And by what words it may be made. 1. When it doth enure by way of enlargement or passing of an estate. 1. In respect of the estate of the relessor. In every good release in deed howsoever it enure these things are requisite. 1. That there be a good relessor, and a good relessee, and a thing to be released. 2. That the deed be well sealed, delivered &c. And if it tend and enure by way of enlargement of estate, then these things are further required to make the release good. 1. He that doth make the release must have such an estate in himselfe as out of which such an estate may be Dier 251. derived and granted to the relessee as is intended by the release. [Page 324] as if he have the reversion in fee of lands, he may release to a tenant for years and thereby encrease his estate to an estate for life or in taile, or he may passe his whole fee simple by the release. But if there be lessee for years rendring rent, and the reversion is Per Justice Jones 5 Car. Dier idem. granted for life the remainder over in fee, and the grantee of the reversion release all his right to him in remainder, and then he in the remainder grant the reversion, and the tenant for life release to the grantee also; in this case it seems both these releases are void and cannot enure as releases, howbeit it may be if they have words of surrender in them they may enure as surrenders. So if there be lessee for years, the remainder in taile, the remainder Adjudge Trin. 5 Jac. B. R. Butlers case. Surrender. in fee, and the lessee for years being a woman doth mary with him in the remainder in fee, and he in remainder in taile release to him in remainder in fee; this is a void release. So if tenant for life release to him in remainder in fee or in taile; it seems this is void and cannot enure as a release. So if there be tenant for life, Lit. Sect. 598. Plow. 556. Co. super Lit. 345. the remainder in taile, the remainder in fee, and he in remainder in fee release to the tenant for life; this will not increase his estate. And if the tenant in taile in this case release to the tenant for life, his estate shall be no longer increased hereby then for the life of the tenant in taile. 2. He to whom the release is made Co. super Lit. 270. 273. 265. 2. In respect of the estate of him to whom the release is made. must have some estate in possession in deed or in law, or in reversion in deed, in his own or anothers right of the lands whereof the release is made to be as a foundation for the release to stand upon; for a release which must enure to enlarge an estate cannot work without a possession joined with an estate. And therefore the relessee must be lessee for life, years, or tenant by Statute merchant, staple, elegit, or as gardian in chivalry that doth hold the land over for the value, or at least he must be tenant at will. And therefore if a man let his land to another for term of years Lit. Sect. 459. Plow 423. Dier 4. 15. H. 7. 14. to begin presently, and after the lessor or his heir doth release to the lessee (after his entry and being in possession) all his right in the land; this is good to enlarge the estate according to the time set down in the release. but if the release be before the term begin, or after the term begin and before the lessee have entred; (howsoever if any rent be reserved on the lease it may enure and be good to extinguish that rent) yet it is not good to enlarge the estate. And yet if a tenant for 20. years in possession make a lease to B for 10. years, and B enter and he in the reversion release to the first lessee for years; this is a good release to enlarge the estate. So if a man make a lease for years the remainder for life or years and the first lessee doth enter; in this case a release to him in remainder is good to enlarge the estate. So if I grant the reversion of my tenant for life to another for life, and after release to him and his heires; this is a good release to enlarge the estate.

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So if a man make a lease for life or yeares to a feme sole, and Co. super Lit. 273. shee take a husband, and he in the reversion release to the husband and his heires; this is a good release to enlarge the estate according to the words of the release. But if the case be so that a man had an estate in possession of land, and he be now out of the possession of it, and have but a right only to it; or if he have a possession only and no estate; or if he have neither estate nor possession; in these cases a release made to such a one will not availe to enlarge his estate.

And therefore if a man make a lease for life the remainder for Co super Lit. 270. life, and the first lessee dieth, and the lessor release to him in remainder for life, before his entry; this is a good release to enlarge his estate, for he hath an estate of free hold in law capable of enlargement by release before entry. But if there be lessee for life, the remainder Lit. Sect. 451. for life, the remainder in tail, the remainder in fee, and the lessee for life is disseised, & during the possession of the disseisor he that hath right doth release to one of them in the remainder; this is void. So if lands be given in taile or leased for life, and the donee Lit. Sect. 455, 456. or lessee is disseised, and during the possession of the disseisor the donor or lessor doth release all his right to the donee or lessee; this is void and will not enlarge his estate, howbeit if there be any rent reserved on the estate it will extinguish the rent. So if the tenant Co. super Lit. 273. by the curtesie grant over his estate, and after he in reversion doth release to the tenant by the curtesie; in this case his release is void and will not enlarge his estate. So if an Infant make a lease for life, and the lessee granteth the estate over with warranty, and the Infant at full age doth bring a Dum fuit infra aetatem, and the tenant doth vouch the grantor, who doth enter into the warranty, and the demandant being the Infant doth release to him and his heires; this will not enlarge his estate, for in truth he had no estate before, and that which is not cannot be enlarged. And if lessee Dier 251. for life or yeares, release to him in remainder or reversion; this cannot be good as a release, howbeit if there be apt words it may amount to a Surrender. Co. super Lit. 271. Lit. Sect. 461. And if a man have only an occupation of land as tenant at sufferance, as when a lessee for yeares doth hold over his terme, or the like; no release to him can work any enlargement of estate, for albeit he have a possession yet hath hee no estate, and besides in this case there is no privity: which is the third thing required in these releases. For as in all Co. super Lit. 296. Lit. Sect. 461. these releases that enure by way of increase or passing an estate, 3. In respect of privity. there must be some estate in the relessor and the relessee, so there must be some privity in estate between them at the time of the release made, for an estate without privity is not sufficient. And therefore it must be, between donor and donee, lessor and lessee, [Page 326] and the like as in the cases before, between him in reversion and the lessee for life or yeares, tenant by Statute Merchant or Staple or by Elegit or Gardian in Chivalry that keepeth the land for the value. And if tenant for life lease for yeares, and he in the reversion and Plow. 541. the tenant for life doe joine together and release to the lessee for yeares; this is a good release to enlarge the estate. So if he Co. super Lit. 273. in reversion release to the husband that hath an estate in the right of his wife only for life or yeares; this is a good release. Dier 4. Co. 3. 22. So if lessee for yeares make a lease of the land but for part of the terme, the privity continueth still, and therefore a release to him is good to enlarge the estate. But if he assigne over all the terme then the privity is gone, and therefore a release made to him afterwards is void: And then a release made to the assignee of the terme is good to enlarge the estate. And if a disseisor make a lease for life or Plow. 540. 14 H. 7. 4. Lit. Sect. 518. yeares, and after he and the disseisee joine together to make a release to the lessee for life or yeares; this is a good release to enlarge the estate. But if the disseisor in this case make a lease for life or yeares, and the disseisee or he that hath right release to the tenant for life or yeares; in this case the release is void for want of privity. And if there be lessee for yeares the remainder for life, and Co. super Lit. 273. he in reversion release to the lessee for yeares or him in remainder for life and his heires all his right; this is a good release to work an enlargement of estate. So if one make a lease for life, and grant the reversion for life, and then the lessor doth release to the grantee of the reversion and his heires; this is a good release to enlarge the estate of the grantee, and here is privity enough. If A be Bro. Release 71. tenant for life, the remainder to B in taile, the remainder to C for life, the remainder to A in fee, and A die, and his heire doth release all his right to B being in possession; this is a good release and gives the fee simple.

But if A make a lease to B for life, and the lessee maketh a lease Co. super Lit. 273. Lit. Sect. 516. for yeares, and after A in the life time of the tenant for life maketh a release to the lessee for yeares; this release is void and will not enlarge his estate for want of privity. So if a man make a lease for twenty yeares, and the lessee make a lease for tenne yeares, and the first lessor doth release to the second lessee and his heires; this release is void. So also if the donee in taile make a lease for his own life, and the donor release to the lessee and his heires; this release is void. So also if the donee in taile make a lease for his owne life, and after the donor release to the donee and his heires; it seems this is not a good release. Also one Jointenant or coparcener may Bro. Release 77. Perk. Sect. 84. release to another and thereby transferre all his estate and give the whole interest unto his companion; and this is a good release to passe all his or her part of the land. And if there be three Jointenants [Page 327] in fee and they make a lease for life, and after two of them release all their right in the land to the third; this is a good release. So if one make a lease for life to another, and after the grant the reversion to seven and the tenant for life doth atturn, and after four of the seven release all their right to the other three and after one of the three release to the other two; these are good releases. So if a lease for yeares be made to two, to begin at a day to come, a release by one of them to the other is good to give all the terme and all the land to the relessee. But it seems one tenant in common 1 [...] E. 4. 3. cannot release to another tenant in common.

The fourth thing that is required in such a release is sufficient 4. In respect of the words [...] whereby it is made. 4 [...] Co. super Lit. 273. 264. 301. words in law not only to make a release, (which is required in all releases) but also to raise and create a new estate. For this therefore know that all releases (of what kind soever) are commonly made by these words, Remisisse, Relaxasse, & quietum clamasse, as being the most ancient and significant words for this purpose. And a mongst these the word Release is the most effectuall word, as that which doth include the other two, and as that which is the proper and peculiar word for this kind of conveyance. But there are other 9 H. 6. 35. Dier 116. Lit. Sect. 544. Co. super Lit. 264. Dier 307. Co. 9. 52. words also by which a release may be made, as Renunciare, Acquietare, &c. And therefore it is held that if one have common in anothers land, and he by deed release it to him thus: Renuntio Communiam meam &c. this is a good release. And if the lessor doe but grant to his lessee for life that he shall be discharged of the rent; this is a good release of the rent. And it is a rule, That by what words a debt or duty may be created, by words of a contrary signification it may be released. And therefore if one doe knowledge himselfe to be satisfied and discharged a debt, this is a good release of the debt. And for words to raise the estate it is usuall and most Co. super Lit. 273. Lit. Sect. 465. 468, 469. safe to specifie in the deed what estate he to whom the release is made shall have; and in most cases this is needfull: for it is generally true, That when a release doth enure by way of enlargment of estate no inheritance in fee simple or fee taile can passe without apt words of inheritance. And therefore if I make a lease of land to another for his life, and after I release to him all my right without more saying in the release; hereby his estate is not enlarged. But if I release to him and his heires; by this he hath a fee simple. And if I release to him and the heires of his body; by this he hath an estate taile. But where a release worketh by way of mitter le estate there in some cases there needs not any words of inheritance, as in cases where releases are made between Jointenants or coparceners, as where a joint estate is made to the husband and wife and a third person and their heires, and the third person doth [Page 328] release all his right to the husband alone, or to the wife alone. So if there be three Jointenants, and one of them doth release to one of the other two; in all these and such like cases there needs not any limitation of the estate, for the release is good without it.

In every good release in deed that doth tend and enure to give Lit. Sect. 466 Co. super Lit. 265. Co. 5. 70, 71. 1. 112. 8. 132. 3. When it doth enure by way of passing and extinguishment of a right or title only. 1. In respect of the estate of the relessor. discharge or extinguish any right or title of lands it is also further requisite,

1. That he that doth make it hath at the time of the release made some right or title to release. As where one doth disseise me of land, and I release to him all my right in the land; this is a good release. So if one disseise my tenant for life, and I (being the next in remainder or reversion in fee) do release to him that did make the disseisin; this is a good release. So if the husband make a lease for life, and then take a wife and dieth, and the wife release her dower to him in reversion; this is a good release. And so also if after the mariage a man make a lease for life the remainder in fee, and shee release all her right to him in remainder in fee or to him in reversion; this is a good release and will barre her for ever.

And therefore if the Relessor have only a possibility of a right, Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release; this is not sufficient to make the release good. And therefore if the father be disseised, and the son before his fathers death release all his right to the disseisor, and after the father dieth, so that the right doth descend; this is no good release to bar the Relessor of his right. So if there be grandfather, father and son, and the father disseise the grandfather, and make a feoffement, and the son release in the life time of his father, and after the father and grandfather die; this release in this case will not bar him. So if a lease Co. 10. 57. be made for life, the remainder to the right heirs of I S, and the lessee is disseised, and the eldest son of I S living, his father doth release to the disseisor; this release is void. So if the conusee of a statute &c. doe release to the conusor all his right in the land; this is void Co. 5. 70. and he may sue execution after notwithstanding. Or if the Relessor Co. super Lit. 265. have only a power, this is not sufficient to make the release good. And therefore if a man by his will devise that his executors shall sell his land, and dieth, and the executors release all their right and title in the land to the heirs; this release is void.

2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made. or tenements, he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed (and not in right only) in fee simple, fee tail, or for life of the lands [Page 329] whereof the release is made; for rights of entry, and actions, and the like, are not to be transferred to strangers, but are thus to be released, and such releases are good. As if the disseisee release to the disseisor himself who hath the freehold in deed, or to the heir of the disseisor before his entry, who hath the freehold in law, or to the lessee for life of the disseisor; these releases are good. So if a disseisor make a lease to A and his heirs during the life of B, and A die, and the disseisee release to his heir before his entry; this is a good release. So if a fine sur conusance de droit come ceo &c. or sur conusance de droit only (which is a Co. super Lit. 266. 275. Lit. sect. 448. 1 H 6. 4. Dier 302. feoffment on record) be levied, or if tenant for life by agreement of him in the reversion surrender to him in the reversion, or if a man doe bargain and sell his land by deed indented and inrolled, or uses are raised by covenant on good considerations; in all these cases the conusee, him in reversion, bargainee, and cestuy que use, have a freehold in law in them before entry. And therefore a release to them of the right of the land by him that hath it is good, and will bar the Relessor. But otherwise it is in cases of Exchange, Partition, or upon Livery within the view, for in these cases no release is good untill an actuall entry made, for till then they have neither freehold in right nor law. So if a disseisor make a gift Lit. Sect. 449 in tail, or lease for life or years of the land, and keep the reversion, and then the disseisee or his heir release to the disseisor all his right; this is a good release to bar his right for ever. So if Co. super Lit. 260. Lit. Sect. 455, 456. the heir of the disseisor be disseised, and the first disseisee doe after release to him all his right; this is a good release to bar him. So if a donee in tail discontinue in fee, and the donor release to the discontinuee and die; this is a good release against the donor. So if the donee in tail be disseised, and after the donor release to the donee all his right: this is good, but in this case nothing of Extinguishment. the reversion will passe by the release, for the donee had then nothing but a right. But if any rent be reserved on the estate tail, the rent is gone by the release. So if a lease be made to one for life rendring rent, and the lessee is disseised, and the lessor release to the lessee and his heirs all his right; in this case albeit the rent be extinct, yet nothing of the right of the reversion doth passe. And yet if a woman that hath right of dower release to the guardian in Chivalry: this is a good release, and her right or title of dower is gone. But if a disseisor make a lease for years, and the disseisee release to the lessee for years; this release is void because he hath no freehold. But if he make a lease for life, and the disseisee release to the lessee for life; this is a good release. So also a release to the disseisor after the lease for years made is good. And Co. super Lit. 265. if lessee for years be ousted, and he in the reversion disseised, and [Page 330] the disseisor make a lease for years, and the first lessee release to him; this is a good release. Also in some cases a release made to Lit. Sect. 448, 449, 450, 451. Co. 8. 151. one that hath neither freehold in deed, nor freehold in law, is good when he hath an estate in reversion or remainder, as in the case before, where a release is made by the disseisee to the disseisor after he hath made an estate for life. So if the demandant in a reall action release to the tenant that comes in by receipt upon a prayer of aid or voucher upon a warranty; this is good. And yet if it be before the receipt, or entry into the warranty, or it be by any other besides the demandant, it is void. So if the tenant in a reall action alien hanging the precipe quod reddat against him, and after alienation the plaintiff release all his right in the land to him, this is a good release. So if a disseisor make a lease for life, the remainder to another for life, the remainder to a third in taile, the remainder to a fourth in fee, and the disseisee release to either of them in remainder; this is a good release. But if in this case tenant for life be disseised, and after he that hath right (the possession being in the disseisor) doth release to either of them in remainder; this is a void release. But in all the cases of a release of a bare Co. super Lit. 275. Lit. Sect. 470, 471. Co. 10. 48. 3. In respect of privity. right to him that hath an estate of a freehold in deed or in law, generally there needs no privity to make the release good: as in the cases before of a release made to the tenant for life of the disseisor, and them that follow. For if tenant for life make a lease to another for life of the lessee, the remainder over in fee, and the first lessor release al his right to him to whom the tenant made the lease for life; this is a good release and a perpetuall bar, albeit the release be not to him and his heirs. And so it is in case of a reversion.

If lessee for years be ousted, and he in the reversion disseised, and the disseisor make a lease for years, and the lessee that is ousted doth release to the lessee of the disseisor; this is a good release. And yet if the disseisee doe release to the lessee for years of the disseisor; this is void.

If lessee for a thousand years be ousted by the lessor, and he make a lease for two years, and the lessee for a thousand years release unto him; this is a good release. But if a lessor disseise his lessee for life, and make a lease for a thousand years, and the lessee for life release to this lessee of a thousand years; this release is void.

If one be disseised, and after another doth disseise him, and the Co. super Lit. 277. Lit. Sect. 473. 470, 471, 478. disseisee release to the last disseisor; this is a good release. So if A disseise B who infeoffeth C with warranty, who infeoffeth D with warranty, and E disseiseth D to whom B the first disseisee releaseth; this is a good release, and doth defeat all the mean estates and warranties. So if my disseisor lease for life, and the lessee for life alien in fee, and I release to the alienee all my right &c. this is [Page 331] a good release and will bar me of my entry: but if my entry be gone, as if I lease for life, and my lessee be disseised, and that disseisor is disseised, and I release to the second disseisor; in this case the first disseisor may enter upon the second. So if my disseisor in the case aforesaid make a lease for life, and the lessee for life maketh a feoffment to two, and I release to one of the feoffees; this is a good release and will bar me and my disseisor also. So if tenant for life let the land to another for the life of the lessee, the remainder to another in fee, and the lessor release to his tenant for life; this is a good release.

If one that hath a son within age be disseised and die, and the disseisor die seised, and the land descend to his heir, and a stranger abate, to whom the son when he comes of age doth release; this is a good release. So if one be disseised by an infant which doth alien in fee; and the alienee die seised, and his heir entreth, the disseisor being within age, and the disseisee release to the heir of the alienee; this is a good release. But where an inheritance or 9 H. 6. 43. an estate for life is released to one that is but tenant for years, the release is not good without privity. And therefore if tenant for Co. 10. 48. life or in fee release to the lessee for years of his disseisor; this is not good. But the release of a term of years to the lessee for years of him that doth eject him is good enough without privity, as in the case before.

But here note that in cases of a void release of a right to an inheritance Co. super Lit. 265. Warranty. or freehold, where there is a warranty contained in the deed, the warranty may be good, and be used by way of rebutter, albeit the release be void. As if the son of the disseisee release with warranty in the life time of his father, or there be grandfather, father and son, and the father disseise the grandfather, and make a lease with warranty and die; in both these cases albeit the son be not barred by the release, yet he is barred by the warranty.

4. Such words as will make a good release in the cases of releases Co. super Lit. sect. 467. 4. In respect of the words whereby it is made. that enure by way of enlargement of estate will make a good release in these cases. And note that this kinde of release is good without any limitation or specifying of the estate, for by a release of all a mans right without saying To have and to hold to him and his heirs &c. in all the cases before, he that makes the release is barred of his right for ever, for if I be seised of an estate in fee by wrong, and he that hath right release to me all his right, albeit it be but for one houre, yet this is a good release for ever.

7. What Releases may be made of other things. And what shall be said a good Release in Deed of such things. Or not. And by what words. Of a seigniory, rent-service, common, or the like. If there be Lord and tenant, and the Lord release to the tenant Lit. sect. 480. Co. super Lit. 280. 305. Perk. sect. 70. all his right that he hath in the seigniory, or all his right that he hath in the land &c, this is a good release to extinguish the seigniory. [Page 332] And in this case there needs no words of inheritance or limitation, for by release of all the right in the seigniory; the same is extinct for ever, without saying [to him and his heirs]. And yet in this case the Lord may by apt words release his seigniory to the tenant only in tail, or for life, and it shall be good so long. But if a Lord grant to his tenant that he shall doe his suit to another Manor of the Lords, or that the tenant shall give him yearly twelve pence for his suit; this grant will not extinguish and determine the services or tenure.

If there be Lord and tenant, and the tenant be disseised, and Lit. sect. 457. Co. 10. 48. super Lit. 268. after the Lord release all his right &c. to the tenant; by this release the service or seigniory is extinct, for albeit a right regularly cannot be released to him that hath but a bare right, yet a seigniory may be released and extinct to him that hath but a bare right in the land. But if the tenant make a feoffment in fee, and then the Lord release all his right &c. to the tenant; this is not good to extinguish the seigniory or services, but it will discharge all the arrearages.

If a rent-charge, common of pasture, or any other profit apprender Lit. sect. 480. 536, 537. Co. super Lit. 305. Lit. sect. 455, 456. Co. super Lit. 273. be issuing out of my land, and he that hath it doth release it to me; this is a good release and will extinguish it. But if I be disseised of the land, and have but a right at the time of the release made: the release is not good, as it is in the case of a rent-service and a seigniory. But if lands be given to me in tail, or for life rendring rent, and I be disseised, and after the donor release to me all his right in the land; this is a good release and shall extinguish the rent. So if in this case where I am tenant in tail and I make a feoffment in fee rendring rent, and after I release to the feoffee; this is a good release and hereby the rent is extinct. And if two coparceners be of a rent, and one of them take the terretenant to husband, and after either of them release; these releases will be good.

If one disseise me of land, and then grant a rent-charge out of Lit. sect. 527. Co. super Lit. 300. the land, and I reciting the same grant release to the grantee; this release it seems is good, and will bar me so as after my reentry I shall not be able to avoid it.

If two have the grant of the next advowson or avoidance of a Co. super Lit. 270. Of an Advowson &c. Church; before it be void one of them may release to the other, but afterwards they cannot.

If A make a feoffment in fee, gift in tail, lease for life or years to Co. 1. 112. Perk. sect. 823. 764. Of a Condition. B on condition that upon such a contingent it shall be void; in this case A may before the condition broken release all his right in the land, or release the condition to B; and this will be good to make the estate absolute and to discharge the condition. So if a feoffee [Page 333] on condition make a gift in tail or lease for life, and after the feoffor release to the donee or lessee; this is a good release to discharge the condition. So if a copyholder surrender to the use of anothrr on condition, and this is presented to be without condition, and after the surrendror doth release to him to whose use the surrender was made all his right &c. this is a good release and doth extinguish the condition. But if a disseisor make a feoffment on condition, and the disseisee release to the feoffee on condition; howsoever this doth bar the right of the disseisee, yet it doth not discharge the condition.

Where a power or authority is such that doth respect the benefit Co. 1. 112, 113 173, 174. Of a power of revocation. of the relessor, as in the usuall cases of power of revocation of uses, when the feoffor &c. hath power to alter, change, determine or revoke the uses being intended for his benefit, and he release to any one that hath a freehold in possession, reversion, or remainder, by the former limitation: this is a good release and doth extinguish the power and make the estates that were before defeasible absolute, and it doth seclude him from any power of alteration or revocation. But if the power be collaterall, or to the use of a stranger, and nothing to the benefit of him that makes the release: as if A make a feoffment to B to divers uses, provided that B shall revoke the uses, and B release to any one of them that hath a use, this doth not extinguish the power, as in case where the power is given to A, and A doth release it.

If a feoffment be made with warranty, and the feoffee release Of a warranty. the warranty; this doth extinct it. And so it is of other warranties. But if tenant in tail release the warranty annexed to his estate tail, this doth not extinguish this warranty.

Any man may release any debt or duty due to himself. Also Of debts and other duties personall. Bro. Release 88. 21 H. 7. 29. Co. 5. 27. a man may discharge or release any thing due, or any wrong done to his wife before or after the mariage. And therefore if a trespasse were done, or a promise were made to my wife before 1. In respect of the persons. the mariage; I may at any time during the mariage release this. So if any wrong be done, or obligation, statute, or promise Husband and wife. made to her alone, or to her and me together at any time during the mariage; I alone may release and discharge this. And if my wife be an executrix to any other man, I may release any debt or duty due to the testator.

And if a legacy be given to a woman sole to be paid at Michaelmas Per ch. Justice B. R. Mich. 17 Ja. next, and I mary with her, and I release the legacy before the day: it seems by this the legacy is gone.

An infant executor may release a debt duly paid unto him of Infant. Co. 5. 27. the testators debt. But if he release that which he doth not receive, [Page 334] it is a void release. And regularly the release of an infant is void.

An executor before probate of the Will may release a debt or Co. 5. 27. 9. 39. 2. In respect of the time. duty due to the testator; and this release is good to bar him.

A future or contingent promise may be released and discharged Trin. 14 Ja. in Eltons case. before the contingent happen. A debt on an obligation, or rent may also be released before the day of payment as well as after, but not by the same words. And therefore if one promise to I S that upon the surrender of I S he will pay him an hundred & ten pound, and after the promise and before the surrender he release this debt; this doth discharge the debt. But if the promise be that if the surrendree shall sell the land, and shall have five hundred pound, that then he shall pay to the surrendror an hundred pound more, and the surrendror before sale release this sum; this is no discharge of it. And yet a release of the promise is a discharge of it. And if A promise to me that if Hil. 16 Jac. B. R. Briscoe versus Heires. I S doe not pay to me an hundred pound 1 Octobris, that hee doth owe me, that A will pay me the hundred pound 1^o Novembris, and I 10^o Septembris release to him this debt, or all actions & demands; in this case this release is not good to discharge this promise. But by a release of the promise, the same is discharged.

If a man release to another all actions, and doe not say further Of actions. Bro. Release 29. which he hath against him; this is as good a release as if these words were inserted. Quod necessario subintelligitur non deest.

And all these releases must be made by apt words, and such as Co. 9. 53. law shall judge sufficient for that purpose.

And in all these cases care must be had there be no mistake, Bro. Release 56. 58. for mistakes will make releases and confirmations void as well as other grants. And therefore if A make a release to B in this manner: Noveritis &c. me A de B remisisse &c. B omnes actiones quas idem B habet versus A, whereas it should be quas idem A habet versus B; this release is void.

If there be Lord and tenant, and the Lord purchase the tenancy; 8. What shall be said a Release in law. Or not. And how. Co. super Lit. 264. by this means the services are released and extinct in law. And if the Lord disseise his tenant, and make a feoffment in fee by deed or without deed; this is a release in law of the seigniory. Of a seigniory. Of a right to land.

If a disseisee disseise the heir of the disseisor, and make a feoffment Co. idem. with or without a deed; this is a release in fee in law of the right. And if he make a lease for life, this is a release in law of the right so long as the lease doth last.

[Page 335]

If a creditor, as an obligee, or the like, make a debtor, as the Of a right of action. Co. super Lit. 264. 8 E. 4. 3. 21 E. 4. 2. obligor &c. his executor; by this means the action is released by act of law, and yet the duty remains still, for the executor may Executor. retain so much of the goods of the testator. And if the creditor be a woman, and she mary with the debtor; by this the debt is released in law. And if there be two obligees or debtees, and one of them being a woman, is maried to the obligor; this is a release in law of the debt, albeit the creditor be an infant.

But if there be a woman executrix to the debtee, and she take M. 30 & 31 El. B. R. Adjudge. Co. 8. 136. the debtor to husband; this is no release in law.

And if an obligor be made administrator of the goods and chattels of the obligee; this is no release in law.

Where divers join in any suit or action to recover any personall Co. 6. 25. 5. 22. Bro. Release 84. 94. stat. 23 H. 8. ch. 3. 9. The force and virtue of it. And how it shall enure and be construed and taken. thing of which they are to have the joint benefit or interest when the law doth not compell them to join, there the release of one of them shall bar all the rest. And therefore if two men join in an action of debt, trespassel, or the like, and one of them alone 1. In respect of the persōs. And where a release made by one shall binde another. And where not. And where a release made to one shall enure to others. Or not. doth release to the defendant; this is a barre to the other plaintiffs also. So if a statute or an obligation be made to two or more, and one of them release it to the conusor or obligor; this is a discharge of the whole duty, and a bar to the rest, so that they can make no use of the statute or obligation. But if divers be charged in any action, and they for the discharge of themselves only join in a suit or action, where also they can doe no otherwise being compelled by law to join; in this case the release of one of them shall not hurt the others. And therefore if divers join in a writ of Error, Attaint, or Audita querela, and one of them release to the defendant in the writ; this will not bar the rest of their remedy, but they may goe on in their suit notwithstanding.

If there be two or more executors, and one of them alone release 1 [...] H. 7. 4. Executors. a debt or duty to the testator before judgement had in a suit had by all the executors against the debtor, this will bar all the rest. But otherwise it seems it is after judgement had.

If a writ of ward be brought by two, and one of them release; Co. super Lit. 205. this shall not bar his companion, but shall enure to his benefit, for hereby he shall have the whole ward.

A release made to the tenant in tail, or for life of the right Lit. Sect. 452. 470. Co. super Lit. 275. 290. 267, 268. Co. 8. 351. to the land, shall avail and enure to him that hath a reversion or remainder in deed. And so è converso. A release made to him that hath a remainder or reversion will avail and enure to the benefit of him that hath the estate tail for life, or years precedent. As if a disseisor make a lease for life, and the disseisee [Page 336] release to the tenant for life; this shall enure to the disseisor. So if he or a tenant for life make a lease for life, the remainder for life, the remainder in tail, the remainder in fee, and the disseisee or first lessor doth release all his right to any one of them in remainder; this shall enure unto, and benefit all the rest. And if the husband make a lease of his wives land to one for life, the remainder to another in fee, and the wife after his death doth release all her right in the land to him in remainder; this shall enure to the lessee for life.

If a disseisor make a lease for life, and the disseisee release all Co. super Lit. 275. his right to the tenant for life; this shall enure to the benefit of the disseisor. But if the disseisee release no more to the tenant for life but all actions; this release will not benefit him in remainder or reversion after the death of the tenant for life.

If a disseisor make a feoffment to two in fee, and the disseisee Lit. Sect. 472. release to one of the feoffees; this shall enure to both.

If tenant in tail be disseised by two, and he release to one of Co. super Lit. 276. them; this shall enure to both. But if the Kings tenant bee disseised by two, and he release to one of them; this shall not enure to the other. So if two jointenants make a lease for life, and then disseise the tenant for life, and he release to one of them; in this case his companion shall have no benefit by it.

If tenant in fee simple be disseised by two, or two doe abate or Lit. Sect. 472. 522. intrude, and he doth release to one of them; the other shall have no benefit by this. But if tenant for life doe after a disseisin done to him release to one of the disseisors; this shall enure to both.

And if two disseisors be, and they make a lease for life or Co. super Lit. 276. years, and after the disseisee doth release to one of the disseisors, this shall enure to them both, and to the benefit of the lessee for life also.

And if lessee for years be ousted, and he in reversion disseised, and the lessee release to the disseisor; the term of years is hereby extinct, and the disseisee may take advantage of it and enter presently.

But if two jointenants in fee be disseised by two disseisors, & one of the disseisees release to one of the disseisors all his right; this shall enure to the other, for this extendeth but to a moity.

If a release be made by a woman of her dower to the guardian Co. super Lit. 266. in Chivalry; this shall enure to the heir, and he may take advantage of it.

If tenant for life be disseised by two, and he in the reversion and the tenant for life join in a release to one of the disseisors; Co. super Lit. 276. this shall not enure to the other. But if they doe severally release [Page 337] their severall rights, their severall releases shall enure to both the disseisors.

If mortgagee upon condition after the condition broken be Co. idem. disseised by two, and the mortgagor that hath the title of entry doth release to the one disseisor; this shall enure to both. And like law is for an entry for mortmain, or a consent to ravishment &c.

If there be Lord and two jointenants, and the Lord release to Co. super Lit. 269. one of them; this shall avail his companion.

If tenant in fee simple make a feoffment in fee, and after the Lord release to the feoffor, this shall not enure to the feoffee to extinguish the seigniory. But if he release to the feoffee, this shall enure to the feoffor to extinguish the seigniory.

If there be Lord and tenant, and the tenant make a lease for Co. super Lit. 279. life, the remainder in fee, and the Lord release to the tenant for life; the rent is hereby wholly extinguished, and he in remainder shall take advantage of it, as when the heir of a disseisor is disseised, and the disseisor makes a lease for life, the remainder in fee, and the first disseisee doth release to the tenant for life; this shall enure by way of extinguishment to him in remainder, viz. to the lessee for life first, and after to him in remainder.

If two tenants in common of land grant a rent of forty shillings Co. super Lit. 267. out of it, and the grantee release to one of them; this shall not enure to the other. But if one bee tenant for life of lands the reversion in fee to another, and they join in the grant of a rent out of the lands, and the grantee release either to the tenant for life, or to him in reversion; this shall enure to the other and extinct the whole rent.

If two men gain an advowson by usurpation, and the right Co. super Lit. 276. Patron release to one of them; this release shall enure to them both.

If two be bound jointly and severally in any obligation, or Co. 5. 59. super Lit. 232. Lit. Sect. 376. other especialty, and the obligee &c. release to one of them; this shall enure to discharge the other also, if it be a good release as to him that makes it. But otherwise it is in case of a release made by the King.

And if two do a trespasse to another together, and he to whom Prerogative. it is made doth release it to one of them; this shall enure to discharge the other.

If husband and wife, and I S purchase to them and the heirs To husband and wife. Dier 319. Co. super Lit. 273. 276. 14 H. 8. 6. of the husband, and after I S release all his right in the land to the husband; the wife shall have no benefit by this, but it shall enure to the husband alone.

And if there be two women joint disseiseresses, & the one take [Page 338] a husband, and the disseisee release to the other; in this case the husband & wife shall take no benefit by this. And if the disseisee release to the husband; this shall enure to him and his wife and the other woman.

And if one that hath a rent out of my wives land release it to me and my heirs; this shall enure by way of extinguishment, and my wife will have advantage of it. And yet if the words be [grant and release] the rent to the husband and his heirs; in this case the husband may take as a grant if he will.

But here note in all these cases of releases, when one man Co. super Lit. 232. Note. will take advantage of a release made to another, he must have the release to shew and plead.

If I bee disseised, and I release to the disseisor all actions I Co. 10. 51. 22 H. 6. 1. have or may have against him; this is but personall, and shall not be expounded to bar my heir after my death of his remedy, neither will it bar me of my remedy against his heir after his death.

So if I deliver goods to another, and afterwards I release to him all actions, and then he die; by this I am not barred so, but I may sue his executors.

See more in Confirmation, chap. 18. Numb. 7.

A release of all actions without any more words, is better Co. 8. 153. 5. 28. 70. Kelw. 113, Co. super Lit. 286. 290. 292. 289. Lit. sect. 492. 505, 506. 512, 513. Bro. stat. 39. 2. In respect of the thing released. Of all actions. then a release of all actions reall onely, or a release of all actions personall onely, for by a release of actions, or a release of all manner of actions, without more words, are released and discharged, all reall, personall and mixt actions then depending, and all causes of suit for any reall or personall thing: as Appeals for the death of an ancestor, conspiracies, suits by Scire facias to have execution of a Judgement, detinue for charters.

And if two conspire to indite me, and I release to them all actions, and after they goe on with their conspiracy; by this release I am barred to doe any thing against them. By this release also of all actions, a debt due to be paid upon a statute or an obligation at a day to come, albeit the release be before the day is discharged, and by this also the statute it self if it be at any time before execution is discharged.

And if one be to pay forty pound at four days, and some of the days are past, and some to come, and the debtee make such a release; by this the whole debt is discharged.

Also in a Scire facias upon a Fine or a Judgement, this release is a good plea in bar.

But this release of all actions will not discharge Executions, or bar a man of taking out of Executions, except it be where it must bee done by Scire facias. Neither will it discharge or bar a man of suits by Audita Querela, or writ of Error to reverse [Page 339] an erroneous judgement, neither will it discharge covenants before they be broken, nor will it discharge any thing for which the relessor had no cause of action at the time of the release made, as if a woman have title of dower, and doe release all actions to him that hath the reversion of the land after an estate for life; or a man is by an award to pay me ten pound at a day to come, and before the time I make such a release; or I make a lease rendring rent, or an annuity is granted to me, and before the rent-day, I make the lessee or the grantor such a release; in these cases, and by a release in these words without more, the dower, debt, rent, or annuity, is not discharged.

And if a man have two remedies or means to come by land, Lit. sect. 496, 497. as action and entry, or by goods, as action and seisure, or the like; in this case by a release of all actions he doth not barre himself of the other remedy. Et sic è converso.

And if a man doth covenant to build an house, or make an estate, and before the covenant broken the covenantee doth release unto him all actions; by this the covenant it self is not discharged. And yet after the covenant is broken, this release will Co. super Lit. 292. discharge the action of covenant given upon that breach.

By a release of all a mans right into any lands or tenements Of all right. Co. 8. 151. Plow. 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to, in or against the land, for there is jus recuperandi, prosequendi, intrandi, habendi, retinendi, percipiendi, possidendi, and all these rights, whether they accrue by fine, feoffment, descent, or otherwise, are extinct and discharged, so that if the relessee have gotten into the land of the relessor by wrong, by this release the wrong is discharged, and the relessee is in the land by good title.

Also by this release are discharged and released all titles of dower, and titles of entry upon a condition or alienation in mortmain.

And if a woman have title of dower after an estate for life, and make such a release to him in reversion, this doth barre her. By such a release also from the Lord to the tenant the services are extinct.

But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release, or of a right that shall descend to him afterwards. And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant; or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right; these releases doe not bar them. Nor will this release bar a man of an Audita Querela, and such like things. And yet if the tenant in a reall [Page 340] action after the demandant hath recovered the land, release to him all his right in the land; this doth bar him of a writ of Errour for any errour in the proceeding in that suit.

And if there be Lord and tenant by fealty and rent, and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent; by this release the right of the seigniory, save only of the seigniory of the rent and fealty, is extinct. And if the Lord release to his tenant all his right to the land and seigniory, salvo sibi dominio suo &c. hereby the services only, not the tenure is extinct.

And if one have a rent-charge out of my land, and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent; hereby the rent is extinct and gone for ever.

By a release of all a mans title into lands or tenements without Kelw. 484. 6, 7, 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title. by the release of all a mans right, and both these releases have the like operation: for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised, for which he can have no action, yet it is commonly taken more largely, and doth include a right also. And Titulus est justa causa possidendi quod nostrum est.

By a release of all entries or rights of entry a man hath into Co. 8. 15 [...]. Or entry or right of entry. lands, without more words a man is barred of all right or power of entry into those lands upon any right whatsoever. And if a man have no other means to come by the land but by an entry, and he hath released that by these words; he is barred for ever, But if one have a double remedy, viz. a right of entry, and an action to recover his right by, and then release all entries; by this he is not barred of his action.

By a release of all actions reall without more words, are discharged Of actions reall. Lit. sect. 492, 493. 495. Co. 8. 151. Lit. sect. 115. 500. Co. super Lit. 288, 289. all reall and mixt actions then depending, and all causes of reall and mixt actions not depending. And therefore all causes of suing of assises, writs of Entry, Quare Impedit, actions of wast, and the like, which the party hath at the time of the release made, are hereby discharged. But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards. Neither will it bar him of an appeal of death or robbery, writ of Error, or any such like thing. Nor of any thing which a release of all actions will not bar. And yet when land is to be restored or recovered by judgement in a writ of Error; this release is a bar to the writ of Error. So if a judgment be given upon a false verdict in a reall action, a release of all actions reall is a bar in an attaint.

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By a release of all actions personall, without more words are Of actions personall. Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending, and all causes of personall actions wherein a personall thing only is to be recovered, and therefore hereby are discharged all causes of suing out of actions of debt, trespasse, detinue, or the like. Also all mixt actions, as actions of wast, Quare Impedit, an assise of novel disseisin, writ of annuity, appeal of maihme, and the like.

And if debt &c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict, and the defendant bringeth awrit of attaint; or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution; by this release the defendant in both cases is barred of his suit.

Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only, as debt, damage, or the like: as if the plaintiffe in a personall action recover any debt &c. or damages, and be outlawed after judgement; in this case in a writ of Error brought by the defendant upon the principall judgement, this release will bar him. But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing, this release is no bar: as if a man be outlawed in an action personall by processe upon the originall, and bring a writ of Error, and then release; this is no barre to him.

If a man by wrong take or find my goods, or they be delivered Lit. Sect. 497, 498. 500. to him, and I release to him all actions personall; notwithstanding this release, I may in this case take my goods again, albeit I be barred of my action by this release. Neither is this release a bar in an appeal of robbery or death. Neither will it bar in any case where a release of all actions will not bar. Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release. Nor for any rent of sum of nomine pene, when the release is before the same day, or nomine pene happen. Neither is it a bar in such reall actions wherein damages are recoverable only by the statute, and not by the common law, as in a writ of dower, entry, sur disseisin in le per Mordancester, Aile &c.

By a release of all debts without more words, are discharged Of debts. Co. super Lit. 76. 291. Fitz. Audita Querela. 3. and released all debts then owing from the relessee to the relessor upon especialties, or otherwise, all debts due also upon statutes. And therefore if the conusor himself, or his land, be in execution for the debt, and he hath such a release, he must be discharged: and so he cannot be upon a release of all actions.

By a release of all duties without more words is a relessor Of duties. Co. 8. 153. & super Lit. 291. barred, and the relessee discharged of all actions, judgements, [Page 342] and executions, also of all obligations. And if the body of a man be in execution, and the plaintiffe make him such a release; hereby he shall be discharged of execution, because the duty it selfe is discharged. And if there be rent or services behind to the Lord from his tenant, and the Lord make such a release to his tenant; by this it seems the arrearages are released.

This word is of somewhat a more large extent then actions, Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits. for by a release of all suits without more words is released and discharged as much as by a release of all actions. And hereby also are discharged al executions in the case of a subject. But in the case of Prerogative. the King it doth not release executions. And this doth not release a covenant before it be broken.

By a release of all quarrels without more words, all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates, quarrells, controversies. reall and personall, and all causes of such actions are released and discharged. So likewise by the release of all controversies, or by the release of all debates. But this will not bar the relessor of any causes of suit that shall arise after, and was not at the time of the release: as the breach of a covenant which shal be after, albeit the covenant be before, is not discharged hereby.

By a release of all covenants without more words all covenants Of Covenants. Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged. Qui destruit medium destruit finem.

And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case. to him at the end of the terme as it was at the beginning of the terme, and the lessor before the end of the terme release to the lessee all covenants; this doth discharge the covenant. But this release doth discharge nothing else but covenants.

By a release of all Statutes from the conusee to the terre-tenant Of Statutes. Co. 10. 47. without more words the Statute is discharged. And yet if he release all his right in the land of the conusor; this will not discharge the land of execution.

By a release of all errors and writs of error, all errors and Co. 2. 16 Lit. Sect. 503. Of Errors. writs of error and that before they be brought are extinct and discharged. And if a man be outlawed in a personall action by processe upon originall, and make such a release; this will barre him.

By a release of all warranties or covenants reall, all warranties Lit. Sect. 148. Of Warranties. then made and being are for ever discharged.

By a release of all legacies without more words, a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies. barre himselfe of all the legacies given him in presenti or futuro, so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular; this is a barre to him of this legacy for ever. [Page 343] And yet a release of all demands in this case is no discharge of this legacy.

By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent. the day of paiment be come or not. But a release of all actions will not discharge a rent before the day of paiment come.

By a release of all promises or Assumpsits without more Of promises. Adjud. Hil. 16 Jac. B. R. Briscoe vers. Heires. Co. 10. 51. words, a man may barre himselfe of a contingent or future thing that by other words could not be released, as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands; this will not discharge the promise. But if I release to him all promises, this will barre mee. Et sic de similibus.

By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect, of any Judgement he hath Of Judgements Of Executions against the relessee, for if execution be not taken out he is now barred of it. And if the relessee, or his land &c. be in execution he and it shall be discharged thereof by Audita Querela. And by a release of all executions without more words, a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after. But if after execution be made by Capias ad Stat. Elegit, or fieri facias the Audita Querela plaintife release to the defendant all executions, he cannot plead such a release but he must have an Audita Querela, and that he may have to discharge him of execution.

By a release of all appeales, are discharged all appeales of Co. super Lit. 287, 288. felony, of death, of robbery, of rape, of burning, of larceny Of Appeales. depending, and all causes not yet moved also.

By this release of all advantages, it seems actions of debt upon Of Advantages account are discharged. Co. 8. 150.

By a release of all conspiracies, all conspiracies past are discharged, Kelw, 113. Of Conspiracies. and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged.

By a release of all forgeries before publication the forgery is Of Forgeries. Co. 10. 48. discharged but not the publication, and therefore the relessor may take his remedy for that notwithstanding.

A release of all demands is the best release of all, and this Of Demands or Cl [...]im [...]s. Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501, 509, 510. word is the most effectuall word of all, and doth in deed include and comprehend within it most of all the releases before. By a release therefore of all demands without more words are released all rights and titles to land, warranties, conditions annexed to estates before they be broken or performed and [Page 344] after they be broken. Also by this release are released and discharged all Statutes, Obligations, Contracts, Recognisances, Covenants, Rents, Commons, and the like. Also all manner of actions reall and personall, Appeales, Debts, duties. Also all manner of Judgements, Executions. Also all Annuities, and Arrearages of Annuities and Rents. And therefore if a man have a title of entry by force of a condition &c. or a right of entry into any lands; by such a release the right and title is gone. And if a man have a rent-service, rent-charge, estovers, or other profit to be taken out of the land; by such a release to the tenant of the land it is discharged and extinct.

And therefore if a termor for yeares grant the land by indenture to A rendring rent, and at the end of the first yeare Adjudg. B. R. pasc. 17 Jac. Wottons case. he release to the grantee all demands; the rent is hereby extinct during all the time. And a release of all claimes it seems is much of the same nature.

But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made, as a meere possibility, or the like.

Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge. is future and contingent before it be in being. Nor a covenant before it is broken: and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme, and before the end of the terme the lessor release to the lessee all demands; this is no barre to an action brought for a breach of the covenant afterwards.

And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher & Hudsons case. him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him, and shee mary him, and the husband release all demands and then die; this is no barre to the duty. So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him, and before the mariage shee release to him all actions and demands; this doth not discharge the promise.

And note that all these words are of the same force when they are joined with other words as when they are alone. Note.

If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee, and the grantee release to one of them; this shall extinguish but twenty shillings, for that the grant in judgement of law is severall.

If one have severall causes of action against two, and make a joint release to them; this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action.

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So if an executor have some cause of action for himselfe, and Bro. Release 31. 29. some for his testator, and he release all Actions, indefinitly; this release doth discharge both sorts of actions.

If the tenancy be given to the Lord and a stranger, and to the heires of the stranger, and the Lord release to his companion Co. super Lit. 280. all his right in the land; this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory.

If there be Lord and tenant of two acres, and the Lord release all his right in one of them to the tenant; hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both. So if one have a rent charge out of twenty acres, and release all his right in one acre; hereby all the rent is extinct. And yet if A lease white acre to B for life rendring rent, and afterwards doth release part of the rent; this is good only for such part.

If I be seised of land in fee and I make a lease of it to one for life, and after I release all my right in the land for the life Bro. Release 65. of the tenant for life, so as neither I nor my heires shal have claim or challenge any thing or right in that land for the life of the tenant for life; by this release nothing is extinct or discharged but the causes of action of wast that were then, and notany cause that shall happen afterwards. Dier. 307.

If a Statute be entred into the twentyeth of Aprill, and the conusee by a release dated the ninteeneth of Aprill (meaning to except this Statute) doth release all debts and demands till the making of the release; by this release the Statute is discharged. But if the words had been to the day of the date of Per Justice [...]odridge Trin. 14 Jac. the release, contra.

If a promise be of two parts, and he to whom it is made doth release one part; it seems this is a release of both. [...]o. 9. 53.

If A 1 [...]. Ian. enter into an obligation of forty pound to B and B 13^o. Iuly make a deed thus, It is agreed between B on the one part and A on the other part that upon good considerations B doth acknowledge himselfe fully satisfied and discharged of all bonds, debts or demands whatsoever from the beginning of the world to this day by the said A, and that he the said B is to deliver all such bonds as he hath yet undelivered to A except one bond of forty pound yet unforfeit which is for the paiment of &c. which was the obligation before; in this case it was adjudged a good release and discharge of all Lit. Sect. 467. 470. Co. super. Lit. 273. 264. 280. Kelw. 88. Co. super Lit. 9. the bonds excepting that one, and that this exception shall goe to all the premisses.

A release of a right, or an action cannot be for a time but 3. In respect of the time or estate. it will be for ever. And therefore if a release be made to any [Page 346] one that hath a fee simple by wrong by him that hath the right for one houre, one yeare, for life, or yeares; this is a good release for ever.

And if the disseisee release all his right in the land to the disseisor without naming his heires or setting down any time how long the relessee shall have the land or the right of the disseisee therein; this is a good release for ever and doth make the estate of the disseisor good for ever, and so doth make a good estate in fee simple without these words [his heires &c.] And if the disseisor or his heire make a gift in taile, or a lease for life, and the disseisee release all his right to the donee or lessee for life To have and to hold for life only; this is a good release of his right for ever.

But if the disseisee doe disseise the heire of the disseisor, and make a lease for life (which is a release in law;) by this the right is released during that time only. So if one Jointenant or parcener release to the other all his right in the land, without the words [heires] or any more word; this release doth give to his companion his whole interest forever. And when the Lord, or grantee of a rent release to the tenant, or terre-tenant generally; by these releases a fee simple is transferred without any words of heires &c. And yet the Lord may release his Seigniory to his tenant, to hold to him in taile or for life, and this shall be taken and enjoyed accordingly. But if the Lord doth release the Seigniory to his tenant without any words of heires put in the deed, the same is extinct. Lit. Sect. 545, 546. 465. Plow. 556. Dier 263.

And if I let land to a man for terme of yeares, and after I release to him all my right which I have in the land, without using any other words in the deed; or release to him To have and to hold for his life; in both these cases he hath an estate for his life only.

And if I lease land to a man for his owne life, and after release to him To have and to hold for his owne life; hereby he hath but an estate for his owne life.

But if I make a lease to him for anothers life, and after release to him Habendum to him for his owne life; by this he hath an estate for his owne life.

But if I be seised of land in fee simple and let it to another for life or yeares, and then release all my right to him To have and to hold to him and his heires, hereby he hath the fee simple. And if I release all my right to him To have and to hold to him and the heires of his body, hereby he hath an estate taile.

And if one be seised in fee of a rent service or charge and Lit. Sect. 549. grant it first for life, and then release it to the grantee To [Page 347] hold to him and his heires, or to him and the heires of his body; this shall enure to an enlargement according to the agreement.

But if one grant a rent-charge out of his land de novo, and after release to the grantee all his right in the rent To have and to hold to him in fee simple or fee taile; this doth not enlarge the estate.

And if tenant in taile, or for life make a lease for years, Lit. Sect. 606. 610. 24 E. 3. 28. and after by deed doth release all his right to the lessee for yeares in possession, to hold to him and his heires for ever; this will not make the estate of the lessee good for longer time then the life of the relessor.

If one make a lease for tenne yeares the remainder for Co. super Lit. 273. twenty yeares to another, and he in remainder release all his right to the lessee for tenne yeares; in this case the relessee hath an estate for thirty yeares and no lesse, for one lease for yeares cannot drowne in another.

If I let land to a woman sole for her life, or for yeares, Lit. Sect. 526. Co. super Lit. 299. 300. and shee take a husband, and after I release to them two to hold for their lives; this shall enure no further then the intent, and in the first case he shall hold jointly with his wife, but in her right whiles shee doth live, and after for his owne life if he survive, and in the last case they shall have the free-hold jointly.

If there be Lord and tenant by fealty and rent, and the Co. super Lit. 280. Lord granteth the Seigniory for yeares, and the tenant atturneth, and the Lord releaseth his Seigniory to the tenant for yeares and to the tenant of the land generally; by this the Seigniory is extinct for ever, and the estate of the lessee also. But if the release be to them and their heires; then the lessee shall have the inheritance of the one moity, and the other is extinct.

It is a discharge in writing of a summe of money or other 10. Acquitance, Quid. Termes of the law. duty which ought to be paid or done, As if one be bound to pay money on an obligation, or rent reserved upon a lease, or the like, and the party to whom the money or duty should be paid or done upon the receipt thereof or upon some other agreement betweene them maketh a writing under his hand witnessing that he is paid or otherwise contented and therefore doth acquite and discharge him of the same, The which is such a discharge and barre in the law that he cannot demand and recover the same againe contrary thereunto if the acquitance be shewed.

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The obligor is not bound to pay money upon a single bond 22 E. 4. 6. 41 E. 3. 25. 1 H. 7. 15. 22 E. 4. 6. Bro debt 43. Oblig. 10. 11. Where a man is not bound to pay money without he hath an acquitance. unlesse the obligee will make to him an acquitance or release. Nor is he bound to pay it before he hath the acquitance. And in this case the obligor may compell the obligee to make him an acquitance. And so also it is in case of a Statute Merchant, one is not bound to pay the money thereupon before he hath the acquitance or release of the plaintife. But otherwise it is in case of an obligation with a condition, for there a man may averre paiment.

And because Statutes, Recognisances and Obligations are often used and tend to the strengthening of the Common Assurances of the kingdome, we may not in any wise passe them over, but must take some surveigh of them. And first of a Statute.

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CAP. XX. Of a Statute.

A Statute is a Bond or Obligation of Record: But this word is 1 Statute. Quid. Terms of the Law, Stat. de Mercatoribus. Acton Burnell. 11 Ed. 1. sometimes used in another sense, viz. for a Decree made in Parliament called an Act of Parliament.

And of these Obligations, there are three kinds: 1. A Statute 2 Qu [...]tuplex. Statute Mechant. Quid. Merchant: 2. A Statute Staple: 3. A Recognisance. The Statute Merchant, is a Bond acknowledged before one of the Clerks of the Statute Merchant and Mayor, and chief Warden of the City of London, or two Merchants of the said City for that purpose assigned, or before the Mayor, chief Warden or Master of other Cities, as York, Bristow, or the like; or the Bailisse of any Burrough, or Village, or other sufficient men for that purpose appointed and Authorised, Sealed with the seal of the Debtor or Recognisor, and of the King which is of two pieces; the greater whereof is kept by the Mayor or chief Warden, and the lessor by the said Clerk: And the form of it is thus; Novertis &c. me A B teneri C D in Centum libris solvend. eidem ad Festum S. Mich. proxim. Et nisi fecero, concedo quod currat super me & haeredes meos districtio & paena in Statuto domini Regis edito apud Westin. Dat. &c. And this albeit at first it was ordained and used for Merchants only, yet at this day, it is and may be used and given by any others, and is become one of the common Assurances of the Kingdome.

The Staple doth signifie this or that Town or City, whither the 27 Ed. 3. Stat. 2 cap. 1 [...]3 &c. Merchants by common order and commandement doe carry their Statute Staple, Quid. commodities, as Wooll and the like to utter by the great. And the 27 Ed. 3. Stat cap. 9. 22 H. &c. [...]. Coo. super Lit. 289. 15 H. 7. 16. Statute Staple is either properly or improperly so called: That which is properly so called, is defined to be a Bond of Record acknowledged before the Mayor of the Staple in the presence of one or two Constables of the same Staple, and is sealed with the Seale of the Staple, and sometimes also with the Seale of the party, the which it seemes is not necessary. And this is founded upon the Statute of 27 Ed. 3. cap. 9. and was invented, and is used only [...]or Merchants and Merchandizes of the same Staple: This is of the same nature the Statute Merchant is. That which is improperly so called, is also called a Recognisance, which is also a Bond of Record Recognisin. [...]. Quid. testifying that the Recognisor doth owe to the Recognisee a summe of money. And of these there are divers kinds; for thre is one Recognisance founded upon the Statute of 23 H. 8. cap. 6. The forme whereof is this, Noveritis &c. me A B teneri C D in Centum libris solvend. eidem ad Festum S. Mich. [Page 354] proxim. Et si defecero in solutione debi. praedict. volo & concedo quod tunc currat super me haeredes & executores meos poena in Statuto Stapulae debit. pro Marchandisis in eadem emptis recuperand. ordinat. & provis. Dat. &c. And this is alwayes to be acknowledged before the chiefe Justice of the Kings Bench, or of the Common Pleas in the Terme time, or in their absence out of Term before the Mayor of the Staple at Westminster, and the Recorder of the City of London for the time being. And it is to be sealed with the Seale of the Conusor, and with the Seale of the King appointed for that purpose, and with the Seale of the chiefe Justice, Mayor, and Recorder before whom it is acknowledged; and they before whom it is taken doe subscribe their names to it: And this was ordained, and may be, and is used by Merchants, or any other whomsoever for paiment of debts, or assurance of other things: And this also is of the same nature the Statute Merchant is: And both this, and the two former, are much of the nature of judgements had upon Suits in the Courts of Kings Coo. 8. 153. Bench and Common Pleas, and therefore they are called Pocket Pocket Iudgements. judgements.

There are also divers other kinds of Recognisances that are See Statute. 33 H. 8. c. 22 39. 3 H. 7. c. 1 10 H. 6. c. 1 Dyer 315. 307. F N B. 251. f. 132 c. 133. a. 68. a. taken by and acknowledged before the Lord Keeper, Master of the Wards, Master of the Rolls, Master of the Chancery, Justices of the one Bench or of the other, (some of which are called Bailes) Barons of the Excheker, Judges in their Circuits, Baile. Justices of the Peace, Sheriffs, and others; some whereof are by the Common Law, and some by certaine Statutes. And amongst these, some are without Seale, and recorded only, and some are sealed and recorded also: And some of them are in a sum certaine, as the Recognisances taken in the Common-Pleas for Baile are, and some of them are incertaine, as those Recognisances, that are taken for Baile in the Kings Bench, which are after this manner, Si Judicium redditum &c. tunc volo & concodo, That the debt recovered against the defendant shall be levied of my goods and chattels &c. And these also are much of the nature of the former kinde of Recognisances. And all Prerogative. Obligations made to the King are of the nature, and have the force of a Recognisance.

Statutes and Recognisances are sometimes single, without any Defeasance; and sometimes they are double: i. e. With a Defeasance or Condition, upon the performance whereof the same are to be avoided.

The Debtor, or he that doth enter into the Statute or Recognisance, Conusor. Co. [...]e. is called the Recognisor, or Conusor, and the Debree, or hee to whom it is made, is called the Recognisee or Conusee.

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To make a good Statute or Obligation of Record, the 3. What shall be said a good Statute or Recognisance, and what not. First, in respect of the persons before whom it is acknowledged. forme prescribed must bee pursued: 1. In respect of the persons Dyer 35. Litt. Broo. Sect. 484, 511 F. N. B. 267 a. before whom: And therefore, the Statute Merchant or Staple, or the Recognisance founded upon the Statute of 23 H. 8. may not bee acknowledged before any others besides the persons appointed by the Statutes. Neither may any other Recognisance bee acknowledged before any, but such as either have power ex Officio, and by their Offices to take them, or have speciall Commission so to doe: And therefore a Recognisance Dyer 220 taken by a Constable is void. If a Recognisance bee made to the Lord Keeper and two others, and it bee acknowledged before himselfe, this is void as to him: 2. In respect Secondly, in respect of the manner of making it. of the manner of making and acknowledging of it: And therefore, if the substantiall forme appointed by the Statutes be not observed, it will be void. If therefore, a Statute Merchant be not Hollingworth versus Ascughe Pasche. 35 El. Co. B. Adiudge. sealed with the Seale of the D [...]btor, and there bee not a Seale of two peeces annexed to it, this is no good Statute, neither can it take effect as a Statute; howbeit in this case, if it be delivered by the party, it may take effect as an Obligation: But if Obligation. the variance from the Statutes bee only in some circumstance, this will not hurt a Statute or a Recognisance. And therefore it is held, That albeit there bee no time set for the payment of the money in the Statute, yet the Statute is good, for then it is due presently. And albeit, the Statute be written Perk. 3. Iustices Co. B. Trin. 22 Iac. with anothers hand, and not with the hand of the Clerk of the Statutes or the like, yet is the Statute good enough. And if a Statute Staple bee not sealed with the Seale of the party that doth acknowledge it; yet it seemes it is good enough, for the Statute doth not require it; but a Recognisance within the Statute of 23 H. 8. cannot bee good, except the Seale of the party bee to it, for so are the words of the Statute.

If a Recognisance or a Statute bee to pay money at severall Coo. 8. 153. dayes, it is good enough, and if the Conusor faile one day, Execution may bee sued of the whole Statute.

Every Statute Staple or Merchant, not brought to the Clerk of the Recognisances within foure Moneths next after Stat. 27 Eliz. cap. 4. the acknowledging, to enter a true Copy thereof, shall bee void, against all persons, their Heires, Successors, Executors, Administrators and Assignes onely, which for good consideration shall after the acknowledging of the same Statute, purchase the Land or any part lyable thereunto, or any Rent, Lease, or profit out of it.

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The proceedings upon a Statute or Recognisance, to have Fitz. Accompt. 97. Execution in toto. Broo. Statute in toto Stat. Act [...] Bartel de Mercatoribu [...] [...]7 Ed. 3. c. 9. F. N. Br. 130, 131, 132 Dyer 1 [...]0. 15 H. 7. 15. Coo. 4. 69. 7 H. 7. 12. Plow. 61, 62, 82. Coo. super Lit. 290. Stat. 2; H. 8. c. 6. 5 H. 4. c. 12. 2 R. 3. 7. 14 Ed. 3. [...]. Lit. Broo. Sect. 194. 123. 226. Dyer 299. Coo. 5. 87. 4, 82, 59, 66 Stat. 1 [...]il. 6. c. 10. [...]i [...]ch. 116. the fruit and effect thereof, is not like to the proceedings in other 4. All the proceedings upon a Statute or Recognisance; and the manner and order of Execution thereupon. cases of Suits upon Obligations and the like, to reduce them to judgement, but as they are in their own nature much like to the nature of a judgement, so is the proceeding and execution thereupon, much like to the proceeding and execution upon a Iudgement: And therefore the Conusee may if hee please, bring an Action of debt upon a Statute and wave all other proceeding, or otherwise, if he like not this course, he [or if he be dead, his Executor or Administrator, and if his Executor be dead, the Executor of his Executor] may assoone as the same is forfeit, have present Execution of it after this manner: Hee must bring his Statute to the Mayor and Clerk or other Officer, before whom it was acknowledged, and there if they finde the Record of it, and the day to be past for the payment of the money, they are to apprehend and imprison the body of the Conusor if he be a lay-person and can be found within their jurisdiction; and if he cannot be found there, they are to certifie the Record into the Chancery, which also if they refuse to doe, they may be compelled unto by a Certiorare: Certiorare. And if that Certificate be faulty, or execution be not done upon it by reason of the death of the Conusee or otherwise, the Conusee or his Executor, or Administrator, may have another Certificate: And thereupon, in case of the Statute Merchant, he shall have a Writ of Capias out of the Chancery, directed to the Sheriffe of the County where the Conusor lives, to apprehend and imprison him (if he be not a Clergy man) and this is to be returned in the Common-Pleas, or Kings Bench. And when the Conusor is taken, he shall have time for a quarter of a year to make his agreement with the Conusee, and to sell his lands or goods to satisfie the Conusee: And for that purpose, he may sell his lands or goods, albeit he be in prison, and his faile is good and lawfull: And if in that time, he doe not satisfie the Conusee, or if upon the Capias, the Sheriffe returne Capias. a non est inventus, then by another Writ [or by divers Writs, if the lands or goods lie in divers Counties] called an Extendi Facias. And in the case of a Statute Staple, presently after the Certificate into the Chancery, the Conusee shall have a Writ to take his body and extend his lands and goods returnable in Chancery: And this Extendi Facias. Quid. Writ is a Commission directed to the Sheriff of the County where the lands and goods lie for the valuing of the same, whereby all the lands, goods, and chattels of the Conusor shall be apprised and valued at a reasonable rate by a Iury of sworn men, charged by the Sheriff for that purpose; which Inquisition so taken is to be returned by the Sheriff, and thereupon the lands, goods, and chattels are to be taken into the Sheriffs hands, and by him to be delivered to the [Page 357] Conusee (which the Sheriff may doe if he will without any Writ) to hold unto the Conusee untill he be satisfied his debt and damages. And if the Sheriff refuse so to doe, the Conusee shall have a Writ out of the Chancery called a Liberate, to compell him to deliver to Literate. Quid the Conusee the lands, goods, and chattels, so found by Inquisition, and taken into his hands upon the Extent, which the Sheriff need not to return: Adiuge Butler ver [...]i [...] Walli, pa [...]. [...]. Eliz. B. R. Or the Conusee may enter upon the land himselfe, and take the goods out of the Sheriffs hand; and this act of the Sheriff and Iurie upon this Writ is called an Extent: And if the Iurors of Apprai [...]ors upon the Extendi facias, overvalve the lands or Extend. Qu [...]. goods in favour to the Debtor, the Conusee hath no remedy but by motion in that Court where the Writ is returnable at the return day, or at least the same Terme wherein the Writ is returnable, to desire that the Appraisors may take the lands or goods at the rate they have valued them, in the same manner as the Conusee is to have them. But if the Conusee accept of the lands and goods from the Sheriff, or suffer the Term to passe wherein the Writ is returnable, he is too late, and hath no remedy at all. And if the Appraisors do undervalue the lands or goods in favour to the Debree, it seemes the Conusor hath no remedy at all, for he may at any time pay all or the residue of the debt and damages unlevied, and have his land againe if he please. And in case where the Inquisition or Extent taken and made, is insufficient, as if part of the land only be extended in the name of all the lands, or it is found the Conusor dyed seised of land, and it is not said of what estate, or the like, the Conusee shall have a new Extent, and this is called a Re-extent; and this he may have, Re-extend. albeit the lands or goods be delivered to the Conusee by a Liberate, if the Conusee have not entred upon and accepted it but if he once accept it, he can never after have a Re-extent: And when the Conusee is in possession of lands by such an Extent as before, then is he Tenant by Statute; and after the Conusee is once setled in peace in the lands extended, he shall hold it untill he be satisfied his debt, and Tenant by Statute. his reasonable costs and damages for travell, suit, delay, and expence. But it seemes the time shall not run out nor bee said to begin untill the entrie of the Conusee into the land; for if the land be extended and remaine seven yeares without a Liberate made, yet he may have a Liberate at the end of the seven yeeres, And assoon as the Conusee shall be satisfied his debt and dammage by the goods and chattels of the Conusor, and by the ordinary and certaine or extraordinary and casuall profits of the land, the Conusor shall have his land againe: And for that purpose, if the Conusee refuse to give him an account, and to yield up his land to him the Conusor, howbeit he may not enter, yet may compell the Corusee thereunto Venire facias ad Con [...] d [...], Quid. by a Writ called a venire faecias ad computa [...]m. in the nature of a Scire facias, by which the Conusor shall call the Conusee his [Page 358] Executors of A [...]minstrators to account, and if upon the accompt, it shall appear he is satisfied, the Conusor shall have his land againe; and if it appear he is oversatisfied, he shall answer the over-plus to the Conusor. But the Conusor may not enter upon the Conusee untill he hath brought this Writ, and made it thereupon to appeare that the Conusee is satisfied. And if in case the Conusee be dead, his Executor or Administrator may have execution of the Statute without Executor. any Scire Facias upon the shewing of the Statute and the Testament in Chancery. And if the Sheriff return that the Conusor is dead, the execution shall be made of his lands only in the hands of his Heir or the Purchasor; but if the Heir be under age, the Execution cannot be Age. done untill he be of full age: And if the Conusor die in prison, the Execution shall be of his lands, goods, and chattels: And if the Gaoler Escape. that hath him in prison suffer him to escape, he must answer the debt; And if it fall out that the Conusee, his Executor, or Administrator be ousted, or disturbed of his Execution by the Conusor himselfe, or any other during the time of the Extent, he may relieve himselfe against the disturber by Assise, or other Action, as another in the like case may doe: And if he be rightfully ousted or disturbed by one that hath better right, as by one that hath a former Statute or the like, or by the act of God, as by fire, water, or the like, in these cases the Conusee shall hold the land over after the time of his extent untill he be satisfied. But when it is through his own neglect only that he is unsatisfied, as where the lands are delivered to him by the Liberate, and he after his entrie into them make a conditionall surrender of them; as if lands of the value of 10 l. by the year, be delivered to him in execution for 40l. and he within foure yeares make a conditionall Surrender of them to the Conusor, and after he enter for the condition broken, in this case he shall not hold the land over the foure years, for he must take the profits upon his Extent presently; The proceeding in Execution of the Statute Staple, and the Recognisance founded upon the Statute of 23 H. 8. is after the same manner throughout as the proceeding in Execution of the Statute Marchant is, with these differences only. That upon 15 H. 7. 16. F. N. B. 130. 131. the Execution of the Statute Merchant, there doth issue forth a Capias against the body before any Execution be to be made of the lands, or goods, and chattels, and the lands and goods cannot bee extended untill a quarter of a yeare be past after the body is taken, or the Sheriffe have returned a non est inventus; but upon the Execution of the Statute Staple and the Recognisance, the body, goods, and lands may bee taken together at the first; this therefore is a more speedy remedy then the former. Also upon a Statute Merchant, one may have an Action of debt; but otherwise upon a Statute Staple; and the Capias upon the Statute Merchant may be returnable in the Kings Bench, or Common-Place, but [Page 359] the writ of Execution upon the other is to bee returned in the Chancery.

The proceeding upon the other sort of Recognisances are after another manner; for upon Recognisances at the common Law, if Dyer 36 [...]. 315. Kelw. 100. West. 2 chap. 18. Broo. execution 129. Coo. 3. 11. 15. H. 7. 16. Kitch. 117. the money be not paid at the day, the Conusee his Executor or Administrator is to bring a Scire facias against the Conusor, or if hee be dead against his heires when they be of full age; or if the lands the Conusor had at the time of entring into the Recognisance, be sold against the purchasers of these lands which the Conusor had at any time after the Recognisance entred into, to warne them to come into that Court whence the Scire facias cometh, and to shew cause why execution should not bee done upon the said Recognisance; and if the party or parties cannot be found to be warned, or being warned do not appear at the time, or appearing shew no cause why the debt should not be levied, then the Conusee shall Elegit. have execution of a Moity of his lands by Elegit, or if the Conusor be living, of all his goods by Levari or Fieri facias at his election, Levari facias. but he cannot have execution of his body unlesse he bring an Action of debt upon the Recognisance, or it be by course of the Fieri facias. Court, as it is in the Kings-Bench upon a Baile, in which case a Capias doth lie. Capias.

The proceeding against the Sureties in Statutes shall be as the Sureties. Stat de Mercatoribus. proceeding against the Principall; but in case where there are moveables of the Principall to satisfie the debt, the Suretie (as it seems) shall not be charged.

When a man doth enter into a Statute or Recognisance, the land 5. What things are subject and liable to execution upon a Statute or Recognisance. And when, and how; And what not. Plow. 72. Coo. 10. [...]0. 51. Bro. St. Marchant. of the Conusor is not the debtor, but the body; and the land is lyable only in respect that it was in the hands of the Conusor at the time of acknowledging of the Statute, or after; and the land is not charged with the debt, but chargeably only at the election of the Conusee; but the person is charged, and the land is chargable in respect of the person, and not the person in respect of the land. And therefore albeit the Conusor alien his land to another, yet he remaines debtor still, and his body and his goods shall be taken in execution: and yet when execution is sued upon the land, the land is charged and become debtor also. First, in respect of the nature and quality of the things themselves.

The body of the Conusor himself, but not the body of his heire, [...] de Me [...] catoribus. Coo. 3. 12. Plow. 72. Coo. 2. 59 Littl. Sect. 358. Dyer 205. Broo. Stat. Marchant 44. Dyer 7. Co. super Littl. 374. executor, or administrator is lyable to execution and may be taken, albeit there be lands, goods, and chattels to satisfie the debt; and all the demesne and copyhold lands, tenements, and hereditaments corporeall and incorporeall of the Conusor that are grantable over, as his Mannors, Mesuages, Lands, Meadowes, Pastures, Woods, Rents, Commons, Tithes, Advowsons, and the like: also all his goods and chattels, as leases for yeares, wardships, emblements, cattell, houshold-stuffe, and the like, are liable to execution upon [Page 360] a Statue. Dyer 373 And therefore if a man make a lease for life, or yeares, and after enter into a Statute, or Recognisance; this reversion cum acciderit shall be subject to execution, and the Con [...]sor cannot (as it seemes) by any sale thereof prevent it. And yet the contrary hath been held for law. Litt. Bro [...]. Sect. 227 Doct. & Sr. 53. B [...]o. St. Marcha. 41. Dyer 205. And if one make a feoffment in see, or lease for life, reserving a rent, this rent is extendable and the Conusee may distraine for it. So if the lessee for life make a lease for yeares rendring a rent, and then the lessee for life enter into a Statute; this rent is subject to execution, 1 Har [...]ingtons case pasche [...]. lac. B. R. and it seemes the Conusee may bring an Action of debt against the lessee for yeares for it. Coo. 7. 3 [...] And albeit the rent become extinct by the purchase of the Conusor or otherwise, yet as to the Conusee it shall be said to be in esse and subject to execution still. And therefore if a rent be granted unto me for my life after the death of my wise, and after I do acknowledge a Statute, and then my wise die, and then I release the rent to the terre-tenant; this rent shall be lyable to execution. But Annuities, Offices in Dyer 7. Co. super Littl. 374. Doct. & St. 53. Coo. 2. 59. 1. 62. trust, Seigniories in Franckalmoigne, Homage, Fealty, Rights, Things in action, and such like things are not liable to execution upon Statutes or Recognisances. Also a remainder in taile, or in see after an estate taile in possession, is not liable to execution in these cases, except it happen to come into the possession of the Conusor.

The lands, tenements and hereditaments that are Copihold, albeit Stat. de Mercatoribus Dyer 299. Plow. 82. Coo. 7. 39. 3 12. Broo. Recognisance 7. Co. 1. 62. 13 H. 7. 22. Broo, Stat. Mar [...]c the Conusor have the fee simple of them, yet are subject to Second, in respect of the estate, property and possession of the conusor in the things. execution, only for the life of the Conusor; but his demesne lands wherein he hath an estate in fee-simple, are liable to execution for ever if need require.

The lands the Conusor hath in jointenancy with another, are subject to execution during the life of the Conusor and no longer; for after his death the surviving jointenant shall have all; but if the Conusor survive his companion, then all the land shall bee subject to execution: and the lands the Conusor hath as tenant in taile, are liable to execution only during the life of him being the tenant in taile; for afterwards they shall go to his issue in taile. And yet if the tenant in taile after he hath entred into a Statute, suffer a recovery of the land intailed, in this case the land shall be subject to execution as if it were fee-simple land. And the lands the Conusor hath in the right of his wife, shall be charged and subject to execution only during the lives of the husband and wife together, and no longer.

If a feoffment be made in condition to make an estate to another by a day of the same land, and before the day the feoffee enter Littl. Sect. 3 [...]8. into a Statute or a recognisance; this land shall be subject unto execution untill the feoffor reenter, for the breach of the condition.

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If one be disseised of land, and then enter into a Statute; this Coo. 2. [...]9. land shall not be subject to execution: and yet if the Conusor do after recover the land by entry or action, it shall be lyable to execution.

The goods and chattels whereof the Conusor is solely possessed, Stat. de Mer [...]t r. bus Co. 3. 11. 12. [...]l [...]. 52 [...]. Coo. c. [...]1 5. 92. Dyer 6 [...]. and possessed in his own right; and the goods and chattels of which he is joyntly possessed with another; and the goods and chattels he hath in the right of his wife, are liable to execution. But the goods or chattels that he or his wife hath as Executor or Executrix to another, or as pledged only, it seems are not subject to execution. And if the Conusor deliver goods to another to deliver over to I S; these goods before they be delivered over are liable to execution. And if hee have leases for yeares in the right of his wife, and die before execution be done, it seemes these leases are liable to execution. Sed quaere. But if the Conusor have goods in his custody of another mans, or have goods he hath distrained in the nature of a distresse, these are not liable to execution.

All the lands, tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time. Coo. 3. 12. Stat. de Mer catoribu [...]. any time after, into whose hands by what means soever the same are betide and come at the time of execution, are subject and liable to the execution. But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into, are not liable to execution. And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias, are liable to the execution. But the goods and chattels he had and did Bonâfide do away before the time of execution done, are not liable to the execution.

And of all these things before subject to execution, the Conusee may take all or part at his pleasure. And therefore if the Conusor 4. In respect of the quantity. [...]. St [...] [...]. 4. 2. 25. P [...]. 72. S [...] [...]. have sold his lands to divers persons, or have sold some of his lands to divers persons, or to one man, and keep the rest in his hands, or it descend to his heire; the Conusee may sue execution upon the lands in either of their hands at his election; so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor, he may notwithstanding have execution upon the residue in the hands of the Conusor, or in the hands of his heire; and yet so that in some of these cases his execution may be afterwards avoided, and he he compelled to sue execution againe.

The Cognisee upon other Recognisances shall have the same Weston. 2. chap. 13. Plow. 72. Coo. 3. 12. Dyer 30 [...]. Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or Common-Pleas by Fieri facias, or Levari facias, all his goods and chattels, and by Elegit the Moity [Page 362] of his lands, and all his chattels, besides the Cattell of his plow and implements of husbandry. But in these cases he cannot take the body of the Conusor in execution, unlesse it be upon a new Suite, or in case of baile in the Kings-Bench.

Howsoever by the Common-law after a full and perfect execution had by extent returned and of record, there shall never be any Stat. 32. H 8. chap. 5 [...] Where a man shal have a Reextent or [...] new execution, And where not. reextent, yet by a speciall Act of Parliament it is provided, That if after lands &c. be had in execution upon a just or lawfull title wherewith all the said lands &c. were liable tied or bound at such time as they were delivered or taken in execution, they shall be taken or recovered away from him before he hath received his full debt and damages; in this case after a Scire facias had against the Conusor his heirs, executors, administrators, or purchasors, he (or his executors or administrators if he be dead) shall have a new execution to levie the residue of the debt and dammages then unsatisfied. Wherein these things are to be observed, 1. In case where the Coo. 4. 66. 82. Plow. 61 15. H. 7. 15 Coo. super Litt. 99. Kitch. 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution; there hee may and must bring his action and recover damages, and these damages shall goe toward his satisfaction; for in this case and for this disturbance hee shall not hold the land a day the longer. And where he is hindred by his own neglect or act in the taking of the profits of the land, as where his debt is 40l. and he hath 10l, a yeare delivered to him by which be may satisfie himself in four yeares, and within the time hee make a conditionall surrender to the Conusor, and enter for the condition broken; in this case hee shall not hold the land over, neither shall he have any Reextent. And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed; in this case he shall have no new execution nor reextent within this Statute; for where the Conusee hath remedy in praesenti for part, or in futuro for all or part, this Statute extendeth not to it. And therefore where the Conusee is hindred in the taking of the profits of land by the act of God, as by fire, overflowing of water or the like; or the act of the party Conusor, or any by or under him, as when one is bound to A in a Statute of 100l. and after to B in a Statute of 200l. and B extendeth the land first, and then A extendeth the land and taketh it away from B, or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor, or the wife of the Conusor doth claime her dower and put out the Conusee, or one disseise his lessee for life, or out his lessee for years, and then acknowledge a Stature, and after execution is sued against him and then the land is delivered to the Conusee and after [Page 363] the lessee for life or yeares doth enter; in all these cases because by the Common law the Conusee may hold over the land after the time given him by the extent and after the impediments removed, untill he be satisfied his debt and damages therefore, he shall have no ayd of this Statute by Reextent; for he is then only to be relieved by this Statute when as he is evicted and disturbed and is wholly and clearely without any remedy at the Common-law. 2. Where the Statute saith [untill he &c. or his assignes shall fully and wholy have levied the whole debt and damages] if he hath assigned severall parcels to severall assignes, yet all they shall have the land but untill the whole debt be paid. 3. Where the words be [for the which the said lands &c. were delivered in execution] If A disseisor convey the lands to the King who granteth the same over to A and his heires to hold by Fealty and 20l. rent, and after granteth the Seigniory to B, B acknowledgeth a Statute, and execution is sued of the Seigniory, A dieth without heire, and the Conusee entreth and is evicted by the disseisee; in this case he shall have the ayd of this Statute; but the Perquisite of a Villain being evicted is out of the Statute. 4. Where the words be [delivered and taken in execution] yet if after the Liberate the Conusee enter (as he may) so as the land is never delivered, yet it is within the remedy of this Statute. 5. Albeit the Statute speake only of the recoveror, obligee, &c. and not of their executors, administrators, or assignes, yet the Statute shall extend to them, 6. Where the Statute speakes of a Scire facias out of the same Court &c. if the record be removed into another Court and there affirmed, he may have a Scire facias out of that Court. 7. Where the Statute gives a Scire facias against such person and persons &c. that were parties to the first execution, their heires executors or assigns &c. this must not be taken so generally as the letter is; for if the first execution were had against a purchasor &c. so as nothing in his hands were liable but the land recovered, if this land bee evicted from the tenant by execution, no Scire facias shall goe against him, his executors &c. but if he hath other lands subject to execution, then a Scire facias lieth against him or his assignes, but not against his Executor; neither in that case can he have a Scire 7. Where and by what means a Statute or Recognisance, and the execution thereof shall be discharged, [...]n [...] ponded, or avoided [...]l or i [...] pa [...]t and where not facias upon this Statute against the first debtor or recognisor, but if there be severall assignes of severall parcels of lands subject to the execution, one Scire facias will lie against all the assignes.

A Statute or recognisance and the execution thereupon may be discharged divers wayes as by defeasance, release, paiment of the mony, Dyer 297. 315. Co. 6. 13 20. Ass. Pl. 7. See Defeasance. debt, and damages, or the residue thereof unlevied, delivery up of the Statute, purchase of part of the land by the cognisee, or the like. And therefore if there be a defeasance to the Statute or recognisance, [Page 364] and it be to pay money at a day, or to performe some other thing, and the money be paid, or the thing done accordingly, this is is a discharge of the Statute. And therefore if such a Statute or recognisance be afterwards sued against the Conu [...]or, hee may bee By defeasance. [...]elieved by an Audita Querela. And if A bind himselfe to B by a Statute of 20l. and B sue execution, and the lands of A are delivered to him in execution untill he levy the money, and after B doth make a defeasance to A by Indenture, that if A pay 10l. by a day certaine, that then the Statute or Recognisance shall bee voyd; if this be done accordingly, the Statute and the execution thereupon is defeated and discharged. And if the Cognisee before By R [...]lease. Coo. [...] Litt. [...] 47. 50. 51. super L [...]l. 265. Broo. St. Marchant 2 [...] See Relea [...]. execution or after, release to the Cognisor the Statute or Recognisance, or the debt; this is a perpetuall discharge of the Statute and the execution thereupon. But if the Conusee before execution release to the Conusor all his right in or to the land; this will not discharge the whole execution; for if he may not sue execution of the land afterwards (as it seemes he may this notwithstanding) y [...]e may sue execution of his body and goods. But such a release after execution made of the land, will no doubt discharge the land. [...]nd yet if a Conusee release all his right in the land to the Feoffee of the cognisor of a parcell of the land, it seemes this will discharge the land of execution, albeit it be before the execution sued that this release is made. And so it is said it was resolved Mich. 26. 27. Eliz. If the cognisee assigne the Statute or Barrow. & Graies case 38. Eli [...]. Recognisance to the Cognisor or to the terre-tenant by way of discharge of the debt or land; it seemes this is a good release and discharge of it in law. And if the Cognisee purchase any part By purchase or surrender of the land. of the land of the Cognisor after the Statute or Recognisance Plow. ye. [...] N. 104. lit. Broo. Sect. 293. 11. M. 7 4. Brandit [...] Que [...]la. 48 Seat Marchant 42. Coo. [...]eyre [...]itt. 150. 25. A [...]s. Pl. 7. Broo. Stat. Marchant 25. Littl. [...] 25. entred into; this is no discharge of the Statute or the Recognisance, but the Cognisee may have execution notwithstanding of the lands that are left in the hands of the Cognisor or of his body, or goods, or all. But if the Cognisee purchase parcell of the lands, and a stranger another parcell; in this case the lands that are purchased by the stranger shall be discharged of execution. And if the Cognisee after execution sued purchase any part of the and, or the Fee-simple of all or part of it doth desc [...]nd to him; by this the whole execution is discharged. And if the Cognisee purchase all the lands of the Cognisor; by this the execution as to the land is suspended, but this is no discharge as to the body and goods of the conusor, for they are subject to execution still. And if the conusee reinfeoffe the conusor againe, the execution may be revived again against the lands of the conusor, so that they will be subject to execution againe whether they do conti [...]e in his lands or bee sold away to others. So also if the [Page 365] Conusee enfeoffe a stranger after hee doth purchase the land, and the stranger doth enfeoffe the Conusor; in this case also the Execution is revived, and the lands shall now be subject thereunto as they were before.

If a Leassee for life make a Lease for yeares rendring a rent, and Harringtone case. [...]asche 19. Iac. B. R. after enter into a Statute to I S, and then enter into another Statute to I D, and after hee doth grant his estate to I S; by this the Execution of the Statute made to I S is suspended, and therefore during the suspention, it seemes I D albeit he be after in time, may sue and have he Rent in execution.

If the Conusor after he hath entred into a Statute or Recognisance, 8. Where the Conusor, or his heir, or an alience, or purchaser shall have contribution upon a Statute or Recognisance or not. doth convey away his land to divers persons, and then the Conusee Plow. 72. Coo. 3. 12, 6, 13. sue Execution of the Statute upon the lands of one or some of them and not of all; in this case he or they whose lands is, or are taken in Execution may by an Audita Querela or Scire Facias, have contribution from the rest, wherein these differences must bee observed: That one Purchasor shall have Contribution from another: And therefore if the Conusor sell some lands to I S, and other lands to I D, and the Conusee sue Execution only of the lands of I S: I S shall have contribution against I D. And the Feoffee of the Purchasor, the Feoffee of the Heir of the Conusor, the Feoffee of the Feoffee, and another Feoffee shall have contribution of the Heir of the Conusor: But the Conusor himselfe shall not have contribution from a Purchasor; and therefore, if hee sell part of his lands, and keep part in his hands, and the Conusee sue Execution only of the lands in the hands of the Conusor or his H [...]ires; in this case, neither he nor his Heirs shall have any contribution from the Purchasors; and one Heire shall have contribution from another And therefore, if one be seised of two Acres, the one in Bur [...]ow English, the other of other Land, and he enter into a Statute and die, and he hath but two daugh [...]s, and the Execution is sued upon the land of one them; she shall have contribution from the other So where some land doth discend to the H [...]ire of the part of the Father, and some to the Heire of the part of the Mother.

If one be seised of lands in Fee in the County of A, and B, and enter into a Statute or Recognisance, and the Conusor die, and then the Conusee die also, and his Executor doth [...]u [...] Execution of the lands in B only, and hath Execution, and after the Heir doth sell these lands; in this case the Vendee shall have no contribution. So also it seems the Law is, if the H [...]i [...]e sell the land to divers, and one of the Purchasors appear to the Seire Facias, and the Iudgement is given against him, and he afterwards sell the land, his Vendee shall have no contribution: And in all these cases where it is said the one Purchasor shall have contribut on, [Page 366] it is not intended that the rest shall give or allow him any thing by way of contribution, but that the party whose lands are extended, may by Audita Querela or Seire Facias, as the case requireth, defeat the Execution, and thereby shall be restored to all the meane profits, and force the Conusee to sue his Execution upon all the land, that the land of every one of the Terre-tenants may be equally extended.

And so wee fall from an Obligation by matter of Record, to an Obligation by matter of Fait which is no Record.

[Page 367]

CAP. XXI. Of an Obligation.

AN Obligation is a Deed in writing whereby one man doth bind 1. Obligation. Quid. Obligor. Obligee. Finches ley. 49. himselfe to another to pay a summe of money or doe some other thing. And hee that makes this Deed is called the Obligor, and he to whom it is made is called the Obligee.

And it is sometimes Simple, or Single, which is when it is to pay 2. Quotuplex. Coo. super Litt. 172. a summe of money or doe some other thing, and when it is without any Defesance or Condition in or annexed to it, which also is sometimes with a penalty called a penall Bill, and sometimes without a penalty. And this is that which is most properly called an Obligation, and sometimes also it is called a single Bill, or single Bond. And sometimes it is double or Conditionall, which is when it is attended upon and accompanied with a Condition. And then it is said to be a Bond containing a penalty with condition to pay money, or doe or suffer some act or thing, &c. And this Condition is some times called a Defeasance, and then especially when it is (as sometimes it is) in another Deed or Instrument; for most commonly it is inserted into the same Deed wherein the Obligation being the other part of it is contained. And then also it is either subscribed under the Obligation, or included within the body of it, or indorsed upon the back of it. And quacunque vià if the condition be performed the penalty is saved; if not, the penalty is forfeit.

a Broo. Obligat. 67. [...]0. An Obligation may be made upon parchment or paper, and in loose 3. What shall be said a good Obligation in his originall creation, or not. parchment or paper, Trin. 49. Eliz. B. R. or in a peece of paper or parchment sowed in a book, and either way it is good. But if it be made on a Tally, peece of wood, or any other thing but paper or parchment, albeit it be sealed and delivered, yet it is voyd. Coo. super Lit. 229. Fitz Obligat. 9. And it may be made in the first or in the third person (notwithstanding the Statute of 38. Ed. 3. c. 4. which First, for the manner and form of it; and what words are sufficient to make an Obligation. doth intend only Obligations made beyond the Sea.) And therefore an Obligation so made, as Memorandum quod A de B debet C de D 10l. In ou us &c. is good.

Albeit the best manner and form of an Obligation, is that which is Dyer 21. 22. 23. Coo. 9. 53. 37 H. 6. 9. 22 Ed. 4. 22. [...]elw. 34. a [...] Ed. 4. 39. [...]3 H. 7. 6. most usuall, as, Noveritis me A de B teneri & firmiter obligari C de D in 20l. legalis &c. Solvend. eidem C autsuo cert. Atturnat, executoribus aut administratoribus suis. Ad quam quidem solutionem bene & fideliter faciendum obligo me haeredes executores & adminstratores meo [...] firmiter perprasentes &c. yet any words in a writing sealed and deliverd whereby a man doth prove and declare himselfe to have another mans money or to be indebted to him, will make a good Obligation; [Page 368] And therefore if a man by Deed say but this, Memorandum that I A of B doe owe to C of D 20l. to be paid at Easter next. Or memorandum, that I A of B have had of C of D 20l. of which there is 10l. behind, [or of which I owe him 10l.] Or memorandum, that I A of B have received of C of D 20l. to be repaid him again. Or memorandum, that I A of B doe grant to owe [or to pay] C of D 20l. Or memorandum, that I A of B doe promise to pay C of D 20l. Or memorandum, that I A of B will pay to C of D 20l. Or memorandum, that I A of B have had 20l. of the money of C of D. Or memorandum, that I A of B have borrowed of C of D 20l. Or memorandum, that I A of B doe bind my selfe to C of D that he shall receive of me 20l. all these and such like are good Obligations. So if one say Broo. Obligation 56. memorandum, that I A of B bind my selfe to C of D that he shall receive 20l. by the hands of I S when K doth come to his house, and at Michaelmas then next following 5l. this is a good Obligation, and the words [by the hands of I D] are voyd. Broo. Ob [...] gation 1 [...]. So if one bind himselfe thus. Memorandum, that I A of B owe to C of D 20l. for payment of which I bind my selfe and my goods; this is a good Obligation and will bind the person but not his goods. Broo. O [...]l. 52. Dyer [...]. So if one by Deed, covenant or promise to doe a thing and then useth these words, Ad quam quidem promissionem perimplendam obligo me in 20l. this is a good Obligation for 20l. Broo. Obl. 4 [...]. So if one binde himselfe thus: Broo. Obl. 79. Memorandum, that I A of B am bound to C of D to deliver him 20 quarters of corn by a day, Ad quod performandum obligome, without more words; this is a good Obligation. So if one binde himselfe thus: Memorandum, that I A of B bind my selfe to pay C of D 10l. at Easter, and if I faile to pay it them, I do grant to pay him 20l. this is a good Obligation for the 20l. if he faile to pay the 10l. [...]oxalls case 9. Iac. B. R. And some say he may recover both the 20l. and the 10l. So if one bind himselfe thus: Foxe versus Wright. [...]n. 40. Eliz. B. R. Memorandum, that in consideration of a Bill of 50l. wherein I S is bound for me to I D for payment of 20l. I doe bind my selfe in 20l. to the said I S to save him harmlesse from all Actions of the same; this is a good Obligation; and if I D [...]ue I S, the Bill is forseit. Or if one bind himself thus: Be it known &c. Adiudged P [...]t & Woolwards case, M [...]. [...]9 H. in the Excheker C [...]ber. that I A of B doe owe unto C of D the summe of 1 [...]l. to be paid at the Feast of &c. together with six pounds which I owe him upon Bils and Recognisances subscribed with my hand; this is a good Bill, but it is good for no more [...]ut the 14l. and not for the 6l. for the words doe only import the time of payment of the 6l.

If one make a Writing in the form of a Statute which the party Trin. 17 El. B. R. Fitz. Accompt. 79 doth seale and afterwards legally deliver, but it is not sealed by the Kings and the Majors Seale according to the Statute, albeit this be not a good Statute, yet it may be a good Obligation.

I [...] one bind himselfe to pay money or doe any other thing, and Perk. Sect. 158. Fitz. Oblig. 1. afterward doth adde this clause in the Deed, Et ad majorem hujus [Page 369] rei securitatem inveni A de B & C de D fidejussores, quorum unusquisque Obligat se in toto & in solid. and these two doe also seale and deliver the Deed; it seems this is a good Obligation to bind them, albeit there be no other words in the Deed.

If an Obligation be made to I D to the use of I S, this is a good Obligation for I S in equity, and some have said he may release it; Broo. Obl. 72. Cro [...]p. Ier. 63. but this is much to be doubted; for it is certaine I S cannot sue the Obligor in his own name, but when he hath cause of Suit he may compell I D in Chancery to sue the Obligor.

If A of B bind himself to C of D to pay 20l. and say not when; yet Brook. Obl. 47. 14. H. 8. 29. 21 Ed. 3. [...]. 4. Ed. 4. 29. the Obligation is good, and the mony is due presently. So if the Obligation be Solvendum nunquam, or solvendum at Doomsday, the Obligations are good, and the solvendum void, and the mony is due presently. So if A of B bind himself to C of D in 20l. Solvendum A de B [where it should be solvendum C de D,] the Obligation is good, and and the solvendum voyd.

If the Obligation be made thus, [Obligome &c.] leaving out these Dyer 13. Broo. Oblig. 25. 68. words following [haeredes executores & administratores;] this is a good Obligation, and the Executors and Administrators, but not the Heir, are bound by it. And if it be made thus, [solvendum to the Obligee & successoribus suis] and not [executoribus &c.] this is a good Obligation, and the Executors and Administrators; and not the Successors, except it be in case of a Corporation, shall take advantage of it.

An Obligation may be good, albeit it containe false or incongruous Latin or English, or Latin be put for English, or è contra [...] if the intent Coo. 10. 233 Fitz. Obl. 12 2 H. 4. 14. of the parties may sufficiently appear: And therefore if one be bound by the name of Iohannes for I [...]hannem; or one bind himselfe in octogenta, for octoginta libris; or in septungentis for septuagintis libris; in wiginti for viginti libris; in sewteene for seaventeene pounds; in quinquegentis for quingentis libris; Adiudged Vernons case M. 13. Iac. Co. 1. in septuagessimo for septuaginta libris; G [...]ies case 5. Iac. B. R. Mich. 10. Car. B. R. Adiudged sexingentis for sexcentris libris; in quinquagessimis, or quinque decies, for quinquaginta libris; in octogenta for octoginta libris; or in viginti livers, for viginti libris; in vigiati nobilibus for 20 nobles; Fitz. h [...]gh. [...]res. Bridges 3. & 4. Eh. Co. P. or in octigenta libris, for octogintalibris; or quinginta libris for quinquaginta libris, or the like; these mi [...]prisions will not hurt the Obligations, for they are good notwithstanding But if one by the Obligation bind himselfe in in Paris case M. 4. Iac. B. R. quinqueagentis libris, or in quinqeagentis libris, or in quinagentis libris, or in segintis libris; these Obligations are voyd; for in these cases the meaning if so uncertaine, that it cannot be discerned, and no Averment will serve to supply it in this case. Trin. 21. Iac. Nowels case. So if an Obligation be dated 23 die Aprilie, in stead of Aprilis; this is a good Obligation; and this mistake will not hurt.

And if an Obligation have not date, or a false and impossible [Page 370] date, or have but halfe the date as the year of our Lord only; or Coo. 2. 5. See at Fait. Numb. 5. if it want these words In cujus rei &c. or the like, if it be sealed and delivered, it is a good Obligation.

A single Obligation may be to pay money, or to doe any other Coo. 10. 110 See fait or Deed, Num. 51. Secondly, for the matter and substance of it. thing that is lawfull and possible, and such Obligations are good. But if the Obligation be to bind a man to doe a thing unlawfull or impossible, it is v [...]yd: And therefore if one bind himselfe in an Obligation to kill a man burn a house, maintaine a Suit; or the like, it is voyd. So if the Obligation be made for maintenance or to that end, or if it be made pursuant to, and in execution of an usurious contract, or the like, it is voyd. So if an Obligation be made against See more infra. the Statute of 23. H. [...]. it is void. So if one bind himselfe in an Obligation and the matter thereof is altogether uncertaine, or insensible, it is voyd; but if there be any reasonable certainty in it, it is good enough. So if one bind himselfe to goe to Rome in three dayes under paine of [...]ol. this is void.

The condition of an Obligation may be either in the same, or in Plow. 141. 2 [...] H. 6. 51. Fitz Barre 157. 4. What shall be said a good condition of an Obligation, or not. First, for the manner and frame of it. another Deed, and it may be indorsed of the back of the Obligation, subscribed under it, or contained within it; but the best way to make it, is the usuall way, viz. The condition of this Obligation is such &c. and yet if it be otherwise, it may be good; for if an Obligation be made from A to B and on the back of the same these words are indorsed [That whereas the within bounden A is bound to B in 20 l. yet B. willeth and granteth that if A pay to B 10l. at Easter, that then the Obligation shall bee voyd;] it seemes this is a good condition. So if in the close of an Obligation of 20 l. these words be added: [That if A (the Obligor) pay 10l. to B (the Obligee) at Broo. Obli. 89. Fitz. Barre 265. Easter, that the Obligation shall be voyd;] this is a good condition. So if an Obligation be made from A to B of 20l. and these words are subscribed: [Now therefore if the Obligor pay 5 l. quarterly for Pasche 8. Iac. B. Simpsons case 21 H. 6. 51. 26 H. 8. 9. foure years, then it is agreed that the Obligation shall be voyd;] this is a good condition. So if a single Obligation be made from A to B of 20l. and after the Obligation is made, B doth by another Deed grant that if A pay him 10l. at Easter, the Obligation shall be voyd; this is a good condition or Defeasance. But if A do bind himselfe in an Obligation to B of 20 l. and after B doth bind himself in another Obligation to A to performe the Covenants of an Indenture, and in this second Obligation, there is a Proviso that B shall not sue upon the first Obligation till such a time; this is not a good condition.

If A be bound to B in 20l. with condition that if B doe not bring 26 H. 8. 8. A a horse before Easter, that the Obligation shall be voyd; this a good condition; and if the Obligee will have advantage of it, hee must perform the thing; Et sic de similibus. So if A be bound in an Obligation to B in 20l. with condition that if B shall bring 20 load Bro. Count. 69. [Page 371] of wood to the house of A, what A shall pay him the 20l. or that A shall pay him 20l. when B shall bring him 20 load of wood to his house; these are good conditions, and the thing must be done before the money is to be paid.

If the condition of an Obligation be, That if A (the Obligor) doe not pay to B (the Obligee) 10 l. that the Obligation shall bee Broo. Oblig. 42. voyd; this is a good condition; but it shall bee taken according to the words, and therefore the Obligor is not to pay it; And if he be sued, he may plead performance of the condition in the not paying of it.

If these words be omitted in the close of the condition [That Curia B. R. Pasche 90. Ia. Tr [...]eman & Parrams case. then the Obligation to be void;] the condition is voyd, but it doth not hurt the Obligation, for that remaines single: But if the next words, viz. [Or else shall stand in force] be omitted, the condition is never the worse; for as the addition of them doth nothing adde to, so the omission of them doth nothing detract from the strength of the Obligation.

The condition of an Obligation, may be to doe any law full or possible thing, as to pay money, deliver goods or Cattell, acknowledge a Secondly for matter and substance of it. See in West. Symb. Statute, enter into an Obligation, make a Release, make an estate, surrender an estate, make reparations, for quiet enjoying, to save harmlesse, to defend a title, to performe Covenants, to abide an Award, to performe a Will, to give so much land or money in legacy, to purchase lands, to appeare in a Court, to marry another, not to sue, not to meddle with an Executorship, not to revoke a Letter of Atturney, not to be Surety, not to play at cards or dice, or any such like thing; and such a condition is good. So also it seemes a condition, that a man shall not sell his goods, is good: But when the matter or thing to be done by the condition is unlawfull or impossible, Pasche 8. Ia. Co. B. or the condition it selfe is repugnant, insensible, or incertaine, the condition is voyd. and in some cases the Obligation also. And herein these differences are to be observed.

1. When the thing enjoyned, or restrained to be, or not to be done by the condition, is such a thing in his own nature, as the comission Coo. 10. 101 11. 53. super Litt. 206. Dyer. 304. Plow. 64. Fitz. Obligation, 13 See before in Condition and in Covenant. or omission thereof, is malum in se, there not only the Condition, but the whole Obligation also is voyd ab initio: And therefore if one Against Law. be bound in an Obligation with condition that he shall kill a man, burn a house, doe any other Felony, commit any Trespasse, maintain any Suit unlawfully; or (being an Officer) that he shall take Fees by extortion, or that hee (being a Sheriffe &c.) shall let a Prisoner escape, or that he shall save the Obligee harmlesse against an unlawfull Deed, or that hee shall not save his land, or that he (being a Tradesman) shall not use his Trade, (and yet it seemes a condition, that a man shall not use his Trade in o [...]e place, or at one time, or if he doe that, he shall pay so much by the year unto another, is not [Page 372] a condition against Law,) or that a man (being an Officer & an Officer pro bono publico) shall not exercise his Office, or the like; this condition is voyd, and makes the Obligation and so the whole Deed voyd. But when the thing to be, or not to be done by the condition, is such a thing as the omission or commission thereof in its nature is not malum in se; but only against some maxim of Law, as that a man shall make a Feoffment to his own wise, or is but malum prohibitum only, as that a man shall erect a Cottage contrary to the Statute of 31 Eliz. or is repugnant to the state, as that a Feoffee of Land shall not alien it, or take the profits of it, or that a Tenant in Taile shall not suffer a Recovery of his Land, or the like; in these cases the conditions only are voyd, and the Obligations remaine single and without a condition. And yet perhaps if the Obligors be sued upon these Obligations they may have reliefe in equity. Equity.

2. When the matter or thing to be done by the Condition, is such a Perk. Sect. 735. Coo. super Litt. 207. Fitz. Oblig. 17. 27 H. 8. 29. 21. Ed. 4. 54. 42. Ed. 3. 6. thing as in its nature is impossible to be done at the time of the making Impossible. of the Obligation, there the Obligation is good, and the Condition only is voyd. And therefore if I be bound in an Obligation with Condition, that I shall stand to the Award of certain persons &c. provided that the Award be made before the tenth day of May next, and provided that I have warning 15 dayes before the 10^th of May, and this Obligation is made the 9^th day of May; this is a voyd Condition: And so if I be bound in an Obligation with condition, that I will goe to Rome within three dayes, or that I will make an estate of white acre in Dale worth 10l. per annum, when reverâ it is worth but 5l. per annum, or that I will bee non-suit in such an Action, or assure such a piece of ground, when in truth there is no such Action, or piece of ground; this condition is voyd, and the Obligation remaines single and good. So if the condition be, That Hill. 17. Iac. B. F. whereas A had a judgement against B the Obligor for 20l. and the Obligee hath acknowledged satisfaction, if therefore the Obligor shall before such a day get a Warrant from A, whereby the Obligee may be saved harmlesse for the same acknowledgement, That then &c. this condition is voyd, and as it seemes, the Obligation also, for that it is not only impossible, but against Law also. But when the thing to be done by the condition, is a thing possible at the time of the making of the Obligation, and after by matter ex post facto by the Act of God, the Act of the Law, or the Act of the Obligee, it is become impossible; in this case the Obligation and the Condition both are become voyd: And therefore if a man be bound with a condition, that he shall appear the next Tearm in such a Court, and before the day the Obligor dieth; hereby the Obligation is saved. So if A be bound to B, that I S shall marry Iane G by such a day, and before the day, B himselfe marry with Iane G, hereby the Obligation is discharged, 21 Ed. 4. 53. and B shall never take advantage of it.

[Page 373] 3. When the Condition of an Obligation is so insensible and incertaine, that the meaning cannot be known, there the Condition Insensible. Incertaine. only is void, and the Obligation good: As if an Obligation bee made by A to B with condition, that A shall keep B without dammage against I S for 10l. in which the Obligee is bound to the Obligor; this Condition is void, and the Obligation single. Pasche 9. Iac. B. R. So if the Condition be, That A shall pay his part of the summes of money, that shall be levied for the trying of the Customes of M; unlesse the word [levied] be used for taxed in that Countrey, the Condition is insensible and void. So if A be bound to B with Condition to save him harmlesse, and say not for what, or against whom; this Condition is void and the Obligation single: But if any sense or certainty may be made of it, the Obligation and Condition shall be both good.

4. When the Condition of an Obligation in the matter of it is repugnant 2 H. 6. 44. 21. H. 7. 24. 30. to the Obligation it selfe, there the condition is void, Repugnant. and the obligation good: And therefore if the condition of an obligation be, that the Obligee shall not have benefit by the obligation, or that he shall not sue for the money in the obligation, or the like; this condition is void, and the obligation single: And yet this by a Deseasance made after the obligation may bee See Defeasance. done.

5. When the thing to be done, by the condition is to be done 10 H. 6. 14. 21. Ed. 4. 10. [...]T [...]n. 7. I [...]. B. R. beyond the Sea, it hath been held that the condition is void, and Not t [...]able. the obligation single, because the thing was not triable here. But it seemes the Law is otherwise now, and that the matter is triable here and the condition good. And in all other cases where a Deed in generall is void for Misnosmer, disability, or otherwise, there an Fitz. Oblig. 2. 11. obligaition is void.

All Bonds with conditions for the enjoying of spirituall livings contrary to the Statute of 13 Eliz. Chap. 20. are void by the Statute of 14 Eliz. chap. 11.

If any Ladyes or Gentlewomen be drawen by slattery, of threatning to enter into any Obligation simple or conditionall, to pay any money not truly due, they may be relieved by a course in the Chancery, for which, see the Statute of 31 H. 6. chap. 39.

No Sheriffe or his Officers shall take any Obligation, by colour 5. When an Obligation shall be void, for that it is made to another, & 1. 0 [...] to the Sheriff, or to the Sheriff in another manner then is appointed by the Stat. of 23. H. 6. ch. 10. Stat. 23. H. [...]. chap. 10. of their offices of any person in their ward, but only to themselves, and in the name of their office, with condition with sureties sufficient, that the Prisoner shall appear at the day in the Writ. And all others taken in any other forme shall be voyd. And persons that are in his ward, by Execution, Condemnation, Captas utlagatum, Excommunication, Suretie of the Peace, or some other speciall case, being sent for by a Iustice for Felony or the like, may not be bailed: and others that are arrested on a Capias for Debt, or an [Page 374] Indictment, or otherwise by Writ, Bill, or Warrant that are mainpemable, must be bailed. For the better understanding of which Statute, these things must be observed; That such Obligations as differ and vary from the some of this Statute in words and circumstances only are good, notwithstanding this Statute. a Villars case M. 9. Iac. B. R. And therefore if a Prisoner make an Obligation with a condition to appear and answer in a plea of debt, and say no more, nor do set down the cause of the debt, this is a good Obligation. And if the Sheriffe take an Obligation with one surtie only, or with two Coo. 10. 101 sureties that are insufficient, or with two sureties of another County; this is a good Obligation. So if the debt for which the party is arrested be 300l. and the Sheriffe take an Obligation of 100l. for his appearance; this is a good Obligation, for in these cases it is left to his discretion, and it doth concern him only. So if the Villars case. condition of the Obligation be for appearance Mense pasche, omitting proximè futurum, yet is is a good Obligation. So if the Dyer 364. party be arrested by an Attachment out of the Starre-Chamber upon a contempt, and the condition of the Obligation is, that if the Obligee shall appeare, and then, and there shall answer a contempt by him committed against the King and his councell, this is a good Obligation. And if the party that doth make the Obligation be not in the Sheriffes custody, albeit the Obligation be made in any other manner essentially differing from the forme prescribed in the Statute, if it be not against the common Law, it is a good Obligation. And therefore if when a Capias utlagatum be delivered to the Sheriffe against a man, the Sheriffe take Bond of him for his fees, and his travaile; this Bond if it be not within this Statute, Antleys case Hill. 7. Iac. Co. B. yet it is against the common Law, and therefore voyd, because it is by colour of Extortion. But where the Obligation, whether it be single, or double, made by a prisoner, doth essentially differ by addition, alteration, or diminution from the form prescribed in the Statute, there the Condition and Obligation both are voyd. And therefore if such a Prisoner make an Obligation to any other besides Coo. 10 103 the Sheriffe, albeit he to whom it be made be called Sheriffe, or if he make an Obligation to the Sheriffe himself, and not by the name of his office; or if he make an Obligation to him by the name of his office, and doth not rightly name him, Nowels case Trin. 21. Iac. Cu [...]. as if he make it to I S vicecomiti in Comitatu praedicto, whereas it should be de Comitatupraedicto; all these Obligations are voyd by this Statute. And if the Sheriffe take an Obligation of a prisoner for his appearance, in case where he is not bailable by the Statute, and so let him goe free; or i [...] he take an obligation of a prisoner that is bailable for his ap [...]earance, and doth insert other things into the condition, as to pay money for meat, drink, or fees, or the like; or if he deliver a man in execution, and take bond of him to save him harmelesse, or to [Page 375] be a true prisoner; all these and such like obligations as these are voyd by this Statute. If a man be a prisoner in Ludgate upon a Capias utlagatum, and the Gaoler take an obligation of him with two Dyer 118. 119. sureties, with condition to save him harmelesse, and to discharge his fees, and to yeild his body at all times upon Summons &c. this is a voyd obligation, aswell against the sureties, as against the principall. If the under Marshall of the Kings Bench take an obligation of one in execution and a stranger with condition to save him harmlesse of allescapes, and so suffer the prisoner to goe at large, this is a Dyer 324. voyd obligation. If the Sacriffe of Bedford having a prisoner by force of an execution, let him goe at large, and take an obligation of Plow. 61. 62. him, with condition that he shall keep the Sheriffe without damage against the King and the Plantiffe, and be at all times at the commandement of the Sheriffe as a true Prisoner, and appear before the Iustices of the King at Westminster &c. this is a voyd obligation.

If a man be a prisoner to the Sheriffe for suspition of Felony, and [...]it. Oblig. 1. after a writ comes to him to have all his prisoners at a certain day before the Iustices of Goale delivery of the same County, and thereupon the Prisoner doth make a single obligation to the Sheriffe to appear before the Iustices the day of the writ; this is a voyd obligation, because it is single and not with condition. And if the Sheriffe ba [...]le not one bailable by a single obligation, it seemes this is a voyd obligation.

A single obligation is alwayes taken most in advantage of the ob. 6 How a single Obligation shall be taken. ligee and against the obligor, but it is otherwise of the condition of an obligation, for this is alwayes taken most in advantage of the obligor, and against the obligee. 10. H. 7. 1. 16.

If two, three, or more bind themselvs in an obligation thus, Obligamus Ioint and severall. nos and say no more, the obligation is and shall be taken to be Dyer 19. 310 Coo. 5. 119. 9 53. old N. B. 62. Broo. Iointemancy 4. 16. Dec. 69. joint only, and not severall; but if it be thus, Obligamus nos & utrumque nostrum; or obligamus nos & unumquemque nostrum; or obligamus nos & quemlibet nostrum; or obligamus nos & alterum nostrum; in all these cases the obligation is both joint, and severall, so as in these cases the obligee may sue all the obligors together, or all of them apart at his pleasure, but it seemes he may not sue some of them and spare the rest, but he must sue them altogether, or all apart by severall Precipes, and in this case he may have severall judgements and severall executions against the obligors and take all their bodies in execution but he shall have satisfaction but once, or from one of them only, for after he hath been satisfied by one, the rest shall be discharged. But in the first case where the obligation is joynt and not several, the obligee must sue all the obligors together, for he cannot sue one alone with effect without the rest, unlesse it be in some speciall cases, as where one of the obligors alone doth seale the Deed, or where all of them do seale, but one of them is an Infant, a woman covert, a monk, or the like, [Page 378] or where one of them is dead, for in these cases one or some of them may be charged without the rest. But otherwise the Plantiffe cannot proceed in his suit against one, or some of them without the rest, except the defendant give him advantage, for howsoever the Suit be well begun, for when one or some of them alone is, or are sued, Hill. 39. Eli. B. R. adiudged. it shall not be intended that the rest are living, untill it be shewed by the other party, yet the defendant is not bound to answer, unlesse the rest be used also; and therefore in this case he or they that is or are sued alone, are thus to take advantage of it. Viz. to shew the matter to the Court, and to plead in abatement of the writ; for if hee appear and shew it not, but plead non est factum, or the like to the obligation, the Iury must find against him, and he will be charged with the whole debt. And so also if one appear, and the other make default and is outlawed, it seemes he that doth appear must answer all.

Executors and Administrators shall be bound by the obligation of Dyer 14. 271 Executors. the obligor, albeit they bee not named: but the heir of the obligor shall not be bound by the obligation, unlesse he be named in the obligation, Heire. viz. obligo me, haredes &c.

If an obligation be made to one and his heires, or to one and his successors; the Executors and Administrators, not the heire, or successor, See before. shall take advantage of it.

If one binde himself in an obligation of 200l. to A and B. Dyer 350. solvend. 100l. to A and 100 to B. and A die, it seemes the executors of A shall not have 100l. but that B shall have the whole 200l. sed quaere.

If one binde himself by obligation to I S to pay him an 100l. when K doth come to his house, and at Michaelmas then next following For the time of paiment. Broo. Obli [...] 5 [...]. 100l. more; Michaelmas then next following shall be taken for next following the making of the obligation, and not next following the comming of K to his house.

If one binde himself to pay money upon a single obligation, and Dyer 128. pec. 3. Iustices Trin. 22. Iac. Co. B. doth not say when; in this case it must be paid presently.

If one bind himself by obligation to pay mony at Michaelm [...]s, and doth not say which Michaelmas; this shall be taken for Michaelmas next after the date of the obligation; And so also it shall be taken in Curiain the Marches of Wale [...] Trin. 8. Car. the condition of an obligation.

If one bind himself to pay 20l. in the yeare of our Lord which shall be 1599. in and upon the thirteenth of October next ensuing 7 How an Obligation with a Condition, or the Condition of an Obligation shall bee taken. And how it must and ought to be performed. A [...]ee M. 9. 1a. B. R. the date of the obligation; this shall be taken to be due the 13 Hill 37. Eli. B. R. Sha [...] plu [...] vers [...] Hauckington. of October 1599 and not next after the obligation. See more infra.

The condition of an obligation when it is doubtfull, is alwaies taken most favourably for the obligor in whose advantage it is made, and most against the obligee, yet so as an equall and reasonable construction be made according to the minds of the parties, albeit the Dyer 14. 52. words sound to a contrary understanding.

[Page 379]

If something be by a condition to be done, and it is set down indefinitly, and not set down who shall do it, if the obligee hath more skill First in respect of the persons that are to doe the thing. Perk. Sect. 785. to do the thing then the obligor, it shall be done by him; otherwise it shall be done by the obligor: as if a Tailor be bound to me in an obligation with condition, that if I bring him three yards of cloth which shall be measured and shaped, and if he make me a Cloak of it &c. and it is not said by whom it shall be shaped, this must bee done by the Tailor.

If the condition of an obligation be to pay money, or do any Secondly in respect of the time when the thing is to be done. Coo. super Litt. 208. 2. 79. 80. 9. Ed. 4. 22. 9. H. 7. 16. other transitory act to the obligee himself, and no time is set for the doing thereof, but a place only; this regularly must be done in convenient time, and that without request. So also in case where the thing to be done is in its nature locall, but yet such a thing as may be done in the absence of the obligee, and without his con [...]urrence, as to acknowledge satisfaction on a Iudgement, make a lease for yeares or the like, it must be done in convenient time and that without request. So also in case where the thing to be done is locall, and the concurrence of both parties necessary thereunto, yet when it is to be done to a stranger and not to the obligee, as if the condition be that the obligor shall make a Feoffement to I S, it must be done in convenient time without request. But where the thing to be done is locall, and the concurrence of both parties necessary thereunto, and the act is to be done by the obligor himself, or by a stranger to the obligee himself, as where the condition is that the obligor, or a stranger, shall infeoffe the obligee; in this case the obligor, or the stranger shall have time to do it during his life, unlesse the obligee do hasten it by request, and if he request it sooner, then it must be done in convenient time after request made. And yet if the thing to be done, be to be done wholy by the obligor, or a stranger, and doth nothing concern the obligee, as where the condition is that the obligor shall goe to Rome, or that I S shall preach at Pauls crosse, or the like; in the first case it may be done at any time during the life of the obligor, and in the last case it may bee done at any time during the life of I S; and request in this case shall not hasten it.

If an obligation be with condition to grant a rent, or an annuity Coo. 2. 80. super Lit. [...]08. to the obligee during his life, to be paid at Easter, and no time is set for the doing of it; this rent must be granted before Easter next after the obligation, or else the obligation will be forfeit. And if the condition be to grant an Advowson, and no time is set for the doing thereof; it must be done before the Church become voyd, or otherwise the obligation shall be forfeit.

If the condition be to do a thing upon a day in the yeare, and there be two daies of that name in the yeare; in this case it seemes it must Dyer 77. be done that day that is furthest of from the time of the making of [Page 378] the obligation, especially if that day be the more notorious of the two dayes.

If the condition be to pay 10l. the eleventh of May next following Adiudg. M. 20. Iac. B. R. Prescots case. and the obligation is dated the 5^th of May; in this case the money must be paid the 11^th day of the same Moneth of May, and not of the next Moneth of May.

If the condition be to stand to the award of I S, and I S award 22 Ed. 4. 25. money to be paid, but set no time for the payment of it; this must be paid in convenient time, else the obligation shall be forfeit.

If one be bound to me in an obligation with condition, that if I enfeoffe Perk. Sect. 797, 799. him of White acre, he will pay me 10l. but doth not say when; this must be done assoon as I make him the feoffement. So if one be bound to me that if the goods I have delivered to B shall be lost, that C shall satisfie me for them, and doth not say when; this shall be presently after the loosing.

If the condition be to pay I S money when he shall come to M. 2. Iac. B. R. Crausdenet Morses case. the age of 21 yeares; in this case it must be paid the very day I S doth come to his full age, and paiment after is not a sufficient performance of the condition.

If the condition be to come at a day to such a place to do a thing, 39 Eli. B. R. Fitz. Barre 92. and the thing cannot be done without the concurrence of the other partie; in this case the obligor must stay for the very last instant of the day for his comming; and it seemes also he must stay at the place all the day long.

If the condition be to pay a rent at Mich. or within 20 dayes Adiudg. pas [...] 39 Eli. after, the obligation is not forfeit before the 20 dayes be past.

If one be to doe a thing on a day certaine, he may doe it any part Eroo. Condition 145. Dyer 17. 7. Ed. 4. 3. of the day whiles the light doth last: And if the condition be to doe a thing by, or before a day, it may be done the last instant of the day before, and it is sufficient.

If the condition of an obligation be to pay money, or doe any Perk. Sect. 780, 781. 7 Ed. 4. 4. 22 Ed. 4. 25. Lit. Sect. 340 341. like transitory act to the Obligee on a day certaine, but no place is 3. In respect of the place where the thing is to be done. set down where it shall be done; in this case it must be done to the person of the Obligee wheresoever he be; and for this purpose, the Obligor must at his perill seek out the Obligee, if he be intra quatuor maenia, otherwise the obligation is forfeit; but if the Obligee be not within the Kingdom at the time when the thing is to be done, he is not bound to seek him, so neither is the obligation forfeit for not doing of the thing. So if one grant an Annuity to another, and doth not set down where it shall be paid, and gives a Bond with condition for the payment thereof; in this case it must be done to the person of the Obligee where ever he be: And the like Law is as it seemes, where the thing to be done by the condition, is to be done by or to a stranger: But when the thing the party is bound by the condition to doe is locall, he is not bound to goe any further [Page 379] or to any other place, but to the place it selfe: And therefore if the condition be to make a Feoffment of a piece of Land, the party that is bound to doe it, is not bound to goe to any other place, but to the piece of land to doe it: And if a man make a Feoffment in Fee, or Lease for life or years of land, rendring rent generally, and gives an obligation with condition for the payment of the rent, the Feoffee, or Leassee, is not bound to goe to any place from the land to seek the Feoffor or Leassor to pay him this rent.

If the condition be, to deliver 20 quarters of corn such a day to Perk. Sect. 785. the Obligee, and no place is set down where it shall be delivered; in this case it is sufficient, if the Obligor when the corn is ready, doe give notice thereof to the Obligee, and to wish him to appoint a place wherunto the Obligor may bring it, and if he refuse to appoint a place, it is at his own perill; or the Obligor may bring the corn to the house of the Obligee (and this is the safest way) and if the Obligee refuse it, the condition is performed, and the obligation is discharged.

If the condition be, to performe all the Covenants in an Indenture; [...]oo. 4. 80. Dyer 257. 4. In respect of the thing it self to be done. this shall bee taken as well for the Covenants in Law as for the Covenants in Deed.

If a Lease be made of a Mannor excepting a Close, and the Plow. 67. Leassee make an obligation to the Leassor with condition, that the To perform Covenants. Leassee shall perform omnia & singula in scripto praedicto contenta; by this the Close shall be taken to be within the condition, so that if the Leassee disturb the Leassor in the Close excepted, this shall be a of breach the condition.

If the condition be, to makea Feoffment to the Obligee of Land; To make a Feoffment, Lease &c. See Covenant. Num. 6 in this case the Feoffment may be made with, or without writing, and if it be made by writing, it may be made without any warranty or Covenants, and this will be a sufficient performance of the condition.

If the condition be, That the Obligor shall make a Lease to the Coo. 6. 33. Obligee for 20 years, and it is not set down when the Lease shall begin, it shall begin presently.

If the condition be, That the Obligor shall doe any act upon request Dyer 228. that the counsell of the Obligee shall think reasonable, as To make a Release, or other assurance. for example shall doe any act &c. for the releasing of an obligation, wherein the Obligee is bound to the Obligor, and the Obligee by advise of Counsell deviseth and requesteth a release of all demands to the Obligee, and to I S; in this case the Obligor may refuse to seale it, albeit it [...]e devised by the counsell of the Obligee, because it is unreasonable, for it must be a reasonable act that the Obligor by this condition is bound to doe.

If the condition be to pay 10l. at Michaelmas next, and 10l. To pay money or rent. Adiudg. [...]il. 39 Eli. Co. B. yearly after, untill I S he made Knight, in this case albeit I S bee [Page 380] made Knight before Michaelmas, yet the first 10l. at Michaelmas must be paid.

If the condition bee thus, That if the Obligor shall for ever Adiudge M. 18. Iac. B. R pay yearly to the Obligee &c. 10l. at the two usuall Feasts by equall portions, or if his heires shall at any time hereafter pay 100l. at Harbert versus Rochsey. one payment to the Obligee, that then the Obligation to be void; in this case albeit the Obligor hath election, which of these two things to doe; yet because the intent is apparant that one of these things should be done, if therefore the 100l. be not paid before the first Feast, the 10l. must be paid yearly.

If the condition of an obligation from A to B be thus; That Dyer 421 43. To warrant land and for quiet enjoying. whereas A hath sold to B certaine Meadow in Dale, that the said A shall warrant the same against Lord and King and all others, if the said B shall peaceably enjoy it to him, and his heires of the Lord of the Mannor of M, by the services due after the custome &c. in this case the substance of this being for quiet enjoying, it shall be extended that way, and albeit it be not said what he shall warrant, yet it shall be taken the Land in question, and the warranty shall be construed to last only for the life of B, and not to extend to any new titles after the Covenant, especially such as are by the act and default of the Obligee himselfe, as if he commit a forfeiture and the Lord enter, or the like.

If the condition be, That the Obligor shall sufficiently prove Perk. Sect. 791. 10. Ed. 4 11. To prove a thing. such a thing; this shall be taken for proofe by enquest and accordingly it must be done: But if the condition be that it shall be done by such a time, or before such persons as when or where such Golds case in Harberts Rep. 127. proofe cannot be had, then it is otherwise. Where the word [proofe] is put generally, it shall be understood of proofe by Iustice; but when the parties agree upon another form of proofe, that shall prevaile against that which is but instruction of Law.

If one be bound in an obligation with condition to suffer his wife Curia Trin. 7. Iac. Co. B. To suffer his wife to make a Will. to give to her kinsfolks, children, or others portions of his goods to the value of 100l. and that he will perform it, and she give part to one and part to another; in this case the husband must performe it accordingly: But if the condition be to suffer her to give to A and B 100l. and that he will perform it, and she give 100l. to A, he is not bound to perform this.

If the condition be, That hee shall perform his wives Will, so it Adiudge. Hil. 7. Iac. B. R doe not exceed 20l. and shee make a Will and devise 100l. in this case hee is not bound to perform the Will for the 20.

If the condition of an Obligation be, That the Obligor shall infeoffe 5. In respect of the manner and order of of doing the thing and other matters. Kelw. the Obligee, and such others as he shall name by a day; in this case the Obligee must doe the first act, viz. name the others; otherwise the Obligor doth not forfeit his obligation by the not doing of i [...] But if the condition be to infeoffe me, or such others as I shall [Page 381] name before such a day; in this case if I doe not name others, it seemes he must enfeoffe me before the day at his perill.

If the condition be, that the Obligor shall make such an estate Coo. 5. 25. 7 Ed. 4. 13 Perk. Sect. 775. of Land as I S shall advise, I S must first advise, and this must be made known unto the Obligor ere he is bound to doe any thing, and if he never advise, he is never bound to doe any thing; for it is in this case, as if one bee bound to stand to the award of I S, and I S never make any, or make a void award which is all one.

If the condition be, to make such a discharge in such a Court Coo. 5. 23 as the Obligee or his counsell shall advise; in this case the Obligee must doe the first act, viz. advise and give notice of the advise to the Obligor before he is bound to doe the thing. But if the condition be to make such a discharge in such a Court such a day, as the Judge of that Court shall advise, in this case the Obligor must at his perill procure the Iudge to advise a discharge, and it must be done that very day or the obligation will be forfeit.

If the condition be, to pay 20 l. to the Obligee when he doth Per. Iust. Nichols, M. 13 la Co. B. come to London; in this case, the Obligee must doe the first act, viz. make known to the Obligor when he doth first come to London, for otherwise, it seemes the Obligor is not bound to pay the money.

If the condition be, that the Obligor shall levie a fine to the Obligee Coo. 5. 127 Dyer 371. before such a day, the Obligee must doe the first act, viz. sue out the Writ of Covenant.

If the condition be, that the Obligor shall deliver 20 Clothes [...]1 Ed. 4. 52 to the Obligee such a day, the Obligee paying for every cloth immediately after the delivery 20 l. in this case the clothes must be [...] delivered, albeit the Obligee refuse to pay the money; but if [immediately after] be left out, it seems the Obligor is not bound to deliver the cloth unlesse the Obligee first pay the money.

If the condition be, that the Obligor and his heires shall at any Coo. 2. 3, 4 Dyer 337. time upon request made, doe any act &c. that the Obligee shall require &c. and the Obligee tender a Release or other Deed to seale; in this case, if the Obligor, or his heir that is to seale the Deed, be an illiterate man, he may refuse to seale it, untill he can get some body to read it unto him, but he may not refuse or delay to sca [...]e it untill he can have a Lawyers advise upon it, but he will forfeit his Obliligation.

If the condition be, to doe any thing upon request, the Obligor Perk. Sect. 773. Coo. 5. 21. untill request made is not bound to doe any thing towards it, neither can he forfeit his obligation till them. And yet if in this case, the Obligor disable himselfe to doe the thing he hath undertaken to doe upon request before the request made the obligation may bee so feit without any request made.

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If the condition be, that the Obligor shall within a certaine 14 H. 8. time surrender such land of his for an Annuity, of so much as they shall agree upon, and they agree upon 10l. per annum; in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him.

If the condition bee, to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg. wherein the Obligee is bound &c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas, and the counsell doe not advise any Release before Michaelmas; in this case the Obligor is discharged of the obligation, for the Obligee is to doe the first act.

If A be bound to B, in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires, and at their costs and charges; this shall be construed to be at the costs of the Obligor, and not at the costs of the Conusees, but if the word [and] be omitted, perhaps it may be of otherwise.

If the condition be thus, That if the wife die before Michaelmas Dyer. 17. without issue of her body then living, that the obligation shall bee void; in this case [then living] shall relate ad proximum antecedens, and not to the death of the wise, and therefore if she hath issue and die, and after before Michaelmas the issue dyeth also, the obligation is void.

If the condition be, that if the Obligor shall waste the goods of the Obligee (his master) and this waste within three Moneths after Golds case, M. 13. I [...] due proofe of it, either by confession or otherwise bee notified to the Obligor, that the Obligor shall satisfie the Obligee for it, and the Obligor doe confesse the waste under his hand and seale; in this case, it seemes this proofe though it be extrajudiciall is sufficient.

When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day, and at the time of making of the obligation both of them are Conditions Impossible. possible, but after and before the time when the same is to be done, one of the things is become impossible by the act of God, or by the sole act and laches of the Obligee himselfe; in this case the Obligor is not bound to doe the other thing that is possible, but is discharged of the whole obligation. But if at the time of the making of the obligation one of the things is, and the other of the things is not possible to be done, he must perform that which is possible. And if in the first case one of the things become impossible afterwards by the act of the Obligor, or a stranger, the Obligor must see that he doe the other thing at his perill. And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part, the obligation is wholy discharged; and yet if it bee possible to be done in any part, it shall be performed as neare to the condition as may be.

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If the condition be, to doe one of two things, as to make a feoffment to me, or pay me 20l. in this case, if the obligor doe either 21 Ed. 3. 29 of them, it is sufficient. But if the condition be in the copulative, as to enfeoffe me and pay me 20l. in this case, the doing of one of them will not suffice, but he must doe both.

If the condition be, to pay to A B and C 30 l. a pece within a week after they come to 18 years of age, or within 40 dayes after Per. Iustice. Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof, which shall first happen; in this case, this notice must goe to both the parties, so that notice must be given when they are 18 years of age; otherwise, and untill notice given, it seemes the obligor is not bound to pay the money. See more in Condition Numb. 8. and Covenant Numb. 6.

The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved, or not. and compulsory, and doth consist of something to be done, and sometimes it is negative and restrictive, and doth consist of something not to be done; the not doing in the first case, and doing in the latter case causeth the obligation to bee forfeit; and the doing in the first case, and not doing in the latter, saveth the obligation.

If one be bound in an obligation to me, with condition to enfeoffe To make a feoffment. Coo. super Lit. 207. plo [...]. 7 [...] 17 Ed. 4. 3. me of land, and the obligo [...] doe first make a Lease to me of it, and afterwards he doth make a Release of it to me and my heires; this is a good performance of the condition.

If a condition be to make me a feoffment of land, and he tender me a feoffment, and I refuse it; by this the condition is performed. So Tender and Refusall. Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be, to make a feoffment to my use, and when it is is made I refuse it; this is a good performance of the condition. But if a man bind himselfe in an obligation to me, with condition to make feoffment to a stranger, and hee tender the feoffment to the stranger, and he doth refuse it; this is no good performance of the condition, but the obligation is forfeit. If the condition be, to enfeoffe me and my wife, and he tender it to me, and I refuse it; it seemes this is a good performance.

If one bind himselfe in an obligation to me, with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day, and he before the day, grant a rent-charge out of the same Mannor to a stranger, and afterwards and before the day also, he doth make me a feoffment of the land; this is a good performance of the condition, and the grant of the rent no breach thereof. But if the obligor sell away part of the Mannor before, or make a feoffment to me but of a moity or a third part of the Mannor; this is no good performance of the condition. And if in this case, the obligor before the day take a wife, and before the day make his feoffment according to the condition, but the marriage doth continue untill after the day; in this case, it seemes the condition is broken.

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If the condition be, that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9. H 7. 1 [...]. 3 H 7. 4, 27. H. 8. 1. 14. H. 8. 15. 10. H. 7. 14. of Dale, and hee make a feoffment of the Mannor of Sale, and I accept thereof; it seemes this is no performance of the condition, and that my acceptance in this case will not help. So if the condition be to make me a feoffment of land, and he give me mony, a horse, or the like in recompence of this, and I accept thereof; this is no good performance of the condition: And the like Law is in all cases where the condition is to doe any collaterall thing, as to account, build a house, enter into a Recognisance, or the like, and the obligor doth give, and the obligee accept some other thing in liew thereof: And so also it is where the condition is to make a feoffment to a stranger, and the obligor give, and the stranger take another thing in liew thereof: But if the condition be to enfeoffe me of land such a day, and he make, and I take the feoffment before the day; this is a good performance of the condition.

If the condition be to enfeoffe me or my heirs in the disjunctive, 14 H. 8. 15. Coo. 5. 112. and the obligor enfeoffe me and my heires; this is a good performance of the condition; for it is impossible to enfeoffe my heirs whiles I live, and when two things are to be done by a condition, whereof the one is possible at the time of making the obligation, and the other is not; in this case it is sufficient if he doe the thing which is possible.

If the condition be, to make me a feoffment, or pay me 20 l. if the 21 Ed. 3. 9. obligor doe either of them, it is sufficient. But if the condition be to infeoffe me, and pay me 20 l. in this case the obligor must do both, or the condition will not be performed, Et sic de similibus.

If the condition be, that the obligor shall make me a sufficient Perk. Sect. [...]6. Kelw. 9 [...]. To make an Estate. estate of land by the advise of W and S, and they advise an insufficient estate, and the obligor doe make the estate according to that advise; this is a good performance of the condition: But if the condition be that the obligor shall make a good and sure estate, and he by advise of counsell make an estate that is not good and sure; this is no good performance of the condition.

If the condition be, that the obligor shall make me an estate of Fitz. Barre. 55. land, and make the estate to another by my appointment; it seemes this is no performance of the condition.

If the condition be, that the obligor or his feoffees in trust shall Trin. 17. [...]a. B. K. make an estate to the obligee such a day, and the feoffees doe it without the consent of the obligor; this is no performance of the condition.

If the condition be, to make further assurance, and the obligor Pasche 8. [...]a. Co. P. To make further assurance. make further assurance upon condition, without the agreement of the other party; this is no good performance of the condition.

If the condition be, to save me harmlesse from an Annuity wherewith To save harmlesse. 37 H. 6. 18. Perk. Sect. 792. my land is charged, and the obligor doth pay the same yearly, [Page 385] and get me an Acquittance for the same from the party; this is a good performance of the condition. But if the condition bee to discharge me of such an Annuity; in this case, payment and procuring mee a Release, is no good performance of the condition.

If the condition be, that the Feoffees or Leassees of the Obligor To grant a rent, or to procure a rent to be granted. of such land which they have in trust shall grant me a rent-charge, Pe [...]. Sect. 790. Fitz. Barre 7. or release their right to mee before such a day, and there be three Feoffees, or Leassees, and two of them only doe grant this rent, or make this Release; this is no good performance of the condition.

If the condition be, that the Obligor shall purchase and procure Dyer 15. to me and my heires a rent of 5 l. per annum, and a stranger hath such a rent out of my land, and he doth get him to release this to me; this is a good performance of the condition: And if one be bound Fitz. Barre, 77. with condition to grant me the rent and farm of such a Mill before Michaelmasse, to be had and perceived untill I be paid 10 l. and before that time he lease the Mill to me at a rent, and then suffer me to detaine so much of the rent; it seemes this is a good performance of the condition.

If the condition be to deliver me a horse, and the Obligor tender To deliver a horse. the horse unto me, and I refuse him; hereby the condition is performed; Coo. super Lit. 207. and so in all such like cases where the Obligor is to doe Tender and Refusall. any collaterall thing, as stand to an award, or the like; if the Obligor offer to doe it, and the Obligee refuse, the condition is performed, and the Obligation discharged forever.

If the condition be, to pay money at a day certaine, and the To pay mony Obligor pay a little before night, time enough for the receiver to Dyer 17. super Lit. 202. Broo. Condition 145. see to number his money by day light; this is a good performance of the condition. And if the condition be to pay money by, or before a day; paiment the last instant of the day before is a sufficient performance of the condition.

If the condition be, to pay me a summe of money at a day certaine, Perk. Sect. 748. 34 H. 6. 17. 21 Ed. 3. 13 Coo. 5. 117. 9. 79. Broo. Oblig. 64. Acceptance. and the Obligor pay me lesse money before the day, or all the money before or at the day, or give me something else before, or at the day of paiment in liew thereof, or pay me all the money or a lesser summe at the day appointed, but in another place, and not the place mentioned in the condition, and I accept thereof; in all these cases the condition is well performed. But if a stranger to the condition doe so, and I accept thereof; this is no good performance of the condition as hath been Trin. 36 Eliz. adjudged. And if the Obligor pay lesse then the whole money at the day of paiment, and the Obligee accept thereof; this is no good performance of the condition: Adiudge 17 Eli. And if the thing to be done be a collaterall thing, as to account, or the like, and the Obligor give unto the Obligee money, or a horse in liew thereof, and the Obligee accept it; this is no good performance [Page 386] of the condition. And if the Obligor pay the money to the Obligee after the day of paiment; this is no performance of the condition, but the Obligation is forfeit, and the money paid shall goe in part towards the forfeiture: And yet in this case the Defendant at this day being sued upon this obligation, doth usually adventure to plead conditions performed, and give this speciall matter in evidence to the Iury, who for the most part doth find against the Obligee. And yet if the condition be, to pay me money at a day Dyer 18. certaine, or to pay another money at a day certaine, and the Obligor pay me or the stranger at severall times before the day, and I, or the stranger accept thereof; this is a good performance of the condition. But if the Obligee doe only promise to accept of a horse for his money at the time of paiment, and when the time of 18 Ed. [...] Tender and Refusall. paiment comes, and a tender of the horse is made to him, he doth refuse him; this tender is not a sufficient performance of the condition.

If the condition be, to pay money at a day and place certaine, Coo. super Lit. 208. 209. 27 H. 8. 10. Perk. Sect. 784. and the Obligor tender it a [...] the time and place, and the Obligee is not ready to receive it; or being ready, doth refuse to receive it; this is a good performance of the condition to save the forfeiture of the obligation: And yet if the Obligor be afterwards sued for this money, he must say in his pleading, that he is still ready to pay it, and he must tender it in Court. But if one be bound by a single obligation to pay money, and after at the same or some other time, he hath a Defeasance from the Obligee, that upon paiment of a lesser summe the obligation shall be void; and the Obligee refuse the money when the same is tendred at the time when by the Defeasance it is to be paid; in this case the Obligor is not bound to tender the money in Court, neither hath the Obligee any remedy for it.

If the condition be, to pay me money at a day and place certaine, and the Obligor doth tender it to me the same day in another 41 Ed. 3. 25. place, this is no performance of the condition, and therefore in that case I may refuse it.

If the condition be, to pay money between two dayes; paiment of the money upon either of those dayes is not a good performance Dyer 17. of the condition, but the paiment must bee betweene the two dayes.

If the condition bee, to pay me money at a day certaine, and Perk. Sect. 748. 27 H. [...]. 6. Fitz. Barre. 43. I bid the Obligor pay the money to one that I doe owe so much more unto, or I bid him lay out the money for mee, or I bid him keep it for such a debt I owe unto him, and hee doe so, and I accept hereo; it seemes this is a good performance of the condition.

If the condition be to pay me money, and I appoint another [Page 387] to receive it, and the Obligor pay it unto him; this is a good performance of the condition.

If the condition be, that a stranger shall pay to the Obligee 10 l. Acceptance. Coo. super Lit. 10 8. 20 [...]. Dyer 5 [...]. and the Obligee accept a horse for it, this is a good performance of the condition. But if the condition be that one stranger shall pay to another stranger 10 l. and the one doth give, and the other take a horse in Lew of this; this is no good performance of the condition.

If the condition be, to pay me 20 l. of lawfull English money, New Terms of the Law, [...]it. Coine. and the Obligor pay me in Spanish or in any other money currant in this Realm; this is a good performance of the condition. Per Iust. Bridgman & Curia in the Marches of W les 8. But paiment in farthings is no good paiment. Termes of the Law, Idem. If the condition be, to pay me 20 l. and the Obligor pay me some of the 20 l. in counterfeit pieces, which I not perceiving at the time, doe put up and accept, but after upon a review I doe perceive some of them to bee naught, and thereupon I doe send it back to him again, in this case it seemes the condition is well performed, and therefore the sending back of the money againe will not cause a breach afterwards.

If the condition be, that I shall stand to the award of I S, and To stand to [...] Award. 22 Ed. 4. 2. he doth award mee to pay 20 l. to W S by a day, and at the day I doe tender him the 20 l. but he doth refuse it; in this case I have sufficiently performed the condition, and the obligation is saved.

If the condition be, that I shall stand to the award of I S, and he 22 Ed. 4. 25. award that I shall enter a Retrax it in a Suit depending between me and the other party, and I do not so, but am Nonsuite, or do discontinue my Suit; this is no good performance of the condition.

If the condition be, that the Obligor shall come such a day to To shew a Release. 22 Ed. 4. 42. such a place and shew me a Release, and he doth come to the place the latter part of the day, and doth stay there untill the light of the day be gone, ready to shew his Release, but I come not thither; this is a good performance of the condition.

If one make a Lease of land to mee, and bind himselfe in an For quiet [...]n [...] joying. Dyer 255. 17 Ed. 4. 3. obligation with condition to suffer me quietly to enjoy the land without the let of him or any other; in this case if he himselfe, nor any other by his incitement doe disturbe me, the condition is performed; and if a stranger that hath title, doe enter without his procurement or occasion, this is no breach of the condition.

If the condition be, to appear in the Kings Bench such a day, to To appeare. Perk. Sect. 760. 758. 2 Ed. 4. 3. answer I S, and at the day the Obligor doth appeare, but the Plaintiffe is estoined so that the defendant cannot answer him, or the Suit is discontinued by the Demise of the King before the day of appearance; in these cases the condition is performed and the obligation saved. But if the Obligor in this case when [...]e doth [Page 388] appeare, doth not cause his appearance to be entred of Record, the obligation is forseit.

If the condition bee to appeare coram domino Rege, and the 8 H. 4. 6. Obligor appeare before the Kings Person; this is no performance of the condition. And if the condition be, to appear coram Iusticiariis Domini Regis, and the Obligor appeare before them out of Court; this is no performance of the condition.

If the condition be, that a stranger shall make an obligation to Coo. super Lut. 208, 209. 10 H. 6. 16. 27 H. 8. 1. To make a [...]ond. the Obligee, and the stranger tender it, and the Obligee refuse it; this is a good performance of the condition: But if the condition be, that the Obligor shall make an obligation to a stranger, and the Obligor tender it, and the stranger refuse it; this is no performance of the condition.

If the condition be, that the Obligor shall marry the daughter Perk. Sect. 756. 4 H. 7. 3. To marry a woman. of the Obligee by a day, and he doth tender himselfe, and she doth refuse; in this case the obligation is forfeit, notwithstanding this tender and refusall.

If the condition be, to deliver the key of a house, and the quiet Dyer 219. To leave a Possession. possession to I S, to the use of the Obligee, and the Obligor (the house being rid, and every one out of the house, and the door locked) doth deliver the key to I S; it seemes this is no good performance of the condition, but that I S, or the Obligee, or his deputy ought to come and receive the possession. See more in Condition at Numb. 9. and Covenant 6.

If an Obligation that is single, be not performed, as when it is Coo. 8. 153. super Litt. 292. FN B. 267. [...]. When a single Obligation shall be said to be broken and forseit, or not, to pay money at a day, and the money is not paid, the obligation is broken. But if a man be bound by an obligation to pay money at severall dayes, the obligation is not forseit, nor can be sued untill all the dayes be past. And yet if the condition of an obligation be to pay money at severall dayes, and the Obligor doe fail to pay the money the first day; in this case the Obligee may sue for the money due by the obligation presently.

If one be bound to pay money at a day certaine by a single obligation Broo. Oblig. 62. Fait. 105. Fitz. verdict. 13. or Bill, and the Obligor tender the money at the day to the Obligee, so as he will give him his Bill or a Release for the money, and the Obligee refuse so to doe, and thereupon he doth refuse to pay the money; in this case the obligation is not forseit; for in this case the Obligor is not bound to pay the money, unlesse the Obligee will give up his Bill or give him a Release. But otherwise it is in case where one is bound to pay money by the condition of an obligation; for there the Obligor must pay the money at his perill, albeit the Obligee refuse to deliver up the obligation or to give a Release.

If one be bound to pay money on a single Bill at a day, and the Obligor tender the money at the day to the Obligee, and he refuse [Page 389] it; in this case, it seemes hee hath now remedy for his money; Sed Quaere.

In all causes when the condition is not performed or broken, 10. When the condition of an Obligation shall be said to be broken and the Obligation forfeit, or not. the obligation is forfeit, and till then it cannot be forfeit: And Broo. Oblig. 17. therefore, if one be bound in an obligation, with condition to pay me 10. l. a [...] Easter, before the day come, the obligation cannot bee forseit; but if it bee not paid at he day, the obligation is forseit: And yet if the Obligee himselfe be the cause of the breach of the 4 H. 7 4. condition, or the thing to be done by the condition, is now become impossible by the act of God, the obligation is now become without penalty: As if in the old dayes I had been bound in an obligation to an Abbot, that A should infeoffe him before Christmasse, if A enter To make a Feoffment. into Religion, my Bond had been presently forfeited: But otherwise it had been if A had been professed under the obedience of the Obligee himselfe.

If the condition be to make a Feoffment of land to me such a Perk. Sect. 8. 769. day, and he be not upon the land ready to make the Feoffment, albeit I come not there to receive it, yet the condition is broken.

If the condition be that when the Obligor shall come to his 21 Ed. 3. 29. Cook. 5. 112. Aunt, he will enfeoffe the Obligee, or the heirs of his body, in this case he must doe it assoon as he doth come to her, and the Obligee shall request the Feoffment, or the obligation is forfeit.

If the condition be to enfeoffe me of a Mannor by a day, and before the day the Obligor doth make a Feoffment of it to another, 21 El. 4. 5. hereby the condition is broken, and the Obligation forfeit, and though the Obligor repurchase it againe before the day, and then make the Feoffment, yet this will not cure the breach.

If the condition be, to enfeoffe B and C, and one of them die 4 H. 7. 4. before the time bee past wherein it should bee done; in this case hee must enfeoffe the survivor of them, or the condition is broken.

If the condition bee, that if the Obligor before Michaelmasse To make a Lease. Dyer 347. make a Lease to the Obligee for thirty one yeares, if A will assent, and if hee will not assent then for twenty one yeares, That then &c. if A do not assent, and the Lease for twenty one years be not made before Michaelmasse, the obligation is forfeit.

If the condition be that the Obligor shall make me an estate To make an Estate. 7 H. 6. 24. upon request, and he tender me an estate before I request it, and afterwards I doe request it, and he doth refuse it; in this case the condition is broken, and the obligation forfeit.

If the condition be that the Obligor shall make me a good estate Pasche 8. Co. B. [...]a. of land (being Copi-hold land) and he doth surrender it absolutely, and the Homage when they present it, doe present it conditionally; this is no breach of the condition.

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If the condition be, to make a good estate of land in Fee-simple 4 H. 7. 4. Kel. to A (a woman) before such a time, and before such time the Obligor taketh A to wise, and the day passe, and no estate is made; in this case the condition is broken, and the obligation forfeit. But if the obligation be made to the woman her selfe, then it is dispensed with by the inter-marriage.

If the condition be, that the Obligor and his sonne shall doe all Coo. 2. 3. Dver 337. such acts for the better assuring of land, as the Obligee or his To make further assurance. Counsell shall devise, and the Obligee devise and tender a Release to the Obligor and his sonne to seale, and they delay and refuse to seale it untill they can shew it to their Counsell to bee advised upon it; this is a breach of the condition; but if they be illitterate and refuse to seale it untill they can get it read; this is no breach of the condition.

If the condition bee, that the Obligor shall save the Obligee harmlesse from such a debt, for which the Obligee is surety for Dyer 186. 187. 18 Ed. 4. 27. 28. Coo. 5. 24. Old book of Entry 12. To save harm [...] esse. the Obligor, and the Obligee commeth at the time, and to the place when and where the money, for which he is engaged, is to bee paid, and finding no body ready to pay the money, he doth pay it himselfe to save the forfeiture of the obligation; hereby the condition to save harmlesse is broken, and the obligation forfeit. And therefore much more if the obligee be sued, arrested, out-lawed, or taken in Execution for the debt of the principall: So also if the Obligee bee put in feare of arrest for the debt of the Principall, and therefore dare not goe about his businesse; by this the condition is broken. But if the Obligee be sued unjustly, either because he is sued before the money is due, or otherwise, or if the Bond in which he is bound, be against Law and void, and he suffer himselfe to bee unjustly vexed thereupon, and doth not take advantage of it, it seemes this is no breach of the condition of the Bond to save harmlesse.

If a Bailiffe distrain beasts on a withernam, and afterwards redeliver 2 H. 4. 9. them to the party of whom he had them, and a take Bond from him with condition to save him harmelesse from him for whom the beasts were taken, and after he doth bring a detinue against the Bailiffe for the beasts; in this case the condition is not broken; for this action will not lie in this case.

If the condition be to pay money to me at a day and place certaine, Kelw. [...]0. and the money is not tendred at the time and place, albeit To pay mony. there be no body ready to receive it, if it be tendred, yet the condition is broken.

If the condition be to pay money to meat a day and place, and Broo. Oblig. 9. the obligor in his going to the place is robbed of the money so as he cannot pay him; in this case notwithstanding the condition is broken, and the obligation forfeit, and this will not excuse it.

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If the condition be to pay money to me at a day and place, and I seeing him going to the place to pay the money, do wish him Kelw. 60. to forbeare, and thereupon he doth so, and doth not pay it; in this case the obligation is forfeit, and this will not excuse. But if I doe violently and actually detaine and hinder him, so that hee cannot pay it, this will excuse him.

If the condition be to pay me the rent reserved on such a lease, To pay Rent. Hill 4. Iac. Molmenx case. at the times limited by the lease, and it be not accordingly; hereby the condition is broken, a beit I do never demand the rent.

If the condition be to pay me the rent reserved on such a lease, Broo. Oblig. and I enter upon all or part of the land demised, so as the rent is suspended so long as I keep the possession, in this case the nonpayment of the rent during the time of the suspension of the rent, is no breach of the condition.

If the condition be that I shall enjoy land without the interruption Dyer 30. For quiet [...] joying. of any person whatsoever, and afterwards I doe forfeit it my selfe by non-paiment of rent, or the like; this is no breach of the condition.

If the condition be, that the obligor shall suffer the obligee to Dyer 255. 17. Ed. 4. 3. enjoy lands &c. and that without the let of him &c. or any other person or persons &c. and one that hath an elder title doth enter; th [...]s is no breach of the condition. But if he procure this entry and disturbance, this is a breach of the condition.

If the condition be that B and others shall quietly enjoy land, Kelw. 60. and A the obligor and B the obligee doth disturbe the others; it seemes by this disturbance the condition is broken.

If the conditinn be that the obligor shall not disturbe me in the Coo. 9. 51. keeping of my Courts, and he keep the Courts and take the Fees himself; this is a breach of the condition.

If one make a feoffment of land, and make me an obligation with Coo. super Lut. 3 [...]4. condition to desend the land for 12 yeares &c. and I am entred by a stranger, but never impleaded; in this case the condition is broken.

If the condition be to stand to the award of I S, and the obligor Coo. 4. 61. 8. 23. To stand to an Award. doth afterward counter maund the submission made to I S; this is a breach of the condition. Factum non dicitur quod non perseverat.

If the condition be that I shall have licence to carry wood seven Coo. 8. 8. 83. 18. Ed. 4. 20. yeares, and the obligor doth give me a licence for seven To give a licence. yeares, and then doth revoke it againe; this is a breach of the condition,

If the condition be, that I S shall give me licence to go over 1. [...] Ed. 4. 23. his ground, and I S doth so, but another doth interrupt me; this is no breach of the condition. And yer if the condition be that I shall have licence to goover that ground, there perhaps ssuch an interruption [Page 392] may be a breach of the condition.

If an obligation bee made to me with condition to appeare [...]n Fitz. Bar [...]. 60. such a Court such a day, and at the day hee is kept in prison at my To appeare. suite so as he cannot appeare; in this case his not appearance is no breach of the condition, for his imprisonment shall excuse him. But if his imprisonment be for Felony, or any other such like cause of his own, contra.

If the condition be, to appeare in such a Court such a day, and Dyer 25. before the day a Supersedeas doth come to the Sheriffe; yet if the obligor do not appear, the obligation is forfeit.

If the condition be, that the obligor shall ride with I S to Dover Perk. Sect. such a day, and I S doth not go thither that day, in this case To ride to Dover. it seemes the condition is broken, and that he must procure I S to go thither and ride with him at his perill.

If I make a lease for yeares, and the lessee doth enter into an Per Iust. Nichol, M. 13. [...]a. Not to alien. obligation with condition that hee shall not alien the land demised without my licence, and I die, and then hee doth alien it; it seemes this is a breach of the condition.

If the condition be that I S shall serve me in all my honest and Perk. Sect. 772. 6 [...]d. 4. 2. To serve. lawfull commands, or that I S shall be a good and honest servant to me one yeare; in the first case if I command him nothing, the condition is not broken, albeit he never tender his service: but in the last case it seemes he is to tender his service to me, or otherwise the condition will be broken. But if I refuse his service when it is tendred, or hee die within the time, the obligation is discharged. And yet if hee depa [...]t away within the time, the condition is broken.

If the condition be that A shall marry B by a day, and before 4 [...]. 7. [...] Perk. 7 [...]. To marry a woman. the day the obligor himselfe doth marry her: in this case the condition is broken. But if the obligee marry▪ her before the day, the obligation is discharged.

If the condition be, to performe the covenant [...] and paiments of a Deed, and the deed doth containe a feoffment, and this is on condition Briscoes case [...]in. [...] Ia. c B. [...], To performe covenants. that if the feoffor pay such a summe of money he shall reenter, and he doth not pay it; in this case this non-paiment is no breach of the condition. But if A let land by Indenture to B for yeares rendring rent, and B doth bind himselfe in an obligation Ad [...]udged Griffin & Scots case 5. Iac. B. R, with condition to performe all the covenants contained in the Indenture, and the rent is unpaid; this is a breach of the condition, and cause of forfeiture of the obligation,

If the condition be for the sa [...]e keeping of prisoners, and one Curia Trin▪ 37. Eliz. To keep Prisone [...]. doth escape that is in execution, and in prison under colour of an execution, or the like, but in truth and in judgement of law is no prisoner; this escape is no breach of the condition. See more in [...]ondition at Numb. 10.

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If the condition of an obligation consist of two parts in the disjunctive, or be to do one of two things before, or at a day certain, 11. By wha [...] meanes and when an Obligation good in his original creation, doth or may become void, bee discharged or gone by matter ex post facto, Or not▪ [...]oo. super L [...]t. 207. and both the things are possible at the time of the making of the obligation, and before the time of performance one of the things is become impossible to be done by the act of God, or by the act of the obligee himself; in this case the obligation is discharged for ever. And therefore if the condition be, That if the obligor shall sell away his wives land, if then he shall either in his Coo. 5. 12. 25 H. 7. 2. life time purchase to his wife and her heires and assignes land of as good right and value as the money by him received, or had by or upon the said sale shall amount unto, or else do and shall leave unto her the said I as Executrix by legacy or otherwise as much money as shall bee by him received upon such sale, That then &c. and the obligor doth sell his wives land, and then his wife doth die before him so that he cannot leave her the money; in this case the obligation is discharged, and the husband is not bound to purchase land to her and her heires. So if the condition be, that if I S do not prove the suggestion of a Bill depending in the Court of requests before the utas of Hillary, that then he shall pay 20l, Dyer 262. 15 H 7. 4. 4 H. 7. 4. Agree 9. Iac. [...] Bathurst case. &c. and I S die before the utas; hereby the obligation is discharged for ever, and he is not bound to pay the 20l. So if the condition be that if the obligor appeare in the Kings Bench in Eastern Terme, or pay 20l. to the obligee at Michaelmas, and the obligor die before Easter Terme; hereby the obligation is discharged; but if he do not appeare in Easter Terme and out-live the Term, and die after, then it seems the 20l. must be paid at Michaelmas, or the obligation is forfeit. So if the condition be that the obligor shall marry A before Easter, or pay 20l. to the obligee at Michaelmas, and A die, or become madd before Easter, or the obligee marry A himselfe, and the marriage doth continue between them untill Easter be past; in all these cases the obligation is discharged for ever. But when the thing is become impossible by the act or laches of the obligor, the law is otherwise. And therefore if the condition be, that A shall marry with B before Easter, or that the obligor shall pay unto the obligee 20l. at Michaelmas, and the obligor himselfe marry with B, and the marriage doth continue untill after Easter; hereby the obligation is not discharged. So if the condition be to deliver up an obligation before Easter, or give a release at Michaelmas, and the obligor doth loose the oblgation, or the obligation is burnt; hereby the obligation is not discharged, for if he doth not make the release at Michaelmas, hee doth forfeit the obligation.

If the condition of an obligation consist of one part only, or be 8 Ed. 4. 22. Coo. 5. 22. Perk Sect. 7 [...]9. 767. [...]4. H. 74. 22, Ed. [...] to do one thing at a time certain, and that thing at the time of the obligation ma [...]e is possible to be done, but afterwards and before the [Page 394] [...]ime when it is to be per [...]ormed it doth become impossible by the act of God, or the act of the obligee; in this case also the obligation is gone and discharged for ever. And therefore if the condition be to appear in person such a day in such a Court, and before the day the obligor die, or at the day the water doth arise so high that he cannot travaile to the place without perill of life; in these cases the obligation is discharged. So if the condition be, that A shall marry B before Easter, and before the time A or B die, or become madd, or the obligee marry B, and the marriage doth continue untill after the day; in all these cases the obligation is discharged. But if the thing become impossible by the act of the obligor, contra. And therefore if the condition be, that the obligor shall appeare such a day, and before, and at the day hee is imprisoned through some default of his own so that he cannot appeare, this will not excuse him, So held in the Exchequer 3. Cur. no more then in case where hee is so sick that he cannot appeare without perill of his life. So if the condition be that B shall marry C before Easter, and the obligor himselfe marry her, and the marriage doth continue untill after the time; in this case the obligation is forfeit. [...] Co. B H [...] 7. E [...]rz. So if the condition give the obligor time all his life time to do the thing, the obligation is not discharged by his death, but in this case he must do it during his life time at his perill.

If the condition be that the obligor shall deliver to the obligee Ad [...] 37. [...] Co. B. [...] versus [...]wie. an obligation or such a release as the counsell o [...] the obligee sha [...] devise before Michaelmas, and the counsell of the obligee dev [...] no release before Michaelmas; hereby the obligation is gone for ever.

If the obligation depend upon, or be necessary to some other B [...]oo. Oblig. [...]. 88. 2 [...]. 4. H. 7. 6. deed, and that deed become void, in this case the obligation is become void also; as if the condition of the obligation be to per [...]orm the Covenants of an Indenture, and afterwards the covenants be discharged or become void; by this meanes the obligation is discharged and gone for ever. And if one make a lease for yeares rendring rent, and the lessee enter into an obligation with condition to pay the rent to the lesso [...], and after it [...]all out so that the lessee is evicted out of the land by an elder title, whereby the rent in law is gone; in this case and by this meanes the obligation is discharged and gone also. Bu [...] if the eviction be but of a part of the land, contra.

If an obligation bee made to me, and delivered [...]s I S to my Coo. 5. 119. use, and when it is tendred to me, I do refuse it and disagree to it; hereby it is become void, and cannot afterwards be made good againe. So if an obligation bee made to my wife, and I disagree to it; hereby it is become void.

By a Release made from the Obligee to the Obligor, or to one [...]t. Ba [...]. 37 [Page 395] of the Obligors if there be more then one, the obligation may be discharged. And therefore, if an Obligation be made to me with condition to pay money, and I by my Deed release it, or acknowledge my selfe satisfied the debt, albeit I receive none of it, or that I receive but part of it in full satisfaction of the debt, by this the obligation is discharged for ever.

If the Obligee make the Obligor, or one of the Obligors, or B [...]oo. Oblig. 61. Coo. 8. 136. 8 Ed. [...]. 3, 21 Ed. 4. 2. 11 H. 7. 4. all the Obligors, his Executor, or his Executors; hereby the obligation is discharged for ever. But the granting of Letters of Administration to one, or more of the Obligors, is no discharge of the obligation. And if the Obligor make the Obligee his Executor, this is no discharge of the obligation.

If the Obligee be a woman, and take the Obligor to husband, Broo. Oblig. 61. hereby the obligation is discharged.

If the condition be to enfeoffe K. S (a woman) before such a Fitz. Barre. 133. time, and before the day the Obligor, doth marry the woman; this doth not discharge the obligation.

If the condition be to serve me seven years, and within the time Dyer 329. I licence him to depart, it seemes that hereby the obligation is discharged: And yet if the condition be to stand to an Award, and it is awarded that one of the parties shall pay 5 l. a yeare for seven years towards the education of I S, and I S die within the seven years, the obligation is not discharged by his death, but the money must be paid during the time notwithstanding.

If the condition bee to doe two things, or stand upon divers Dyer 371. points; and the Obligee supposing the breach of one of them doth sue the Obligor, and the issue being joyned upon that point, it is sound against the Plaintiffe, and he is barred; hereby the whole obligation is discharged; and so long as that Iudgement is in force, he can never sue the obligation upon any other point within the condition.

If the condition be to satisfie me for goods I have delivered to I S Pit [...]. Barre. 64. if they be lost, and afterwards they be lost, and I sue I S, and have him in Execution for them; by this the obligation is not discharged; but perhaps when I have satisfaction of I S being in Execution for the goods, the obligation may be gone.

And in all other Cases by which a Deed in generall may become void by matter ex post facto, as by Rasure or the like, an obligation may become void.

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CAP. XXII. Of a Defeasance.

THis in a large sence doth sometimes signifie a condition annexed D [...]feasan [...]e, Q [...]id. to an estate, and sometimes the condition of an obligation made with, and annexed to the Obligation at the time of making thereof: But it is more peculiarly and properly applyed to such conditionall instruments as are made in Defeasance and avoidance of Statutes and Reconisances at the time of en [...]ring into the same Statutes or Recognisances, and to such conditionall Instruments as are made in Defeasance of Statutes, Obligations, and the like, after the time of the same Statutes entred into, and Obligations &c. made: And it is therefore thus defined.

A Deseasance is a condition relating to a D [...]ed, as to an Obligation, Recognisance, Statute, or the like, which being per [...]ormed by the Obligor or Recognisor, the Act is disabled and made void, as if it had never been done; which differeth from a condition only in this, that this is alwayes made at the same time, and annexed to, or inserted in the same Deed, but that is alwayes made in a Deed by it self, and for the most part made after the Deed whereunto it hath relation.

There is no Inheritance Executory, as Rents, Annuities, Conditions, 2. Where and in what cases a De [...]easance may be; and what things may be defeated and avoided thereby; and where, and what not. Warranties, Covenants, and such like, but may by a Defeasance made Coo. super [...]itt. 236, 237 1. 111, 113. Plow. 137. 193. 21 11. 7. 23. B [...]oo. De [...]easance in toto. with the mutuall consent of all those which were parties to the creation thereof at the same, or at any time after, be annulled, discharged and defeated. And so is the Law of Statutes, Recognisances, Obligations, and the like; yet so, as in all these cases regularly, the Defeasance must be made cod [...]m modo as the thing to be defeated was and is created, viz. if the one be by Deed, the other must be so also; for it is a rule, that in all cases when any Executory thing is created by a Deed, that the same thing by the consent of all persons which were parties to the creation of it, may be by their Deed defeated and annulled, and therefore that Wanranties, Recognisances, Rents, Charges, Annuities, Covenants, Leases for years, Uses at Common-Law, and such like, may by a Defeasance made with the mutuall consent of all those that were parties to the creation of it by Deed, be discharged and avoided. Nihil [...]st tam conveniens naturali aquitati quàm quod unumquodque dissolv [...] [...]o ligamine quo ligatur. And therefore by such a Defeasance, not only the Covenant which doth create a power of Revocation, but the power it selfe created, may be utterly defeated and avoided: But estates of Inheritance, and other estates in Taile or for life, executed by Livery &c. cannot be avoided by Defeasance made after the time of their creation and first making. And yet by anoother [Page 397] Deed of Defeasance made at the same time, a Peoffment, Release, Lease for life, or other executed thing, may be avoided as well as if it were by condition within the same Deed; as if a Dissesee release to the Disseisor; this Release cannot be defeated by an Indenture of Defeasance made afterwards, but it may be defeated by an Indenture of Defeasance made at the same time. Quae in contìnenti fiunt in esse videntur.

To make a good Defeasance, these things are requisite: 1. That 3. What shal [...] be said a good Defeasance, and what not. Coo. 1. 113. the Defeasance bee made [...]odem modo, as the thing to be defeated is created; for if the Obligee by word only discharge the Obligor, or grant not to sue him; this will not defeat the obligation; it must be by Deed, therefore as the former was. Broo. Deseas. 12. Fit [...]. Barre. 95. But whether the For the manner of it. Deed of Defeasance be indented or poll is not materiall: 2. Plow. 393. That if it doe recite the Statute or the obligation (as for the most part it doth) that it bee done truly; for if a Defeasance be made of a Statute or an obligation which is recited to be made the 10^th day of May, whereas in truth it beareth date the first day of May; this Defeasance is void. 3. 14 H. 8. 10. Bro. Estrang al fait. 10. That it be made between the same persons that were parties to the first Deed &c. And therefore, if A be bound in an obligation to B in 20 l. and B make a Defeasance to C, that if C pay him 20 l. the obligation made by A shall be void; this is no good Defeasance, because it is not made between the same parties. Broo. tit. Defeasance 3. And yet if a Statute be made to the husband and wife, and the husband alone joyn in the making of a Defeasance, this is a good Defeasance. 4. Broo. De [...] sance 5. That it be made after the making of the Recognisance, Obligation &c, and not before; for if A grant to B, that if B will be bound to him in 20 l. by obligation, that the obligation shall bee void, and after B doth bind himselfe to A in an obligation of 20 l. this Defeasance is not good because it is before the obligation. Dyer 315. And yet if the date of the Defeasance be before the date of the Recognisance &c. and it be delivered after, it is good enough. 5. That it be For the matter of it. made of a thing deseasible; Plow. 137. Broo. Defeasance, 1. for if a Disseisee release his right to the Terre-tenant, and after there is a Defeasance made between them, that if the Relessor shall pay 20 l. to the Relessee, the Release shall be void; this is a void Defeasance. Broo. Defeasance, 6. 9 [...]oo. super L [...]tt. 236. And yet a Release may be avoided by a condition or Defeasance made at the time of making of a Release as well as a Feoffment.

If the Defensance of a Recognisance, Obligation, &c. be, that if See West. Symb. [...]o [...]. Defeasance [...]n toto. the Cognisor, or Obligor &c. pay a summe of money, or doe not disturb the execution of the Will of I S, or do make a Lease for years to I S, or the like; these are good Defeasances. As if the Grantee of a Rent-charge grant to his Grantor, that if he shall pay him 20 l, such a day, the grant of the rent shall be void. Albeit the condition of an obligation, that is repugnant to the obligation it selfe, is void, [...]o H. 7. 24. 21 H. 7. 32. Fitz Barre, [...]1. and the obligation [...]ingle, yet it is otherwise in case of a Defeasance [Page 398] made after the obligation, for this is good, notwithstanding it be repugnant. And therefore if the Obligee after the obligation made, grant by Deed to the Obligor, that the obligation shall be void, or that hee will not sue the obligation at all, or that he will not sue the obligation untill such a time, or that the obligation shall bee discharged; these Defeasances are good to avoid the obligation.

If the Feoffee with warranty, grant that neither he nor his Broo. Defea. 4. 7. [...] 6. 43. 21 H. 7. 23. Perk. Sect. 69. heirs shall take benefit of the warranty of the Feoffor or his heires; this is a good Defeasance of the warrantie: And if he grant not to vouch, this will discharge the voucher: And if he grant not to bring a warrantia Cartae, this will barre him of that remedy. In like manner it is, if the Grantee of a rent▪ charge grant to the Grantor, that he will not take any benefit by the Grant, this is a totall discharge; and if he grant he will not bring an Annuity, this is a discharge of the person; and if he grant that he will not distraine the land for the rent, this is a discharge of the land.

If one make a Lease for life by Deed, and after by another Deed Broo. De [...]eas. 11. Condition, 120. doth grant to his Leassee, that he shall not be impeached for waste; this is a good discharge: And if the Leassee afterwards grant by Deed to the Leassor, that if he shall bring an Action of waste against the Leassee, that he will not make use, nor take advantage of the Deed of discharge; this is a good discharge of the discharge. So that hereby it seemes a Defeasance may bee of a Defeasance, and one Defeasance after another, and Agree. Pasche. 8. & Ia. Co. B. regularly the last shall stand. And therefore, if a Lease for years be made on condition to pay 20 l. at Easter, and the Lease to be void, and before Easter the Leassor and Leassee agree, that if the Leassor pay it at Easter following, the Per Inst. Bridgman. Lease shall be void, and before that time they make the like agreement for another yeare; it seemes these be good Defeasances, and that the last shall stand.

If the Defeasance after Execution made upon a Statute be thus, Broo. Defeas. 7. that if the Conusor pay so much money, the Statute shall be void; it seemes by this the Statute and Execution thereupon is void; howbeit, it is best to adde these words in the Defeasance [and the Execution thereupon.]

And now being comming towards an end, we come to the last Assurance of a mans life, or that Assurance kind of that men doe commonly make when they are neer and towards the end of their life, viz. a Testament.

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CAP. XXIII. Of a Testament.

A Testament is the full and compleat declaration of a mans minde or last Will of that he would have to be done after his death: 1. Testament. Quid. Termes of the Law, Lit. Broo. Sect. 300. Coo. super Lit. 111. Swinb. of Wills 24. It is in Latin Testamentum, i. Testatio mentis, the witnesse of a mans minde; and to devise by Testament, is to speak by a mans Will what his minde is to have done after his death: And this is sometimes called a Will, or last Will; for these words are Synonima, and are as it seemes promiscuously used in our Law: Howsoever by the Civill Law, it is then only said to be a Testament when there is an Executor made and named in it; and when there is none, Codic [...]. Quid. but a Codicill only; for a Codicill is the same that a Testament is, but that it is without an Executor; and a man can make but one Testament that shall take effect, but he may make as many Codicills as he Will. And by the Common-Law where Lands or Tenements are devised in writing, albeit there be no Executor named, yet there it is properly called a last Will, and where it doth concerne Chattels only, a Testament. He that doth make the Testament Testator, [...] testate. is called the Testator: And when a man dyeth without Will, he is said to die intestate.

Of Testaments there be two sorts, namely a Testament in writing Quotupl [...]x. Perk. Sect. 476. Coo. super Lit. [...]11. or a written Testament, which is, where the minde of the Testator in his life time, by himself or some other, by his appointment, is put in writing. And a Testament by word or without writing, which is, where a man is sick, and for feare least death or want of memory, or speech, should surprize him, that he should be prevented if he stayed the writing of his Testament, desireth his neighbours and friends to beare witnesse of his last Will, and then declareth the same presently by words before them: And this is called a Nuncupative, or Nuncupatorie Testament: And this being after his Nuncupative. death proved by Witnesses, and put in writing by the Ordinary, is of a great force for any other thing but land, as when at the first in the life of the Testator it is put in writing. A Codicill also is in writing, or by word as a Testament is: The Civilians have other divisions of Wills and Testaments, as solemn and unsolemn, priviledged and unpriviledged, whereof the Common Law maketh no mention.

The parts of every compleat Testament whereof it doth consist, [...]. The [...] of it. Termes of the Law. tit. Devise. Coo. super [...]tt. 211. Swinb. lib. 1. c. 7. are two: 1. The making of Devises, or giving of Legacies: 2. The making and Ordination of an Executor; for a Testament can bee no more without, then a Codocill can be with an Executor.

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A Devise or Legacy is where a man in his Testament doth give Devise or Legacy Quid. any thing to another; the first of these termes is properly applied to the gift of lands, and the last to the gift of goods or chattels: and therefore a Devise strictly is said to be where a man in his Testament doth give his lands to another after his decease; and a Legacy is said to be where a man in his Testament doth give any chattell to another to have after the death of the Testator; but the word is promiscuous [...]y applied to the one and to the other. And hee that gives by such a Will is called the Devisor, and he to whom the thing Devisor, Devisee, or Legatee. is given, the Devisee or Legatee.

And a devise is sometimes simple and without condition, as Dyer 317. 7 [...]. Coo. super Littl. 217. Swinb. 132. 134. 136 where I give my land to another and his heires, or I give 20l. to Quotuplex. another, without more words. And sometimes it is with a condition, which is when there is a quality added to the devise or legacy, whereby the effect of it is suspended or hindred, and it is thereby made to depend on some future event. And this condition in this case may be made almost by any words; as if I give to one Conditionall Devise. my land if he pay 20l. to my daughter, or so as he pay 20l. to my daughter, or paying 20l. to my daughter, or I give one 20l. if he marry my daughter, or when he shall marry my daughter, or I give my wife 20l. a yeare whiles she shall live unmarried, or I give to him, or to whomsoever shall marry my daughter 20l. or the like; in all these cases the devise is conditionall. The first kind of devise is called by the Civilians a simple assignation, and the latter a conditionall assignation.

An Executor in a large sense s taken for any one that is appointed New Terms of the law. Coo. 8. 135. Plow. 288. Coo. super [...]ittl. 209. Coo. 9. 40. to have the disposition and ordering of the goods and chattels of a man that is dead. And so there are three kinds of Executors: Executor Quid. the first is à lege constitutus, who is therefore called legitimus, and such a one is the Ordinary of the Diocesse who hath ordinary Iurisdiction in matters Ecclesiasticall: the second is à Testatore constitutus, Ordinary. who is therefore called Testamentarius, and hee is strictly and properly called an Executor, and is defined to be one appointed by a mans last Will and Testament to have the disposing and administration of all or part of a mans goods and chattels, and to perform a mans last Will and Testament according to the contents thereof: the third is ab Episcopo constitutus, who is therefore said to be Dativus. And such a one is an Administrator, who is defined to be one that hath the goods▪ and chattels of a man dying Administrator. intestate committed to his charge by the Ordinary for want of an Executor. And his power, benefit, and charge is in all things equall to the power, benefit, and charge of an Executor.

The Executor and Administrator also is sometimes universall or totall, [...]. one that hath the power and disposition of the whole Dyer 4. Br [...] ▪ Executor 155. Coo. 6. 19. Quotuplex. personall estate committed to him. And sometimes he is particular [Page 401] or partiall, i. one that hath the power and disposition of some part of the estate, or of all the estate for a time only committed to him. And sometimes he is absolute i. such a one that hath an absolute power of the estate, as Executor or Administrator, and sometimes he is conditionall i. one that hath a limited and conditionall Coo. super [...]. 209. St. 81. E [...]. [...] c. 11. Coo, 9. 40 8. 135. power of the estate only. And in both cases he shall be Represent the person of the Testator. charged and chargable for so much as is committed to him as the testator or intestate himselfe: for this cause the Executor is said to represent the person of the Testator; for as to the estate committed to his trust he may charge others, and be charged himself, sue and be sued, as the Testator himselfe might. And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right: and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also; And the Administrator hath the same power and property over and in the goods and chattels, the same remedy by Suit, and so farr forth shall be charged as the Executor; for they differ not in nature, but in name only. And yet the Administrator is but the Ordinaries deputy, and he may revoke the Administration, or call the Administrator to an account. Swinb. 12. D [...]er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. [...]. [...]1.

A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament, and of a Codicill. other acts and deeds that men doe and execute in their life times: for albeit it be made, sealed and published in never so solemn a manner, yet it hath no life nor vertue in it untill the testators death; for it is a Maxime in law, Omne Testamentum morte consummatun [...] est, Et voluntas ambulatoria usque a [...] extremum vitae exitum; it is therefore resembled untill death to the interlocutory sentence, and after death to the definitive sentence of a Iudge. And hence it is said, Sed legum servandafides, suprema voluntas Quod mandat fieriqu: jubet parere necesse est. [...]. [...]. [...]. Sect. 30 [...]. And for this cause a man may alter, or make void his will at his pleasure, and he may make as many new Wills and Testaments as he will, and there is no meanes under the Sun to barre a man of this liberty. Lin. Sect. 168. Perk. Sect. [...]7 [...]. And the latter Testament doth alwaies revoke and overthrow the former; but otherwise it is of a codicill; Sw [...]b. 13. 14. for a man may make as many of these as he will, and make no Testament at all; Broo. Testament 20. or if he make a Testament he may afterwards make as many codici [...]s as he will, and one of them will not overthrow the other; for in the first case they must be all annexed to the letters of administration, and the Administrator must perform them, and in the latter case they must be all annexed to the Testament, and the Executor must take care to performe them. Plow. 343 [...]44. A Testament therefore is said to have three degrees. 1. An Inception, which is the making of it. 2. A Progression, which is the publication of it. 3. A Consummation, which is the death of the testator. Coo. super Litt. 112. In Grants therefore, the first is of greatest force, but [Page 402] in Testaments the last is of greatest force. But when a Testament is perfect by the death of the party, it doth as effectually give and transferre estates and alter the property of lands and goods, as acts executed by deed in the life time of the parties; [...] for hereby discents of lands are prevented, and a man may make estates in Fee-simple, [...]itt. Sect. 1 [...]7. 168. Fee-taile, for life, or yeares, of lands, tenements, rents, reversions or services as effectually as by deed; and these estates also will be good without any Livery of Seisin, or Attournement. And hereby also rents, and power to distraine for them may be reserved: conditions created and annexed to e [...]ates, or things devised. [...] And therefore they that take by devises of lands, are said to take [...] Perk. Sec [...] 505. in the nature purchasors. [...] And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee, and after devise the same [...] Dyer 221. land to his wife in fee, and die; the sonne is not remitted, though the Father die seised: for the devise doth prevent the discent.

To the making of every good Testament; these things are requisite. Coo. 6. 23. 4. What shall [...]e said a good and a sufficient Testament Or not. 1. That the Testator be a person able to make a Testament, and not disabled for any speciall cause, either in respect of his person, mind or condition, or in respect of the thing whereof the Testament is to be made. And for this it must be knowne: S [...]t. 32. & 34 H. 8. c. 5. Coo▪ 4. 51. Broo. Testament 13. That a woman that hath a husband, cannot make a Testament of her land First, in respect of the person that doth make it, and the thing whereof it is made. And what Persons may make a Testament, And of what things, or not, And how. or goods, except it be in some speciall cases; for of her lands shee can make no Testament with, or without her husbands consent: [...] H. 7. 14. Perk. Sect. [...]0 [...]. Fitz. Executor [...]. of the goods and chattels she hath as Executrix, to any other she may make an Executor without her husbands consent; for if she do not so, the Administration of them must be granted to the next of kin to the deceased Testator, and shall not goe to the husband, Plow. 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave, for they are not devisable; and if shee doe devise them, the devise is void. And of the things due to the wife whereof she was not possessed during the marriage, as things in action, and the like, it seemes she may make her Testament, at least she may make her husband Executor, 12 H. [...]. 24. 18 Ed. 4. 11. Perk. sect. 501. Fit. Executor 5. 28. 109. Broo Testament [...]. of her Paraphonalia, viz. A Fame Covert. her necessary wearing apparell, being that which is fit for one of her rank: some say shee may make a Testament without her husbands leave, others doubt of this, howbeit all agree that shee and not his Executor shall have this after her husbands death, and that the husband cannot give it away from her. And of the goods and chattels her husband hath, either by her or otherwise, shee may not make a Testament without the licence and consent of her husband first had so to do. But with his leave and consent she may make a Testament of his goods, and make him her Executor if shee will. And it is said also, that if shee do make a Testament of his goods (in truth without his leave and consent) and he after her death [Page 403] suffer the Will to bee proved, and deliver the goods accordingly; in this case the Testament is good. And yet if the husband give his wife leave to make a Testament of his goods, and she do so, he may revoke the same at any time in her life time, or after her death before the Will be proved. But a woman after contract with any man, may before the marriage make a Testament aswell as any other, and is not at all disabled hereby.

An Infant untill he be of the age of 21 yeares can make no An Infant. Testament of his lands by the Statutes of 32. & 34. H. 8 But S [...]ar. 32. Ed. 34. H. 8. cap. 5. Perk. Sect. 503. [...]04. Br. Custome [...]0. Sw [...]. [...]7, 38. by speciall custome in some places where land is devisable by custome, he may devise it sooner. And of his goods and chattels, if he bee a boy, he may make a Testament at fourteene yeares of age and not before: and if a maid, at twelve yeares of age and not before; and then they may do it without, and against the consent of their Tutor, Father, or Guardian, Coo. super. Litt. 89, And yet some say an Infant cannot make a Testament of his goods and chattels untill he he be eighteene yeares of age. Perk. Sect. 503. 504. 24. Swinb. 37. 40. A madd or lunatick person during the time of his insanity of mind cannot make a Testament of A Lunaticke person. lands or goods; but such a one as hath his lucida interva [...]la, cleere or calme intermissions, may during the time of such quietnesse and freedom of mind make his Testament, and it will bee good. So also an Idiote, i. such a one as cannot number twenty, or tell An Idiot. what age he is, or the like, cannot make a Testament, or, dispose of his lands or goods; and albeit he doe make a wise, reasonable, and Swinb. 39. 40. sensible Testament, yet is the Testament void. But such a one as is of a meane understanding only, that hath grossum caput, and is of the middle sort between a wise man and a foole, is not prohibited to make a Testament. So also an old man that by reason of his great age is childish againe, or so forgetfull that he doth forget An old man. Swinb. 42. his own name, cannot make a Testament; for a Testament made by such a one is void. So also it seemes a drunken man, that is so excessively drunk, that he is deprived of the use of reason and understanding, during that time may not make a Testament; for it is requisite when the Testator doth make his will, that he be of sound and perfect memory, Coo. 6. 23. Hill 3. Car. per the Lord keeper in the Chancery. i. e. that he have a reasonable memory and understanding to dispose of his estate with reason. Swinb. 53. A man that is both deafe and dumb, and that is so by nature, cannot make A deafe and dumb man. a Testament. But a man that is so by accident, may by writing or signes make a Testament. And so may a man that is deafe or dumb by nature or accident. And so also may a man that is blind. [...]. B. R. 7. Iac. An alien borne cannot make a Testament of lands or goods. An alien. A man that is entred into Religion, cannot make a Testament. Stat. 5. & 6 Ed. 6. c. 11. Swinb. 54. A Traitor attainted from the time of the Treason committed can make A Traitor. no Testament of his lands or goods; for they are all forfeit to the King; but after the time he hath a pardon from the King for his offence, [Page 404] he may make a Testament of his lands or goods as another man. A man that is attainted or convict of Felony cannot make a Testament of his lands or goods, for they are forfeit; but if a man Pre [...]gativa Regis. Plow. 258▪ 259. A Felon. be only indicted, and die before Attainder, his Testament is good for his lands and goods both. And if hee be indicted and will not answer upon his arraignment, but standeth mute &c. in this case his lands are not forfeit, and therefore it seemes hee may make a Testament of them. And if a man kill himselfe, his Testament as to his goods and chattels is void, but as to his lands is good. Plow. 261. A [...]elo de se.

A man that is outlawed in a personall action cannot make a Testament of his goods and chattels so long as the outlawry doth continne Fitz. Dec. 16. An outlawed person. in force; but of his lands he may make a Testament. The head, or any of the members of a corporation may not make a Testament Fitz. Testament. 1. A Corporation. of the lands or goods they have in [...]ommon, for they shall goe in succession. A Villaine cannot make a Testament of his lands A Villaine. or goods after the Lord hath seised them. But here note, that howsoever the Testaments of Traitors, Aliens, Felons, Out-lawed persons, and Villaines, be void as to the King, or Lord that hath right to the lands or goods by forfeiture or otherwise, yet it seemes the Testament is good against the Testator himself, and all others but such persons only. And here note further also, By the civill law Swinb. 155▪ &c. See the Stat. 32. & 34 H. 8. Perk. Sect. 496. also the Testaments of divers others, as Excommunicate persons, Hereticks, Usurers, Incestuous persons, Sodomites, Libellers, and the like, are void. But by our law, the Testaments of such persons, at least as to their lands, are good by the Statutes that do enable men to devise their lands. But all other persons whatsoever, male or female, old or young, lay or spirituall, rich or poore, at any time before their death whiles they are able to speak so distinctly, or write so plainly as another may understand them, and understand that they understand themselves, may make Testaments of their lands, goods, and chattels, and that albeit they have sworne to the contrary: and none are restrained of this liberty, but such as are before named. See more infra at Numb. 7. Swin. 9. 131. 324. 325. See more infra to this matter.

The second thing required to the making of a good Testament, is, Secondly, in respect of the mind▪ of him that doth make [...]t. that he that doth make it have at the time of the making of it, Animum testandi, [...]. a mind to dispose, a firme resolution and advised determination to make a Testament; otherwise the Testament will be void; for it is the mind not the words of the Testator that doth give life to the Testament, for if a man rashly, unadvisedly, incidently, jestingly, or boastingly, and not seriously write or say that such a one shall be his Executor, or have all his goods, or that he will give to such a one such a thing; this is no Testament, nor to bee regarded. And the mind of the Testator herein is to bee discovered by circumstances; for if at the time hee bee sick, or set himselfe seriously to make his Testament, or require witnesses to [Page 405] beare witnesse of it, it shall be deemed in earnest; but if it bee by way of discourse only, or of somewhat [...]e would do hereafter, or the like, it shall be taken for nothing.

The third thing required in a good Testament, is, that the minde of the Testator in the making of it bee free, and not moved by Thirdly, in respect of the occasion or motive of it, Swinb. 283. 284. 285. 286. feare, fraud, or flattery, for when a Testator is moved to make his Testament by feare, or circu [...]vented by fraud, or overcome by some immoderate flattery; the sam [...] is void, or at least voidable by exception. And therefore if a man by occasion of some present fear, or violence, or threatning of future evils do at the same time, or afterwards by the same motive make a Testament: this Testament is void, not only as to him that put him so in feare, but as to all others, albeit the testator confirm it with an arch. But if the cause of feare be some vaine matter, or being weighty is removed, and the testator doth afterwards when the [...]ea [...]e is past, confirm the Testament; in this case perhaps the Testament may be [...] good. And if a man by occasion of some fraud or deceit bee moved to make a Testament, if the deceit be such as may move a prudent man or woman, and if it be evill also the Testament is void, or voidable at the least; but if the deceit be light and small, or if it be to a good end, as where a man is about to give all his estate to some lewd person from his wife and children, and they perswade the Testator that the lewd fellow is dead, or the like, and thereby procure him to give his estate to them; this is a good Testament. And one may by honest intercessions, and modest perswasions procure another to make himselfe or a stranger Executor to him, or the like, and this will not hurt the Testament. Also a man may use fair and flattering speeches to move the Testator to make his Testament, and to give his estate unto himself, or some friend of his, ex [...]pt it be in case where the [...]latterer doth first beate or [...]hreaten him, or put him in fear, or to his [...]lattery joineth fraud and deceit, or the Testator is a person of weak judgement, or under the danger or government of the [...]latterer, as when the Physician shall perswade his Patient under his hands to make his Testament, and give his estate to himself; or the wife attending on her husband in his sicknesse shall neglect him, and continually provoke him to give her all, or where the perswader is importunate and wil have no denial, or when there is another Testament made before; for in all these cases the Testament wil be in danger to be avoided. And if I be much privi [...] to another mans minde, and he tell me often in his health how hee doth intend to settle his estate, and he being sick, I doe of mine own head draw a Will according to his minde before declared to me, and bring it to him, and ask him whether this shall be his Will or no, and he doth consider of it, and then deliver it back to me, and say yea; this is a good Testament: But if otherwise, some friends of a sick man of their own heads, shall make a [Page 406] Will and bring it to a man in extremity of sicknesse, and read it to him, and ask him whether this shall be his Will, and he say yea, yea: Or if a man be in great extremity, and his friends presse him much, and so wrest words from him, especially if it be in advantage of them, or some friends of theirs; in these cases the Testaments are very suspi [...]ious.

But as touching these two last things, Qu [...]re how they shall avail in the Wills of land which are not regulated so much by the Civill Law.

The fourth thing required in the making of a good Testament, is, Swinb. 112. Broo. Test. 20. Fourthly, in respect of the manner and form of the disposition. that that form and order that the Law prescribeth be observed in the the disposition. And therefore 1. that there be an Executor named in all Testaments of goods and chattels, and that that Executor named be capable of the Executorship; for this is said to be the head and foundation of the Testament; for if there be never so many First, naming of an Execu [...]or. Legacies given, and no Executor made, this disposition is but a a Codicill, and cannot properly bee called a Testament; for in this case the party dead, is said to die intestate, and the Administration of his goods must be granted to the Widdow, or next of kinne; whereas on the other side, if an Executor be appointed, albeit there be no Legacy given, yet this disposition is, and is properly said, to be a Testament: 2. If the Testament be of lands or Tenements, it must be Secondly, if it be of lands, it must be in writing. in writing, and it must be committed to writing at the time of the Stat. 32. & 34 [...]. 8. Perk. Sect. 476, 47 [...]. Dyer 72. Plow. 345. Coo. 4. 60. Dyer 53. making thereof: And it is not sufficient, that it bee put in writing after the death of the Testator, being first made by word of mouth only, for then it is but Nuncupative still. But if the Testament bee first made by word of mouth, and be afterwards written, and then brought to the Testator, and he approve it for his Testament: Or if the Testator, when he doth declare his minde, doth appoint that the same shall be written, and thereupon the same is written accordingly in the life time of the Testator; these are good Testaments of land, and as good as if they be written at the first. If therefore one be very sick, and another come to him, and ask him whether his wife shall have his land, and he say yea, and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man; this is no good Testament of the land. So if one declare his whole minde before Witnesses, and send for a Notary to write it, and die before he come, and he write it after his death; this is no good Testament for his lands, but a good Nuncupative Will for his goods and chattels, except he declare his minde to be that it shall not be his Will unlesse it bee put in writing, for then perhaps it may not be a good Will, for his goods and chattels. So if [...]he that doth write the Will cannot hear Ad [...]udged▪ Trin. 10. [...]. the party speak, and another that stands by the sick man doth tell him what he doth say; in this case if there be none others pr [...]sent [Page 407] to prove that he reported the very words of the sick man; this will be no good Testament of the Land. But if a Notary take direction from the sick man for his Will, and after goe away and write it, and then doth bring it againe and reade it to the Testator and he approve it: Or if it be written from his mouth by the Notary according to his minde, and his mind were to have it written, albeit it be not shewed or read to him afterwards; these are good Testaments. So if the Notary doe only take certaine rude no [...]s or directions from the sick man which he doth agree unto, and they bee afterwards written faire in his life time, and not shewed to him againe, or not written faire untill after his death; these are good Testaments of lands. If a sick man bid the Notary make a Testa [...]ant of his lands, but doth not tell him how, and the Notary make a devise of it after his own minde; this is no good Testament; and yet if it be after read unto, and approved by the Testator, it may be good. And so if a Testament bee found written in the Testators house, and not known by whom, and it be read unto, and approved by the Testator; this is now a good Testament in writing for lands and Thirdly, use [...] and lands by custome, and chattels devisable without writing. goods: 3. Uses of lands before the Statute of uses, might, and lands and tenements devisable by Custome, and goods and chattels may be disposed by word without writing, and such Testaments of such things so made are good: 4. It is not materiall in what matter Swinb. pa [...]t. 4. Sect. 25. 26. or [...]uffe, whether in paper or parchment, no [...] in what language, whether Fourthly, the matter or hand wherein and, whereby it is written. in Latin, French, or any other tongue, nor in what hand, or letters, whether in Secretary hand, Roman hand, or Court hand, or in any other hand a Testament be written, so it be faire and legible that it may be read and understood: Neither is it materiall whether the same be written at large, or by notes, or characters usuall or unusuall, as xx^s for twenty shillings, or when the figure (2) is used in stead of the letter A, if it be usuall in the Testators writing, or the like; for the Testament is good notwithstanding. So also i [...] some words be omitted, or sentences improper used, when the intent and meaning is apparant, as where a man saith [I make my wi [...]e of my this my last Will and Testament] leaving out the word [Executrix,▪ yet the Testament is good, and this shall be understood: But if it be so done as it cannot be read, or by reading the minde of the Testator cannot be known, then is the Testament void and of no force. In like manner as a Nuncupative Will is, when the words spoken, are so ambiguous, obscure, and uncertaine, that thereby the meaning of the Testator cannot be known nor understood. 5. Where Fifthly, [...]ealing and subscribing the Testators name no [...] needfull. Perk. 476, 477. writing is needfull (as in the case of disposition of land it is) there [...]ealing of the Testament, or subscribing of the Testators name is not necessary. And therefore if a man by himselfe or another, doe make a Testament of his land, and doe not put his Seale or name to it, if hee agree to it, this is a sufficient Testament: [Page 408] 6. If whiles the Testator is making his Will, and whiles he intendeth Swinb. 6. [...]it. Broo. Sect. 300. Swinb, part. 7. Sect. 10. Coo. [...]. [...]1. Sixthly, interruption in the making of the Will. to proceed further at that time either by adding, diminishing, or altering he bee suddenly stricken with sicknesse or insanity of minde whereby he cannot proceed, but gives it over in the middest and so he die; it seemes in this case the whole Will is void. And yet if a man begin his Will, and make perfect Devises to one, and then of himselfe give over untill another time: or if a man make a perfect Devise to one, and then die before he can make any Devise to any others; it seemes these are good Testaments for as much as is done. And therefore it is said if one command another to make his Will and by it to devise White Acre to I S and his heirs, and Black Acre to I N and his heirs, and he write the Devise to I S and his hei [...]s, and the Testator die before he can write the Devise to I N and his heires; this is a good Devise to I S, but a void Devise to I N and his heires. But if a man bid the Notary write a [...]evise of his land to I S upon condition▪ and the Notary write the Devi [...]e to I S, but the Testator dyeth before he can write the condition; in this case the whole Devise is void. But a man may if he Swinb. 13 [...] please, make a Testament of part of his goods, and die [...]ntestate for the rest, and that disposition he doth make is good for so much. 7. The last thing required to the perfection of a Testament, is, that it bee Seventhly, in respect of the proofe of it; and what shall be said a sufficient proofe of a Testament, or not. proved; for if it be never so well made, and be in truth the Testament of the Testator, yet if it cannot be by proofe made to appear so, it is but a void Testament and of no force at all. And therefore herein these things are to be known: 1. That a Nuncupative Testament Swinb. pa [...], 7. Sect. 13. part. [...]. [...] 2 [...]. must be proved by two Witnesses at the least, and those must be such as are without exception: 2. A written Testament when it is written with the Testators own hand, doth prove and approve it selfe, and therefore need not the help of Witnesses to prove it. And for this cause if [...] mans Testament be [...]ound written faire and perfect with his own hand after his death, albeit it be no [...] subscribed with his name, sealed with his Seale, or have any Witnesses to it, if it be known or can be proved to be his hand, it is held to be a good Testament and a sufficient proof of it selfe; but if it be sealed with the Seale, and subscribed with the name of the Testator, and can be proved by Witnesses, it is the more authentick. And when it is found amongst the choise evidences of the Testator, or fast locked up in a safe place, it is the more esteemed; for if it be written in another hand, and the Testators hand and Seale or one of them no [...] to it, albeit it be [...]ound in such a place as before, yet some proof will be expected of it further by Witnesses in that case. And i [...] a writing be found under the Testators own hand, yet if it be but a scribled writing written Copie-wise, with a great distance between every line without any date, in strange characters, with many interlinings, and lying amongst his void papers or the like; this will not bee [Page 409] esteemed a sufficient testament nor a good proofe of it; but it shall be accounted rather a draught or image of the Testators Will for a direction to him after to make his Will by: And yet if it can bee proved that the Testator did declare himselfe that this should be his Will; this will be a good Testament and a good proofe of it. 3. If it bee proved the Testator said his Testament was in such a Schedule in the hands of I S, and I S produce a writing deposing [...] to be the same; it seemes this is a sufficient proofe; but if he say withall it is written with his own hand, then it seemes some other proofe, as by comparing hands, or the like, that it is his hand, wherein it is written, will be expected. 4. If the Witnesses will prove, the writing produced to be the last Will of the Testator, or that hee said, it was, or it should be his last Will, or that it is the same writing that was shewed unto them, and whereunto they are Witnesses, albeit they never heard it read, or set their hands to it, it is a sufficient proofe. 5. All persons male and female, rich and poore, Witnesse competent to [...] a Testament. are esteemed competent Witnesses to prove a Will, save only such Swinb. pa [...]t. 4. Sect 21. as are infamous, as per [...]u [...]ed persons, and the like; and such as want understanding and judgement, as children, infants, and the like; and such as are presumed to beare affection, as kindred, tenants, servants, and the like. A Lega [...]ee is reputed a competent Witnesse to prove any other part of the Will but his own Legacy, or to prove any thing against himselfe touching his own Legacy, but not otherwise. And therefore, where there be but two Witnesses of a Will, wherein either of them hath somewhat bequeathed unto himselfe; this Will cannot be sufficiently proved for those Legacies; but for the rest of the Will it may be sufficiently proved. 6. Where there is no question nor oppo [...]tion moved or had about, or against a Testament, there the Oath of the Executor alone is esteemed a sufficient proofe of it▪ and in that case regularly no other proof is required. And where more proofe is necessary, as in the cases before, it is in the discretion o [...] the Ordinary, what proofe to admit and allow: And those Witnesses for number, nature, and quality; or that other proofe that he [...]oth deeme and accept for sufficient, is sufficient; and the Testament so proved by such Witnesses, or other proofe is sufficiently proved▪ And of this question, see more inf [...]a at Numb. 7.

A Testament sufficient and good in his c [...]a [...]ion and beginning, [...]. Where, [...] how a Testament good in his [...]eginning, may become void by [...], o [...] not. Coo. 4. 61. [...]. Sect. [...]. Plow. [...]4. [...]. Swinb. [...]. 7. Sect. 14, [...]. Perk. Sect. 4 [...]. Coo. [...]. [...], [...], 8 [...], 8 [...]. may [...]terwards become void by divers meanes, as 1. By Countermaund or Revocation, and this is sometimes by the party himselfe that made it, and sometimes it is by another: And sometimes it is expresse, and sometimes it is implyed; for it is a rule▪ That any Act or thing done, or words spoken by the Testator after the Testament made, that doth a [...]ter or crosse all or part of his Testamen [...] made before, is a Revocation of it, or of that part thereof that is so crossed and altered. And therefore if a Feme Covert make a Testament, [Page 410] and after take a husband; by this the Testament is revoked. And if a man make a Testament of land, and after make a Feoffment of the same land, which Feoffment is not good for some defect in the Livery of Seisin or otherwise, so that the Feoffor dyeth seised of the land notwithstanding; hereby the Testament as to this land is revoked. So if a man make a latter Testament, and therein by expresse words doth revoke the former Testament; or if a man by any writing, or by word of mouth (D [...]e [...] 31 [...]. 34. Eliz. B. R. Buttons case. for one may by word of mouth revoke a Will in writing, albeit it be of land) doe expresly revoke a former Testament that he hath made, and make no new Testament (for so a man may do and die intestate if he will;) or if a man make a latter Testament, & make no mention of the former Testament; all these are Countermaunds of the former Testament. And the latter Testament doth alwayes revoke the former, and that albeit the Executor of the latter doe refuse the Executorship, or die during the life of the Testator, or after his death; and albeit the King be made Executor of the former; and albeit the former be a written, and the latter but a Nuncupative Testament; and this holdeth true in a Testament of lands, as well as in a Testament of goods and chattels; but otherwise it is è converso; for however a man may by word avoid a Will made in writing that is good; yet a man cannot by word make good, and affirm a Will made in writing that is void: And therefore, if a man devise his land in writing to I S and his heirs, and I S die before the Devisor, and after the Devisor say by word, That the heires of I S shall have the land, as I S should have had it if he had lived; this verball declaration will not affirm the disposition. Also the latter Testament doth infringe the former, albeit there be no mention made in the latter of revoking of the former; and albeit there bee twenty Witnesses of the former and but two or none of the latter; and albeit in the former, the Executor be appointed simply and without condition, and in the latter, he be appointed conditionally, and the same condition be also broken, so that the condition be of something then to come at the time when the condition was made: but if the Executor of the latter Testament bee made upon some condition then present or past, the condition not existing, the former Testament is not revoked; and albeit the former Testament be made irrevocable, i. e. That the Testator say, I make this my last Will and Testament irrevocable; and albeit the Testator hath sworn not to revoke the former, the Oath being also revoked together with the Testament; and albeit the Testator enter into an Obligation with condition not to revoke it, but then in this [...]ase he doth forfeit his Obligation. But the latter Testament doth not revoke the former Condition. in these cases following; i. e. when the latter is imperfect in respect of Will; i. e. when the Testator dyeth whiles he is making of [Page 411] it, and before he can finish it, or when it is ve [...]emently suspected that the Testator was compelled to make the latter by feare or violence, or induced to make it by fraud and deceit, or when the former was made by the Testator whiles he was in his good and perfect minde and memory, and the latter is made by him when he is inops mentis, or when the latter is made by the perswasion▪ and for the benefit of certaine persons, when the Testator is in extremity of sicknesse, unlesse it appeare plainly to be the expresse Will of the Testator to revoke the former, or unlesse the Testator himselfe did dictate the latter, or in case the latter be in favour of the children of the Testator or others who are to have the Administration of his goods if he die intestate. 2. When the Testator doth make two Testaments, a former and a latter, both being written, and afterwards lying sick upon his death bed, they are both presented unto him, and he is desired to deliver to one of the standers by, which of them he will have to stand for his last Will, and he deliver the former. 3. When the latter doth agree in all points with the former, for then both of them are as one in divers writings. 4. When in the latter Testament there is no Executor named, for then it is but a Codicill or addition to the former. 5. When the latter is made upon some sudden discontent against the Executor of the former Testament, and afterwards he and the Executor are reconciled againe; in these and such like cases, the latter Testament is no Revocation of the former. Lit. Broo. 55. If the husband licence his wife to make a Testament, and after her death, he forbid the Probate, this is a Countermaund of of the Testament. But note here, that Revocations in generall are not favoured in Law, and therefore he that will a void a former Will by Revocation, must see he prove it well. 2. Swinb. [...]. 7. part. sect. [...]6. A good Secondly, by cancelling o [...] it. Testament may become void by cancelling or other destruction of it, as, where the Testator himself, or some other by his commandement doth cut, or teare it in p [...]eces, deface it, or cast it into the fire; by this meanes the Testament is made void, except it be in case where the Testator doth it unadvisedly, or it be done by some other without his consent, or by some casualty, or when he doth willingly pull away the Seales, and then he doth afterwards s [...]ale it againe, or where the whole Testament is not cancelled or defaced, but some or the chiefe part thereof, as the naming of the Executor, or the like; for it is good still for the residue, or where there be severall papers, or writings, of one, ten, or each of them, containing the whole Testament, the cancelling or defacing of some of them doth not hurt the Testament, unlesse it can be proved that the Testators mind were to avoid it all, or where the Testament is lost in the life time of the Testator, or after; for in this case so much as can be proved by Thirdly, by [...] teration of the estate o [...] the Testa [...] Witnesses is still in force. [...] A good Testament may become void by Swinb. part. [...]. Sect. 17. alteration of the estate of the Testator; as when a man after the time of [Page 412] making the Testament, and before his death is convicted or condemned of some great crime for the which the Law depriveth him of the making of a Testament, as Treason, Felony, or the like. And yet if the crime be pardoned and purged before his death, the Testament may be good enough. And if a man of sane and perfect [...]o 4. 62. memory make his Testament, and after become inopsmentis, as [...]very man for the most part is before his death; this doth not hurt the Testament. 4. A good Testament may become void by an intention Fourthly, by intention to al [...] it. only to a [...]ter it when the Testator is hindered in his intention Swinb. par [...]. 7. sect. 18. that it cannot take effect: And therefore, if when the Testator intendeth to alter his Testament, or to make a new one, he be by feare or fraud forbidden or letten, that he dare not or cannot alter it, or the Notary or Witnesses dare not, or may not be suffered to come to him, as when a wife or some other that is to have benefit by the former Will, under pretence that she hath a charge from the Physitian that none shall come at him, or under pretence that he is asleep or the like, will not suffer any body to come at him; or when the Notary and Witnesses are all present, and they make such a noise or quarrelling, that they hinder the effect of hi [...] intent; or when the Testator is kept from doing it by importunate requests and flattering perswasions; in all these cases, and by these meanes the former Testament may become void. But if it appear the Testator hath no purpose to alter the Testament when hee is let as as aforesaid; the feare is a vaine feare, the Testator is prohibited at another time, and not the time when he doth intend to alter the Testament, but he hath sundry opportunities after that time to doe it, and doth it not, or he is drawn only by the faire speeches of a wife or friend, or by the weeping, or other trouble arising from the griefe of the Legatary or Executor for the Testators sicknesse only he is disturbed; in these cases perhaps it may not be void. And where it is void by the prohibition of a Legatary only, it is void for so much as doth concern him only, and not for the rest of the Testament. 5. A good Testament may become void by making Swinb. pa [...]. 7. [...]ect. 11. Perk. Sect. 479. another of the same date; for if two Testaments be found after the Fifthly, by making another of the s [...]me date. death of the Testator, and it cannot be discerned or proved which was made former or latter; the one of them doth overthrow the other, and both of them are become void, except they be both to the same purpose, or one of them be made in favour to wife and children &c. and the other to strangers. And yet in the first case also the Testator by declaration of his minde, which of them he will have to take effect, may make either of them good. 6. A good Sixthly, by the declaration of the Testator. Testament may be made void by the declaration of the Testators minde, as if a man have two Testaments lying by him, the one made after the other, and they are both shewed or delivered to the Testator when he lyeth sick, and hee by word or signe declare [Page 413] that he will have the former to stand; this declaration doth revoke the latter, and affirme the former. And where a man would revoke a Will for any of these causes, he must presently after the death of the Testator put in a Cave [...]t or exception in that Court where the Will is to be proved, and thereupon proceed to question it, or by a prohibition in some cases he may stay the Probate in the Spirituall Court. See more infra at Numb. 12.

If a woman covert without the leave of her husband make a 6. Where a Testament void voidable in his Inception. may become good by some matter or accident ex post [...]acto. And where not. Perk. Sect. 501. Coo. [...]. 99. 2. 55. Testament of her husbands goods, and the husband doth after her death connive at the Probate, and deliver the goods accordingly, hereby the Testament of the wife is become good; but if an Infant or mad man make a Testament in the time of his Infancy, or madnesse, and after the Infant or mad man become of full age, or sober, before his death; it seemes these Testaments are void. And yet if the Infant at his full age, or the mad man when he is sober make a publication of this Testament, it may perhaps bee good.

If a man make a former and a latter Will, and by this latter the former is revoked, and after the Testator declare himself that the Perk Sect. 479. Coo. [...]. 61. Plow. [...]44. former shall stand; by this the former that was void before, is now become good again [...]. And yet if a man make a Will that is void, and it be proved after his death; this Probate will not make it good, but it doth remaine void as it was before.

If a Feme sole make a Will, and then take a husband whereby the Will is countermanded, and so become void; if her husband die, so that she become sole againe: this accident will not make the Will good againe, but it doth remaine void still; but perhaps by a new publication after shee doth become sole, it may become good againe. See more infra at Numb. 11.

To the making of a good and sufficient Devise, these things are 7. What shall be said a good and sufficient Devise or Legacy, or not. [...]ee before at Numb. 4. requsiite. 1. That there be a devisor, and that he be a person able to devise, and that both in respect of the condition of his owne person and of the thing whereof the Devise is made. 2. That there be a Devisee, and that hee bee a Person capable and able to receive the thing devised, either at the time when the Devise is made, or at least when the Devise is to take effect. 3. That the Devisor have at the time of the devise made animum tostandi, i. a mind to make a devise. 4. That the Will of the Devisor be free, and not drawn or coacted by fraud, slattery, feare, or the like. 5. That the Devise be made in due manner and forme. 6. That the thing devised be a thing devisable. 7. That it be devised First, in respect of matter touching the Devisor, and who m [...]y be a Dev [...]r. upon lawfull termes and conditions. 8. That there be words sufficient Perk. Sect. 40 [...]. See before at Numb. 4. and after at Numb. 17. to make his mind known. 9. That it bee proved after the death of the Devisor. 10. And if it be a Devise of land, it is further required that the Devisor be solely seised of the land▪ and not jointly [Page 414] seised with another; and that he be seised of an e [...]ate in [...]ees [...]mple: and that the Devise be in writing. And for the first of these it is to be known, that whosoever may make a Testament, may make a devise of the same thing of which he may make a Testament. Et sic è converso. And whosoever is disabled to make a T [...]stament, is disabled to devise by such a Testament. And therefore In [...]ants may not devise their lands untill they be 21 yeares of age, nor their goods and chattels untill they be 14 yeares of age (or as some say untill they be 18 yea [...]es of age.) Coo. super Litt. 110. 4. 61. [...]oo. Devise 32. Women that have husbands, cannot devise their lands to their own husbands, or others, either by or without their husbands consent, albeit there be a custom to enable them thereunto; but all such devises are void. Perk. Sect 496. And Spirituall persons as Archbishops, Bishops, Deanes, Archdeacons, Secondly, in respect of the matter touching the Devisee. And who may be a Devisee. And by what name. Prebends, Persons, Vicars, or any member of a Corporation may not devise the lands or goods they have in the right of their churches and Corporations. And for the second thing, this is to bee known 1. that regularly whosoever may be a Grantee, may be a Perk. Sect. 50 [...]. 510. Swinb. 212. see infra a [...] Numb. 18, Devisee or Lega [...]ee. And therefore a Devise made to any person or persons, male or female, children or strangers, bondmen or freemen, Lay men or clerks, debtors or creditors, Infants or men of full age, women sole or covert, Colledges, Universities, Corporations, or the like, are good. But it is said, that if any Legacy be given to an Heretick, Apostate, Traitor, Felon, Excommunicate person, Out-lawed person, Bastard, unlawfull Colledge Libelier, Sodomite, Usurer, Recusant convict, it is void by the Civill Law, except it be in some speciall cases. And yet it seemes a Devise of lands to any such person is good within the Statute of Wills. D [...]er 303. 304. B. R. Curia. Mic. 13. [...]. A Devise to an Infant in the womb of its mother, at the time of the death of the Testator is void. New Termes of the Law [...]it. Devise. See infra Numb. 11. And yet if a man devise to such an Infant, and hee happen to bee borne before the death of the Testator, it seemes in this case the Devise is good; for it is a rule, 9. Ia. B. R. That the Devisee must be capable of the thing devised at the time of the death of the Devisor; if it be then to take effect in possession, or if it be a remainder, he must be capable of it at the time when the remainder shall happen, or otherwise the Devise is void. Litt. sect. 168. Litt. Broo. sect▪ 55. And a man may devise his lands, goods, or chattels, to his own wife, as well as to any other. 2. But he that may be thus a Devisee, and is capable of a thing devised, must be certainly named and described; [...]ncertainty. for if a Devise be to a person altogether incertaine, the Devise is altogether void. M. 19. I [...]. Curia. B. R. Crumpe versus Bodie. And therefore if I give my land to my best friend, or to my best friends, these are void Devises. So if I give my land to a Vicar, and say not to what Vicar; this Devise is void, and no averment will help in this case. Coo. 6. 68. Swinb. 293. 29 [...]. 295. 296. If one have two Averment. sonnes of one name called I S, and he devise to his sonne I S without any distinction; it seems this Devise is void for uncertainty; but [Page 415] in this case perhaps an averment which son is meant, may help. So if one give to I S 20l. and there be two or more of that name; this Devise is void except it may be proved by some thing which of them he meant▪ So if one say in his Testament, I give to one of the world 10l. [...]his Devise is void for incertainty. So if one give him 10l, whose name is written in a Schedule in the custody of such a man; and in truth there is no such Schedule in the custody of such a man to be found; or if there be no name written therein; it seemes these Legacies are void for incertainty. So if a man give a Legacy to a man incertaine, and no such man is to be found, and the meaning of the Testator cannot be known; this Devise is void. And yet if a man by his Will say thus, I devise to him that shall marry my daughter; this is a good Devise; and he that doth marry my daughter in my life time, or after my death shall have it. And if a man devise any thing ad pias causas, as to the Church, or to the Poore, not expressing what Church or Poore; this perhaps may be a a good Devise. So if a man give 20l. to his kindred; it is said this is a good Devise, and that a reasonable exposition shall be made of it as neer the intent of the Testator as may be: viz. that those in the next degree shall have it first, and then those in the next degree to that shall have it afterwards; and if it be a Devise to the kindred of another man, that they shall have it equally. (Sed quaere of this Devise, for it seemes altogether uncertaine.) So if a man give to I S, or I D 20l. this is held Swinb. part 7. sect. 9. to be a good Devise, albeit it be somewhat incertaine, and the disjunctiue shall be taken for a copulative, and so I S and I D shall take both by this Devise; but if in this case one of them be nearer of kin then the other, then it is said he shall have it for his life, an [...] the other afterwards. And if one devise 20l. to A or B, which of them I S will appoint; this is a good Devise, and hee that I S shall appoint shall have it. And if one devise to I S and his children; this is a good Devise and certaine enough, and hereby he and Plow. 345. Coo. 1. 105. 155. Perk. sect. 508. his children shall take the thing devised together. 3. And as the person to whom the Devise is made, must be capable, and certainly described and named, so must he be capable by that name by which the Devise is made to him, or otherwise the Devise is void. And therefore if a Devise be to the heires of I S, I S being living; this Devise is void. And yet if [...]ands or goods be devised to the Executors of I S, and I S die before the Testator and make Executors; this is a good Devise to the Executors. And if a man devise his land to I S for life, the remainder to the next of kin, Fitz. Devise 27. Plo. 523. Perk. sect. 509. 510. [...]oo. Corporation. 55. [or next of blood] of I S; this is a good Devise of the remainder▪ And i [...] a man devise goods to the Pari [...]ioners of the Parish of S, to the use of the Church; this is a good Devise, and the Churchwardens may recover it. And if a man devise Eccle [...] sanct [...] Andre [...] [Page 416] dre [...] de Holborne; it seems this is a good Devise to the Person of that Church. And if a man devise to the City of London, University of Oxford, or to Queens Colledge in Oxford, these are good Devises. But if one devise to the Cominalty of a Guyld that is not inco [...]porate, as to two of the middle men of the Guyld of the [...]raternity of whiteacres in London, or the like; this devise is void. 4. And if the person be capable, wel-named, and capable by that name, if his name be truly set downe, yet if his name be not so, Dyer. 4. Perk. sect. 50 [...]. Swinb▪ 289. 290. [...]. but mistaken, the Devise is void. And therefore if one intending to give 20l. to I S, devise to I N 20l. this devise is void both to I S and I N, except the person be certainly denoted and described by some other circumstance, as to I N the sonne of I S my Lanlord, or the like. So if one devise to the Abbot of S. Peter, when the foundation is the Abbot of S. Paul; this Devise is void. And if one devise to a Corporation, and there be none of that name at the time of the Devise, nor during the life of the Testator, this Devise is void, and so also it seemes the Law is, if there be a Colledge made after of that name. But if one devise a thing to Plow▪ 344. the wife of I S, and before the Devisor die, I S dye, and she take another husband, and is called by another name; yet this Devise is good. So if one give a Legacy to I S Deane of Pauls, and the Chapter there and their Successors, and after before the death of the Devisor I S dye, and another is made Deane; yet this Devise is good notwithstanding this mistake. For the third and fourth thing required in a good Devise, see before at Numb. 4. Part. 2. 3. And for the fifth thing, it is to be knowne, 1. Coo. supe [...] Litt. [...]11. Plow. 345. Swinb. par [...] 1. sect. 12▪ That lands and tenements devisable by custome, may be devised by Fifthly, in re [...]p [...]ct of matter t [...]u [...]hing the manner and forme of the Devise. And how a Devise may be made. a Nuncupative Will without any writing for any time whatsoever, as Uses at the Common-Law that are now within the Statute might have been. Also those Uses that remaine at the Common-Law, and are not within the Statute, may be devised by word without any writing. But no estate can be made of lands by Devise upon the Statute, except the Devise be in writing; and so a man may devise his land, albeit he make no Executor; for an Executor hath nothing to do with the Free-hold of land. Also goods and Plow. 345. Swinb. part. 1. Sect. 1 [...]. Dyer 140. chattels, leases for yeares of Lands, Wards, Villaines, and the like may be devised by word without any writing at all. And yet it seemes questionable whether a Lease for yeares of a Rent, Common, or such like thing, be devisable by word without writing. 2. Swinb. part▪ 4. sect. 4. Plow. 23. Littl. Broo. sect. 316. Dye [...] 23. The forme of words in a Devise is not at all regarded; and therefore if one say, I give, institute, desire, appoint, or will, that I S shall have my land, or that I S shall have 20l. or let I S have my land or 20l. all these Devises are as good as if he say, I devise to I S my land or 20l. And therefore if one at this day since the Statute of Uses devise that his Feoffees of the land shall bee [Page 417] seised of the land to the use of I S and his heires, or to the use of I S and the heires of his body; or if such a man devise that his Feo [...]fees shall make an estate of the land to I S and his heires, or to him and the heires of his body; this is a good Devise of the land in Fee-simple, or Fee-taile. [...]. c. 9. [...]ac. New mans case. And if a man make a Feoffment of his land to the use of his last Will, and then devise that his Feoffees shall be seised to the use of I S; this is a good Devise of the land per intentionem. Plow. 54 [...]. Coo. 4. 66. 8. 95. And if I devise that I S shall have, hold, and occupy my land for his life; this is a good Devise of the land for his life. Dye [...] [...]. 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease, or his Terme, or his Ferme, or the profits or occupation of the land; by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words. 3. A man may devise lands, tenements, or hereditaments in possession in Fee, for life or yeares; or he may devise it in reversion, viz. to one for life, the remainder to another in Fee, or in taile, or in any other sort, as a man may grant it by his Deed, and such Devises are good. But if the Fee-simple of land be devised to one, the remainder cannot be devised to another, albeit the first Devise be but conditionall. And therefore if land be devised to I S and his heires, and if he dye without heires, that it shall remaine to I N and his heires; this is a void remainder to I N. So if a man devise his land to I S in Fee, ita quod solvat I N 20l. and if he faile, that it shall remaine to I N and his heires, this remainder to I N is void; for if I S faile of payment, I N shall not enter and have the land, but the heire of the Devisor. And yet perhaps a rent may be devised after this manner. Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer [...]39. [...]4. 20. yeares; and he devise this unto me untill I have levied 100l. by way of retainer, the remainder to I S; this remainder is not good. 4. A Devise may be of lands, goods, or chattels simply and absolutely or conditionally; the simple Devise also may be in praesenti, Condition. P [...]w. [...]. Pe [...]k. Sect. [...]63. See [...] 8. 95 or in futuro. And therefore as a Devise to one and his heires in praesenti, is good, so a Devise to one and his heires after the death of I S is good. If I devise land to I S and his heires on condition, as so as, or ita quod, he pay 10l. to W S, or paying to W S 10l. or ad solvendum 10l. to I S; the Devise in all these cases is a good conditionall Devise; and if the condition be not performed or broken, the estate is ended, and the heire may take advantage of it. And therefore if lands be so given to the heire, the condition is idle, because none can enter but him. And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever, or for life &c. this is a good Devise, and after the contingent shall take effect accordingly, and in this case and such like the heire of the Devisor must keep the land untill [Page 418] the contingent doe happen. In like manner as if it bee a chattell, the Executor shall keep the thing untill the condition bee performed, and after a condition broken h [...] shall take advantage of it. 5. A Devise may be also with a limitation, as in the cases before; Limitation. and as, where one gives land to another, and his heires so long as I S shall have heires of his body; or where one doth devise his land to A his sonne and his heirs for ever, paying to B his brother 20 l. when he shall come of age, and then that he shall enter and have it to him and his heirs, and if he die without heirs of his body, the said B then living, then that B and his heirs shall have it in the same manner: And these and such like Devises are good. 6. A man that is seised of land in Fee, may devise that his Executors Coo. super Lit. 112. 11 [...] 236. shall sell it; or may devise it to his Ex [...]cutors to sell, or Devise it to his Executors, and that they shall sell it; and these Devises are good. 7. A Devise may be of a rent, or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse. a rent, with clause of Distresse, As if a man Devise land to I S, paying 10 l. by the yeare to his wife, and if it be unpaid, [...]arrantiae. that she shall distraine for it; this is a good Devise: But a Warranty cannot be made by a Wil [...]. And yet if a man devise land to Coo. super Litt. 38 [...]. another for life, or in Taile, reserving a rent; in this case the heires of the Devisor shall be bound to the Warranty in Law, and the Devisee shall take advantage of it. 8. A man may devise his land Plow. 523. 540. Dye [...]. 357. Coo. 8. 94. 83 to one, and devise a rent out of the same land to another, and these Devises are good. So a man may devise his land to one in Fee, and after devise the same land to another for life or years; and these are good Devises, and may stand together. So also if a man in the fore-part of his Will by generall words, devise all his lands to one in Fee, and in the latter part of his Will, devise some speciall part of it to another in Fee; these Devises are good and shall stand together, as for example, if one have a Farm, and in the first part of his Will, give this Farm to one, and in the latter part of his Will give one Close (a part of this Farm to another) or a man devise all his land in B (which is in the County of Glou [...].) to A his daughter, and the latter part of his Will deviseth all his land in the County of Glou [...]. in the possession of I S to his sonne, and part of the land in B. is in the possession of I S, and in Gloucestershire; these are good Devises and shall stand together. 38 Bliz. Co. B. Agreed divers times. But otherwise, it is when the generall clause doth come last, as where one doth give his land to A his daughter, and in the latter part of his Will, doth give all his land in Hartfordshire in the possession of I S to W, and the land given to A, is in Hartfordshire, and in the possession of I S; in this case the Devises will not stand together, for the first Devise is void; and so also it is where both the Devises are particular, as, where first in a mans Will, he doth give White Acre to A and his heirs, and after in his Will he doth give White Acre to B and his [Page 419] heirs; in this case the first Devise to A is void. Dyer in his Lecture, 1. & per Inst. Dodr. And yet in this last case, some have held the Devises shall be good, and that A and B shall be Joint-tenants Ideo Quaere. Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years, which he willeth shall be imployed for his children; this is a good Devise of this summe of 20 l. a yeare. 9. And a man may devise his land for so many yeares as I S shall name, and after▪ appoint that his Plow. [...]23. 546. sonne shall have it during the minority of his sonne, and both these Devises may stand together: And therefore, if A be possessed of the Mannor of D for yeares, and he deviseth all his Term to his eldest sonne if he live so long, and if he die before he have any issue of his body, then to his younger sonne in the same manner, but withall, he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age; these Devises shall stand together, and the wife shall enjoy the Mannor, for that time by this Devise. 10. A man may devise a term of years by way of remainder; as for example, a man that is possessed of a term of Coo. 8. 95. Plow. 519. 546. 516. 539. Dyer 277. years, of land, may devise it to I S for life, the remainder to I D; or to I S for life, and that it shall after remaine to I D, or to I S; for so many years as he shall live, and after to I D, or in any such like manner, these are good Devises both to the first, and to him in remainder also by way of Executory Devise, though not by way of remainder, and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme. But a man cannot by Deed Grant. in his life time grant his term in this manner: Coo. 10. 8 [...]. [...]7. pas [...]. 17. [...]ac. B. R. child. vers [...]s Baily. Nor if a man be possessed of a term can he entaile it by his Will: And therefore, if a man possessed of his terme of years of land Devise his term or his land to I S and his heires, or to I S and the heirs of his body, or to I S, and his issues, the remainder to I D; this remainder is void, and it is a good devise of the whole terme to I S, and his Executors. 37 [...]. 6. 30. [...]. Broo. Sect. 388. 3 [...]4. 209. Also a chattell personall may (as it seemes) be devised to one for life, and afterwards to another, but yet so as the one must have the property only, and the first but the occupation only, as if one devise that I D shall have the occupation of his plate for his life, and after that it shall remaine to I S; this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them; then the Devise to the second is void, for the gift of a chattell personall for one houre is the gift of it for ever. And so it did seeme in the Lady Daves case. Hill. 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb. part. 4. Sect. [...]7. to, or untill a certaine time, or from, or after a time certaine or incertaine; as for five years, or from, or untill the marriage of A or the like; and these Dispositions are good. 12. A man may Plow. 524. devise his land for so many yeares as I S shall name, and if I S doe name a certaine number of yeares in the life time of the Devisor, [Page 420] this will bee a good Devise. But if one devise his land for so many yeares as his Executor shall name, it seemes this Devise is not good. 6. As touching the sixth thing required in a good Devise, these things are to be known. 1. That Lands, Tenements, Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. [...]. Sixthly, in respect of matte [...] touching the thing devised, and what may be devised, and by what name. and Heriditaments for the nature and quality of them are devisable as well as other things. And therefore by the custome of some places, lands in possession, reversion, or remainder, are devisable in Fee for life, or yeares; and a man that hath a Lease for yeares of land, may devise the land at his pleasure during his term. But by the ancient Common-Law in favour to heires, the lands that a man had in Fee▪ simple were not devisable by Testament, except only in Devise of lands and te [...] [...]ements. some speciall places by the custome of the place, as Gavelkind-lands in Kent, and lands within certaine Borrow-Townes, as London, Oxford &c. and by the custome of those places such lands are devisable: And in some places the custome is, that they may devise their purchased lands only; and in other places, that they may devise their lands discended also: And in some places the custome is that they may devise for life only, and in other places, that they may devise in Fee-simple and Fee-taile also. And in all these places where such customes are, they may devise their lands now as they might have done before the Statute; for the Statute hath not destroyed their custome. And therefore at this day they that have such lands in such places, have their election eitheir to devise according to the power the custome doth give them, or according to the power the Statute doth give them, and in the first case the Devise is good against the heire for the whole; and in the last case, it is good against him for two parts in three only. Also by the Perk. Sect. 496. 528. 538. Common-Law, the Uses of lands were devisable, as goods, and chattels were as the pleasure of him that had them. But otherwise, and in other cases, lands and tenements, might not be devised and disposed by Will, untill 32 H. 8. at which time the owners of lands, tenements, rents, &c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth: He that hath any land in possession, reversion, or remainder by Socage Tenure, and hath no land held in Capite or by Knights Service, may devise all his land, or any rent, Common, or other profit apprender out of it to any person in Fee-simple, Fee-taile, for life or years, at his pleasure. Hee that hath any such land held of the King in Capite by Knights Service, or by Knights Service▪ and not in Chiefe, or held of any common person by Knights Service, may devise two parts thereof in three, to be devided, or any rent, &c. out of those two parts at his pleasure, and no more; for the third part must discend to the heir and come to satisfie the Lord his duties; and therefore the Devise of the whole land in this case is void for the third part. He that hath any such land held by Knights Service in Capite, and other lands held by [Page 421] Socage Tenure may devise two parts of the whole, and no more, or any rent &c. out of it at his pleasure. He that doth hold land of the King by Knights Service only, and not in Capite; or if a meane Lord by Knights Service, and hath also other lands held by Socage Tenu [...]e, may devise two parts in three of all the land held by Knights Service or any rent &c. out of it, and all his Socage land at his pleasure. So that now by these Statutes, a man that hath lands in Fee-simple, may devise them in Fee-simple, Fee-taile, for life, or yeares absolutely, or conditionall at his pleasure. And therefore if one devise his land to one for life, the remainder in Fee, or Fee-taile to another; or devise his land to B, the remainder to the next heir male of B, and the heires males of the body of such heire male or the like; these are good Devises. But for the more full understanding of these things, it it to be known in the next place. 2. That this Statute doth not enable men to devise land that are See the Statute, Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dve [...], 210. old, N B 89. Perk, Sect. 500, 539, 540. 496, 497, 498. disabled by Law in respect of their persons or minds, as Infants, women Covert, men de non sane memory, or the like; nor such as are disabled in respect either of the nature of their land, as Copi-holders (for Copi-hold-land is not devisable) or of the estate they have in the land, as Tenants in Taile, or pur autervie, or Ioynt-tenants; for these can no more devise the land they doe so hold, then they could before the Statute. But such as are seised of land in Common, or Coparcenery, may devise their land as well as those that are sole s [...]ised. And if two be Ioint-tenants for life, the Fee-simple to one of them; he that hath the Fee-simple, may devise his Fee-simple after the death of his companion. Neither doth this Statute enable those that are seised of lands in Fee, in the right of their houses and Churches to devise the same lands: And therefore, Bishops, Deanes, P [...]rsons, Vicars, Masters, of Hospitals, or the like; can no more devise the lands belonging to their Bishopricks &c. then they could before the Statute, but the lands they are seised of in their own right, they may devise like other men. 3. Heridiments that are not of any yearly value, are some of them devisable, [...]. 10. 81. [...]. 32. super [...]. 111. and some not; for if the King grant to one and his heirs bona & catalla felonum & fugitivorum vel ut lagatorum, Fines, and Amercements within such a Manner or Village; in this case, the owner can neither devise these things to another, as part of the two parts, nor leave them to discend for a third part. And yet if one have a Mannor unto which a Leet, Waife, Estray [...], or the like; is appendant or appurtenant; there by the Devise of the Mannor with the appurtenances, these things may passe as incident to the Mannor: But if a man have a Hundred, with the goods of Felons, Out-lawes, Fines, Amercements, Retornabrevium, and other such casuall Heriditaments within the same Hundred, and these have been usually let to Farm for a rent; in this case, these things may be devised [Page 422] or left to discend for a third part. 4. Such incertaine Franchises as before that are Heriditaments of no yearly value, albeit Coo. 10. 8 [...]. 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable, yet may rest [...]aine the devise of a mans lands and tenements, and make it void for a third part, if they be held in Capit [...], for if it is not requisite, that the thing held by the Tenur [...] in Capite be deviseable; and such things as may not bee left to discend to the Lord for a third part, and to satisfie him, his duties, may notwithstanding be devisable, or restraine the Devise of other lands and tenements, and make it void for a third part▪ And therefore, a Reversion upon an estate ta [...]le, which is dry and fruitlesse, if it be holden of the King by Knights Service in Capit [...] will hinder the Devise of the third part of a mans lands and tenements: Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands. And therefore, if such lands be conveyed to one and the heirs of his body, the remainder to another, and he have other lands in Socage; if he have any issue, he can devise but two parts of his Socage land. And where the Statute speaks of a remainder, it is to be intended of such a remainder only, as may draw Ward and marriage by the Common-Law, and this is that remainder only, that doth hinder a Devise. And therefore if A be seised of lands in Socage Tenure; and B be seised of lands in Fee, held in Capite by Knights Service, and B make a Lease for life or gift in Taile to C, the remainder to A in Taile or in Fee; in this case, A during the estate for life or in Taile, may devise all his Socage land, notwithstanding this remainder. But if a man make a Lease for life or yeares, and after grant the reversion for life, or in Taile, the remainder in Fee, and after the Grantee for life dyeth, or Donee in Taile dyeth without issue, in this case, this remainder which now is in point of reversion, will restraine the Devise of other lands, and make it void for a third part. 5. In all Coo. 10, 81. 11, 24. 3. [...]0, 34, 35. supe [...] L [...]t. [...]1. Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage, h [...] must have lands held in Capite at the same time, and therefore the time of having of lands to devise, and holding of other lands in Capite, and disposing of the lands to be devised, must concurre. And therefore, if a man be seised of an Acre of land in Fee, held of the King in Chiefe by Knights Service, and of other two Acres in Fee held in Socage, and enfeoffee his younger sonne of the Acre held in Capite, and of one of the other Acres, or convey it to the use of his wife, or for the paiment of his debts &c. and after purchase land held in Socage; in this case, he may devise all the new purchased land held in Socage without restraint. So if a man bee seised of lands held by Knights Service in Capite in possession, reversion, or remainder, and of lands held in Socage, and by his Will in writing, doth devise all the said lands, and after the land held in Capite▪ is recovered from him, or aliened by him bonâ [...]ide; in these [Page 423] cases the Devise is good for all the land held in Socage: And hence it is, That if the King grant land to one in Fee Farm to hold in Socage at a rent, and after grant this rent to another and his heires, to hold in Capite, and the Grantee of the rent doth grant it to him that hath the land; in this case, because the rent is extinct, and he cannot be said to hold lands in Capite, this shall not restraine the Devise of any of his lands. And yet if a man hold some lands by Knights Service in Capite, and other lands in Socage, and bee disseised of the lands held in Capite; he cannot devise all his Socage land, but the Devise will be void for a third part, for he is said to have that land still, whereof hee hath the right. And albeit the Statute say [that he that hath lands held of the King in Capite, and other lands in Socage, may give two parts for the advancement of his wife, paiment of his debts, preferment of his children] whereby he is restrained to devise any more. And therefore, if by act, executed in his life time, he convey two parts to any such uses or intents, he cannot devise any more by his Will, but the residue must discend, yet this also is to be intended of the land he hath at the same time. For if a man be seised of land held in Socage of the yearly value of 20l. per annum, and he hath not any▪ land held in Capite by Knights Service, and he make his Will in writing, and by it, devise his Socage land to one in Fee, and then purchase land of the value of 20 s. per annum held in Capite, and die; this will make the Devise void for a part of the land that is held in Socage: But if a man seised of land in Fee of Socage Tenure, assure it to the use of his wife for her [...]ointure, and after purchase lands held in Capite by Knights Service; he may devise two parts in three of all this Capite land, and the King shall not have any thing out of, or for the Socage land: If a man seised of lands, part of which are Coo. 3. [...]4. [...]. [...]4. held in Capite, and part in Socage make a Feoffment of the lands held in Capite, (being two parts in three of the whole) to the use of him and his wife for life, with divers remainders over; in this case, he may not devise any of the Socage land. And if a man have no Socage land but Capite land, and convey it away i [...] Fee-simple, keeping no Reversion to any such use, and after purchase Socage land; he may devise all the Socage land newly purchased. 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint, is, and must be one that hath the land he doth devise at the time of the Devise made, and no other land then to be an impediment to his Devise, so he must have a sole estate as well in the land he doth leave to discend to the heir, as in the land he doth Devise: And therefore, if lands held in Capite be conveyed to a man and his wife, and the heirs of their two bodies; and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service; in this case he may not devise two parts of the whole, supposing [Page 424] this may suffice for the Kings third part, for he may devise but two parts of the residue; i. e. of that whereof he is sole seised either at the time of making of the Will, or at the least at the time of the death of the Testator. 7. The estate of the land that is held, must continue after Coo. 10. 8 [...]. the death of the Tenant, otherwise it will be no restraint. And therefore, if Tenant in Taile be to him and the heirs males of his body, the remainder in Fee to another of Lands held by Knights Service in Capite; and he is seised of other lands in Socage in Fee, and by his Will in writing devise all the Socage land and die without issue male; in this case, the Devise is good for all the Socage land. And so also it is where the estate the Ancestor had of the land held is defeated by condition. 8. That which a man cannot dispose by any act in his life time, shall not be taken for any such Mannors &c. Coo. [...]. 32. whereof a man may devise two parts by authority of this Statute at his death: And therefore in the case of an indevided estate of lands between husband and wife, where the husband can make no disposition for longer time then during the Coverture; these lands are not to bee esteemed, such as are to be accounted amongst the lands; whereof two parts in three are devisable. 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor, otherwise the land so held, will be no restraint. And therefore, if the King grant land to one and his heires, to hold during his life by Knights Service in Capite, and after in Socage, or to hold during his life in Socage, and after by Knights Service; in these cases, the Grantee may devise all his land, notwithstanding the Tenure of this land. 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. [...]. 111. 10. 8 [...]. yearly value of the third part left to discend to him, and the value is to be esteemed as it is, and doth happen to be at the time of the death of the Testator, for the King, or other Lord must have the like and equall benefit for his third part, as the Devisee hath for the two parts without diminution or substraction; when therefore a man will have his Devise good for the resid [...] he must take care that the third part be so left, for if the third part be not valuable, or be charged with any rent &c. or be upon any incertainty, as if it be upon a possibillity only, as where a man and his wife be seised of a joint estate Taile made during the Coverture, and he Devise other lands to her on condition, that she shall wave her estate made during the Coverture, and so intend that that part of his land shall be left for the Kings part; this Devise will not be good for the residue, and albei [...] the wife doe wave the estate after the husbands death, yet this will not help the matter or make the Devise good for that part for which it was void before: But it is not materiall by what Tenure the third part discending be held: For it is holden by the better opi [...]ion. That if a man be seised of 20 l. land held of the King in Capite, and 10 l. land held of a Subject by Socage, and he devise all the Capite [Page 425] land to a stranger; that this is a good Devise for the whole, and that the King shall be satisfied by the Socage land. And if it be of the value of the third part, albeit it be but of an estate Taile whereof the Ancestor was seised, or it be new purchased land, yet it is sufficient: And therefore, if some lands be given to a man, and the heirs of his body of the value of 10 l. per annum, and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all, or part of these are held in Capite by Knights Service; in this case he may devise the lands in Fee-simple, and leave the entailed land to discend for a third part: And if a man be seised of such land, and convey it to the uses within the Statute or any of them, and after purchase new land and leave that to discend, this is sufficient. 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately, and he must not stay for it. And therefore, if a man be seised of three Acres of land held by Knights Service in Capite, and make a Lease of one Acre for life, and after devise the other two Acres; this Devise is not good for the whole two Acres, but for two parts in three thereof only; and albeit the Tenant for life die afterwards, yet this will not help the matter. But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile, he may devise the other▪ two parts at his pleasure. And if he doe not leave a third part to the full, it must be made up and supplyed out of the other two parts, which in case of the King is done by Commission out of the Court of Wards, and in case of a Subject by Commission out of the Chancery. 12. As the Coo. super Litt. 111. 9. [...]33. 3. 32. 30. third part left to discend, must bee of as good value as either of the other two parts is at the time of the death of the Testator, or otherwise the Devise of all the residue will not be good, so must it bee taken out of the lands of the Testator indifferently: And therefore, if a man be seised in Fee of land held in Chiefe by Knights Service, and make a Feoffment of the one halfe of it to the use of himselfe for life, and after to the use of one he doth intend to marry, and after to the use of another in remainder, or to any other such like uses within the Statute, and after he doth marry the same woman, and after he deviseth the other moity to his wife, children, or any other; in this case, albeit the wives estate have precedency, yet the King shall have his third part out of both the moities equally. So if one be seised of Gavelkind land held in Capite, and his sonne being dead, devise part of it to one of his grand-children, and part of it to another, and part to a third Taile; in this case, the Kings third part shall come out of all the three parts equally, and accordingly the Devise will be void for so much to every one of them. So if one hold three severall Mannors of three severall Lords, he cannot devise two of these Mannors leaving a three to discend, but he may devise two parts of every of the third Mannors, and a third part of each Mannor must [Page 426] discend to each Lord, for there must be an equallity in these things. For further illustration of which things, the examples following are to be heeded. W B, being seised of the Mannor of Thoby in Capite, Coo. 3. [...]ut. ler & Bake [...]s c [...]se. and of lands in Fobbing held in Socage in Fee, and he and his wife being seised of the Mannor of Hinton held in Capite to them and the hei [...]es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise, the reversion to W in Fee, and Thoby doth amount to the value of two parts, and Hinton and Fobbing to a third part, and W B by his Will in writing, doth devise Thoby to his wife for life, upon condition that she shall not take her former Joynture, with divers remainders over and die, and shee refused her former Jointure in Hinton; in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby, and that the Mannor of Hinton was not a sufficient third part to discend. L L being seised of the Mannor of Affaland, Coo. 10. 78. I [...]onard Leoveis case, Coo. 11. 24. Hea [...]ton, Rillaton, P [...]ngelley, Willesworthy, and Trivesquite (the last only held in Capite) in Fee, and having issue Thomas his eldest sonne, William, Humfry, and Richard, younger sonnes, which Richard had issue Leonard, makes a Feoffment of these Mannors to divers uses, viz. of the Mannors of R, P, W, and A, to the use of the Feoffor for life, and after to the use of such person as he should appoint by his last Will, and after to the use of W his second sonne in Taile, and after to his other sonnes in Taile, and after to the use of the Feoffor and his w [...]fe in Taile, and after to the use of the Feoffor and his heirs for for ever. And of the Mannor of H to such like uses, and of the Mannor of T also to such like uses, and the same uses were with power of Revocation: And after the Feoffor purchased eight Acres of other land held in Socage, and after did revoke the uses of the Mannors of R, P, W, and A, and after devised some of the said Mannors (excepting some peeces) and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions, and if he die without issue, that it shall goe to William &c. and afterwards he dyed seised of the said eight Acres of land, and the lands devised by the Will at the time of the death of the [...]estator were of the yearly value of 24 l. 14 s. 10 d. per annum, & non ultra, and the lands whereof the Feoffment was made, and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this ca [...]e, it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part, and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite. And it was resolved, That if a man be seised of three Acres of equall yearly value, one of them held of the King by Knights Service in Capite, and have issue two sonnes, and give the Acre so held; and another of the Acres to his younger sonne, whereby hee hath so executed [Page 427] his power by the Statute, that hee cannot devise by his Will any part of the third Acre; and after he purchase three Acres of equall value held in Socage; that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne, he can devise no more but two parts of the said land so newly purchased. But if the reversion be gone before the purchase, he may devise the whole; Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee, part of which are held of the King in Capte by Knights Service, and he convey two parts of it unto any of his sonnes, or to the use of his wi [...]e for life, or in Taile; in this case, albeit he may not devise any part of the residue, yet he may by his Will devise the reversion of the two parts. And in case, where he hath not conveyed the full two parts, he may devise so much as to make up that hee hath conveyed full two parts: And it was further resolved in the same Leonard Love [...]s case. That whereas the Statute saith, All persons &c. having &c. of any Mannors &c. in possession, reversion, or remainder &c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes; that this remainder was not within the Statute, nor would have restrained the Devise, but for the reversion in Fee afterwards. A B, being seised in Fee of the Mannor of Gracediu held in Capite, and of the value 30 l. per annum, and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case. value of 18 l. per annum, in consideration of a marriage with M did covenant to stand seised of the Mannor of G, to the use of himselfe and the heirs males of his body, on the body of the said M, and after to the use of W B his brother, and the heires males of his body, and after to the use of another brother in Taile, and after to the use of his own right heires, and of the Mannor of N to the use of himselfe and M he is to marry, and the heires of his body, and after the remainders as before of the other Mannor, and after the marriage is had, and A B doth purchase other lands held in Socage of the value of 3 l. per annum, and then devised the same new purchased lands; in this case, it was adjudged that the Devise was void for a third part of the Socage land, in respect of the reversion dependant upon the estate taile, and yet that it was a good Devise for two parts of the new purchased land, albeit he had executed his power and given more then two parts to the use of his wi [...]e. And in these cases where a man hath land held in Capite, and other land, Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute, as to his yo [...]ger children or the like, or convey it with power of revocation only, so that he hath power of the land still, and after he purchase land held in Socage; in this case it seemes hee may devise all the land newly purchased, as if the land were conveyed without any such power of revocation. A being seised of land in fee Coo. 6. 17. Sir Edwards case. [Page 428] held of the King in Capite, made a Feoffment of two parts of it to the use o [...] his wi [...]e, for her life, for her Jointure, and after made a Feoffment of the third part to the use of such person and persons, and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing, and afterwards he did by his last Will in writing devise this third part to one in Fee; in this case it was resolved that the Devise was good for the whole third part. And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will, albeit the devise of the land be with reference to the Feoffment, yet it is void for a third part▪ E B being seised of 6 Mannors, the one in Fee, and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedin [...]ields case. reversion expectant to him and his heires and hath issue T B, divers of which Mannors are held of the King in Capite by Knights service, and every of them of equall yearely value, by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children, and then died, and the estate in taile that discended to his issue was more then a third part of all; in this case it was resolved that the Devise was good for two parts of the reversions, and for the entire Mannor in Possession, and not void for a third part of the Mannor in Possession, and for all the reversions in Fee. A man being seised in Fee of Gavelkind land in Kent, part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite, and part of Common persons in Socage hath issue A, who hath issue B C and D, and A deviseth some of these lands to B, and some to C, and some to D his Grand-children in taile; in this case the Devise is void for a third▪ part of the whole, aswell for the land held in Socage as the land held in Capite. And yet if in this case no Will be made, the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law, and not the third part of that which doth discend to the younger sonnes by custome. And if lands devisable by custome come into the Kings hands, and he grant them to hold of him in Capite, and the Patentee devise them to the use of his wife, children, or for paiment of his debts &c. in this case the Devise is void for a third part: And here note, that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole, the Devise is good notwithstanding for so much as he hath power to devise. And as touching the thing devised is further to be known. 13. That a man must have right to, and possession of the land he deviseth, or else the Devise is not good. Plow. 485. Devise of a right to Land, or of Land that is another mans. And therefore i [...] a Disseisor devise the land he hath gotten by Disseisin; this Devise as to the Disseisee is void. And if a man be disseised of his land, so that he hath nothing but a right thereof left, and then he devise this right, or devise the land, this Devise is void. And if one contract for land, a [...]d pay his money for it, but Nevils case. [Page 429] hath no assurance of the land, and he devise this land to another; this cannot be a good Devise of the land, but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise. And if Plow 344. Fitz. Devise 7. one devise another mans land, this Devise is void; but if he after the Devise made purchase this land, now is the Devise good. If a man bargaine and sell land to me on condition to reenter, if he pay Adiudged Pow [...]ly & Blakemans case. me 10l. and I covenant that I will not take the profits untill default of paiment, and he make a Lease of 6 yeares of it to another, and after breake the condition; in this case I may devise this land, and the devise will be good. 14. A Seigniory, Rent, or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is, and will passe without the Attu nement Devise of Rent, Co [...] mon, Seign [...]ory or the like. of the Tenant. The like Law is of a reversion also. And a man may devise a Rent de novo issuing out of land, or a Rent issuing out of land that is in [...]sse before. And therefore if a man make a Lease for life or yeares rendring Rent, the Lessor may devise this Rent. So if if a Rent be granted to one and his heires, the Grantee may devise this rent. So a man that is seised of land in Fee may devise any rent out of it at his pleasure. And therefore if a man that holdeth his land by Knights service in Chei [...]e by his Will devise any Rent Common, or other profit out of it; this devise is good, and that albeit the Rent or Profit doth amount to the value of the whole land; as if one have 3 Acres of land worth 3s. by the yeare, and he devise 3s. Rent out of it; this is a good devise of the whole Rent; but in this case the Rent shall issue out of two parts of the land, and a third part shall be free and not charged with it, but he may charge 2 parts in 3 parts of such land at his pleasure. And so also it is if a man have lands holden by Knights service, and not in Capite, and other lands in Socage, he may charge two parts of the Knights service land, and all his Socage land at his pleasure. And if a man have lands held in Socage, and no lands held in Capite, or by Knights service, he may devise what rent he will out of it. But a man cannot devise a Rent, Common, or any such like thing out of another mans land that is none of his owne, nor out of that he hath nor. And therefore if one devise 10l. out of his Mannor of Dale, when in truth he hath no such Mannor, this Devise is void. If a rent be granted to me for the life of I S; it Oye [...] 253. seemes I may not devise this rent, but that the Terre-tenant shall Occupant. hold it as an Occupant. 15. Where a man is seised of a house in Fee, and may devise the house it selfe, there it seemes he may devise Devise of houses, doo [...]es, glasse, wainscot &c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Li [...]ords case. [...]lw. 88. the doores, windowes, wainscot, or the like Incidents of the house. And where a man may devise the land it selfe, it seemes hee may devise the trees or grasse growing upon the land▪ Quando licet [...]d quod majus, videtur & licere id quod minus. But where the land it selfe is not devisable, there such things incident or annexed to, [Page 430] or growing, or being upon it, are not devisable. And therefore the tenant in taile, for life, or yeares of land may not devise the houses, or windowes, doores, or wainscot of houses, or trees, or grasse being or growing thereupon, but this devise is void. 16. Where a man Perk. Sect. 500. Dyer. Devise of a Vse. hath a Use that is not executed by the Statute of Uses, but remains at the Common-law, he may devise it as he may any other thing; And therefore if one be possessed of a Terme of yeares, and grant it over to another to the use of the Grantor, he may dispose this use See Vses. by his Will, for it is in the nature of a Chattell. But if a man have such a Use in jointenancy he cannot devise it. 17. All manner of Swinb. part. 3. Sect. 5. Perk. Sect, 511. 525, goods and chattels reall and personall may be devised by Testament. Devise of goods and chattels. And therefore Leases for years of lands, Grants for yeares of Rent, Common, or the like, Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service, Cattell, as oxen sheepe, horses &c. gold, silver, money, plate, houshold-stuffe, as beds, pots, panns, platters, &c. corne, wooll, and implements of husbandry may be devised by Will; and not only those a man hath at the time of the Devise, but those a man is to have or may have afterwards. And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death, or the wooll or lambs his flock of sheep shall yeild the next yeare after his death; and that these Devises are good; but if in this case there shall be no such corn growing in that ground, or any lambs or wooll arising out of his [...]lock that yeare the Legacy is fruitlesse. And yet if the Testator devise to I S 20 quarters of corne, or 20 lambs, and both will that the same shall be paid out of his corne that shall grow, or out of his [...]lock the next yeare, and there be not so much corne, or not so many lambs, or not any at all growing or arising, yet this is a good Devise, and the things must be paid. In like manner if a man give to I S a horse, or a yoke of oxen, in this case albeit the Testator have neither horse nor yoke of oxen, yet the Devise is good and must be performed. 18. Things in action, as debts, and the like, albeit they be not grantable by deed in the life time of the party, yet are [...] of debts, and things in action, possibilities, and incertainties. they devisable by Will. And therefore if the Testator doth by his Will give any debt due to him on an obligation, or on a contract, or the like; this Devise is good. And the thing devised may bee had thus, the Testator may if he will make the Legatury Executor as to that debt, or if he do not, the Legatary may sue the Executor in the Spirituall Court, or in some Court of equity, and thereby compell the Executor either to recover it himself, and so to pay it to the Legatary, or to give the Legatary power to sue for and recover it himselfe in the Executors name. But if it be such a cause of action, as is altogether uncertain, as where a man may have an action against another, for taking away his goods, or to compell him to make an account, or the like; this is such a cause of action as is not deviseable. [Page 431] And yet possibilities and incertainties are in divers cases devisable. Perk. Sect. 527. Litt. B100. Sect. 437. Dyer 272. Plow. 520. And therefore if one have money to be paid him on a Mortgage, he may devise this money when it comes; as if I en [...]eosse a stranger of land, upon condition that if he do not pay me 20l. such a day, that I may reenter, in this case I may devise this 20l. if it be paid, and the Devise is good, albeit it be made before the day of paiment come. Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares, and devise all the residue of that Terme of yeares that shall be to come at the time of his death; this Devise is good, and yet such a Grant by deed is void. Grant. * But a meer possibility, and a thing altogether incertain is no more devisable by will, then it is grantable by deed. 19. Emblements, i. e. the Devise of Emblements. Perk. Sect. 520. 521. &c. See in grant [...] corne that is sowen and growing upon a mans ground at the time of his death, and which himselfe should have reaped if he had lived to the harvest (as in most cases he shall where he doth sowe it) are devisable. And therefore if a man have land in Fee simple, Fee taile, for life, or yeares, and sowe it with corne; he may devise the corne at his death to whom he please. And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be [...]ipe before the end of the Terme, and he die, it seemes he cannot devise this corne, for if he had lived he could not have reaped it after the end of the Terme. 20. Obligations, Counterpanes of Leases, and Perk. Sect. 527. such like things also are devisable; but in this case the Devisee cannot Devise of Obligations, Counterpanes of Lease [...], &c. sue upon the Obligation in his own name, nor enter for the condition broken upon the Lease if there he cause, but he may cancell, give, sell, or deliver up the Obligation, or Counterpane to the Obligor, or Lessee. And finally whatsoever shall come to the Executor See in [...] in Numb. after the death of the Testator in the right of his Executorship, may be devised by the last Will and Testament of the Testator. 21. Devise of [...] the things a man hath in Iointure wi [...]h another. Perk. Sect. 52. Litt. Sect. 287. Doct. & St. 167. The goods and chattels that a man hath joyntly with another are not devisable. And therefore if there be two Iointenants of goods or chattels, as where such things are given to two, or two do buy such things together, and one of them devise his part of the things to a stranger; this Devise is void. Insomuch that if in this case the Testator make the other Ioyntenant his Executor, the Will as to this is void, and he shall not be charged as Executor for those goods, but he shall have them altogether by right of survivorship. 22. The Devise of the things a man hath in anoth [...]s right. Plow. 525. B100, Administrator 7. [...]. Adm. [...]. goods and chattels that a man hath in anothers right are not devisable; and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator, for such a Devise is void. Howbeit the Executor may appoint an Executor of the goods of the first Testator, which the Administrator cannot do; And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration, he may make disposition. The goods and chattels belonging to Colledges, and Hospitals may not be devised by the Testaments of the [Page 432] Masters or governours thereof, no [...] the goods and chattels belonging Doct. & St. lib. 2. c. 39. Perk. Sect. 4 [...]6. 49 [...]. 49 [...] to other Corporations by the Mayors, Bayliffes, or Heads thereof. * And the goods and chattels that Churchwardens have in the right of the Church are not devisable. Perk. Sect. 560. Doct, & [...]t. c. 7. All the chattels reall that a man Husband and wife. hath in the right of his wife by her means, and all the Obligations that are made to her alone before, or during the time of the Coverture, and the chattels reall or personall that his wife hath as Executrix to any other, are not devisable by the Testament of the husband. But all the chattels personall that a man hath by his wife which she hath in her own right, and the debts due upon Obligations made to the husband and wife both during the Coverture, are devisable by the Testament of the husband. 23. Such things as are annexed, and incident Devise of things that are incident and annexed to some other thing. to a Freehold or inheritance, so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before. it by him that hath the propertie of them, as wainscot, and glasse to houses, and the like, are not devisable; but in such cases where the thing it selfe to which it is annexed is devisable. 24. The goods and chattels that are another mans, are not devisable, and therefore Plow. Granthams case C [...]o. super Litt. 185. Coo. super Litt. 308, Devise of things that are not the Devisors, or belong not unto his Executor. if a man give another mans horse, it is is a void Devise. So if one devise the things that by speciall custome of some places, as the heire loomes do belong to the heire, this Devise is void, for it is not devisable from him. 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia. B. R. Bishoprick fallen▪ he may devise it; but if a Church of his become void in his life time, he cannot devise the Presentation. If a Parson of a Church have the Advowson in Fee, and he devise that his Executors Devise of a Pre [...]entation to a Church. two or three of them shall present at the next avoydance; this is a good Devise. 26. All these things before that are devisable, Swinb. part. 7. c. 5. Plow. 525. Perk. Sect. 500. when they are devised must be named, and devised either by their proper name, or otherwise described by some other matter whereby Mistake or error in the [...] devised. the mind of the Testator may be known and discerned; for if he erre and mistaken in the name or substance of the thing devised, or it be so incertainly devised and described that it cannot be perceived what he intendeth, the Devise is void. And therefore if one devise a piece of ground by the name of a Mesuage, except it be so called, the Devise is void. And yet by the Devise of the use, profit, or occupation of land, the land it selfe is well devised; and by the Devise of land it selfe, the reversion thereof may be devised. But if one intending to devise a horse doth devise an oxe: or meaning to give gold, doth give apparell; these Legacies are void, unlesse his meaning may appeare by some circumstance to be otherwise; as if a man have but one horse, and he be called Arundell, and he devise his horse Bucephall; this Legacy is good enough. And if a man give all his m [...]ny in such a Chest, when in truth there is no mony in that Chest, or give to another the 10l. which I S doth owe him, when in truth I S doth not owe any such money; this Devise is void. And yet if the Devise bee thus, viz. I give [...]o A B 10l. and [Page 433] I will that the same bee paid of the money I have in such a Chest, or of the money which such a man doth owe me; in this case the Devise is good, albeit the [...] [...]e not any money in the Chest or owing: And if one give 10l. remaining in such a Chest, whereas in truth there is but 5 l. in the Chest; in this case the Legacy is good for the 5 l. But error and mistake in the quantity and quality of the thing devised, when the same for the substance of it is certaine, doth not hurt: And therefore, if the Testator meaning to give the fourth part of his goods, give the one halfe; or meaning to give but 50 l. give 100 l. or è converso, meaning to give a greater, doth give a lesse quantity or sum; in these cases, the Legacy is good, and the Lega [...]ary shall have as much as the T [...]stator did meane. If a man give his white horse, when in truth he hath but one horse and that is black; this is a good Devise of this horse: And if the thing devised be under such generall words that Incertainty in the thing Devised. Swinb. part. 7 cap. [...]0. the minde of the Testator cannot bee knowne by it, the Devise is void: And therefore, if the Testator say, I doe bequeath something, or I bequeath a substance, or I bequeath a body, or I bequeath, or the like; these Devises are void for incertainty: So if he say, I doe give lands, or I doe give goods; these Devises are void: And yet if the Testator give a horse, an oxe, a gold chaine, or the like indefinitely; in these cases, the Devise is good, albeit he have no such thing. But if one devise thus, I give lead, money, wheat, oyle, or the like; and say, not how much or what quanitity; this Legacy is void for incertainty, or at least the Executor may deliver what quantity thereof he will, and this shall satisfie the Legacy. 7. As Seventhly, in respect of the Tenures and conditions, causes and ends of the Devise. Swinb. 2 [...]9. touching the terms of a Devise, it must be known, That if one devise any thing to wicked ends or upon wicked conditions, as to the end, that the Devisee shall kill a man, or because he hath killed a man, or the like; these Devises are void in like manner as it is when the cause or motive is false, as because one is my Cousin, or hath lent me money, I devise to him 20 l. and hee is not my Cousin, or did not lend me money; these Devises are void. And as touching the rest of the properties of a good Devise, see them before Coo. 3. 36. in the properties of a good Testament: And here by the way, A Caveat for making of Testaments▪ be advised if thou hast land to settle▪ rather to doe it by act executed by advice of learned Counse [...]l in thy life and health-time, and therein adde such conditions and provisoes of revocation and otherwise as thou wilt; or if thou wilt doe it by Will, then doe it in thy perfect memory and by learned advice: Let the Will bee indented and of two parts, and leave one part with a friend that it be not suppressed after thy death; Let there be credible Witnesses to the publication thereof, and let their names be subscribed to it: Let the whole Will be written with one hand, and in one peece of paper or parchment for feare of alteration, addition, or diminution: Let [Page 434] the hand and seale of the Devisor be set to it: And if it be in severall parts, let his hand and Seale and the hands of the Witnesses be to every part: If there be any rasing or enter-lining: let there be a Memorandum of it. And if thou make any revocation of thy Will, doe it by good advise and by writing; Vox audita perit, Litera scripta manet.

The generall rules for the Exposition of Wills are these, That they Plow. 540. Coo. supe [...] Litt. 322▪ 8. The Exposition of Testaments and Devises, and how they shall bee construed and taken. Devises of Land. First, in respect of the pe [...]son that is to take by the Devise; and what, when, and how he shall [...]o take by the Devise. must have a favourable and benign interpretation; and as neare to the minde and intent of the Testator as may be: and yet so withall, as his intent may stand with the rules of Law, and bee not repugnant thereunto. It is said to be therefore a maxime of Law, Quod ultima voluntas testatoris perimplenda est secundum veram intentionem suam, according to these Verses:

Sed legum servanda fides, suprema voluntas

Quod mandat fierique jub [...]t parere necesse est.

If a Devise be made of land to I S, and the heirs males of his Termes of the Law. tit. Devise. Coo. super. Litt. 25. Plow. 414. body; by this Devise the sonnes and not the daughters of I S shall have the land. And if a Devise be made of land to I S, and the heirs Females of his body; by this Devise the daughters and not the sonnes of I S shall have the land. And yet it hath been said in these cases, that if in the first case, the Devisee have issue a daughter, who hath issue a sonne; or in the last case, hath issue a sonne who hath issue a daughter▪ that this sonne and daughter shall take by this Devise in these cases; but it seemes the Law is otherwise.

If a Devise be made of land to I S and his heires males, by this 27 H. 8. [...]. Grant. Devise I S hath an estate Taile; but otherwise it is of such a limitation by Deed; for if one by Deed give land to another and his heirs males; by this the Donee hath a Fee-simple, and his heirs generall shall have it.

If a Devise be of land to I S, and to the eldest heirs females of Coo. supe [...] Litt. 27. his body; by this Devise all his daughters and not one of them only shall take it: So if one devise Gavelkind-land to a man and his eldest heirs; this doth not alter the custome, but by this all the sonnes shall take.

If a man devise his land to his wife for life, the remainder to [...]tz. [...] 2. his sonne and the heirs males of his body engendred, and for default of such issue the remainder to his next heir male, and the heires males of the body of that heire male, and after his sonne die without issue (living his wife) and the Devisor hath issue a daughter who hath issue a sonne; in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple.

If a man devise his land to his wife for life, and after to his own Trin. 9. [...]ac. A [...]dged Curte [...]s case right heirs males, and he hath issue three daughters, and after his death one of them hath a sonne; in this case, and by this Devise [Page 435] the next collaterall heire male of the Devisor, and not the sonne of the daughter shall have the land.

If a man have issue two sonnes and a daughter, and devise his D [...]er 122. land to his wife for tenne yeares, the remainder to his younger sonne and his heirs, and if either of the said two sonnes die without issue of their bodies, the remainder to the daughter and her heirs, and the younger sonne die in the life time of the father, and after the father die; in this case and by this Devise the daughter hath a good remainder, but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor.

If a man devise some land to A his eldest daughter and her D [...]e [...]. 330. heires, and if she die without issue, to T his youngest daughter and her heirs, and if she die within 16 years, that A shall have her part to her and her heirs, and if A marry such a one, that T shall have her part to her and her heirs; and if T die having no issue, that all her part shall goe to M and E his Ne [...]ces; and if A die without issue, that T shall have her part to her and her heires, and T after the 16 years, doth die without issue; in this case the Neeces M and E, and not A shall have her part that is dead.

If land be devised to A for life, the remainder to a Monke for Perk. Sect. 5 [...]6. [...]67. life, the remainder to I S in Fee; by this Devise he in the remainder in Fee, shall take presently after the first estate for life ended; and if the Devise be to a Monke for life, the remainder to I S in Fee; by this I S shall take presently.

If a man devise his land to a wom [...]n and her brother, and the Dyer 326. heirs of either of their two bodies, and for default of issue of the said woman and her brother, the remainder to the right heires of the Devisor, and after the death o [...] the Devisor, the brother dyeth without issue, and the sister hath issue and dyeth; in this case and by this Devise, her issue shall have a moity and no more of the land.

If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile, and that if the Infant in the wombe of his wife be a sonne, that he shall have the fifth part as co-heire with the four, and if his five sonnes die without issue, that the two parts shall revert, and then the Devisor dyeth, and after a sonne is born, and after he and three of the other sonnes die; in this case and by this Devise, the Infant shall not take any thing, because he is uncapable, and the two parts shall not revert to the heire untill the five sons be dead without issue.

If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged. Co. B. M. 36. 37 Eliz. Brownes case. Fee, and the Mannor of Sale to I D for life, the remainder to such of the children of I S, as shall be then living, and shall have the Mannor of Dale, and the eldest sonne of I S, after the Testators death doth sell the Mannor of Dale, and after I D dyeth; in [Page 436] this case and by this Devise none of the children of I S shall have the Mannor of Dale, but it shall goe to the heires of the Devisor.

If one devise his land to the children of I S, by this devise the children that I S hath at the time of the Devise, or at the most the children that I S hath at the time of the death of the Testator, and not any of them that shall bee borne after his death, shall take.

If one have two daughters by divers women, and devise a moity of Dyer 34 [...]. his land to his wife for seven yeares, and that the elder daughter shall enter into the other moity at her day of marriage, and if his wife be with child of a daughter, that then she shall have an equall portion with the other sister, and the Devisor dyeth, and the wife doth enter and hath not a daughter, and then the elder daughter doth take a husband, and enters upon a moity, the younger daughter dies without issue, and the seven years expire; in this case and by this devise, the collaterall heir of the younger daughter shall have the moity of the whole, and not the moity of a moity only and that by discent.

If a man have issue B C and D sonnes, and he devise his land Curia B. R. Mich. 20. Ia [...]. Next of blood. to D his sonne, the remainder proximo de sanguine, or to the next of blood of the Testator; in this case and by this Devise B shall take after the death of D, as the next of blood. In like manner, if the Testator have four daughters, and he devise his land to the youngest in Taile, the remainder to the next of blood; by this Devise the eldest daughter and not all the rest shall have the land: And if the Testator have issue B his elder sonne and C his younger son, and B have issue D his sonne, and B is attainted and dyeth, and the Testator deviseth his land to I S for life, the remainder to the next of blood of the Testator; by this Devise D and not C shall have the land.

If a man have issue B and C sonnes, and D a daughter, and devise Broo. D [...] scent. Pi [...] 19. 8. A [...]. Pl. 4. his land to C for life, and after that it shall remaine to the next of blood to his children▪ to the next heirs of the blood of his children, and C dyeth and B dyeth without issue, and D hath issue a daughter; in this case and by this Devise, the heires of A shall not take, but the next of blood to the children of A, which is the daughter of D, and his children themselves are excluded, and if the sonnes have any issues living, they shall take with her by this Devise.

If the Testator have issue by A his first wife, three daughters, [...]dged M [...] 20. I [...]c. peri [...]. vers [...]s Pea [...]se, B. R. Joane, Elizabeth and Anne; and by B his second wife, [...]lice and Elizabeth; and by C his third wife, William a sonne, and three daughters, Mary, Katharine and Johan; and he devise his land to Johan his youngest daughter for life, paying 1 [...]s. 4d. to the sonne, and after her death to the sonne and the heirs of his body, and after his death [Page 437] without issue to Elizabeth the daughter of the second wife, and Mary the daughter of the third wife for their lives; the remainder (in Latin) to the next of the blood of the Devisor for ever, and the elder Joan hath issue I P, and dyeth, the sonne dyeth without issue; the younger Joan hath issue and dyeth, Elizabeth of the first wife hath issue and dyeth; Anne dyeth having issue, Alice dyeth without issue, Mary and Elizabeth born of the second wife die without issue, Katherine dyeth without issue; in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue, and of Elizabeth and Mary, and not all or any of the children or their children shall have the land, because proximo in Latin doth devote a person certain; and there be expresse Devises to others: But if in this case the remainder bee limited in generall to the next of blood without any other matter, all the daughters perhaps may have it as Joint-tenants.

If a man have two sonnes and a daughter which hath two daughters, [...]z. Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life, the remainder to his second sonne for life, the remainder in Fee to the next of blood to his sonne; in this case, if the eldest sonne die without issue, the daughter and her daughters shall have the land.

Whatsoever will passe by any words in a Deed, will passe by Secondly, in respect of the thing devised. See in the Exposion of Deeds supra. the same words in a Will, and more also; for a Will is alwayes more favourably interpreted then a Deed; And therefore if a man devise the profits, use, or occupation of land; by this Devise the land it Coo. 8. 94. Plow. 525. selfe is devised.

If a man devise thus, I give all my lands to I S, or I give all my Mevils case. Fitz. Devi [...]e 4. B [...]oo. Done. 41. teneme [...]ts to I S, or I give all my lands and tenements to I S; by this Devise is given, and I S shall have not only all the lands whereof the Devisor is sole seised, but also all the lands whereof he is seised in common or co-parcinery with another, and not only the lands hee hath in possession, but also the lands hee hath in reversion of any estate in Fee-simple; but by this Devise regularly, Leases for years of lands will passe.

If a man devise thus, I give all my land in possession only; by Plow. 66. this Devise there is given the lands he hath in possession only, and none of the lands he hath in reversion.

If a man be seised of land in Fee-simple in Dale, and devise thus, Plow. 343. 544. old N. [...]. 89. Fitz. Devise 17. I give all my lands in Dale to I S, and after Will made and published, he doth purchase other lands in Dale and dyeth; in this case and by this devise I S shall not have the new purchased lands: and in this case it hath beene held further, That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise, that notwithstanding I S shall not have them by this Devise. Trin. 37 Eliz. B. R. Breckford versus Parinco [...]e. And yet it hath been adjudged, That if in this [Page 438] case one come to the Devisor to buy his new purchased land, and he say nay but I S shall have it as the rest, that this is a new publication of the▪ Will, and that I S by this devise shall have these new purchased lands; for a new publication of the Will in these cases will make the land to passe. But if a man devise the Mannor of Dale, and at the time of the devise he hath it not, or devise his lands in Dale, and at the time of the devise he hath no lands there, and afterwards he doth purchase the Mannor of Dale, or lands in Dale; by this devise, and in this case, the Mannor and the new purchased lands will passe; for in this case it shall be intended he meant to purchase it. And yet the Statute enabling a man to devise lands saith, Any person See before. having, &c. Coo. 3. 30.

If one have an ancient Tenement, and lands belonging to it, and Loftis versus Baker. Hill. 20. Ia. B. R. then purchase more lands, and occupy them altogether with the Tenement many years, and being all thus in his occupation, he doth make a devise after this manner, I give my Tenement in Dale, and all my lands belonging to it now in my occupation, to I S. by this devise I S shall have the ancient land onely, and none of the new purchased land; but if there be no ancient land belonging to the Tenement, but new purchased land onely, there perhaps it may be otherwise; for in this case the words cannot else be satisfied. As in case where a man hath some lands in Fee-simple, and other lands for yeares onely in Dale, and he devise all his lands and Tenements in Dale; by this devise the lands he hath for years doth not passe; but if he have no other lands in Dale but these lands, in this case perhaps this land will passe.

If one have a moity of lands in Essex, and a moity of lands in In Mevils case. Kent, and he devise thus, I give my moities, and all my other lands in Kent to I S, it seems by this devise the moities in both Counties do passe, and that I S shall have both the moities.

If a man be seised in Fee, in possession of the moity of a Farm called Plich. 20. 12 [...] Adiudged Scatergoods case. the Farm of C. and of the reversion in Fee of the other moity, expectant on a lease made to A and B for their lives, and he make his Will thus, I will that my wife shall have all my living which I now occupy, untill my son come to 21. years of age, and then I will have her have the thirds of all my living, and that my sonne shall have all my Farm of C to him and his heirs; by this devise if A and B dye before the heire be 21. yeares of age, the wife shall have the thirds of the whole Farm, and not of the moity in possession onely.

If a man be seised of land in a Village, and in two Hamlets of the Dyer [...]65. same Village, and he devise all his lands in that Village, and in one of the Hamlets; by this devise none of his land in the other Hamlet doth passe.

If a man make his Will the first day of May, and thereby give the Plow. 34 [...]. [Page 439] Mannor of Dale to one in Fee, and the tenth of May one of the Tenancies escheat, and the 20. of May the Devisor dyeth; in this case and by this devise, it seems the Devisee shall have the Tenancie that doth escheat.

If one devise his land thus, I give my land in Dale to I S and 3. In respect of the estate and time that is devised. Fee-simple. his heires, or to I S in Fee, or to I S in Fee-simple, or to I S for Litt. Broo. Sect. [...]3. Perk. Sect. 1. 6. Litt. Sect. 586. [...]elw. 4 [...]. Coo. super Litt. 19. 20 H. 6. 35. Litt. B100. Sect. 432. 19. H, 8. 10. ever, or to I S Habendum sibi & suis, or to I S and his Assignes for ever; or thus, I give my land to I S, to give, sell, or do therewith at his pleasure; by all these, and such like devises, a Fee-simple estate is made of the thing devised, and I S shall have the same to him and his heirs for ever. But if land be granted by Deed after this manner, I S by this grant in all these cases, except onely in the Deed. first case, hath onely an estate for life. Fitz Devise 111. And if a man devise his land to I S, and say not how long, nor for what time, by this devise I S hath an estate for life only in the land.

If a man devise his land to I S and his Assignes, without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit. Devise. [for ever] it is said by some, that by this devise I S hath onely an estate for life. T [...]n 2. C. B. R. reply & Daniels case. Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere, and that it is a Fee-simple.

If one devise his land to his wife, to dispose thereof at her will and pleasure, and to give it to one of her sonnes; in this case, and by this devise, she hath a Fee-simple; but it is qualified, for she must convey it to one of her children, and cannot convey it to another.

If one devise his land to I S, paying 10. l. and use no other words, by this devise the Devisee hath the Fee-simple of the land, albeit the 10. l. be not the hundredth part of the worth of the land. Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life, paying 10. l. by this devise I S shall have an estate for life only.

If one devise land of the value of 50. l. per annum to J S for life, the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition.

If one have two sonnes, and he devise his land first to his wife, and Hill. 17. Iac. B. R. adiudged Spice [...]s case. then he saith thus: In like manner, I will that my sonne A. shall have it after my wives death; and if my wife dye before my sonne B, then that my sonne A shall pay to B 3. l. by the year during the life of B, and also 20. l. to W S. by this devise A shall have the Fee-simple of this land.

[...]f one devise his land thus, I will my land to my sonne W, for his life, and after his death to my sonne T, and if my sonne W purchase C [...]ia M▪ 18. [...]ac. B. R. Green ver [...] [...]us Dewell. land as good as that land for my sonne T, then that my sonne W shall sell the land devised to my sonne T as his own, and I will that my sonne W shall pay to his Sisters [...]0. l. by 20. s. a year; in this case, and by this devise W hath a Fee-simple; for power to sell giveth by implication an estate in Fee-simple, and it is paying also, &c.

If one devise land to his wife and her heires, and if the heire put her [Page 440] out that she shall have other land; by this devise she hath the Fee-simple Pasch. 14. Iac. B. R. Curia. of the first land, and is not abridged by the latter words.

If one devise his land thus, I give White Acre to my eldest sonne and his heires for his part: Item, Black Acre to my youngest sonne Trin. 30. Eliz. for his part; by this devise the younger sonne shall have the Fee-simple of Black Acre: So, if I give White Acre to I S, Item, Black Acre to I S and his heires; by this devise I S shall have the Fee-simple of White Acre also.

If one give land to his wife for life, the remainder to his sonne and Perk. Sect. 566. the heires males of his body, and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body; it seems by this devise, that the next heire male of the sonne hath a Fee-simple.

If one devise his land thus, I give my land in Dale to I S, and to his, or [to the] heires males, or heires females of his body, [or of his Coo. super Lit. 21. 26. [...]ee-taile. body begotten] or to I S and his issues male, or his issues female; or to I S and the heires males of his body begotten on M; or to I S and E his wife, and the heires males, or heires females of their two bodies begotten; or to I S and his heires, if he shall have any heires of his body, else that the land shall revert; or to I S and his heires if he have any issue of his body; or to I S and the right heires males of his body; or to I S and his heires, provided that if he dye without heires of his body, that the land shall revert; by all these and such like devises an estate taile is made of the thing devised, and I S the Devisee shall have the same accordingly.

If one devise his land thus, I give my land in Dale to I S et somini Coo. super Litt. 9. Bro [...]. tit▪ taile 21. Coo. super Lit. 20. 6. 1 [...]. suo; by this devise I S hath an estate taile: But if he say, I give my Deed. land in Dale to I S et sanguini suo; it is said by this devise I S hath the Fee-simple of the land▪ If one devise his land to I S [...]t exitibus, vel prol [...]bus de corpore suo; by this devise if I S have no children at the time, it seems he hath an estate taile; but by such a limitation by deed is made onely an estate for life. If one devise his land thus, I give my land in Dale to I S for life, the remainder to I D and E his wife and their children; or to I D and E his wife and their men children; or to I D and E his wife and their issues; by these devises if the husband and wife have no children at the time of the devise, is created an estate taile; and if they have any children at the time of the devise, then hereby is created an estate for all their lives onely in joyntenancie. And if land be devised to A for life, the remainder to B, and the heires of his body, the remainder to I S and his wife, and after to their children; by this devise I S and his wife have estates for their lives onely, and their children after them estates for their lives joyntly: And albeit they have no children at the time, yet every child they shall have after, may take by way of remainder. And so also it seems is the law upon such a limitation by Deed▪ Deed.

[Page 441]

If lands be devised to I S, and his heires males, or his heires females, without saying [of his body;] by this devise I S hath Deed▪ Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile. But if such a limitation be by deed, it is a Fee-simple.

If one have two sonnes, and devise White Acre to his eldest sonne and his heires, and Black acre to his youngest sonne and his heires, Hill 22. Iac. B. R. Daniels case and if either of them dye without issue, then that the other shall be his heire; by this devise either of them hath an estate taile, and no Fee-simple.

If one have land in Kent in W S and T, and have one male child Adiudge. M. 9. Iac. Wallops [...]ase. and a daughter, and his brother hath three children, B, C, and D, and he devise his land thus; Item, I give my land in Kent to my male childe and his heires, and if he dye without heires of his body, that that the land in W shall go to B and his heires. Item, I will my land in S, to C and his heires, and my land in T, to D and his heires; in this case, and by this devise, the male child of the Devisor hath an estate taile in all the lands, and after his death without heires it shall remaine according to the Will; So that if one devise his land to his eldest sonne and his heires, and if he dye without heires of his body, that it shall remain to his youngest sonne and his heires; by this devise, the eldest sonne hath an estate taile, and the youngest sonne the Fee-simple.

If one devise his land to his sonne W, and if he marry and have any issue male begotten of the body of his wife, then that issue to Coo. 9. 127▪ have it; and if he have no issue male, then to others in remainder; by this devise, it seems W hath an estate taile to him and the issues male begotten on the body of his wife.

If one devise White Acre to I S and the heirs of his body, and then after saith thus, and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre; by this devise I D hath an estate tail in Black Acre as I S hath in White Acre. Et sic de similibus Tr. 30. Eli. And if one devise White Acre to I S, and then say; Item, Black Acre to I S and the heires of his body; by this devise he hath an estate taile in both Acres.

If one devise his land to his wife for yeares, the remainder to his younger sonne and his heires, and if either of his two sonnes dye Dyer. 122. without issue, &c. that it shall remaine to his daughter and her heires, and the younger sonne dye in the life time of the Father, and after the Father dyeth; it seemeth by this devise the elder son shall have the land in taile.

If one devise his land to his wife for life, and after to his sonne, Adiudge. Tri. 7. Iac. Co. B. Robinsons case. and if his sonne dye without issue, having no sonne [or having no male] then that it shall goe to another; by this devise the sonne hath an Estate taile to him and the heires males of his body.

[Page 442]

If lands be given to a man and woman unmarried and the heires of their two bodies, or to the husband of A, and wife of B, and the Coo. super▪ Litt. 20. 26. Plow. 35. heires of their two bodies; by these Devises are made estates in Taile.

If a man devise White acre to his three brothers, and Black acre to C his brother, so as he pay 10l. to I S, and otherwise that it shall remain Dyer 333. to the house, provided that the same lands be not sold, but go unto the next of name and blood that are males, if it may be; it seemes that by this devise C hath an estate tail in black acre, and that if he die without issue, it shall go to the three other brothers and their heires males in taile one after another: and that white acre also is so entailed in every of their parts. For the words [shall remaine to the house] shall be construed to the most worthy of the Family, and the words [that are males] shall be construed in the future tense.

If land be devised to I S and the heires of his body, and that if he die, that it shall remain to I D, by this Devise I S hath an estate Adiudg. 14. Eliz. Coo. B. & Trin. 9. Iac. B. R. Taile, and the latter words do not qualify the former, but I D must attend his death without heires of his body before he shall have the land.

If land be devised to I S and the heirs males of his body, and if it Dyer 171. happen that he dye without heire of his body, that it shall go to H and his heires; by this Devise I S hath an estate to him and the heires males of his body, and the subsequent words do not alter nor enlarge the estate.

If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them; by this Devise the Survivor shall have a generall estate Taile.

If land be devised to I S and the heires he shall have by A his wife; by this Devise I S hath a Fee Taile, and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed.

If land be devised to I S and to the heires of the body of such a woman; by this Devise I S hath an estate Taile, and begotten Coo. super Litt. 26. shall be intended begotten by him.

If one devise land to his sonne and his heires, and that if his sonne die within the age of 21 yeares or without issue, that the land shall Adiudg. M. 37. 38 Eliz. Sale versus Ge [...]rard. remain over: and the son dieth within age having issue; in this case and by this Devise the sonne hath an estate Taile, and [or] in this place shall be taken for [and]

If land bee devised to a man and his wife, and to one heire of their body, and the heire of the body of that heire; by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed.

If a man devise his land thus, I give White acre to A my sonne M. 18. Iac. B, R. Gilberts case. and his heires, Black acre to B my sonne and his heires, and Green acre to C my sonne and his heires, provided that if all my said sons die without issue of their bodies, that then all my said lands shall [Page 443] goe to M my wife and her heires; by this Devise they have all of them estates in Taile of their land, and as it seems crosse remainders to either of them of the land of each other.

If one devise his land thus, I give my land in Dale to I S, and if Co [...]. 9. 128. he die without issue male of his body, then that it shall remain over to I D; by this Devise I S hath an estate Taile.

If a man hath issue three sonnes, and devise his land thus, viz. one part to two of his sonnes in Taile, and another part to his third Litt. Broo. Sect. 4 [...]. Broo. Devise 38. Done 44. sonne in Taile, and that neither of them shall sell his part, but that either of them shall be heire to other; in this case and by this Devise either of them hath an estate Taile, and if one of them dye without issue, his part shall not revert to the eldest, but shall remain to the other sonne, for it is an implied remainder.

If there be husband and wife, and they have issue a sonne and a Coo. super Litt. 26. daughter, and the husband die, and land is devised to the wife and the heires of her late husband on her body begotten; in this case, and by this Devise the wife hath only an estate for life, the sonne an estate in Taile, and so also the daughter in case he die without issue.

If one devise to I S, that if he and his heires of his body be not For life, Coo. sup [...]r Litt. 147. 8. 85. paid 20l. rent yearely, he and they shall distraine &c. by this Devise I S hath an estate taile of this rent. But if the Devise be that if I S be not paid 20l. yearly, he shall distrain &c. by this Devise I S hath only an estate for life. So if one devise a rent of 10 l. out of his land to be paid quarterly, and say not how long the rent shall continue: this is but an estate for life.

If one devise his land thus, I give my land in Dale to I S for his life, or to I S [without any more words] or to I S and his Fitz. Devise. 16. Coo. 6. 16. Perk. Sect. 577. heire, in the singular number; or I S and his children, and I S hath children at the time of the Devise; or to I S and his successors, (I S being a naturall person;) by all these and such like Devises I S hath only an estate for life in the thing devised. Mich. 13. Ia. B. R. Dyer sect. 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made, and devise this land to I S, and doth not say for what time; it seemes that by this Devise the whole Terme is devised, unlesse the intent doth appeare to be otherwise. And if one devise land (whereof a man is seised in Fee) to I S, paying 10l. to I D; by this Devise albeit there be no estate expressed, yet I S hath the Fee-simple of the land, in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money. But if the intent of the Testator appeare to be that I S shall have the land but for his life, contra; for there the consideraration will not alter the estate expressed upon the gift.

If land be devised thus, I give my land in Dale to I S and his Deed▪ assignes, [without more words] by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will, as it is [Page 444] upon a Deed. And yet in the New Termes of the Law tit. Devise, the contraray is affirmed, Ideo qu [...]re.

If one devise thus, I will that I S shall have and occupy my land Pasche 9. Iac▪ Newmans case. in Dale, and say not how long; by this Devise I S shall have the land for his life. Dyer 342. But if I devise that I S shall enter into my land, and say no more; by this Devise I S hath no estate at all, but power to enter into the land only.

If a man have a sonne and a daughter and dieth, and lands are Coo. super Litt. 2 [...]. devised to the daughter, and the heires females of the body of the Father; by this Devise the daughter hath only an estate for her life; for there is no such person, for she is not heire.

If one devise his land thus, I give my land in Dale to I S for Coo. 1. 6 [...]. his life, and after to the next right heire of I S in the singular number, and to his right heires for ever; by this devise I S hath only an estate for life. So if one devise land to I S for life, and after to the next heire male of I S, and to the heires males of the body of such next heire male; by this devise I S hath an estate for life only; but if it be thus, I give my land in Dale to I S for his life, and after to the heires, or to the right heires of I S; by these devises I S hath the Fee-simple of the land; And if it be to I S for life, and after to the heires males of I S; by this I S hath an estate Taile.

If one devise land to I S and E his wife, and after their decease, [or the remainder] to their children; by this devise whether they Coo. 6. 16 [...] have, or have not children at the time, I S and E his wife have estates for their lives only.

If one devise a Moity of his land to his wife for life, and the other Curia [...]. Ia. Co. B. Moity to his second sonne, and after by another clause doth devise it all to his sonne after the death of his wife: by this Devise the sonne hath only an estate for life after the wives death, and no more.

If one devise his land to I S in Fee after the death of I B (being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit. Devise Plow. 158. 414. 521. By Implication. his sonne and heire apparant;) by this Devise I B hath an estate for ife by implication, and untill the Devise take effect, the law gives it to him by discent. And so also it seemes the law is where one doth devise his land to I S after the death of his wife: that by this Devise the wife hath an estate for life by implication. And therefore if a man devise thus, I give my goods to my wife, and that after her decease, my s [...]nne and heire shall have the house where the goods are; it is held by this Devise that the wife hath an estate for life in the house by implication; for a man is bound to provide for his own wife. But if a man devise his land to I S after, the death of I W, (a stranger to the Devisor;) it seemes that by this Devise I W hath no estate at all by implication, and that this doth but set forth when the estate of I S shall begin, and that the intent of the Testator is that his heire shall have it untill that time.

If one devise land thus, I give my land in Dale to I S, to the intent Coo. 6. 16. 3. 20. B [...]oo. Estates 78. [Page 445] that with the profits thereof, he shall bring up a child, or to the intent that with the profits thereof, he shall pay to A 10l. or to the intent that he shall out of the profits thereof pay yearly 10l. by these Devises I S hath only an estate for life, albeit the payments to be made be greater then the rent of the land: And therefore, it is not like to the case before, where a summe of money is to be paid presently.

If one devise his land thus, I give my land to Alice my Cosin in Dyer 357. Fee-simple, after her decease to W her sonne (who is her heir apparant;) by this Devise she hath an estate for life first, the remainder to her sonne for his life, the remainder to the heirs of A in Fee-simple: And so also is the Law when the Devise is to any other after that manner.

If my father be tenant for life of land, the remainder to me in Fee, Dver 371. and I devise this land to my wife, rendring for her naturall life 40 [...]. to the right heir of my father; by this Devise my wife hath an estate for life after the death of my father.

If one devise his land unto his Executors, untill his sonne shall F [...]r [...]. come unto 21 yeares of age, the profits to be imployed towards the [...]oo. 3. 20. performance of his Will, and when he shall come to that age, then that his sonne and his heires shall have it; by this Devise the Executors shall have it untill he be 21 yeares of age, and if he die before that time, untill the time he should have been 21 yeares of age if he had lived so long; and [shall] in this case shall be taken for [should.]

If one devise his land to his Executors for the paiment of his debts, and untill his debts be paid; by this Devise the Executors have Coo. super [...]tt. 42. but a chattell and an incertaine interest, and they and their Executors shall hold it untill the debts [...]e paid and no longer.

If one devise his land to I S, and the heires males of his body Coo. 10. in Leonard [...]oveis case, 87. 46. for the term of fifty yeares; it seemes that by this Devise, I S hath but a Lease for so many yeares, if the heires males of his body shall so long continue, and that for want of issue male, the terme of yeares shall end: And in this case, the Executor or Administrator, [...] not the heirs males of I S shall have it after his death.

If one devise his land thus, I give to I S and I D, and their Adiudged Lowe [...] versus C [...]xe. Mich. 37. 38. [...]liz. Co. B. Dyer 25. Lit. B [...]o. Se [...]. 133. L [...]tt. 2 [...]3. Perk. Sect. 170. Dyer 350. heirs, my land in Dale equally; or my land in Dale to be equally Fourthly, in respect of other [...] divided; by these Devises I S and I D shall have and hold the land, not as [...]ointenants, but as Tenants in common, so that the heire and not the servivor shall have his part that first dyeth: And yet in case of such a limitation by Deed, it is otherwise: And if one devise his land to I S and I D, and their heires [without more words;] it seemes that by this Devise they shall take and hold as Joint-tenants. Dyer 326. And yet if one devise land to I S and I D, and the heires of either of their bodies lawfully eng [...]dred; it seemes [Page 446] that by this Devise I S, and I D shall take and hold a [...] Tenants in common and not as Ioint-tenants. Pa [...]che 9. Ia. New mans case. And if one devise his land to I S and I D thus, I will that I S and I D shall have my lands in Dale, and occupy them indifferently to them and their heires.

If one be possessed of a terme of yeares of land, and devise the Hill. [...]3. Ia. B. R. Adiudged. Blandfords case. Devise of g [...]ods and chattels. same to his wife during all the years, and if she die within the years, then to A and B his two sonnes, if they have no issue male; but if they or either of them have issue male, then that it shall goe to First, in respect of the person that shall take by the D [...]vise. the use of those issues male; and she die, and the two sonnes die without issue born, one of their wives being privily with child of a sonne, which after his death is borne; in this case and by this devise this issue male shall have it assoone as he is borne.

If one be possessed of a terme of yeares, and he d [...]vise it to another Coo. 10. 4 [...]. Lampets case Perk▪ Sect. 558. 559. and his heires, or his heirs males; by this Devise the Executors Executors. or Administrators, not the heirs of the Legatee shall have it. And H [...]ire. therefore, if Lessee for years of land devise all his interest therein to his wife if she live so long, and after her death, if any part of the term be to come devise the same to I S his sonne and the heirs of his body; in this case and by this Devise, the Executors and Administrators of I S, not his heires shall have it, at least, so long as he hath any heires of his body: And yet if one possessed of a term of years, devise it to I S, and after his death, that the heir of I S shall have it; in this case I S shall have so many years of the term as he shall live, and the heir of I S and the Executor of that heir shall have the residue of the term.

If one give 10 l. to the children of I S, and at the time of the Swinb. 316. Devise I S hath foure children, and after before the death of the Testator he happen to have two more; in this case and by this Devise, the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have it all.

If one give 10 l. to his Parish Church, and at the time of the Will Swinb. 316. made, hee live in one Parish, and after he doth remove into another Parish, and die there; by this Devise the Parish where he lived before, and not where hee dyed, shall have this 10 l.

If one devise a third part of all his goods and chattels; by this D [...]er. [...]9 [...] 164. Secondly, in respect of the thing. Devise, some say, doth passe and is given no more but a cleare third part after debts and Legacies paid: but it seemes a third part of the whole, is hereby devised out of which the debts must first be paid by Law.

If one devise to another all his goods and chattels, or all his plate, Plow. 343. Swinb. 31 [...]. or all of any other thing in generall; by this Devise doth passe and is given not only all the Testator hath of that thing at the time of the making of the Will, but also all he hath at the time of his death; and not only what he hath in possession, but also what he hath not in [Page 447] possession: But if one devise all his goods, or all his plate &c. in such a place, or in the occupation of I S; by this Devise none other will passe but what are in that place, and in the occupation of I S.

If one have a term of years of a portion of Tithes in Dal [...], and have By the opinion of divers Lawyers. a term of years of land in Dale; and he devise all his lands and tenements in Dale, and all his estate therein to I S; by this Devise the the portion of Tithes doth not passe, for it is neither land, nor tenement: but by Devise of all his heriditaments, perhaps it may passe. Sed Qu [...]re.

If one devise to I S all his goods and chattels; by this devise doth Po [...]tman versus Will [...]s. Pasche. 36 Eliz. Co. B. Coo. super Litt. 118. Swinb. part. 7. c. 10. passe and is given all his estate active and passive, (except land of inheritance and free-hold estates, and such things as depend thereupon,) as Leases for years, Wardships by Tenure in Capite, or by Knights Service, gold, silver, plate, houshold-stuffe, cattell, corn, debts, and the like; and if one devise to I S all his goods, or all his chattels, by either of these is devised as much as by both of them.

If one devise to I S all his moveables; by this Devise doth passe Swinb. 305. 306. 307. all his personall goods, both quick and dead, which either move themselves, as horses, sheep, and the like; or may be moved by another, as plate, houshold-stuffe, corn in the garners and barnes, or in the sheafe &c. Agree H [...]ll. 9. Car. Co. B. also all Bonds and Especialties; and by a Devise of Immovables doth passe Leases, Rents, grasse and the like; but not any of those things that doe passe by the Devise of moveables; but debts will not passe by either of these Devises.

If one devise to another all his houshold-stuffe; hereby doth Swinb. 313. part. 7. c. 10. passe his plate, coaches, tables, stooles, formes, beds, vessels of wood, bras [...]e, pewter, earth, and the like; but not his apparrell, books, weapons, tooles for Artificers, cattell, victuals, corn, plow-geere and the like; by a Devise of all utensils, it is agreed that plate and jewels Dyer 59. doe not passe.

If a man devise to I S one of his horses, or a horse; by this [...]evise Election. Swinb. 302. I S shall have the election, if there be more then one, which horse he will have: but if the devise be thus, I will that my Executor shall deliver to I S one of my horses; in this case, the Executor hath the election, and he may deliver which of them he will.

If one devise thus, I give to I S my corn growing in such a ground Swinb. 94. this next year; or the lambs of my [...]lock this next year; by these Devises the Legatee shall have no more but what doth grow that year: But if he devise so many quarters of corn, or so many lambs; in these cases so much must be paid howsoever.

If one have a Lease for yeares of land, and devise it to I S for life; Thirdly, [...] Coo. 4. 66. Plow. 520. Coo. 7. 23. by this Devise the whole terme is devised, and I S the Devisee shall have the whole terme if he live so long, and yet I S shall not have [Page 448] an estate for life by this Devise; and so also it seemes the Law is upon a Grant by Deed after this manner: And if a man possessed of a Dyer 307▪ terme of years of land devise his term, or his Lease, or the land it D [...]d. selfe by a Devise, in either of these termes the whole terme doth passe.

If a man be possessed of two houses for yeares, and devise them to his wife for her life, if she live sole; the remainder to I S; and if shee Pasche 14. Iac. B. R. Gough & Haywards case. marry, then that she shal have one of them during the rest of the term, [and then addeth these words,] and also, I will that she shall have 20 l. a year out of my other lands; in this case and by this Devise, it seems the Annuity shall continue during the term. Sed Quaere, for the Judges were divided in this point.

If a Legacie be given, and no time is set for the paiment or doing of it, if it be simple, it must be paid and done presently; if it be Plow. 540. Swinb. 354. conditionall, and upon a condition precedent, it must be paid or done the time the condition is first extant: and if there be a time set for the paiment or doing of it, it must be paid or done at the time appointed. See more in Exposition of Deeds, Numb. 15.

Devise of Lands to Executors to sell, to pay debts, Legacies &c. are Coo. super Litt. 236. 112, 113. 15 H. 7. 12. Dyer 177. 219. Kelw. 107, 108. Perk. Sect. 513. 542. Litt. Broo. Sect. 371. Kelw. 40. 45. some of them after one manner, and some after another; for sometimes 9. Devise of lands to Executors or others to sell; or that Executors or others [...]h [...]ll sell or other ewile dispose them: how this shall bee taken, and what sale and disposition shall be good, or not. the Devise is thus, I will that my Executors, or that A B and C my Executors shall sell my land; and sometimes the Devise is thus, I give my land to my Executors to be sold, or to the end that they shall sell it; in the first case, the Executors have only an authority and no interest, and therfore in that case the land doth discend in the interim to the heir of the Devisor, and he shall have the profits of the land untill it be sold; and if it be never sold, he shall ever have the profits of it; and in this case, they may sell it when they will, if they be not hastned therunto by order of Court, and when they doe sell, they must all joyne in the sale by the Common-Law, or otherwise the sale had not been good; and therefore if one or more of them had dyed before the sale, they that had survived or their Executos could never have sold it by this authority; so likewise if any of the Executors had refused the charge of the Will, the land could not have been sold by the rest, unlesse the words of the Will had been, that his Executors or some of them should sell it; for in that case, some of them even by the Common-Law it selfe might have sold, and now also by the Statute of 21 H. 8. cap 4. some of them may sell it without the rest; as if one give his land to A for life, and that after his decease it shall be sold by his Executors, and make foure Executors, and one of them die during the life of A, and then A dyeth; in this case, the other three Executors may sell: So if one give his land in Taile, and that if the Donee die without issue, that the lands shall be sold by his sonnes-in-law; and he have then five sonnes-in-law, and one of them die in the life time [Page 449] of the Donee, and after the Donee die without issue; in this case, the other foure may sell the land, and the sale made thereof is good: [...] And yet if the words of the Will be, That it shall be sold by A B and C his Executors, or his sonnes-in-law; in this case, if one of them die, it cannot be sold by the rest: but in the last case before, where the Devise is, I give my land to my Executors to be sold &c. the Executors have an interest in the land, and an authority about the land also, and therefore in this case, the discent is prevented, and the Executors shall keep it [...]l the sale, neither will any di [...]eisin fine, recovery, or Feoffment by the heir prejudice their interest, but that they may sell it when they will, but they must sell in time convenient, or otherwise the heir may enter and put them out by a condition in Law, that is annexed to the interest, or perhaps the heir may tender to them the worth of the land, and if they refuse to accept it, he may enter upon them and out them: and it seemes in this case, the meane profits untill the sale is no Assets, but Ass [...] the money made upon the sale shall be Assets in their hand: and in this case, albeit one or more of the Executors die or refuse, yet the rest may sell it, even by the Common-Law it selfe, and so also by construction upon the same Statute, for the estate surviveth. But it seemes they not may sell to him that doth refuse; neither may they in either case transferre their power to sell to any other, nor keep the land themselves and pay so much of their own money as the land is worth.

If one deviseth by his Will, that his land shall be sold to pay his debts, and say not by whom; in this case it shall be sold by his Pe [...]k. Sect. 5 [...]7. D [...]er [...]. 2 [...]. Executors: and if one devise all his land except one Acre which he doth appoint to pay his debts; by this Devise his Executors or the survivor of them may sell it: but if one say by his Will that I S shall have [...]am gubernationem puerorum meorum quam the disposing letting and setting of my lands; by this Devise I S hath not power given to him to sell the land.

If one devise that his land shall be sold after the death of his wife by his Executors with the assent of I S, and make his wife and Dyer. 219. a stranger his Executors and die, and after I S die; in this case, the land cannot be sold, for the authority is determined.

If one devise that his Executors shall sell the land, and with Dyer 15 [...] 152. the money comming or made of it, shall pay such and such Legacies or sums of m [...]ney, in particular to such and such persons by name; this is not a Legacie for which a Suit lyeth in a Court Christian, but for this, every one that is to have portion may have accompt against the Executors after the sale.

If one give lands to another, to give them againe to the children of the Testator, or to dispose them at the Will of the Devisees to Trin. 2. Car. B. R. some of the children of the Devisor; in these cases, the Devisees [Page 450] must dispose it accordingly, and cannot give it to any other: And if Coo. 6. 16. one give lands to others, to the intent that with the profits thereof they shall educate children, or pay such sums of money, or the &c. in this case, the Devisees must doe accordingly, or they may bee compelled thereunto.

And in all cases of Devises of lands to Executors to sell, it is Coo. super Lit. 112. 113. wisdome to make it certaine: i. e. that the Executors or the survivor of them, or such or so many of them as take upon them the probate of the Will (if his meaning be so) shall sell it: And it is better to give an Authority, then an estate, unlesse his meaning be that they shall take the profits of the land untill the sale; and if he doe so, then it is necessary that he appoint that the meane profits untill the sale shall be Assets in their hands; for otherwise it shall not be so.

The same words that in a Deed will make a condition, and D [...]er 33. 3 [...] 126. Coo. super Lit [...] 236. S. [...] condition. [...] Devise upon condition, and what words in a Wil shall be construed in the sense of a condition, and what not. the thing granted thereby to be conditionall, will make a condition in a Will, an [...] the thing given thereby to be conditionall: And therefore these words, Provided on condition, So that, If, and the like will make a condition in a Will: So that if one devise land to I S on condition, or So that, or If, or provided that he doe bring up his eldest sonne, or pay his wife 20 l. a yeare for her life, or the like; by these Devises, the estate is made conditionall: Also other words that being used in a Deed will not make a condition, yet being used in a Will make a condition, and the estate made by the Devise to be conditionall: And therefore, if a man devise his land to his Executors to be sold; or devise his land to them, or others to pay 20 l. to I S, or paying 20 l. to I S; in these cases and by these Devises, the estates are made conditionall: and of these conditions Dyer 33. 34 [...] 126, 128. regularly the heire, and not a stranger shall take advantage So as if one devise land to another, and his heirs, provided that [...]e pay 10l. to I S, otherwise that the land shall remaine to I D, and his h [...]i [...]s; in this case, if the Devisee doe not pay the money, I D shall not take advantage of it, nor have the land according to the Devise, but the heir of the Devisor shall enter and have the land and put out the Devisee. And if one devise his land to I S for life, on condition to pay 20 l. to I D, and after to I D in Taile; in this ca [...], if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S, and that I D shall not have it till then.

And in cases of Devises of goods or chattels, other words will Swinb. 136 make a Devise conditionall in divers cases, as [when] as, I give to to I S 10 l. when he shall be married; and [whiles] as, I give to I S [...]0 [...]. whiles he shall abide with my children, which is as much as if he abide with my children; and [which] as, I give him [...], which shall marry my daughter; and the ablative Case absolute, [Page 451] as, my sonne being dead, I give to I S 20 l. And of all these conditions regularly, the Executor and no other shall take advantage. But if the condition bee such, for the matter and substance of it, as is impossible, unlawfull, or the like; there perhaps these words may not make a condition, nor the thing devised conditionall, but rather make the whole sentence void. Whereof read Swinb. part. 4. Sect. 5. at large.

If one devise his land to his daughter and heir apparant in Fee-simple, 11. Where a Devise void or voidable in his exception, may become good by matter ex post facto, or not. [...]itz. tit. As [...]se 27. this Devise is void; yet if in this case, the wife of the Devisor be privily with child of a sonne which is born after his death, now is the Devise become good, for now shee is not heir to her father.

If a woman that hath a husband, devise her land by Will during Plow. 344. the Coverture, and after her husbands death when she is sole, she do publish and approve it; in this case and by this meanes the Devise is become good: but if she make and publish it during the Coverture, and after her husband die and she become sole, this accident without any more will not make the devise good; the same Law is of the Devise of good and chattels.

If an Infant within age devise his lands or goods and publish his Plow. 344. Will, and after he comes to bee of full age, he doth publish and approve it againe; in this case and by this meanes, the Devise is become good: but if the Infant live to be of full age, and doe not publish and approve it, contr [...].

If a Legacy of goods or chattels be given on condition to a man Swinb. 340. uncapable, and before the condition is extant, he doth become capable; in this case and by this meanes, the Devise is become good. See before, at Numb. 6. more of this matter.

A Devise that hath a good beginning, is sometimes avoided and 12. Where [...] Devise good in his inception, shall, or may become void by matter ex post facto, or not. Li [...]. 16 [...]. Coo super [...]. 112. Plow. 540. 541. Coo. 8. [...] 33. overthrown by subsequent matter in the same Will, and sometimes by subsequent matter in another Will, and sometimes by some other accident ex post facto: For if a man make a subsequent or latter Devise, either in the same or in another Will, so contrary and repugnant to the former, that both cannot stand together, this doth overthrow t [...]e former: And therefore, if a man doe give White Acre to I S in Fee, or his white horse to I S, and after by the same or another Will, doth give White Acre to I D in Fee, or his white By a subsequent repugnant Will. horse to I D; these latter Devises do [...] overthrow the former, cum duo in [...]r se pugnantia reperiuntur in testamento, ultimum ratum est: And as a latter Will doth overthrow the fo [...]mer, so the latter part of a Will doth overthrow the former part of the same Will: But if the Devisees be such as they may stand both together, and are not directly repugnant, nor do [...] fight one against another, there the latter shall not overthrow the former, but both shall be received: And therefore, if one devise his land to I S, and his heires, and See before. [Page 452] after by the same Will devise a Rent out of the same land to I D and his heires, or è contra. So if one devise White acre to A for life, and afterwards give the same acre to B in Fee; in this case the one may have it for his life, and the other may have the Fee-simple afterwards.

If one devise his land to his sonne and heire in Fee-simple: or Plow. [...]. Perk. Sect. 569. Litt. B [...]. 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised. in Fee-simple, and the heire after the death of the Devisor doth (as he may) waive the estate given him by the Devise, and claime the the land by discent; in this case and by this meanes the Devise is become void. But if the Devise be to the sonne and heire in Taile, the remainder to a stranger, there he cannot waive the Devise and take it in any other manner. And so if a man have only two daughters, (who are his heire) and he devise his land to them; or have Gavelkind land, and d [...]vise it to all his sonnes: they may not waive these Devises and take by discent, for by Devise they shall take as [...]ointenants, who otherwise by discent shall take as Parciners.

If one devise his land to another in Fee simple, Fee taile, for life, Litt. [...]. Sect. 482. Perk. Sect. 569. Dye [...] 6 [...]. Coo. 9▪ 140. Plo [...] 543. [...]4 [...] [...]r yeares, and the Devisee after the death of the Testator doth refuse and waive the estate devised to him; in this case and by this meanes the Devise is become void. And it seemes a verball waiver is sufficient in this case. So if one give goods or chattels to another, and the Devisee refuse it; by this meanes the Devise is become void, and any waiver or refusall will suffice in this case; for a man shall not bee compelled Nolens volens to take a thing devised to him

If a woman sole devise her lands or goods by Will, and after take Plow▪ 34 [...] a husband and die during the Coverture; by this meanes the Devise is become void. And yet if she survive her husband, and die unmarried, now is the Devise become good againe.

If one devise his land to I S and his heires, and afterwards I S Plow. 60 34 [...]. 34 [...]. 34 [...]. die living the Testator; by this meanes the Devise is become voyd. And in this case no verball declaration of the Testator▪ that the heires of I S shall have it will help; for albeit a Devise of land in writing may be revoked by a verball subsequent declaration, or by any act crossing or controlling that Devise, yet a Devise becomming vold by that meanes cannot be made good by any such verball dec [...]aratio [...] subsequent to the same Countermaund. So if one give any goods or chattels to I S, and he die before the Testator; in this case and Se [...] [...] Numb. 14. by this meanes the Devise is become void, and the Executor of I [...]. shall not have it. And yet if a Devise be of land to A for life, the remainder to B in Taile, and A die before the Testator; it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding.

And if one devise land or goods to the wife of [...] S. and afterwards her husband die [...]n, and she marry with another man, and then Plow. 3 [...]. [Page 453] the Devisor dieth; this is a good devise notwithstanding, and not avoided by either of these Accidents,

If one devise a Terme that he hath to A for life, the remainder to such persons as shall be occupiers of White Acre at the death of A; Per Iustice Iones M. 9. Iac, Co. B. this Devise albeit in his beginning it be good, yet if the Devisor die before A, it seemes now to become void; for he that will take by way of Executory devise, must take as an immediate purchasor, and be capable and knowne at the time of the death of the Testator.

If I give to I S 20l if he marry my daughter, and she dye before he marry her; in this case and by this meanes the Legacy is become Swinb. 356. void.

If I give a debt owing to me to I S, and afterwards I receive Perk. Sect. or release the debt; hereby the devise is become void.

If a man make a Will and give Legacies, and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors, and he, or they after his death all refuse to take upon them the Administration: yet in this case the Legacies remaine good, and are not become void: And in this case the course is to grant the Administration of the goods to him to whom it doth belong, and to annex the Will to the Administration, and then the Administrator is to performe the Will as the Executor ought to do.

It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given: whereof read Swinb. part. 7. Sect. 22.

And when the thing devised is dead, or spoiled: howsoever by Swinb. 357. this meane [...] the Devise is not become void, yet it looseth his effect. and is as if it were void. See more supra at Numb. 5.

In all these cases when the disposition of the Legacy is pure, and [...]. Where a Legacy shall goe to the Executor when the Legate [...] d [...]th die, before he d [...]th receive it; And where [...]. no time is set for the performing of it; or there is a set time for Swinb. 350. [...]55. 35 [...]. the doing of it, and the Legatee die before the time: and where the disposition of the Legacy is conditionall, and a time set for the doing of it, if the Legatee live till that time, or the condition be performed; in all these cases the Executor or Administrator of the Legatee shall have the Legacy, and the same remedy to recover it that the Legatee himselfe had. But if the Legatee die before the condition be performed, contra; And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it: or the condition be to be performed by another, and there be no default in the Legatee: or if the disposition be modall: or the Legacy that was at first upon condition, be afterwards repeated without condition, or it be referred to a condition to be afterwards set downe, and none is set downe; in these cases the Legacy is not lost by the death of the Legatee, but shall go to his Executor or Administrator: as for Example; If one devise 20l. to [Page 454] W S to be paid within 4 yeares after the death of the Testator, and Broo. Devise 27. 45. Swinb. 350. 355. Dyer 59. Swinb. 358. 356. [...]low. 345. the Legatee die before the 4 yeares expired; in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy. If one give to W S 20l. when he cometh to 21 yeares of age, and he die before he come to the age of 21 yeares; in this case his Executor shall not have the Legacy. But if the Devise be thus, I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares, and he die before he come to the age of 21 yeares; in this case his Executor shall recover the Legacy. So i [...] one give to I S 20l. when he shall be married, and he die before marriage; in this case his Executor shall not have it. But if one devise thus, I give to W S 20l. towards his marriage, and he dye unmarried, in this case the Executor shall have and recover the Legacy. So if one do give to W S 20l. when the Executor of the Testator shall dye; in this case if W S die before the Executor, the Executor or Administrator of W S shall not have the Legacy. If one devise goods or chattels to I S, and I [...] die before the Testator, the Executor or Administrator of I S shall not have this Legacy.

When any chattell reall or personall is given to an Executor by a Plow. 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will, the Executor hath an election given him by the Law to have 14. Where an Executor upon a De [...]i [...]e to him hath an Election to have the thing devised as Executor, or as Lega [...]ee. And when he shall have it in the one righ [...] or i [...] the other, and what act shall make a declaration of his Election. and take it in the one right or in the other, viz. as Executor, or as Legatee: and by his speciall entry, or seising of the thing, or some speciall declaration his election is to be made. And if the Executor doe enter generally (as most doe) and never make any declaration which way▪ or by which right he will have it, (as most Executors use to do) he shall be said to have it, and the Law shall Adjudge it in him as Executor and not as Legatee. But if by any subsequent words or deeds he shall declare his mind to be otherwi [...]e he shall be in as a Legatee ab initio; And yet if once he doe any such act as is proper to an Executor, this is a disagreement to the Legacy ab initio; and after that it seems he cannot take as Legatee, but must take as Executor. And if one Executor of many to whom a terme of yeares of land is devised, occupy the same alone, and the rest intermedd [...]e not with the profits thereof, albeit he make no declaration, it is said this is a good declaration of his election to have it as Legatee. But if a terme of yeares be given to the wife of I S, and I S be made Executor, and he enter generally, and after makes his Testament and never speakes of this terme; this is [...] declaration of his Election to have it as Legatee, neither shall the terme be so deemed in him but as Executor. But in these cases this must be heeded, that howsoever the Executor hath power to take as Executor or as Legatee, yet he cannot take as Legatee to prejudice Creditors in their debts▪ but the same things they so take as a Legacy, if there be not Assets▪ enough besides, shall be said to be Assets in their hands as to the Creditor for the satisfaction and paiment of their debts.

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If a man devise that after his Debts and Legacies paid, his wife shall have all the residue of his goods and chattels to distribute for Dyer 331. his Sarle &c. and make his wife his Executor; in this case it is said she hath no election, but she must take as Executor, and cannot take as Legatee.

When a Devise of goods or chattels is well made, the assent of 1 [...] Assent Quid. the Executor is necessary to the perfection thereof, for untill then the Legatee may not have or meddle with the thing devised. And this Assent is defined to be the agrement of an Executor or Administrator, Coo. 10. [...]7. 52. that a Legatee shall have the thing bequeathed unto him. And it is either expresse, i. e. when the Executor or Administrator doth by expresse words agree to the Devise. Or implied, i. e. when the Executor doth not by words, but by some over [...] act declare his assent that the Legatee shall have the thing devised unto him.

This agreement of the Executor or Administrator is not needfull in the case of Devise of land; for if a man be seised of land 16. Where a [...] Assent is necessary, or not. And where a man may enter into the lands, or take the goods or chattels devised unto him without the assent or delivery of the Executor. And what shall be said a sufficien [...] Assent to execu [...]e a Legacy or not. in Fee-simple, and deviseth to another in Fee-simple, Fee-taile, Coo. super Litt. 111. Perk. Sect. 576. 578. 579. Swinb. 134. 135. for terme of life, or yeares; in these cases the Devisee may enter into the land devised without any leave of the Executor or Administrator: and in truth in these cases the Free-hold or estate is said to be in the Devisee before his entry: and therefore if the heire enter first, the Devisee may enter upon him, and put him out. And in case where land is devised by the custome of a place, if the heire enter first and keep the Devisee out, the Devisee may have a writ of Ex gravi querela against him for his relief: and this writ is incident to that custome. But if a Devisee enter first into the land devised unto him, and then the heire of the Devisor enter upo [...] him, then the Devisee may take his remedy at the Common law as in other cases. And with these things the Ordinary, Executor or Administrator is not to intermeddle. But regularly a devisee cannot nor may not have or take any chattel real or personall Perk. Sect. 570. Coo. super Litt. 211. Plow. 525. 20. Ed. 4. 9▪ devised to him without the agreement or delivery of the Executor or Administrator. And by this assent if the Devise be good (for otherwise an assent will not make it good) the Devise is perfected, and the Legacy executed. And yet if the Legatee have the thing devised in his own hands; or if there be a speciall clause in the Will Swinb. 353. Broo. tit. devise 6. 30. giving him authority to take it himselfe; or it be a Legacy to good and godly uses; or the thing given be like to perish on the ground, being corne or the like, and there be assets besides to pay all the debts; in these cases perhaps the Assent of the Executor or Administrator may not be necessary, but the Legatee may take the thing devised without his agreement. And if a Legacy be given to one of the Executors themselves, he may take it without any assent of his Perk. Sect. 5 [...]. Co-executors, and that before Administration also if he will.

If there be many Executors, the assent of any one of them is sufficient; [Page 456] and if there be but one and he be dead, the assent of his executor is sufficient; or if he die intestate, the assent of the Administrator de bonis non administratis of the first Testator is sufficient; or the Legatee himselfe in this case where the Executor dieth intestate, or where he doth refuse to take upon him the Administration, may take Administration himselfe, and by publique declaration assent to his own Legacy. And if a man be Executor and Legatee both, he may assent to, and take the Legacy, and yet waive the Executorship, and this assent is good. And therefore if the Legatee of a term of years be made Executor, and he enter and claim and occupy the land Dyer 372, 367. by force of the Devise, and dye before Probate of the Will: the Executor of the Legatee, and not the Ordinary shall have this term; and, yet it seems the Executor may not do this in prejudice of a Creditor to hinder him of his debt.

Any agreement in word or deed will suffice to make a [...] assent and Coo. 4. 2 [...]. execute a Devise. Let Executors take h [...]ed therefore; for if an Executor A C [...]v [...]a [...] for Executors. do but agree that the Legatee of a term of years of land shall take the profits thereof, and that but for a time only; or say to the Legatee, God send you joy of it: or I intend you shall have it according to the Devise, or the like; this is a good assent to execute the Legacy. And if the Executor agree that the Legatee and a [...]anger together shall take the profits of the land, or the thing devised; this is a good assent. And it seemes that whatsoever verball agreement will amount to an Atturnment, may make an assent to a Legacy. See Atturnment. If therefore the Executor agree to the Legacy upon certain Termes and conditions; this is agreed to be a good and absolute assent Per 2 Iustices M. 37. 38. Eliz. B. R. Coo. 4 28 to the Legacy.

If a terme of years be given to the wife of the Testator, during the minority of his eldest sonne, to the intent that she with the profits Plow. 5 [...]0. thereof shall breed up his children, the remainder of the [...]ame term to the same eldest sonne, and she is made Executrix, and she ent [...]r generally, but doth alwaies breed the children of the Testator; in thi [...] case it seems that this education of the children shall be taken for an assent against her to vest the estate in the eldest sonne. And if a man possessed of a term of years give it to his wife, if she Plow 516. Perk Sect. 57 [...]. live so long, and after her decease the remainder of years to I S, and make his wife Executrix, and she enter, claiming to have it only for her life, the remainder to I S according to the Devise; in this case this is a good assent for the execution of the remnant of the term in I S. And if a term be devised to A for life, the remainder to B, and the Executor assent to the Devise of A; in this case Coo. 8. 95. 4 [...]6. 10. 47 Perk. Sect. 574. this is a good assent to the devise of B, and shall execute the s [...]me also whether the Executor have assets or not. So if a man possessed of a term of 20 yeares, devise it one for 10 yeares. and after to another for the remnant of the term; or if the Devise be to one for so [Page 457] many years of the term as he shall live, and after to another for the rest of the time: in all these cases an assent to the first Devisee is an assent to the second also. And so also it seems is the Law of a chattell personall when the occupa [...]ion thereof is first devised to one, 37 H. 6. 30. and then the thing to another. And if one that hath a term of years give it to his wife for her life, the remainder to his sonne, and make Plow. 519. 54 [...]. Coo. 3. 96. 10. 47. her Executrix: and she enter claiming by force of the Devise, and not as Executrix; in this case this is a good assent to execute the Devise to him in remainder.

If one be possessed of a term of years of land, and he devise it to Perk. Sect. 574. 75. [...]. Devise 6. one of hi [...] Executors alone for part of the time, and the remainder of the time a [...]ter to a stranger: and that [...]xecutor alone albeit [...]e enter generally doth occupy the land himself, and the other Executors do not intermeddle therewith; in this case it seemes this is a good assent to execute the Legacy to him in remainder for the rest of the terme. And yet if one give goods to one of his Executors for life▪ and after to a stranger for life, and this Executor alone get the goods into his own hands, and occupy them alone all his life time; it seems this occupation without some assent, will not execute the gift in the second Legatee,

If one possessed of a Lease for yeares, devise it to his Executors, and devise a rent out of it to I S, and the Executors pay the rent; Plow. 540. 544. Coo. 8. 96. Plow. 541. 542. 5 [...]. this is a good assent to the whole Legacy. But if he devise a rent, or Common out of it for certaine years to I S, and after devise the term to I D; and the Executor doth agree that I S shall put in his cattell, or doth pay the rent to I S (which is a good assent to the Legacy of I S;) this is no assent nor execution of the Legacy of I D; And yet perhaps if he devise a rent at first to I D for part of the term, and another rent to I S for the residue of the terme afterwards; in this case it seems that an assent to the first is not sufficient to perfect the Devise of the second Legatee. And yet if a Termo [...] devise the occuaption or profits of his land to I S for 10 yeares of his [...]erme, and after devise the land it self to I D for the rest of the term; in this case if the Executor assent to the Legacy of I S, this will be a good assent to, and execution of the Legacy of I D.

If one possessed of a term devise it to I S for life, the remainder to Coo. 10. 52 I W, and make I S his Executor, and I S take a release from I W of all his right to the land; this is an implicite assent to the Legacy of I W.

If a man devise the occupation of a book or any other chattell personall to I S, or that I S shall have the occupation of any such like Old N. B. 80. 37 H. 6▪ 30. thing during his life, and that after his decease it shall goe to I D for ever, and the Executor deliver the thing to I S; it seemes this is a good execution of the Legacy to the second Devisee I D; and [Page 458] therefore after the death of I S he may seise the goods and hold them according to the Devise.

If lands, or any rent, or other profit to be taken out of lands, be Perk. Sect. 576. 597. [...]7 [...]. 579. Coo. super Li [...]. [...]. devised to a man in Fee-simple, Fee tail, for life, or years; in these [...]7. How a Devisee may attaine the thing devised. And what remedy he shall have to recoverit, or damages for it. cases the Devisee may enter into, and have and take the thing devised without the leave or agreement of the Executor or Administrator: and so he may whether there be any Executor made or not, and whether the Will be proved or not, for the Ordinary and the Executor have nothing to doe with these things. And if the Devisee in any such case be disturbed in the having or taking of such things, he may have the same remedy as men have in other cases. And where the land is devised by custome, if the heire enter before the Devisee, the Devisee may be relieved by a Writ called Ex gravi Querela; but if the Devisee enter first, and then the heire enter upon him, the Devisee may have his remedy at the Common-law.

If lands are given thus, I will that my executors shall sell my Trin. 9. [...] Love [...]s ca [...] Dyer 151. 152. land, and with the mony made thereof shall pay 10l. to my daughter A, and 10l. to my daughter B; in this case and for this gift A and B may either sue the executors in a Court of equity, or have an action of Accompt against them in a Court of Common law.

If Lessee for years devise his term to executors for life, the remainder Dyer 27 [...]. over to I S for the rest of the term: and the executor entreth and doth assent to the Legacy and dye, and the executor of the executor doth take the profits of the land, and keep out the second Legatee; in this case it seemes he may have an Accompt against the executor of the executor for the profits of the land. But T [...]in. 9 [...]a. Lovers case if one devise his land to his sonne and his heires (except 20l. a yeare for seven yeares to be imployed as followeth) and doth appoint his sonne (being his executor also) to pay that money to his daughters for portions; in this case the daughters may not have an Accompt at the Common-law, but they they may sue the executors in the Spirituall Court or in a Court of equity, and if the executor be dead, they may sue his executor.

If one devise a rent out of his land, and do charge the land with Dyer 34 [...]. a distresse: the Devisee may make use of that remedy and distrain or the rent: but unlesse power be given him by the Will to distrain, he may not distrain for it.

If one be possessed of a term of years of land, and devise it to his wife Plow. 545. to the end that she with the profits thereof shal breed up his children; in this case this is no Legacy to them, and therefore it seemes they have no remedy but in Chancery or some other Court of equity against her if she refuse to do it. Fitz. Devise 6. Plow. 540. Perk. Sect. 57 [...]. 483. 20. Ed. 4. [...] Swinb. 13 [...].

And in cases of Devises of goods and chattels, as Leases for years, rents out of such Leases, and the like, the Legatee cannot take the [Page 459] thing devised before he have the Assent of the Executor or Administrator thereunto: And therefore, if in these cases the Executor or Administrator refuse to agree to, performe, and deliver the Legacy, the Legatee may sue him in the Spirituall Court, or in some Court of Equity to compell him thereunto: But a Legatee may not sue for a Legacy in any of the Courts of Common-Law, neither may hee sue the Executor or Administrator in the Spirituall Court for the Legacy untill the Will be proved: but he may by Suit there compell him to prove the Will or to refuse the Administration: And in these Courts and by th [...]se meanes, the Devisee may recover his Legacy against an Executor or Administrator, if he have Assets to pay the debts of the Testator; for otherwise a Legacy is not recoverable at all; but in case where the Executor or Administrator hath once agreed to the Legacy, so as it is executed, it is then so vested in the Legatee, and he hath such a property therein, that he may enter into, or seise and take the thing devised as his own, and if any man keep or take it from him, he may have reliefe as in other cases.

If another doth claime by Deed of gift the goods a Legatee [...]7 H. 6. 9. doth sue for; this may bee tryed in the Ecclesiasticall Court.

If a debt, obligation, or any such like thing in action be devised Perk. Sect. 527. Swinb. to another, the Devisee hath no meanes to recover it, but by a Suit in the Spirituall Court, or in some Court of Equity, to compell the Executor to sue for it himselfe, or to make the Legatee a Letter of Atturney, to sue for it in the Executors name; for the Legatee cannot sue for it in his own name, unlesse he be made Executor as to that debt &c. (which is the best course in these cases:) and yet if the Legatee have the Bond or Especialty in his hands, he may deliver it up or cancell it.

If a man devise a term of years of land to I S, and make another Plow. 543. 5 [...]5. And of this opinion were S [...] [...] [...]tor, and S [...]r [...] Bridge [...], upon deliberate advise. his Executor, and the Executor having enough besides to pay the debts doth sell this term; in this case, albeit the sale be good, and I S have no remedy nor meanes to recover the term, yet he may sue the Executor for it, and recover the worth of it in damages in a Court of Equity.

And now having done with the first part of a Testament, viz. a Devise; we come to that which doth concern the second par [...], viz. an Executor. See before at Nu [...]. 4. pa [...]t. 1.

Any person that may make a Testament, and devise his goods 18. what person may make o [...] appoint an Executor, and what not, and how▪ and chattels, may make an Executor. Fitz. Executor, 28 husband, as to the goods and chattels shee hath as Execu [...]rix to another, and as to her own goods and things in action, viz. debts due unto her upon Obligations, and Especialties made to her alone befo [...] or af [...]er her marriage, may make an Executor. Sw [...]b. [...]87. Dve [...] 4. Broo. Executo [...] 155. 1 H. [...]. [...]. Litt. Broo. Sect. 180. 3 H. 6. 7. Swinb. 200. 19 [...]. And he that [...] make an Executor, may make either one, two three, or more his Executors at his pleasure. And he may if he will make one man [Page 460] his Executor for one yeare, another man his Executor for another yeare; or one man his Executor untill such a time, and then another his Executor; As one may make A and B his Executors, and that B shall not meddle during the life of A. And a man may make one man Executor for one part of his estate, and another man his Executor for the other part of his estate; or one may make one man Executor as to part of his estate, and die intestate, as to the residue of his estate: Also a man may appoint one to be his Executor, if he will accept it, and if he refuse that, another shall be his Executor. And lastly, a man may make another his Executor upon condition, viz. so as he give Bond to such and such men to performe his Will, or the like: And all these nominations and appointments of Executor are good.

Any person that may be a Legatee, and take by the Devise of [...]9. What person may bee made or appointed an Executor, and what not, and by what name. goods and chattels, may be an Executor: And therefore it is said, See at Num. 4. pa [...]t. 2. Numb. 7. Swinb. 222. Fitz. Executors 47. [...]7. Devise 3. That any person or persons, male or female, of the Clergy, or Laity, children or strangers, friends or enemies, marryed or unmarryed, creditor or debtor, bond or free, may be an Executor. Pitz. Executor, [...], 88. Non-ability, 18. Broo. Non-ability, 38. And that a Bastard, an Excommunicate, or an Out-lawed person, may be as able and as absosule an Executor as any other. Coo. 6. 67. And an Infant or child in utero matris may be an Executor, but he cannot meddle with the Administration of the goods untill he bee of the age of 17 years, and therefore the Ordinary must grant the Administration unto some other untill that time in trust, and for the benefit of the Infant. Fitz. Executor 24. And a woman that hath a husband, may be an Executrix Husband and wife. to any other person. Fitz. Executor 24. Broo. Consultation, 5. Also a woman may bee Executrix to her own husband, and the husband may be Executor to his own wife, and by this meanes hee may recover all the debts due to her upon Obligations, Recognisances, and the like, made to her before or after the marriage; all which the husband shall not have but by Executorship or an Administration of her goods and chattels. And all these persons that may be Executors, may be Executors by that name See before at Numb. 7. Sw [...]b 29 [...]. as they may be Devisees: And yet if there be two of one name, and the Testator make one of that name his Executor, and doth not say, neither can it be discerned which of them he doth intend, in this case, neither of them shall bee Executor.

But it is said, that an Heretick, Aposta [...]e, Traitor, Felon, Recu [...]ant Swinb. 2 [...]. 223. Coo. 9. 39. convict, Sodomite, Libeller, Bastard begotten in Incest, or a notorious Usurer cannot be an Executor: And that if a man be for any of these causes uncapable at the time of the death of the Testator, when the Executor is to take upon him the Executorship, that hee is for ever uncapable; but it hath beene held [...]roo. Non-ability 18. Fitz. Excomengment, [...]3. by the Common-Law, that a person attaint, may bee an Executor.

[Page 461]

The most apt and proper words whereby to constitute an Executor, 20. By what words a man may be made an Executor, and what words in a Testament shall make a man full Executor, or not, but a Coadjutor or Supravisor; and who shall be an Executor by such words. Swinb. part. 4. Sect. 17. [...]8, 1 [...]. Dyer [...]. 19 H. 8. 8. 21 H. 6. 6. Fit [...]. Executor 43. [...]roo. Executor, 98. 73. Fitz. Executors, 113. 121. Briefe 999. are, I make I S my Executor, or, I make I S the Executor of my Will &c. But an Executor may be constituted by other words equivalent or by implication: And therefore, if a man say in his Will, I will that I S shall be my generall Administrator, or I will that I S shall administer all my goods, or I will that I S shall dispose all my goods and chattels, or I commit all my goods to I S, or I commit all my goods to the disposition of I S, or I make I S Lord of all my goods, or I make I S Legatary of all my goods, or I leave all my goods to I S, or I give all my goods to I S, and make no other Executor; in all these cases, I S by intendment of Law is made Executor of all the goods and chattels of the deceased: So if a man say, Of all my goods I make I S, and say no more, but omit the word [Executor,] by these words I S is made Executor: So if one say, I will that I S shall dispose all the goods that are in his hands, by these words I S as to those goods is made Executor: So if I deliver goods to I S to keep untill my death, and then to distribute ad pios usus, or for my soule, hereby I S shall be my Executor if I D will not; by this I D is made Executor in the first place by implication, and if he refuse, then I S shall be Executor. But if a man make A and B his Executors, and say, I will that I S shall be a Coadjutor, or helper to A and B ad distribuendum or ad administrandum bona mea; or I will that I S shall be Surveyor, or Supravisor of my Will; in these cases and by these words, I S is not made Executor with A and B. And yet if he say, I will that I S shall have Administration of my goods, or bee Executor with A and B, or be Administrator with A and B; in these cases and by these words, I S is made joynt Executor with A and B. And if one supposing I S to be dead, say, I will that I D shall be my Executor because I S is dead, in this case and by these words▪ I S if he be living is made Executor first; and if he refuse, I D shall be Executor: If one make A B and C his Executors, and [...]. 6. 6, 7. then saith afterwards: And I will that B shall administer my goods alone, or that B only shall administer my goods; it seemes in these cases, B only is made Executor, and that A and C are not made joint Executors with him.

In all Cases where a man hath any goods or chattels to administer, [...]. Where and in what [...]ase an Administ [...]ation is grantable, o [...] [...] And to whom it doth belong to [...] [...] to whom [...] must [...]. Coo. 9. [...]. Plow. 276. Doct. & Stud 78. 132. Dyer 236. [...] H. 7. 13. and he doth die a naturall or civill death, and dyeth in [...]estate, either in deed i. e. doth make no Will at all, nor appoint any Executor, or in Law; i. e. that doth make one or more his Executor or Executors, and he or they so appointed, is, or are such persons, as are not in being; or if they be in being, is, or are so incertainly named, that it cannot be discerned whom the Testator doth intend; or if he is, or they be well named, he is, or they are all incapable by [Page 462] reason of some legall impediment; or if otherwise, they bee capable, they doe all die before the Will be proved; or if they live, if being cited to come in before the Ordinary to prove the Will, they either refuse to appear, or if they doe appeare, they refuse to prove the Will, and to take upon them the Administration of the goods and chattels of the deceased; in all these cases, the Ordinary may and ought to grant the Administration of all the goods and chattels of the deceased to him that of right it doth belong unto according to his discretion: And if a man make a Will and after the death of the Testator, the Executor prove it, and then die intestate, the Ordinary must grant the Administration of the goods of the first Testator, not administred in the hands of the Executor to some competent person or persons according to his discretion: but where a man hath no goods and chattels to administer, i. e. either he hath none, or if hee have, they are none of his, or if they are, there is an Executor named, in rerum natura, capable, and well named, and he doth accept, or at least hath not refused the Executorship; in these cases, the Administration ought not to be granted; or if it be granted, it will be void or vo [...]dable at the least: And where an Administration is grantable, it is to be granted by, and had from the Ordinary of Stat. 31 Ed. 3. chap. 11. 21 H. 8. c. 5. Fitz. Administration 7. Litt. B [...]oo. Sect. 276. See infra Numb. the Diocesse, where the party whose goods are to be administred, lived at the time of his death [...]; for regularly he that shall have the Probate of a Will, in case where a man doth make a Will, shall have the granting of the Administration of his good and chattels, in case he die intestate: And therefore, if all the goods and chattels of the party deceased, be within the same Diocesse wherein the intestate lived and dyed; the Ordinary of that Diocesse, or his lawfull Deputy, or Commissary, or the Arch-deacon of the Diocesse, or his Deputy or Officiall (as the Custome of the Country is) or the Dean and Chapter in time of vacation of the Bishop shall grant the Administration, and the Administration shall be had from him: but if there be bona notabilia in the case. viz. if the party deceased have Coo. 5. 29. 3 [...]. D [...]er 30 [...]. F. N. [...]. 120. Plow. 2 [...]7. 281. [...] 6. [...]8. 19. Dyer 339. See in [...]ra at Numb. Bona notabilia. goods or chattels of the value of five pounds or upwards, lying and being at the time of his decease in divers Diocesses; in this case, the Archbishop or Metropolitan of the Diocesse wherein the party dyed, or Sede vacante, the Dean and Chapter being Guardian of the Spiritualties, and not the Ordinary of the particular Diocesse shall grant the Administration; and it must be had from him; for if the Ordinary of the particular Diocesse grant it when it ought to be granted by the Metropolitan, the Administration is void not only as to the goods that lie within the other Diocesse, but also as to the goods lying within the same Diocesse: And so is it also, if it be granted by the Ordinary of another particular Diocesse, as if A die within the Diocesse of Lincoln, the King being indebted to him at the time of his death, and the Administration of his goods and [Page 463] chattels is granted by the Bishop of London; this Administration is void: And if the Metropolitan doe grant an Administration, when it ought to be granted by the Ordinary of the particular Diocesse, the Administration is voidable by sentence of the same Court out of which it is granted: If one die in Ireland, and have nothing but an Dyer 305. Especialty for money, and that Especialty doth lie in England, the Ordinary of the Diocesse within which that place is where the Especialty doth lie, shall commit the Administration; and if the Ordinary of another Diocesse grant it, the Administration is void: And therefore the case was, A Merchant in Ireland was bound in an Obligation of 40 l. to one I S in London, and the Obligation was made in Ireland, but remained alwayes in London, and the Merchant dyed intestate in the County of Bedford in England, and a Bishop of Ireland did commit the Administration to one, and the Archbishop of Canterbury did commit it to the wife of the Intestate who had the Obligation; in this case the last Administration was adjudged good: And it was there held, that the Administration shall bee granted by the Ordinary of the place, where the Especialty doth lie at the time of the death of the Intestate, and not by the Ordinary of the place where the debt began. And in cases, where the Administration is grantable by the Ordinary and others as Stat. 31. Ed. 3. c. 11. 21. H. 8. c. 5. Litt. B [...]oo. Sect. 233. 415. Fit [...]. Excomengment. [...]3. Coo. 9. 39. 40, 3, 40. Dyer 339. [...] H. 7. 14. before, such persons having power to grant it, may not grant it to whom they please, but as they are bound to grant it, and cannot refuse so to doe, so are they directed and appointed to whom they shall grant it: For it is appointed by a speciall Law, That the Ordinary shall depute the next friends of the Intestate to administer his goods if they desire it: and the Administration is to be committed to the widdow, or next of blood, or both to the Intestate, and where there be divers in equall degree, and they all sue for it, the Ordinary may accept them all or refuse some of them and commit the Administration to the rest only; and if some of them only sue for it, he may grant it to them alone: So that now the Law and course is to grant the Administration to the nearest of kinn [...] to the deceased: As 1. to the husband or wife; and if there bee none such, 2. to the children sonnes or daughters; and if there be none such, 3. to the Parents, Father or Mother; and if there be none such, 4. to the brothers or sisters of the whole blood; and if there bee none such, 5. to the brothers or sisters of the ha [...]e blood; and if there be none such, 6. to the next of kinne, Uncles &c. And if these come in time and desire the Administration, the Ordinary may and must grant it to them, and cannot grant it to any other if they be capable of it as most men are: [...]nd if divers of these in equa [...] degree desire it, the Ordinary may grant to which of them hee pleaseth; howsoever in this case, it seemes most just and equall to grant it to them all, unlesse he have [...]me [Page 464] speciall reason to admit some and to exclude the rest: and if none of these that are next of kinne shall desire it, but suffer the time to slip; in this case, the Ordinary may grant it to whatsoever stranger h [...] please: And yet then perhaps the next of kinne may by Suit get the same Administration revoked, and a new Administration granted to him. See infra at Numb. 41.

An Administration may and must be granted in writing under D [...]er [...]94. [...]itz. Admin. 5. 34 H▪ [...]6. [...] Plow. 27 [...] 22. How an Administration may be granted, and what shall be said a good Administration, or not. Seale, for by word of mouth it may not be granted; and it may be granted as well upon condition as absolute: and it may be granted as well for a part of the estate as for the whole: And therefore, if a man have goods in two Provinces, and he make a Will of his goods in one of the Provinces, and die Intestate for the goods in the other Province, an Administration may be granted for the goods in this Province: Also an Administration may be granted during, or untill a certaine time, or continually. And therefore, if a man make a Will and appoint an Executor for seven yeares, after the seven years ended, the Ordinary may and must grant an Administration of the goods. So if one doe appoint another to be his Executor to be his Executor a year after his death, the Ordinary may and must grant the Administration for that yeare, untill the power of the Executor doth take place: And all these Administrations are good.

If an Executor die after he hath proved the Will, and he hath Sta [...]. 2 [...]. Ed. [...] c. 4. Coo. 5. 9. Plow. 286. 34 H. 6. 14. 23. Who shall administer after the death of an Executor or Administrator, and who not, and how an Executor of an Executor shal charge and be charged. made a Testament, and appointed an Executor therein; in this case, this Executor also shall be Executor to the first Testator, as he is to the second, and he shall have all the benefit and be subject to all the charge that the first Executor had and was subject unto; and yet the goods of one Testator shall not be subject to the debts of the other; but each of the Testators goods shall be subject to the payment of his own debts only. Trin. 1 [...], Iac. Co. [...]. Wo [...]se & Heide [...] case. And if in this case, the Executor of the Executor take upon him the Administration of the goods of the first Testator, he cannot refuse the Administration of the goods of the latter: but he may take upon him the latter and refuse the former. But if the Executor refuse to administer to the first Testator Dyer 372. before the Ordinary, or die before the Probate of the Will, and hee hath made a Testament and appointed an Executor therein; in these cases, it seemes the Executor of the Executor sh [...]d not administer the goods of the first Testator, but the Ordinary must grant the Administration thereof: And [...] all the residue of the goods of the first Testator be given by the Testament to the first Executor after the debts be paid; in this case, albeit he die before Probate of the Will, yet his Executor shall be Executor also to the first Testator, or else he shall have the Administration of his goods and chattels granted unto him: And therefore, if A make his Will, and Adiudged in H [...]ll. [...]. Car. in D [...]s case, give Legacies to B and D, and give all the rest of his goods and [Page 465] chattels after debts and Legacies paid to C his wife, and make he [...] his sole Executrix▪ and shee die before Probate of the Will, or any election made, not knowing of the Will; and E sue out an Administration of the goods of A, and pay the Legacies to B and D, and F sue out an Administration of the goods of C; in this case, the Administrator of C, and not of A shall have the goods; for the Law doth judge them in C after the debts and Legacies paid without any election.

If an Executor after hee hath proved the Testators Will, die B [...]oo Executor 117. [...]. H. [...]. 7. Coo. 1 96. D [...]er 372. Termes of the Law. tit. Administration. Intestate; in this case, the Administration of the goods of the first Testator not administred in the hands of the Executor must be granted to whom the Ordinary shall think fit: And if the Ordinary please, hee may grant the Administration, de bonis non administratis of the first deceased, and of the goods of the second deceased to one and the same person: And herein the Administrator must take care that his Administration have speciall words for the granting of an Administration of the goods of the first Testator, not administred; Fiz. Administrator. 9 for howsoever some hold that by the generall Administration, the Administrator shall have not only the goods of the Executor, but the goods fo his Testator also, yet it seemes this is not taken to be Law at this day.

If there be two Executors made, and one of them doth refuse Dyer 160. before the Ordinary, and the other doth prove the Will, and make a Will himselfe and appoint an Executor and then die; in this case, it seemes the Executor of the Executor that did prove the Will alone shall have the disposition of all the estate, and be Executor to the first Testator, and that the surviving Executor shall not meddle therewith, for that his Election by the dea [...]h of his companion is gone. And if one make two Executors, and one of them doth Litt. Broo. Sect. 17 [...]. B [...]oo. Executor. 49. 99. [...]tz. Executor 12. 113. Dyer 187. make an Executor and die, and the other that doth survive hath accepted the Executorship; in this case, the surviving Executor shall have the sole disposing of the estate, and the Executor of the deceased Executor shall not intermeddle therewith: And if therefore the surviving Executor die Intestate, an Administration de bonis non Aaministratis of the first Testator shall be grantted: And if the Executor of the d [...]eased Executor have any of the estate in his hands, the surviving Executor may take or recover it from him: And if two bee ma [...]e Executors, and one of of them is uncapable; in this case, he that is capable shall administer alone.

If one that is Administrator of another mans goods doe make Dyer 372. 112. Coo. 5. 9 his Will and make an Executor and die; o [...] doe die Inter [...]ace, and the Administration of his goods is granted to some body; in the first of these cases the Executor, and in the last the Administrator, unlesse he be made Administrator of these goods also shall not [Page 466] meddle with these goods of the first deceased: but the administration of the goods of the first deceased in the hands of the Administrator not administred must be granted againe. And hence it is that if the Administrator of my goods have a judgement for a debt due to me, and he dye before execution, and make an Executor, o [...] die intestate, that in this case his Executor or Administrator shall never have execution of this judgement. And the same law is of the Administrator of my Executor in this case.

An Executor or Administrator may accept or refuse the executorship Coo. [...]. 37. 37 H [...] 6. 27. 28. 20. H. 6. 1. 24. Where an Executor [...]r Administrat [...]r ma [...] accept or ref [...] the Executo [...]ship [...] Administ [...] on, and ho [...] And whe [...] [...]e may b [...] Executor [...] [...]e hath [...]ed [...] And wha [...] a [...] interm [...]dling with the goods of the dead shall b [...] said an Adm [...]stration, and what not. or the administration at his pleasure; and therefore he may at any time before he hath intermedled with the estate as Executor or Administrator refuse it; and if he be sued by any as Executor or Administrator, he may plead, ne unques Executor, i. e. he was never [...]xecutor or Administrator, and did never administer: and if it be true, he shall by this meanes avoid the suite; for a man shall not be compelled to take such a charge upon him whether he will or no▪ I [...] therefore there bee many Executors, or an adm [...]nistration bee granted unto many: and one of the Executors prove the Will in the name of the rest, or one accept the administration in the name of all the rest, yet the rest may refuse to accept it, and plead in any [...]uite against them that they are not Executors or Administrators. But as an Executor or an Administrator after he hath once legally refused the executorship or administration, can never after intermeddle therewith: so after he hath once legally accepted thereof▪ (that is) hath done any thing as Executor or administrator, and which is proper only for an executor or administrator to doe, he can never after refuse it. And his acceptance of part, in this case, will make him chargable with all, except it bee in the case before of an Executor who may accept of the last Executorship, and refuse the first.

If the Executors being cited to come in and prove their Will, appeare Coo. c. 37. Fitz. administration 6. 11. B [...]oo. Administration 32. Executors. 117. Coo. 5. 28. Pe [...]k. Sect. 4 [...]5. Dyer 1 [...]0. 21. E [...]. 23. before the Ordinary, and refuse to administer and to prove the Will, they cannot afterwards accept it or intermeddle with it. But herein this difference must be observed; That where there bee many Executors named and made, and they being cited, so [...]e of them only do appear and refuse to accept it: ( [...]he rest of the Executors being then living) and after some or one of the rest of the Executors prove the Will, or take upon him the Executorship; in [...]is case and notwithstanning this refusall, they that doe refuse may afterwards at any time, at least during the life time of their Co-executors that did accept it, accept thereof and intermeddle therewith as far forth as either of the rest. And therefore in this case howsoever the Executors refusing shall not be charged in any suite against all the Executors for any thing due from the Testator, but they may by [...]heir plea avoid it: yet the Executors accepting cannot sue for any [Page 467] thing due to the Testator, nor be sued for any thing due from the Testator, but they must sue and be sued in the names of themselves and their Co executors that do refuse also. And if there be 3 Executors, and two of them prove the Will, and the third refuse; yet this third Executor alone may release any debt due to the Testator. But if there be but one Executor made, and [...]e alone, or if there be many made, and they do all together refuse before the Ordinary to take upon him or them the administration; in this case the Testator is so farre forth said to be dead intestate, and thereupon therefore the Ordinary may grant the administration of the goods of the deceased, and then the Executor or Executors can never after accept thereof, or intermeddle therewith. And if one or more of the Executors refuse, and the rest accept if he or they which accept die before he or they that refused accept; it seemes in this case they can never afterwards accept it, but the Administration must bee granted.

If one be sued as Executor or Administrator, and he plead to the Suit ne unques Executor, i. e. he was never Executor or Administrator, See the cases before. if he have not in truth intermedled before; this Plea is a refusall of the Executorship or administration, and therefore he can never afterwards accept or intermeddle with the Executorship or Administration.

Every intermedling with the goods of the deceased, or with the office and work of an executor, shall not be said to be such an administration Coo. 9. 37. [...]. 34. D [...]er 105. [...]e [...]w. 63. B [...]oo. as to amount unto an acceptance of the executorship or administration, and so to make a man chargable as executor or administrator. And therefore if a man that is an executor or administrator do only lay up and preserve the goods of the deceased; or command Administrator 35. 36. Fitz. Administrator 7. [...]. Exec [...]tor 165. [...] H. 6. 6. Dyer 13 [...]. another to take away the goods of the deceased from one that hath them in his keeping; or see the deceased buried in a decent manner, and for that purpose use, and if need be sell some of his goods to do it, or make an [...]nvent [...]ry of the goods and chattels of the deceased; or prove the Testators Will with his owne money; or take his own goods lying amongst the goods of the deceased: or take and use some of the goods of the deceased only by mistake, or as a trespast [...]r, or by the delivery of another; or take and dispose any of the goods of the deceased when the executor or administrator doth challenge them as his owne and in his own right: or if he redeeme any of the goods of the deceased with his own money when they are pledged to the full value, and the day of redemption is past, as neither of these acts will make a stranger an executor of his own wrong: Ex [...]tor of his own wrong. so n [...]ither will they amount to an acceptance of the executorship, and make the executor or administrator chargable as executor or administrator. But if a man that is an executor or administrator shall sue by that name for any debt due to the deceased; or being sued [Page 468] by that name for any debt or duty due from the deceased, shall imparle to the Suite, or plead any other plea besides ne unques Executor; or shall take into his hands the goods of the deceased, and convert them to his owne use, and alte the property by sale, gift, or otherwise, and all this as the goods of the deceased; (and so it shall be intended against him if he do not declare the contrary, that he doth take and use them as his own &c.) or if he deliver the goods of the deceased to Creditors or Legataries in satisfaction of their debts or Legacies; or receive any debt due to the deceased, and give a release for the same; or release any debt due to him before it be paid; or pay any'debt due from the deceased, except it be with his own money: any or either of these acts will amount unto an acceptance of the Executorship; and therefore after an Executor or Administrator hath done any such act, he can never after refuse the Executorship or Administration.

If a woman sole be made an Executrix to another, and she marry [...]oo. Executor. 14 [...]. a husband before she intermeddle with the estate, and then her husband doth administer; this is such an acceptance as will bind her, and she can never afterwards refuse it.

The Executor or Administrator shall have by vertue of his Executorship 25. What things an Executor or Administrator shall have by vertue of his Executorship or Adminstration. And what not. First in respect of the nature of the thing. or Administration all the chattels reall and personall of the Coo. super Litt 209. 38 [...] Perk. Sect. 60. [...]lo [...]. 293. Doct. & St. 39. 76. Perk. Sect. 8 [...]3. Coo. 4. 65. 63. 7. [...]7. Ke [...]. 118. Testator, as well those that are in possession, as Leases for years of Land, Rent, Common, or the like, Grants of next Advowsons, and Presentations, Wardships of heirs by reason of tenures in Capite, or Knights Service, corn growing and cut, trees, and grasse cut and severed, cattell, money, plate, houshold stuffe, and the like, as also those that are in action, as right and interest of executions upon Judgements, Statutes, Obligations, Causes of action, and the like; He shall have also all other things that are of the nature of chattels. Coo. supe [...] Litt. [...]9. Dy [...]t [...]0. 283. Dyer 24. Broo. Executor 143. And therefore the executor or administrator shall have the two years of the heir female that is in Ward; a relief or an advowson that is fallen; and yet if a Bishop have title to present by the vacation of a Church, and then he dye; in this case the King and not the executor or administrator of the Bishop shall present. And if the Lord have a greater estate in the Seigniory then for life or years, it is said the executor or administrator shall not have the relief. And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time. Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dye [...] 575. And if I make a Fcoffment in Fee, gift in tail, or lease for life, rendring Rent, and the rent is behind, and then I dye; in this case the ar [...]erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell. So if a Rent be granted out of land to me in Fee-simple, Fee-tail, for life, or years, and it be not paid to me in my life time; these arrerages shall go to my executor or administrator, and not to any [Page 469] other. [...]. N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church, and it be behind, and the Parson dye; in this case the executor or administrator, not the successor of the Parson shall have the arrerages, Dyer. 275. And if I be seised of land and possessed of a stock of cattell, and let it to another for years, and he covenant by the Lease to pay me and my wife our heirs and assignes 100l. by the year, during the term; in this case after my death, and my wives surviving me, her executor or administrator and not my heir shall have this payment. Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees, and after grant me the trees for years; or if he make me a Lease of the land first for years, and after doth grant me the trees for a number of years, to begin after the end of the term of the land; in both these cases I have the trees in the nature of a chattell, and if I dye my executor or administrator shall have them. Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D; in this case if I dye, my executor or administrator shall have it as a chattell. See supra at Numb. 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition: and therefore that shall not go to my executor. But so much of her wearing apparell as she hath superfluous and more then necessary for her, shall go to my executor or administrator after my death. And the charters and evidences that do concern any of my chattels which my Broo. chat [...]els 12. executor or administrator is to have, shall go with the same chattels. So also any Charters whatsoever if they be pledged to me for money, shall go to my executor or administrator untill the money be paid. But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance, shall not go to my executor or administrator after my death. But matters of trust, and such things as are personall, as offices of trust, wardships by reason of a Tenure in Socage, or Jure natur [...], or the like, shall not go to the executor or administrator after the death o [...] him that hath them. So an Plow 29 [...]. Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow. So an executor or administrator shall not have the Incidents of a house, as glasse, doores, wainscot, and the like, no Kelw. 118. See before at Numb. 7. more then the house it selfe, nor pales, wals, stauks, fish in Ponds, Deere, or Conies in Parkes, Pigeons in Pigeon houses, or the like.

If a Lease for yeares of land be granted to me and my heires, Secondly i [...] respect of the case. or to me and my successors, and I dye; my executor or administrator Coo. 10. [...]7, Litt. Sect. [...]40. Fitz. Accompt. 56 F. N. B. [...]20. and not my heire shall have this terme. The same law is if a wardship, or the next advowson of a Church be granted unto me and my heires, or if a Covenant or an Obligation be made to me and my heires: for in all these cases this is still a chattell in [Page 470] me that shall go to my executor or administrator, and hee onely shall take advantage by it. And if my heire or successor happen to get the Deed, the executor or administrator may recover it from him. And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease; in this case if I dye, my executor or administrator notwithstanding shall have it during the terme. Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit. assignes to a Bishop and his successors, and he dye; his executor or admistrator, not his successor shall have it. And if a man be possessed of a terme of yeares of land, and grant it by deed, or give it by Will, to me and my heires, or to me and my heires males: or devise Coo. 895. 10. 87. Plow. 524. it by Will to A for life, the remainder to me and my heires; in these cases I shall have these terms of years as chattels, and after my death my executor or administrator shall have them. Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares, and I dye; my executor or administrator not my heire shall have this rent. M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S, and for one halfe yeare after, and I dye; in this case the half yeares rent shall goe to my executor or administrator, and not to my heire. And if I be seised Dyer. 5. of land in Fee, and make a Lease for years of it rendring rent, and then devise this rent to a stranger, and the devisee dye; in this case his executor or administrator shall have it. And if Lessee for life make a Lease for yeares absolutely; this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live, and shall go to the executor or administrator after his death.

If I have a box, chest, or trunk wherein my writings that doe Broo. Executors 145. 9 [...]. Fitz. Executors 111. concern my inheritance do lie, and the same is open, and not sealed or locked: in this case my Executor shall have it; but if it be locked or sealed, contra: for then it shall goe to him that is to have the writings as incident thereunto. And yet if there be any money, plate, or any other such like thing in the chest also; my Executor shall have that thing.

The Incidents of a house, as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26 [...] nailes or otherwise to the windowes, the wainscot fixed by nailes, skrewes, or irons put through the posts or walls, tables dormant, furnaces of lead and brasse, and fats in a brew and die house standing and fastned to the walls, or standing in, or fastned to the ground in the middle of the house, (though fastned to no wall,) a copper, or lead fixed to the house, the doores within and without that are hanging and serving to any part of the house, shall not goe to the Executor or Administrator to be divided and sold from the house, albeit the Executor or Administrator have a Lease for yeeres of the house, and by that meanes hath the house also. But if the glasse be from the windowes, or there be wainscot loose, or doores more [Page 471] then are used that are not hanging, or the like: these things shall go to the Executor or Administrator.

If I make a feoffment to I S of land, on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me, my heires or assignes, or my heires executors or administrators a 100l. such a day, that the Feoffment shall be void, and I dye before the time of paiment; in this case if this money be paid at the day, my Executor or Administrator and not my heire shall have it.

If one be seised in Fee of lands whereon there are trees growing, and he make a Feoffment of the land to me, excepting the trees, Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever, and after I dye; in this case my Executor or Administrator shall not have these trees, as they shall in case where the Feoffor doth grant them to me for yeares. And if I be seised of land in Fee, and I make a Lease for life, or yeares of it excepting the trees, and afterwards I dye; in this case my Executor or Administrator shall not have these trees, but they shall goe in both cases with the land.

If a Lease be made for life, or yeares of land whereon a house is standing, or timber is growing, and the house is prostrate, or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down (by whomsoever or what means soever it be;) the materials of this house, and this timber is now become a chattell; and therefore if the Lease be without impeachment of waste, it shall goe to the Lessee, and after his death to his Executor or Administrator, but if the Lease be otherwise, it shall goe to the Lessor, and after his death to his Executor or Administrator. But if the timber be cut for reparations only, or the Lessee will imploy the materials of the house to build it againe, and the Lease do continue, it may be so imployed, and then the Executor or Administrator of the Lessor may not take it.

If one be seised in Fee-simple of ground whereon trees do grow, and he sell me these trees for money, and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut; in this case my Executor or Administrator shall have and may cut them.

If the Kings te [...]ant by Knights service in Capite be seised of a Mannor whereunto an Advow [...]on is appendant and the Church become Coo. super Litt. 388. void, and the tenant dyeth, his heire within age: in this case the King and not the Executor or Administrator of the tenant shall have the Presentation. And yet if in this case the land be held of a common person, the executor or administrator and not the Gardian shall have it.

In all cases regularly where a man doth sowe land, whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31 [...]. Doct. & St. 35. Perk. Sect. 59. corne be ripe, if he that doth sowe it die before it be cut and severed, his executor or administrator shall have it; as if the husband sowe the land whereof he hath an estate in Fee-simple, Fee-taile, for life, [Page 472] or for a certain number of years in the right of his wife, and dye ere it be ripe; in this case the Executor or Administrator of the husband and not the wife shall have it. And if one that holdeth land fot the life of I S, sowe the land, and I S die ere it be ripe and cut; the Executor or Administrator of the tenant shall have this corn. And if tenant in Tail, or in Dower sowe the land they do so hold, and dye ere it be cut; the Executor or Administrator not the issue in tail, nor the heir, or him in reversion shall have it. So if the husband make a Feossment in Fee to the use of himself for life, and after of his wife &c. and he sowe the land, and after die; his Executor or Administrator not his wife shall have the corn. But if a Feoffment be made to the use of the husband and wife together in Fee, or for life, and the husband sowe the land; in this case the wife not the Executor or Administrator of the husband shall have the corn. So if Lessee for years certain sow the land a little before the end of his term, and the term end before it be cut; in this case he that is to have the land, not the Executor or Administrator of the Lessee for years shall have the corn.

If there be Tenant for life, the remainder in Fee of a Tenancy, Coo. 2. 93. and the Lord grant his Seigniory for life, and after he in remainder in Fee of the Tenancy, dye, his heir within age, and after the Lord die, and after the Tenant for life die; in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship.

If one be seised of land in Fee, and make a Lease for years rendring Hill 7. Iac. B. R. per C [...] riam. Rent at Michaelmas, or within 10 daies after, and the Lessor happen to die during the term after Michaelmas, and before the 10 daies expired; in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas.

If one grant a Rent in Fee, and grant withall that if the Rent F. N. B. 120. [...]itz. Covenant 17. D [...] er 24. be behind, the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs, and the Rent is behind, and the Grantee die; in this case his Executor or Administrator not his heir shall have this money that is forfeit already. So if one make a Feoffment in Fee of land, and the Feoffee doth covenant to do divers things to the Feoffor, Et quoties defectus fuerit &c. that he shall forfeit to him and his heirs 5l. and the Feoffee doth fail and breake his covenant divers wayes, and the Feoffor dieth; in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past.

If a Bishop, Parson, Vicar, Master of Hospitall, or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Lit [...]. 46. and dye; these shall go to the Executor or Administrator not the successor of such a person. And albeit such things be granted to [Page 473] them and their successors, yet their executors and administrators and not their successors shall have it. But if a Corporation aggregate as Dean and Chapter, Mayor or Cominalty and the like, have any goods or chattels in right of their Corporation, and any of the Heads or Members thereof dye; the Executors or Administrators of such person shall not have them: but they shall continue in succession with the Corporation.

An Executor or Administrator shall have the benefit of a pardon Coo. 6. 80. Dyer 201. granted to the deceased, and shall have advantage of any error in any outlawry against the deceased, and have restitution of the goods forfeir thereupon.

The Executor or Administrator of a woman that hath a husband shall have by right of his Executorship or administration all Actions, Husband and Wife. Coo. super Litt. 351. Plow. 294. 192. Rights, and Titles to any chattels, and possibilities, and things of that nature which the wife had before the marriage, and which sell to her during the marriage; for these things the husband shall not have by the intermarriage after his wives death, as he shall have all the rest of her goods and chattels: execept he have them as executor or administrator to her as he may be. And if such a woman have any goods or chattels as Executrix to another, her executor or administrator not her husband shall have these also; for she hath these goods in anothers, and not in her own right.

If I have any goods or chattels in Iointenancy with another, as if a lease be made of lands to me and another for years, or a horse or other [...]. Sect. 281. Perk. Sect. 525. 526. Litt. Sect. 320, 321. chattell personall be given or granted to me and another; in these cases if I die, my executor or administrator shall not have any part of these goods or chattels: but the other surviving Iointenant shall have them all. But otherwise it is of the goods and chattels that I and another have in Common. And therefore if I and another have goods and chattels in that nature as before: and he, or I grant that which doth belong unto us thereof unto a stranger; in this case the stranger, and him of us two that hath kept his part are tenants in Common of the things; and therefore if either of us die, the part of him that dieth in the goods and chattels shall goe to his executor or administrator and not to the other Tenant in Common.

If I have a Judgement for land in a reall or mixt action, and for damages recovered in the same Suit, and I dye; in this case my executor [...] Executor 53. 84. [...]17. or administrator not my heire shall sue execution for, and recover the damages, but not for the land. So if I recover damages against another for the detaining of my Charters, and dye; my executor or administrator shall recover the damages, but the heire shall have the Charters, and the heire must sue his Scire facias for the Charters ere the executor can sue for the damages. Also if I recover any debt or damage in any personall action; my executor [Page 474] or administrator shall recover and have this. See more infra at Numb. 39.

The power and interest which the Executor hath is wholly by Coo. 6. 18. 9. 38. 5. 27. Plow. 280. 9. Ed. 4. 47. 36 H. 6. 7. Fitz. Administrator 2. 6. the Will. And hence it is that an Executor whether he be absolute 26. What an Executor may doe by vertue of his Executorship. And the power of an Executor, Administrator, o [...] Ordinary. or conditionall whiles he is Executor, may do any thing as Executor, (except only sue for debts and duties due to the Testator) aswell before the Probate of the Will as he may do after; for before the Probate he may enter into and seize the goods and chattels whatsoever they be, or give power to another so to do: and if any of them be taken or kept from him, he may have an action of trespasse, or a replevin to recover them; he may give or sell any of the goods or chattels; he may pay any of the debts due from, and receive or release any debts due to the deceased. But it is otherwise in the case of an Administration; for in as much as his power and interest is given to him wholly by the Administration, therefore he can do nothing untill the Administration be granted. And yet in this case as to the goods taken away before the Administration, the Administration shall have such a relation as to give the Administrator an action for them. But otherwise after the Administration is granted, the interest and power of the Administrator is equall to and with the power and interest of the Executor. And yet it is otherwise of the power and interest of the Ordinary; For howsoever it seemes by the ancient Common Law he might seize, Coo. 8. 135. 9, 39. Dyer 255. Westm. 2. cap. 20. 31 Ed. 3. c. 11. preserve, give, grant, and dispose the goods of the intestate to pious uses, yet might he not sue for the goods or debts due to the intestate, no more then he might be sued for any debt due from the intestate; and at this day he may only keep and preserve the goods of the deceased until administration be granted and sue him in the Court of the Ordinary that doth detaine the goods from him, and perhaps may sue him that shall take the goods out of his possession; for he may not sell or give the goods of the deceased, nor receive or release any debts; for in case where there is an Executor made that is capable &c. he is not to meddle at all with the estate untill the Executor refuse: and where there is no Executor that the party is dead intestate, the Ordinary is presently to commit the Administration to the nearest of the kinred; which when he hath done, his power is at a end, for it is doubted of some whether he may repeale an Administration without cause or not; but it hath been clearly held by all that he may not dispose of the estate afterwards, and that he hath not power to enforce the Administrator to give portions to children out of the estate, and that if he do goe about it either before or after the granting of the Letters of Administration, the Administrator may have a Prohibition. Hill 13. Ia. Co. B. Henslowes case Trin. 3. tac. Co. B. Davis case, Hill 2. Car. Co. 9. Fotherlies case. And accordingly divers have been granted; And yet notwithstanding it seemes this course is usuall: and Prohibitions not often granted at this day. [Page 475] Litt. Sect. 69. Plow. 281. Broo. Executor 129. An Executor or Administrator may after the death of the deceased enter into the house where the deceased lived, and where he dyed, and where the goods are, and take them away and justify it; but he must do it within convenient and reasonable time, as within 30 daies after his death or thereabouts, and in a quiet and faire manner when the doore is open &c. Dyer 2. He may keep any of the goods of the deceased, so as he pay or lay out as much of his own money in and about the Administration of the same estate. Plow. 543. 544. He may if he want money to discharge Funerals, or pay debts, sell any of the chattels reall or personall whereof the deceased dyed possessed; and that albeit the thing in particular be devised: as if a man be possessed of a term of years inter alia, and devise the same term to I S; the executor or administrator notwithstanding this devise may at any time before assent given to the Legacy, if he have not assets to pay the debts, sell this term, and the Legatee is remedilesse. And so he may do also albeit there be enough besides to pay the debts, and he have no need; but then in this case the Legatee shall have some reliefe in a Court of Equity against the executor or administrator for damages, but the sale is unavoidable. An executor or administrator may retain so much of the estate as to satisfie his own debt first if Plow. 184. 543. Coo, 5. 28. any be due unto him. And if he hath enough to pay all the debts and Legacies, he may pay them in what order he will without danger to himself or wrong to Creditors or Legataries. And if he hath not enough, he may pay them in what order he will, but not without danger to himself. But if any thing be due to himselfe, hee may pay that first of all; and for others that are in equall degree, he may pay which of them he will first. And for the Legataries he may preferr which of them he will, or pay one of them his whole Legacy, and pay another a part of his, or not pay him any part of his Legacy if there be no assets to do it. But an executor The Addition to Iustice Dodridge treatise 93. Kelw. 62 27 H 8. 22. Plow. 525. or an administrator may not sell any thing that is given in speciall to a Legatee to pay another Legacy given to another Legatee, nor compell a Creditor or Legatee to take some of the goods of the deceased for his debt or Legacy whether he will or no nor devise the goods he hath as executor or as administrator, neither can executors or administrators make division of the goods amongst them.

An Infant that is an executor, after the time he is capable, hath Infant. Coo. 5. 28. as much power as another Executor of full age; for hee may sell the goods, receive debts, and make Releases for the moneyes hee doth receive, assent to a Legacy when debts are paid, sue, and be sued, as another executor. And hee is only disabled to, do any thing to hurt himself; And therefore if he release a debt before he receive it, the Release is void; and if he assent to a Legacy before the debts are paid, the assent is void; and if he do [...]y [...] [Page 476] act which will be a wasting of the goods in an executor that is of full age, it shall not bind him. And it seemes that howsoever an Infant Executor after 17 yeares of age may sell any of the chattels And so was it held by Iustice Hu [...] ton at Sa [...]um Ass [...]es. 2 [...]. Iac, personall [...]ee hath as Executor, yet that after his age of 17 yeares, and before he is 21 yeares of age, that he cannot sell a Lease for yeares he hath in the right of his Executorship, but that such sale is void.

A woman covert that hath a husband, and is an Executrix may Broo. Executor 178. 152. Fitz. Executor 55. C [...]o. 5. 28. do any lawfull act as another Executor may do, but she may not do Woman [...]overt. any thing to prejudice her husband, as release a debt before it bee paid, assent to or deliver a Legacy before the debts be paid, or the like: and yet the husband himselfe may do so.

The office and duty in generall of an Executor or Administrator [...]oo. 8. 133. 27. The office, duty, charge of an Executor or Administrator and of the Ordinary. [...] is to dispose all the estate of the deceased wherewith he hath to do. 1. Truly, not to convert any of it to his own use, but to the use and best advantage of the deceased, nor to labour by any undue practise or meanes to hinder any Creditor of his debt. 2. Lawfully, to pay debts and Legacies in that order the Law prescribeth. 3. diligently, quia egligentia semper habet comitem infortnnium; but more particularly, The first duty and care of an Executor or Administrator First in the Funerals. after he hath taken upon him the charge of the Administration Doct. &. [...]t. 75. Plow. 543. Kelw [...] 64. of the goods and chattels of the deceased after the goods are laid up, is to see the body of the deceased laudably interred according to his rank and quality; wherein let the Executor or Administrator take this caution by the way, not to exceede in Funerall pomp, especially if it be so that the estate will scarcely reach to pay the debts; for let his expences be what they will, the Iudges (who in this are to determine what shall be allowed) will allow what they please, and they are pleased in such cases to allow but a small matter; And whatsoever the Executor or Administrator doth lay out more, he must beare out of his own estate, if hee have not enough besides to pay the debts. The second duty and care must be to make an Inventary, i. e. a Schedule containing a true and perfect Doct. & S [...]. 35. Stat. 21. H. 8. c. 5. Dyer 166. Swinb. part. 6. Sect. 6. [...]. 8. 9. 10. Secondly, in making an Inventary. description of all the goods and chattels of the deceased at the time of his death, as of his Wares, Merchandizes, Emblements, and the like with their apprisement and value, and of none else, and of all debts due to him and from him. And this must be made by and before two of the Creditors or Legataries of the deceased (if there be any such and they will do it) and two others, or in case they refuse, by and before two other men of the honest neighbours. And here in let the Executor or Administrator take this caution by the way not to intermeddle with the goods before he hath done this; for howsoever he may do any act as Executor before the Inventary bee made, yet the Ordinary may punish this upon him except it be done with the Ordinaries licence, who in this case may give what time [Page 477] he will for the doing of it; and untill the Inventary be made and put in, it shall be presumed against the Executor or Administrator that he hath assets in his hands to pay all men; and besides untill this be done, he cannot deduct to satisfie his own debt first, and barr other men by Plea. But of the other side when he hath made and exhibited a true and perfect Inventary of all the goods and chattels, it shall be presumed against him that he hath so much as is contained in the Inventary and no more, unlesse more can be proved by Witnesses. 3. The third thing whereof the Executor or Thirdly in Probate of the Will. See Probate infra at Numb. Administrator is to take care, is to prove the will if there be any: And this the Ordinary will compell him to do, but otherwise he may do any thing as Executor save only sue actions as well before Probate as after. 4. The fourth thing whereof the Executor or Administrator must take care, is to sell and make money of the goods Fourthly, in payment of Debts and Legacies; and the order of payment of Debts and Legacies. Coo. 9. 88. Plow. 184. 545. Dyer 80. Doct. & St 75. 76. 77. 78. 132. Stat. 33. H. 8. cap. 39. Coo. 5. 28. 4. 54. 59. 60. 8. 132. Dyer 232. 32 21 Ed. 4 [...]. [...]21. B [...]oo. Executors 88. 172. Coo. 8, 132. Dyer 32. Plow. 279. 280. Broo. Execut [...]rs 103. Kelw. 74. and chattels, and to receive the debts due to the deceased, and then to pay the Debts and Legacies due to the Creditors and Legataries, wherein the Executor or [...]dministrator must be very cautious and wary. And for this purpose let him observe, That all the debts must be paid before any Legacies be paid or delivered; and if there be not enough besides to pay the debts, any thing given by way of Legacy may be sold to make money to pay the debts, and the Legataries must loose their Legacies, for L [...]gatarii contendunt de lucro captando, Crediteres autem de damno vitando. And in payment of debts this decorum must be observed. 1. Amongst persons that are Creditors, the executor or administrator himselfe shall be preferred, so that if any debt be due to him, he may deduct to satisfie himselfe first, albeit others loose their whole debt thereby, and especially then when his debt is in equall degree with others debts. 2. After the executor or administrator is served and satisfied his debt, then the King is to be preferred, so that if there be any debt due to him, and he begin his Suit for it before any other man can get a Judgement for his debt against the executor or administrator, his debt shall be paid before any others. 3. After the King is served and satisfied his debt, then the debts of common persons must be paid. And these also must be paid in this order or manner. 1. The debts due by Record by any judgement had against the deceased in any judiciall proceeding in any Court of Record. 2. The debts due by Statutes or Recognisances ented into by the deceased; for the debts due upon judgements must be satisifed before these; sit jud [...]cium prius velposterius. 3. The debts due by Obligations and penall and single Bils, for these are in equall degree, and these are to bee paid after Statutes and Recognisances. And yet if the Statute or Recognisance be only for performance of Covenants, and no Covenant is broken, an Obligation for the payment of present money shall be discharged before it. 4, The debts due for [Page 478] rent upon Leases of Land, or grants of rents; but some say that debts due for rent in the Testators life time (be the rent reserved upon Leases made by, or without deed for years, or at will) are in equality of degree with debts due upon Especialties. 5. The debts due for servants wages and workmen. 6. The debts due upon shop-books and verball Contracts; and yet it is said Addition to Iust. Dodridge 92. by some, That Legacies are to be paid before debts due by shop-books, bills unsealed, or contracts by word, Quod non credo. And amongst debts also that are in equality of degree, those that are due are to be paid before those that are not due; and those whose day of payment is already come before those whose day of payment is not yet come: And yet if the Creditor whose day of payment is already come, doe not sue for his debt untill his debt whose day of payment is at a day to come, become due, the Executor or Administrator may satisfie which of them he will first. And amongst debts that are due and already to be paid, those that are first sued for, are to be first paid: Or if the Creditors begin their Suites together, the Executor or Administrator may pay which he will of them first, and to pay debts in any other order is dangerous: And therefore for the purpose, if the deceased are two severall debts of 10l. a piece to two severall Creditors by severall Obligations, and the Executor or Administrator hath enough only to pay one of them, he that can first get Iudgment and Execution shall first be satisfied, and if the Executor or Administrator doe afterwards pay the other his debt, he must satisfie the first out of his own estate. If one that hath a debt due to him from the deceased upon a simple Contract or the like, sue the Executor or Administrator for it, and there bee debts due to others upon bonds and bills unsatisfied; in this case, the Executor or Administrator may not pay this debt, nor may hee suffer the Plaintiffe to recover in his Action; for if he doe, and he have not Assets besides to satisfie the debts due upon Bills and Bonds, he must satisfie so much out of his own estate as hee hath so paid, or suffered to bee recovered from him; for in the case of an Action brought, he is to plead and to set forth these debts upon Especialties, and to say that he hath no more but what is sufficient to satisfie them &c. and thereby he shall barre the Plaintiffe in his Action. In like manner it is, if one that hath a debt due to him from the deceased upon an Obligation, sue the Executor or Administrator thereupon, and there be debts due to others upon Iudgements, Statutes or Recognisances, and the Executor or Administrator suffer the Plaintiffe to recover the debt due upon the Obligation for want of pleading the Iudgements &c. or doth voluntarily pay that debt, and he hath no [...] Assets besides to pay the debts due upon Iudgements &c. in this case, he must pay so much out of his own estate towards the satisfaction of [Page 479] the said debts due upon Iudgements &c. as he hath paid of the debt due upon the Obligation. But here it must be noted that no Iudgement or Statute that is discharged, or is left and suffered to lie by agrement to barre others of their debts, shall be any barre to others that sue for their due debts upon Obligations &c. and Covin. therefore if any Executor or Administrator shall plead any such Iudgement &c. in barre of any other debt sued for by any other Creditor, the Creditor may by speciall pleading set forth this matter of Covin and avoid the plea and barre of the Executor or Administrator. If one Creditor whose debt is in equall degree and presently due and to be paid, begin a Suit against the Executor or Administrator for his debt, and hee hath notice that the Suit is begun against him, or the Action is laid in the County where the Executor or Administrator doth dwell, or (as some have said) in London, (in both which cases, it seemes he is bound to take notice thereof at his perill) and after this Suit begun hee doth make voluntary payment of another debt in equall degree in all respects for which no Suit is begun; this is a devastavit in the Executor or Administrator, and if he have not Assets to satisfie him who began his Suit first, he shall be compelled to satisfie so much thereof as he doth voluntarily pay to the other, and that out of his own estate: And yet an Executor or Administrator may make voluntary payment of any debt due by Record, as by Iudgement, Statute &c. after such a Suit begun and justifie it. If two Creditors in equall degree to all purposes begin to sue for their debts at one time; in this case, the Executor or Administrator cannot safely make voluntary payment to either of them, unlesse he have enough to pay them both; but his safest way is to pay him first, that in a due and legall proceeding (for he may not covinously help one of them to a Iudgement sooner) can first recover it by Iudgment and Execution: And yet if in this case no Suit be begun, the Executor or Administrator may make voluntary payment to either of them in equall degree of his whole debt, albeit he have no Assets left to pay unto the other any part of his debt. If A and B be two Creditors in equall degree, and A begin his Suit first, and after B doth begin his Suit, and it happeneth that B bonâ fide without any Covin or agreement between him and the Executor or Administrator doth get Iudgement and Execution first; in thi [...] case, the Executor or Administrator may make payment [...]o B first of all. But if the Executor or Administrator doth by any Covin and agreement help B to his Iudgement and Execution first, and by this meanes he is first satisfied, if there be not Covin. enough left to satisfie A, he must satisfie him out of his own estate. If two Suits begin at or about one time upon two severall Obligations, and the Executor is forced to plead to them both before [Page 480] either of them hath a Iudgement, so that he cannot plead the Iudgement that the other hath against him, and he hath not Assets to satisfie both the debts sued for, and after the Plaintiffs in both the Suits get Iudgement and Execution. Quaere what the Executor or administrator may doe in this case: And here note by the way, that it is policy for a Creditor that hath cause to sue an executor or administrator, to bee doing b [...]times, and to get judgement and execution assoone as he may; for it falleth out in this case, That he that doth first come shall bee first served: After all the debts are paid in such order and manner as before, then is the executor or administrator to pay and to deliver the Legacies: and herein the executor may preferre himselfe so, that if any Legacy be Doct. & St. 34. Plow. 54 [...]. Swinb. 110. 114. given to him, he may detaine and deduct it, albeit there be nothing left to discharge the Legacies given to others: and after he hath satisfied himselfe, he may satisfie and deliver what Legacies he will, albeit there bee not enough to satisfie all the Legatees; or he may pay to each of the Legatees a part of their Legacy, and deduct a part out of every Legacy where there is not enough to satisfie all the Legacies: But if any particular thing, as a Lease, or a horse, or the like be given; this must be delivered accordingly, and may not be sold by the executor or administrator to pay others all, or any part of their Legacies: and if there be enough to pay all the Legacies they must be paid all according to the Will; and it is said by some, that if an executor or administrator make no Inventary of the goods, that he must pay all the Legacies whether he have Assets or not. The last thing an executor or administrator is to take care of, Swinb. Part. 6. Sect. 17. is to make an account, (for it is [...]eld that an executor or administrator Fifthly, in making an Account. is not bound in Law or Conscience to make restitution for personall wrongs) wherein this is to be known, That the Ordinary may if he will call the executor or administrator to account concerning the goods and chattels of the deceased, either generally or particularly as the case requireth; and that with or without the Credito [...]s or Legataries instigation, within a year or what time he will; unto which account he may call all the Cr [...]ditors and Legataries; and therein the executor or administrator must shew what he hath received, and what he hath laid out and prov [...] in such sort as the Ordinary shall like: And then if it be found he hath faithfully and fully administred, the Ordinary may acquit him of the burthen, and then hee is discharged of all Suits in the Spirituall Court; but this account and discharge will not help nor availe him at all to discharge him of Suits at the Common-Law.

The Office and duty of the Ordinary after the death of any Coo. 5. 83. 9. 39. Litt. Broo. Sect. 233. F. N. B. 120. D [...]er. 23. Doct. & St. 132. person within his Diocesse, is, if he hear of any Will made, and any Executor appointed, to cite the Executor, and to compell him to come in and prove the Will, and to accept and take upon him [Page 481] the administration of the goods, or to refuse it: and if the Executor Broo. Executor. [...]0. Testament. 27. Stat. 31. Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. c. 5. refuse, or if there be a Will made and no Executor appointed, the Ordinary must commit the administration cum testamento annexo to whom he shall think fit, and take Bond of the admistrator to performe the Will. And if there be no will made, he is to grant the administration of the goods to the next of kinne, if he or they require it; and if not, to whomsoever besides shall desire it; or if no body seek it, he may grant letters to whom he will ad colligendum bona defuncti, and thereby take the goods of the deceased into his own hands: and then it seemes hee is to pay therewith the debts and Legacies of the deceased, so farre as the same will reach in such order as the Executor or administrator is to pay them. See more of this question in Numb. 29. infra.

An Executor or Administrator regularly shall charge others for 28. Where and how an Executor or Administrator shall charge others in respect of the estate of the deceased, and what actions & remedy he may have against others, and what not, and how. any debt or duty due to the deceased, as the deceased himself might have done; and the same actions the deceased might have had, the same actions for the most part the Executor or administrator may have also: And therefore he may have an West. 2. c. 22. action of account, F N B. 117. an action of Trespasse de bonis asportatis in vita testatoris, Dyer 322. an action of debt against a Gaoler upon the escape of a prisoner, Coo. 11. 41. a Writ of error upon the Statute of 27 Eliz. Coo. 6. 80. an attaint upon the Statute of 23 H. 8. a Writ of restitution upon the Statute of 21 H. 8. Coo. 9. 86. an action upon the case upon the assumpsit of the Testator, Stat 9. 11. 6. c. 4. an Indempnitate nominis when the deceaseds goods are taken upon an Out-lawry against another man of his name, Broo. Excutor. 161. an action of Covenant for breach of a Covenant made to the deceased, Coo. 5. 27. an action upon the Case upon the Trover and Conversion of the goods of the Testator, 7 H. 4. 6. an Ejectione firme for an ejectment of the Testator out of a Terme, Coo. 4. 50. an action of debt for the rent behind in the life time of the deceased, Broo. Executor 169. an action of debt for the arrearages of an annuity due to the Testator in his life time, Broo. Executor 122. and a Ravishment or Ejectment of guard for a wrong due to the [...]eceased. Coo. 9. 8 [...]. But an Executor or administrator shall not charge another, or have any action against him for a personall wrong done to the Testator, when the wrong done to his person or that which is his, is of that nature as for which dammages only are to bee recovered: And therefore an Executor or Administrator cannot sue another for the beating or wounding of the deceased, or for a Trespasse done to him in his cattle, grasse or corn, or for a waste done by his Tenant in his lands; for these are said to be personall actions which die with the person, according to the rule, Actio personalis moritur cum persona.

If the Testament be kept from the Executor, he may have remedy 36 H. 6. 7. Coo. 8. 135. to recover it in the Spirituall Court: So if the goods of the deceased be kept from him, he may sue there for them if he will, or [Page 482] he may sue in any Court of Common-Law. And if there bee a Will, and an Executor made, or two Administrations granted together, hee that is rightfull Executor or administrator may sue the wrongfull administrator for the goods in his custody.

If one grant a rent out of his land for life, provided that it Coo. super Litt. 146. shall not charge his person, and the rent is behind, and the Grantee dyeth; in this case, the executor or administrator of the Grantee may have an action of debt for these Arrearages.

If any rent or arrerages of rent be due to me upon a grant of rent Coo. 4. 50. Stat. 32. H. [...]. cap. 37. out of any land to me, or reservation of rent upon any estate made by me of land; in these cases, my executor or administrator may have an action of debt for this rent, or hee may distraine for it, so long as the land chargeable with the rent, and out of which it doth issue, is in his possession that ought to pay it, or in the possession of any one that doth claime by or under him.

If any of my houshold servants doe convey away and eloine or See Stat. [...]. H. 6. c. [...]. destroy any of my goods; any executor or administrator may have a speciall Commission out of the Chancery to enquire of, and to punish it. And in case where a man doth sue as executor or administrator Coo. 5. 33. Broo. Tre [...]. passe 346. Fitz. Executor 1 [...]. he must in his action name himselfe as he is, i. e. if he bee an Executor, he must name himselfe so; and if an administrator, he most name himselfe so: And if there bee many Executors, and some accept and some refuse, if they bring any action, they must be all named in the Writ: And yet if one executor have goods in his possession and hee alone sell them, perhaps for this contract he may bring an action for the money in his own name; so also if the goods be taken out of his possession alone, it is said he alone may sue for them; but the safest way in these cases, is to sue in the names of all the Executors; for the possession of one of them is said to be the possession of all of them.

An executor or administrator regularly shall be charged by Coo. supe [...] Litt 209. 5. 17. Dyer 14. 23. 212. Doct. & St. Broo. Discent 53. 29. Where and how an Executor or Administrator shall be charged by others, and what Actions and remedy may be had against him, or [...]. others, for any debt or duty due from the deceased, as the deceased himselfe might have beene charged in his life time, so farre forth as he hath any of the estate of the deceased to discharge the same. And therefore if a man bind himselfe by Obligation or Covenant to pay money or doe any such like thing, and doe not bind his executors or administrators by name; in this case, the executor or administrator may be sued and may be charged as farre forth as if they were named. And yet where the Covenant is but personall, as where one doth make a Lease for yeares, and the Leassor doth Covenant to pay the quit rents, but he doth not say during the terme; by this it seemes the executor or administrator of the Leassor shall not be charged. Coo. 9. [...]6. Plow. 18 [...]. An action of the case lyeth against him upon an assumpsit or the simple contract of the Testator, especiall [Page 483] where the ground of the Assumpsit is a true debt, F N B. 121 a rationabili parte bonorum lyeth against him; 3 H. 6. 35. 11 H. 4. 45. a Detinue lyeth against him for the goods delivered to the deceased, if the executor or administrator doe still continue the possession of them: Also an action of debt lyeth against him for Arreatages of account found upon the deceased before Auditors.

The executor or administrator of the father that hath levied Stat. 25. Ed. 1. c. 11. Aid of his Tenant for the marriage of his daughter, shall bee charged with it, and the daughter may sue for it.

The executor or administrator of a Gardian in Chivalry that E N B. [...]6. doth commit waste in the Wards lands, shall be charged and may be sued for the heire for it.

If a man possessed of a term of years, devise it to another, and Coo. 5. 12. Coo. 8. 94. the executor or administrator of the Devisor before the assent to the Legacy, doth commit Waste in the land in Lease; in this case, he shall be charged with, and may be sued for this Waste by him in reve [...]sion: But if the executor die, his executor shall not bee charged with it; for it is a personall wrong that dyeth with the person.

If a Bishop grant an annuity out of his lands to I S for life and Dyer 370. die; in this case, it seemes the executor or administrator of the Bishop shall bee charged with the Arrerages due in the Bishops time.

If a Lease for yeares be made rendring rent, and the rent is behind Broo. Executor 127. Coo. 3. 24. 22. and the Lessee die; in this case, the executor or administrator of the Leassee shall be charged for this rent. So also if Leassee for yeares assigne over his Interest and die, his executor or administrator shall be charged with the Arrerages before the assignment, but not with any of the Arrerages due after the assignment.

The executor or administrator of a Customer or Controller shall Broo. Exe [...]o [...]. 157. be charged upon a Taile of the Exchequer showed to the Testator.

The executor or administrator shall bee charged for a Ravishment West [...]. [...]. c. 35. or [...]jectment of Ward by the deceased.

The Executor or Administrator may be charged in the Spirituall Trin. 7. Ia. B. R. [...] N B. 51. all Court for Tythes due from the deceased: bu [...] he may not (as it seemes) be sued in any Temporall Court for them.

The executor or administrator of a man that recovereth a debt Curia 21. Ia. B. R. upon a judgement had by the deceased, shall be chargable with restitution, if the judgement be reversed for error.

An executor or administrator shall not be charged for any personall Coo. 9. 87. F N B. 117. Dyer 322. [...] H. 4. 46. Doct. & St. 76. Coo. 8. 94. 133. wrong done by the deceased, and therefore no action may be brought against him for any such cause, as because the deceased did burne the Deed of the lantiffe, suffer a Prisoner at his suite to escape, cut down his trees, cat up his grasse, beate or wound the [Page 484] body of the Plantiffe, defame him in his name or the like; for all these are said to be personall actions that dye with the person, neither is there any remedy to be had against the executor or administrator in equity in these cases, neither shall he be charged in any action of accompt for any receit or occupation by the deceased. And yet perhaps an action of the case may lie in this case; neither will an action of debt lie against him upon the simple contract of the deceased, but an action of the case only. Adiudge Hill 40. [...]liz. B. R. Bowye [...] case. Neither will an action lie against an executor or administrator upon an arbitrement made in the life time of the deceased, albeit it be made in writing. H [...]l. 7. Ia. BR. [...]per 3 Iustices. Neither will any action lie against any Executor or administrator for costs given in the [...]tar chamber or Chancery against the deceased in a Suite there, but when the party dieth, the same is lost; and Coo 9. [...]9 [...]. 40 Broo. Executor 78. 136. 136. Fitz. Briefe 34 [...]. where a man doth sue an executor or administrator in a Suite, hee must charge him as he is, v. z. if he be an Executor, he must sue him by that name; if an administrator, then by that name. And where there be many Executors, and have all accepted, they must be all sued; but if some of them have refused, perhaps the Suite may bee good enough against the rest. But otherwise one Executor cannot be charged without his companions, except it be in the case of Summons and Severance, and in some speciall case where one alone doth the wrong and the like, as where one Executor alone doth detain the deeds from the heir; for in this case he alone may be charged. See more infra at Numb. 39. 21 Ed. 4. 25. 4 H. 7. 4. 16. H. 7. 4. Broo. Executors 66. 30. 65. 9. Ed. 4. 12. Fitz. Executors 10.

All the Executors where there be more then one, be they never 30. What act one Executor or Administrator alone may do; And where the act or laches of one may prejudice or barr his companion, and where not. so many, in the eye of the Law are but as one man; in which respect the Law doth esteeme most acts done by or to any one of them, as acts done by or to all of them. And therefore the possession of one of them of the goods and chattels of the deceased is esteemed the possession of them all; paiment of debts by or to one of them is esteemed a payment by or to them all; the sale or gift of one of them of the goods and chattels of the d [...]ceased, the sale and gift of them all; a Release made by or to one of them is a Release made by or to them all; and the assent of one of them to a Legacy the assent of them all. Adiudge M. 39. 40. Eliz. B. R. And therefore if there be two Executors, and one of them deliver up the Obligation to the Debtor whereby he is bound, the other Executor shall not recover him in a Detinue. So if two Executors have lands or goods in execution, and one of them release all his interest, this is a totall discharge of the execution. Crompt. Iac. 45. 4 [...]. 7. 4. And yet if in this case there be any practise between the executor and the Creditor in this matter, and there be not Assets besides to pay all the Debts and Legacies, here perhaps the other Executor may have remedy in equity against his Co-executor and the Creditor. But how the Law is of Administrators, quaere; for some think that one [Page 485] of them also may sell-goods release debts, plead to actions or the like without the other.

If one Executor atturn to the Grant of a reversion, or a rent; Dyer 210. Coo. 4. 31. Additio [...] to [...]ust. Do [...]dge 4 [...]. this is as good as if they did all atturn and bind all the rest, as in case of assent to a Legacy; for in this case the assent will bind all the rest, albeit there be not enough to pay the debts besides the Legacy given away by assent, but his assent shall not hurr his Co-executors in a Devastavit.

If one Executor appear to an action sued against them all, or Coo. 9. 38. Dyer [...] 10. plead a Plea to it; this for the most part shall be said to be the appearance and plea of them all, and shall bind the rest.

If two Executors sue together, and one of them is summoned and severed; in this case he that is summoned may before Iudgement Dyer 310. 210. 16 H. 7. 4. release the duty; but if the other prosecute to Iudgement first, and then he that is severed acknowledg satisfaction, this will not benefit the Defendant, nor barr the rest that are Plaintiffes in the Iudgement. And if 3 Executors sue, and 2 are summoned and severed, and the 3 recover and dye; in this case the other two shall have execution. See more at Numb. 27. supra. [...]

One Executor or Administrator cannot give or sel any of the goods or chattels of the deceased to another Executor or Administrator; [...]. What act one Executor may do to another, And what remedy or action one Executor or Administrator may have against another or not. 27 H. 8. 21. 6 H. 7. 5. Plow. 343. [...]itz. Executors 6. and therefore they may not make division of the goods amongst themselves; and regularly one of them cannot sue another of them. And therefore if one keep, give, or sell all the goods, release debts, or the like in the disturbance of the execution of the Will or due Administration of the estate; it seemes the other hath no remedy against him, except it be in the case of Covin before; But if all the residue of the goods and chattels after debts and legacies paid be given to one of the Executors alone, and after the debts and legacies paid the rest do detaine it or any part of it from him; in this case perhaps hee may have some remedy against them.

If the Debtor make his Creditor and another his Executors, and [...]. 483. the Creditor doth refuse the executorship, and the other doth accept it; in this case the Creditor may sue the executor for this debt: But if both prove the Will, and the Debtor dye, the surviving Co-executor cannot sue the executor of the debtor for this debt. And if one make a woman and two others his executors, and a Creditor before shee doth accept of the executorship doth marry her; in this case hee may sue the other executors for this debt; but if shee have accepted of the executorship first, contra. 32. Devastav [...]t. Q [...]id. What shall be said a Devastavit and wasteing of the goods of the deceased by an Executor or Administrator, And how he shall be charged thereupon. [...] 5 [...]3. [...]oo. 532. Doct. & St. 75. Perk se, 488. 570. Kelw. 59.

A Devastavit or waste in an executor or administrator is when he doth misimploy the estate of the deceased, and misdemean himselfe in the managing thereof against the trust reposed in him. [Page 486] And this may be done divers wayes, as 1. When the Executor or Administrator doth bestow more upon the Funerals of the deceased then is meet, having respect to his degree and estate. 2. When he doth pay Legacies in money, or assent to Legacies given in other things before the debts are paid, and hath not enough besides to pay the debts. 3. When he doth not pay the debts in that order and manner as is before set down, but doth pay them first he should pay last, and he hath not enough to pay them all. 4. When he doth release a debt or duty due to the deceased before he doth receive it, or when the goods of the deceased being taken from him, he doth release to him that doth take them the action whereby he may recover them. 5. When he doth sell the goods of the deceased much under value, especially if it be with covin, as to his near friends, to his own use, to have money under hand, or the like: but otherwise to sell them under value, especially where he cannot conveniently make more of them, is no waste. All Dyer 185. Coo. 5. 32. Old B. of Entries 11. these and such like acts as these are said to be a waste in an Executor or Administrator; and being discovered against him by the returne of the Sheriffe, (or as some think by enquest of office) it will produce this effect, to make the Executor or Administrator chargable for so much as he hath misimployed and wasted de bonis propriis, so that any Creditor may charge him for the debt due to him from the Testator as for his own proper debt, and for so much the execution shall be made against him upon own body lands and goods; And yet so as one Executor or Administrator shall not be Dyer 210. Doct. & St. 78. charged for the waste of another; for if there be many Executors, and one of them only doth commit the waste, he only shall be punished for this waste. And the Executor or Administrator if he do commit a waste in the gift or sale of goods, shall answer it alone; for he to whom the goods are given or sold shall not be punished for it, neither shall the executor or administrator of the executor or administrator be punished for it after his death. And howsoever the husband shall be charged in a Devastavit for the waste of himselfe or his wife where she is an executrix whiles they both live 2 H. 7. 15. Coo. 5. 2 [...]. M 3. Ia. B. R. together; yet if a woman executrix take a husband, and during the marriage he or she doth commit a waste, and after she die; in this case it seemes the husband shall not be charged for the waste himself or his wife did, Sed quere of this. For if a void Administration be committed, and the Administrator do waste the goods, Coo. 6. 1 [...]. and after the Administration is committed to another; in this case the first Administrator mae be charged by the Creditors for the waste done in his time. But an executor or administrator may lawfully sell or convert the goods of the deceased to his own use, Dyer 2, 187. Plow. 543. so as he convert the money to the use of the deceased, in payment of debts, or the like, and pay so much of his own money as the [Page 487] goods so converted to his use are worth; and these acts are not esteemed a waste in him. Also he may sell any speciall Legacy that is given, and this is no waste in him; [...]owbeit it is a wrong to the Legatee if there be assets to pay debts besides. And when he hath enough to pay all the debts and Legacies, then he may dispose of the whole estate how he will without any prejudice to himself at all.

An executor of his own wrong is one that is neither lawfull executor nor administrator, and yet doth take upon to do and act such Termes of the Law Kelw. 59. 93. Dyer 105. 157. 255. Coo. 5. 32. [...]oo. Executor 162. things as are only fit for, and proper to an executor or administrator, 33. Executor of his owne [...]. Who shall be said to be so. And what act shall make him so to be accounted. And what act such an Executor may do, And how hee shall be charged, or not. as to take the goods of the deceased into his own possession, give and sell them, pay the debts of the deceased therewith, release the debts due to the deceased, and the like. And a man may make himselfe such an executor by any such intermedling with the office and work of an executor as followeth; 1. By proving the Will with the money of the dead; but to prove another mans Will at my own charge, will no more make me chargable as executor of mine own wrong, then to bu [...]y the deceased in a decent manner out of his own estate. 2. By a seising, gaining, keeping and using of the goods of the deceased as a mans own, especially if he convert them to his own use, sell, or otherwise dispose them; and every colour of title will not help in this case; for if a man make a Deed of gift of all his goods and chattels to another, and dyeth intestate, and this in truth is fraudulent and in trust, and the Donee after the death of the Donor doth dispose of these goods and chattels as his own; in this case and by this meanes he shall be esteemed as executor of his own wrong. And yet if the Deed of gift be bona fide in satisfaction of a just debt, and the goods be no more then the debt, it may be otherwise: but if the goods be much more then the debt, there it seemes he shall be charged so for the overplus, and that whether he have them in possession or not; and so was the opinion of Iustice Jones at Gloucest. Assises 9. Car. If the Ordinary grant Letters ad colligendum & vendendum the goods of the deceased that are like to perish, and I S to whom the Letters are made, under colour thereof doth take and sell the goods; hereby he may make himselfe chargable as executor of his own wrong: for the Ordinary hath no such power himselfe, and therefore he may not give that power to another. If a man that is next of kin procure a Begg [...]r, or a stranger to take out an administration, and then to make him Stat. 43. [...]z. cap. 8. a Deed of gift of all the goods for a small matter; he may bee thus charged for the overplus of the worth of the goods more then Plich. 7. Ia. Co. B. per. ch. Iustice. he gave. So if a Debtor procure such an administration to bee taken out, and then get a Release of his debt from the administrator; this may make him chargable as executor of his own wrong for so much as his debt doth come unto. And yet a [Page 488] man may take away his own goods that were in the hands of the deceased without danger. And every having and possession of the goods of the deceased will not make a man executor of his own wrong: Trin. 17. Iac. per chiefe Iust. For if a man dye in my house and have goods there, and I keep them untill I can be well discharged of them; this will not make me chargable as Executor of mine own wrong. Coo. 5. 34. Kelw. 63. So if I do only lay up the goods of the deceased to preserve them in safety for him that shall have right to them, this will make me no more chargable then if I take an Inventary of all the goods of the deceased. So if another man take the goods of the deceased and sell them to me, or give them to me; howsoever this will make him chargable as Executor of his own wrong, yet this will not make me chargable so. Neither will every disposition of the goods of the deceased make a man Executor of his Kelw. 63. 52. 33 H. 6. 31. 32 H 6. 6, Dyer 167. Coo. 5. 34. 20 Ed. 4. 17. Fitz. Executors 122. own wrong; for if a man sel some of the goods of the deceased (where there is need) to help forward a decent Funerall of the body of the deceased: this is no such disposition as to make a man chargable thus. So if I deliver the wife of the deceased her necessary wearing apparell, or if I be wife to the deceased and take it my selfe. So where I take any of the deceaseds goods into my hands, by mistake, supposing them to be mine own, or under colour of title, as when I have a good Deed of gift or sale of them without any fraud or covin: or under a good authority, as when I take them upon a warrant from the Sheriffe that hath processe out of the Exchequer to take them, or as a Trespassor only, as when I kill, or otherwise abuse the cattell; such an intermedling with the goods of the deceased will not make a man chargable as Executor of his owne wrong, neither may I so bee charged in these cases. The third way by which a man may make himself chargable as Executor of his own wrong, is by delivering of the goods of the deceased to Creditors in satisfaction of their debts, or by selling any See the [...] before. of the goods of the deceased to pay the debts of the deceased, and paying the same with the money made thereof; but to pay the deceaseds debt with a mans own money will not make him chargable so. The fourth way by which a man may make himselfe so chargable, is by receiving any of the debts due to the deceased. Dyer 166. The fifth way by which a man may make himself chargable so, is by releasing any debts or duties due to the deceased. The sixth way, by delivering any Legacies given by the deceased in kind, Dyer 166. or by paying any Legacies except it be with a mans own money. The seventh way, by taking a mans Legacy given to him before the Executor have accepted of the Executorship and assented to the Legacy. The eighth way, by sueing as Executor to the deceased for any debt due to the deceased. And the ninth way by taking upon him to sell the lands of the deceased as his Executor. In all these [Page 489] cases, and by all these and such like meanes, a man may make himselfe an Executor of his own wrong: So that if an Executor after he Dyer 105. hath legally waived the Executorship, or an Administrator after his Administration is repealed and revoked, intermeddle with the estate in any such manner, he may bee charged as Executor of his own wrong: And if a woman take more of her wearing Dyer 166. 33 H. 6. 31. apparrell then is necessary and convenient for one of her ranke and condition without Legacy of the husband and licence of the Executor, shee may bee charged thus.

And if a man under colour of an Administration that is not good, Dyer 255. 166. Coo. 5. 34. 9. 39. or of a Commission ad colligendum bona defuncti that is not good, or of a Will when in truth there is none at all, or no good Will, doe take upon him to intermeddle with the goods and to dispose of the estate in manner as aforesaid, by this meanes he may make himselfe chargeable thus. And in these cases and by these meanes, such persons that doe so intermeddle, do make themselves to be accounted in Law, Executors; but Executors by wrong only and not Executors by right. Coo. 5. 34. Plow. 148. 145. 33 H. 6. 31. And therefore, such persons have not the favour nor power of lawfull Executors, as to bring any Action for debt due to the deceased, to deduct and pay themselves any debt due to themselves first of all and to barre other Creditors, and the like. Dyer 210. Plow. 184. Coo. 5. 33. And for so much as they have so disposed and mis-imployed, and no more, they make themselves chargeable to any Creditor or Legatee of the deceased that shall sue them as farre forth as a lawfull Executor is chargeable. And albeit, he that doth thus be a Creditor, yet this will not help him; for a Creditor may not enter upon the goods of the deceased and pay himselfe first, and if he doe so, if there be a lawfull Executor or Administrator made, he may sue the Creditor; and if there be no Executor or Administrator made, the Creditor may by this meanes make himself chargeable to other Creditors, as Executor of his own wrong for so much as he hath taken into his own hands: And then a man shall be charged the Coo. 5. 33. Kelw. 59. rather in these cases, and by this meanes when there is no Executor made; or if there be an Executor made, when he doth refuse to take upon him the Executorship, nor any Administration granted; for when a man dyeth Intestate, and a stranger taketh and useth the goods of the deceased as his own, albeit he pay no debt, or Legacy, nor doe any other act as Executor, yet when no other man taketh upon him the administration, this intermeddling shall make him chargeable as Executor of his own wrong; for in that case the Creditor hath no other remedy: But in case where there is an Executor made, and he doth prove the Testament, and doth take upon him the Administration of the goods, and then a stranger taketh out of the hands of this Executor, or getteth into his own hands all or some of the goods of the deceased, and useth them as his own; [Page 490] this will not make this stranger Executor of his own wrong; for now there is a lawfull Executor against whom the Creditor may have his remedy, and the Executor shall have his remedy for these goods against the stranger; for they are and shall be accounted Assets in the hands of the Executor still, notwithstanding the stranger hath the possession of them: And yet in this case also where there is a rightfull Executor, if a stranger shall take the goods into his hands, claime to be Executor, pay debts and Legacies, and receive debts, and intermeddle as an Executor; in this case, perhaps, and by this expresse Administration as Executor, he may bee charged as Executor of his own wrong, albeit there be a lawfull Executor: And if a man die Intestate, and a stranger intermeddle with the estate as before, and then the Administration is granted to another; in this case, the stranger may be charged by any Creditor or Legatee as Executor of his own wrong for his intermeddling before the Administration granted; for the rightfull Executor or Administrator shall be charged with no more then what doth come into his hands. And if an administration bee granted afterwards to any one that hath so intermeddled with the goods before; this will not purge Pasche. [...] Eliz. Co. B. B [...]adbury versus Reynolds. the wrong done before; and therefore in this case, a Creditor may charge him as Executor of his own wrong, or as a lawfull Administrator at his election.

The Administrator durante minori aetate is a speciall kinde of Administrator, 34. Admininistrator durante minori aetate; what he is, and his power, and when it shall end. and is in case where an Infant under the age of 17 years Coo 5. 29. 6, 27. 9. 27. (for at that age an Infant is capable of an Executorship) is made an executor, and the Administration of the goods (as the manner is in that case) is committed to one or more of the next friend or friends of the Infant during his minority, which is untill he be of the age of seventeen yeares; he that hath such an administration granted unto him is such an Administrator. And he is sometimes generall, i. e. when his administration is granted unto him without any words of limitation: and sometimes he is speciall; i. e. when his administration is granted to him ad opus & usum of the Infant only. In the first case, he hath as large a power as another administrator hath, and therefore he may assent to a Legacy, albeit there be not Assets to pay debts; he may sell any of the goods or chatt [...]ls of the deceased, or give them away or the like, as another administrator may doe. But in the last case, it is otherwise; for such a speciall administrator can doe [...]tle more then the Ordinary himselfe, and therefore he may not sell any of the goods or chattels of the deceased, except it be in case where they are like to perish, for funerall expences, or for payment of debts, nor may he assent to a Legacy where there is not Assets to pay debts &c. And this administration is ipso facto determined when the executor doth come to the age of seventeen years: And therfore if it be granted during the minority of four Executors, [Page 491] and one of them die, or come to the age of seventeen yeares; now is the administration determined: And if the executor be a woman and she take a husband that is seventeen years of age or upwards; in this case, it seemes the administration is determined: And therefore also it is that if such an administration durante minori aetate bee granted after the executor is seventeen yeares of age, the administration is void.

It hath been held that the Ordinary after he hath granted the administration 35. Where an Administration once committed by the Ordinary may be afterwards revoked; and what shall be said a Revocation of such an Administration, or not: and what acts done before shall stand in fores, or not. 4 H. 7. 14. Litt. Broo. Sect. 330. 34. H. 6. 14. D [...] er 339. Broo. Administrator 7. of the goods of a man Intestate to another may afterwards without cause revoke the same and grant it to another, at his pleasure: and that if the Ordinary grant letters of administration to one, and after grant letters of administration to another, of the goods of the same man, that hereby the second letters of administration are ipso facto countermanded, albeit there be no words of Revocation in them. See the Stat. 21 H. 8. c. 5. Coo. 6. 18. New book of Entries 38. But it seemes the Law is otherwise, and that after the Ordinary hath granted the administration according to the charge and direction given him by the Statutes, that he cannot afterwards revoke it, and grant it to another without cause; i. e. unlesse the first administration be illegally granted, as when it is granted to a stranger, and no [...] to the next of kinne or the like, or unlesse the first administrator cannot or wi [...]l not administer; for in these cases he may without doubt grant the administration to another. And yet in these cases, where there is a former administration granted regularly, all acts that the first administrator doth lawfully execute and doe as administrator, as sale of goods, payment, or receit of debts, making Releases, and the like, are good and shall bind the next and succeeding administrator. And therefore, if the Plow. 281. Coo. 6. 18, 19 Dye [...] 339. Ordinary after the death of a man Intestate, doth grant the administration of his goods to a stranger, and then the next of kinne doth sue by Citation to have it repealed, and the first administrator hanging that Suit in the Spirituall Court, doth sell the goods of purpose to defeat the second administration, and after the first letters of administration are revoked by sentence, and the first sentence annulled, and the administration is committed to another; in this case, the second administrator cannot recover these goods or have any remedy for them. And yet perhaps if there be any fraud in the case, an executor may have reliefe upon the Statute of 13 Eliz. But if the first Suit and sentence be by Appeale avoided, then all that the first administrator doth is void, and the second administrator may recover the goods notwithstanding the sale: And if the Coo. 6. 19. first administration be upon condition, all the acts the administrator doth before the condition is broken, are good; and therefore i [...] if he give or sell the goods, the subsequent administrator cannot avoid it.

If a man die Intestate and have not bona notabilia, and the Bishop Coo. 8. 135. [Page 492] of the Diocesse grant Letters of Administration to one, and after the Archbishop doth grant Letters of Administration to another; in this case, the effect of the first administration is suspended untill the other be repealed and declared by sentence to bee void. If there be a Will, and it is concealed, and thereupon an administration Plow. 281. 9 H. 5. 5. is granted, and after the Will is produced and proved; in this case, the administration is ipso facto determined, and all the acts the administrator hath done ab initio, are become void. See more in the next Question.

If a Will bee made by an Ideot, and an Executor appointed therein, Dyer. 36. What Acts done by one Executor or Administrator, may be avoided by the subsequent Executor or Administrator, and what not. and the Executor take upon him the administration, and after the Will is avoided for the weaknesse of the Testator; in this case, it seemes that all the Acts the Executor doth before the avoidance of the Will are good and not to bee avoided by the Admistrator.

If there bee a Will made, and an Executor appointed, and the 3 H. 7. 14. Ordinary cite the Executor to come in, and prove the Will, and he doth not come, and thereupon the Ordinary doth grant the administration to another; in this case, all acts done by the Administrator are good, and shall binde the Executor, if hee may and shall afterwards take upon him the Executorship. But otherwise it is where the Ordinary doth grant the Administration before the Executor be cited to appeare, or before the time given him to take upon him the administration; for in this case, nothing that he doth shall binde the Executor.

When there is an Administration granted, and it is afterwards upon C [...]o. 6. 18, [...]9 P [...]w. 282. Coo. 8. 143, 135. a Suit by condition only repealed; in this case all acts done by the first Administrator are good and shall binde the subsequent Administrator. But in case where the first administration is upon a Sui [...] by appeale by sentence annihilated and declared void, there, all acts done by the first Administrator are void, and shall not bind the subsequent Administrator: And therefore, if the Ordinary of the Diocesse grant an Administration that doth belong to the Metropolitan to grant (in which case, the Administration is void;) all Acts done by the Administrator are void, and may be avoided by the succeeding Administrator. But when the administration doth belong to the Ordinary of the Di [...]cesse to grant, and the Metropolitan doth grant it (in which case, it is only voidable) in that case, all acts upon and by vertue of the first administration before the second administration is granted, are good.

If an administration be granted to a stranger, and afterwards it is revoked and granted to the next of kinne; in this case, all lawfull W [...]son versus Packman. M. 37. 38. Eliz. B. R. acts done by the first Administrator before, and hanging the Suit, are good and unavoidable by the subsequent Administrator; and yet perhaps if the first Administrator waste the goods, it may bee hee [Page 493] may be charged for this by the subsequent Administrator, or by a Creditor.

Where the Executor by the Will is not to administer untill a Plow. 281. 282. Coo. 6. 19. 34. H. 6. 14. certain time; in this case, the administration of the goods is to be granted untill that time, and all acts done by such an ad [...]inistrator before that time are good and shall binde the Executor. So where an Executor is made, or an administration is granted upon condition, which is after broken, so that the Executorship or Administration is determined; yet in this case, all acts done by him before this time are good.

If there be a false and a true Will, and the Executor of the false 4 H. 7. 13. Plow. 282. Will prove this Will first, and afterwards the Executor of the true Will doth disprove and avoid the first Will; in this case, hee may also avoid all acts the first Executor doth.

The same Barres and Pleas regularly, that a man may have to Coo. 5. 33. Dyer 30. 80. Coo 8. 132. 134. 21 H. 6. 19 D [...]er. 2. 27 H. 8. 6. Coo. 9. 108. [...] H 4. 21. Actions brought by the deceased himself in his life, a man may have 3 [...]. What shall be said a good barre in debt, or other Action brought by, or against an Executor or Administrator, and what not. to ba [...]re the Action and Suit of his Executor or Administrator after his death. But an Executor or Administrator may have besides the same Pleas and Barres to Actions the deceased might have had as Non est factum, Per Duresse, Non Assumpsit and the like, divers other Pleas and Barres to Actions in respect of his estate and condition as Executor or Administrator: For if he never meddle with the goods and chattels of the deceased, and yet be sued as Executor or Administrator, he may plead Ne unque, i. e. he did never intermeddle as Executor or Administrator; and if this be found for him, this will barre the Plaintiffe: And if he doe intermeddle and take upon him the administration, be may plead, if the case be so, that he cannot recover the goods of the deceased; for he shall bee charged for no more then what he can g [...]t in his possession. Or he may plead that he hath fully administred all the goods and chattels of the deceased, and hath nothing left to administer; or he may plead, that he hath paid so much of his own money as the goods in his hands do amount unto. Or if he be sued for debts due by obliligations or such like Especialties entred into by the deceased, hee may plead that there are debts due, and ye [...] to pay on Iudgements had against the deceased, or that there are debts due and yet to pay on Recognisances or Statutes entred into by the deceased, and that he hath no more then enough to satisfie them: Or, he may plead that there are Iudgements had against him for other debts of the deceasEd in equall degree with the debt sued for, and that he has no more then enough to discharge them: so as these former debts, on, and for which these Iudgements were had and Statutes given, bee bonà fide du [...], and the Iudgements, Recognisances and Statutes in truth continued for the same; for if there be any fraud in the case, viz. that either the Iudgements, Recognisances, or Statutes, wer [...] [Page 494] at first entred into, or are afterwards continued of purpose to deceive or delay others of their due debts, when either the debt is satisfied, or compounded for lesse, or the like; in these cases, this plea will not serve; but this matter being disclosed, by the Plaintiffs pleading, he will avoid it: And if he be sued for a debt due upon a simple Contract or promise of the Testator, he may plead there are debts to pay due by Obligations and other especialties entred into by the deceased, and that he hath no more then enough to satisfie those debts, and this will barre the Plaintiff in his Action: And therefore if an executor or administrator plead a Iudgement in barre of an Action of debt upon an Obligation, hee must shew also that the Suit whereupon the Iudgement was had, was upon an Obligation; for if it were on a simple Contract, it is no barre. And if the Executor be sued for debt on an Obligation, he may plead he made voluntary payment of other debts due upon Obligations, or gave new security for them in his own name before the Suit began, and that he hath no more then enough to satisfie them. But to plead such a voluntary payment or giving of new security after Suits begun upon this Obligation now in Suit is no good plea. If an Action bee brought against an Executor or Administrator on an Especialty for money, it is no good plea in barre of this Action to plead a Statute or Recognisance with Defeasance to performe Covenants when there is no Covenant broken. If a Suit be against an Executor or Curia Trin. 37 Eliz. Administrator for a Legacy, it seemes it is no good plea to plead a Bond with Condition for performance of Covenants, or for the doing of any other collaterall thing that is contingent only, and not yet broken. Is is no good plea in an Action for an Trin. 39. Eliz. B. R. executor or administrator to say that the deceased was Out-lawed.

An Executor or Administrator may make himself chargable of 38. Where and in what case, an Executor or Administrator shall be charged by his own act or pleading upon his own goods; and where Execution shal bee de bonis propriis; and where not. his own goods, either by omission, as when he being sued upon 2 H. 6. 12. Dyer 185. 80 Coo. 9. 90, 94. 9 H 6. 57. 3 [...] H 6. 45. Broo. Executor 141. 105 Litt. [...], Sect. 29. Klew. 61. Broo. Executors 164. an Obligation, or the like, and there is a Iudgement against him or the deceased in force, and he hath but enough to satisfy that Iudgement, and he doth not plead this in barre of the present action, but doth suffer the Plaintiffe to recover against him; in this case he must satisfy this second debt out of his own estate; or by Commission, and that either by doing, as when he doth any act that is a waste in him, and thereupon a Devastavit is returned against him, for in this case he must answer so much as he hath wasted out of his own estate: or by saying, as when a Suite is against, and he doth plead such a false plea therein as doth tend to the perpetuall barr of the Plaintiffe in the action, and yet it is of a thing that doth lie within his perfect knowledge, as when hee doth plead he is not Executor, nor did ever administer [...]s Executor, and upon tryall of this issue against him it be found hee is a [Page 495] rightfull or wrongfull Executor; in this case he must satisfy this debt out of his own estate whether he have Assets or not, and the execution had upon the Iudgement had in this Suite shall be de konis propriis. And if an executor or administrator be sued, and he plead to the action plenè administravit, and upon tryall it is found against him; in this case if he have any of the goods of the deceased left in his hand, the execution shall be of them; but if he have none of the goods of the deceased left, the execution shall be, and he shall be charged for so much as is found to be in his hands de bonis propriis. But where he is sued upon a promise made by the Testator, and he plead non assumpsit to it; and where he is sued upon a Deed made by the Testator, and he plead no [...]est factum to it, or the like; and these issues upon tryall are found against him; or when he shall confesse the action, or suffer a Iudgement to go by default against him: or plead any vain plea; in all these cases he shall not be chargable of his own estate, neither shall the judgement and execution in these cases be de bonis propriis, but de bonis Testatoris only for the debt, and de bonis propriis for the costs; And yet if an executor or administrator shall entreate a Creditor to forbeare his debt untill a day, and then promise to pay him; by this promise he hath made himselfe chargable as for his own debt, howbeit it shall be allowed him upon his Account. But in all these cases, and such like where a man shall be charged of his own estate, and the execution shall be de bonis propriis, Atworths case Mic [...]h. 38. 39. Eliz. it seemes the Iudgement is alwayes de bonis Testatoris, and the course is this, the first execution is against the executor de bonis Testatoris, and not de bonis propriis; And after a Devastavit 34 H. 6. 45. 46 Ed. 3. 9. Fitz. Executor 9. Coo. 5. 32. 8. 134. Dye, 185. 32. returned by the Sheriffe against the executor or administrator, and not before, a new execution is directed to the Sheriffe to levie the debt de bonis Testatoris; and if there be none of them to be found in his hands, then to levie them de bonis propriis. And therefore if an Executor or Administrator be sued by a Creditor, and the Executor or Administrator plead a plenè administravit generally, or plead specially that he hath no more but to satisfie a Iudgement or the like; and upon tryall this issue is found against him, and it is found he hath in all or part enough to satifie the debt; in these cases the Judgement is de benis Testatoris, and thereupon an Execution is (as in other cases) to levie the debt de bonis Testatoris in the hands of the Executor or Administrator, and for the costs de bonis propriis. And upon the returne of the Sheriffe a speciall execution doth issue forth to levie the money de bonis Testatoris: Et si constare poterit that he hath wasted the goods, then that he shall make the execution d bonis propriis. And h [...]reupon also the Plaintiffe may if he will have a Capias against the body, or an Elegit against the lands of the Executor or Administrator, [Page 496] and no other course of proceeding can or may be had against the Executor or Administrator in this case.

An action of debt was brought against two Executors, and one Dyer 21 [...]. of them did appeare and confesse the action, and the other made default, and thereupon Judgement was given to recover against them both de bonis Testatoris in their hands, and execution accordingly: and upon this execution the Sheriffe did returne a Devastavit against the Executor that made default only, and hereupon a Scire facias went out against him alone, and afterward an execution against him alone de bonis propriis.

Assets in this case is said to be where one dieth indebted and Termes of the Law Coo. super Litt. 374. maketh his Executor, or dyeth intestate, and the Executor or Administrator Assets, Quid. hath sufficient in goods or chattels or other profits to pay the debts or some part thereof; this is said assets in his hands, and for so much he shall charged.

All those goods and chattels, actions and commodities which were the deceaseds in right of action or possession as his own, and 3 [...]. What shall be said to be Assets in the hands of an Executor or Administrator to charge him, Or not. so continued to the time of his death, and which after his death the Executor or Administrator doth get into his hands as duly belonging to him in the right of his Executorship and Administration, and all such things as do come to the Executor and Administrator in liew or by reason of that, and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargable to a Creditor or Legatee. And herein these things are to be known; 1. That Assets in the hands of one of the executors shall be said to be Assets in the hands of all the executors. Kelw. 51. 2. That Assets in any part of the world shall be said to be Assets Coo. 6. 47. in every part of the world: and therefore if that point be in issue, and it appeare that there is Assets in the hands of any one of the executors, or in any County or place whatsoever, the Iury must find that there is Assets. 3. All goods and chattels of what nature or kind whatsoever that are valuable, as oxen, kine, corne, &c. Coo. super Litt. 388. shall be esteemed Assets. But such things as are not valuable, as a Presentation to a Church and the like, sha [...]l not be accounted assets. 4. All the goods and chattels that come to the executor or administrator in the right of their executorship or administration, and Coo. super Litt. [...]88. 5. 3 [...]. that are by Law given to them by vertue thereof in the right of the deceased (for which, See before at Numb. 25.) and which Dyer 361. Kelw. 63. are in possession shall be esteemed Assets in his hands. Coo. super Litt. 54. Dyer 36 [...]. And therefore if a Feoffment be made to the use of the Feoffor for life, and after to the use of his executors and assignes for 20 yeares; in this case it seemes this 20 yeares shall be said to be assets in the hands of the executor of the Feoffor. 20 H. 7. 4. Broo. a [...]sets 22. And goods pledged to the deceased and not redeemed, or the money wherewith it is redeemed, when it is redeemed, shall be said to be assets in the hands of the [Page 497] executor or administrator. See Before Numb. And if the deceased doth appoint that the executors shall sell his land to pay his debts, the money that is made of the land when it is sold, shall be said to be assets in his hands. 5. All the goods and chattels in action or in possibility Coo. super Litt. 124. 5. 31. Broo. Assets 24. Dyer 264. 121. 2 H. 4. 21. Coo. 6. 58. Kelw. 63. Dyer 362. at the time of the death of the deceased that are afterwards recovered, and are gotten in possession into the hands of the executot or administraror when they are so recovered, ate esteemed assets in his hands. But they are never accounted assets untill they are recovered and come in possession; and therefore if there be debts owing to the deceased upon Statutes or Obligations, or otherwise, these are never esteemed assets in the hands of the executor or administrator untill he hath recovered them. So likewise if there be debt or damages recovered by a Iudgement had by the deceased, but no execution is done untill execution be made, this shall not be esteemed assets in the hands of the executor or administrator. So if the executor bring an action of trespasse against another de bonis asportatis in vita Testatoris, and he have a Iudgement for damages; in this case untill he hath recovered it by execution, it shall not be esteemed assets in his hands. And if the Indgement be erroneous, and the execution avoidable; in this case albeit it bee recovered and gotten in possession, yet it shall Curia Mich. 13. B. R. not be esteemed assets. And therefore if one sue another and recover against him as Administraror of I S; and after a Testament made by I S is produced and proved, and thereby an Executor is made; in this case the money recovered by the Administrator shall not be said to be assets in his hands as to any of the Creditors because the Executor may recover it from him, or the debtor will have it againe. And if the Executor or Administrator do never recover and get the thing into his possession, he shall never bee Coo. 1. 98. Plow. 84. 292. charged, especially there where he hath done his best to get it and cannot. If one covenant to make a Lease for yeares to the deceased his executors or administrators, and after his death the Lease is made to the executor or administrator accordingly; in this Coo. 5. 34. case this Lease shall be said to be assets in his hands, and he shall be chargable for so much to any Creditor. And whatsoever the executor or administrator, must be forced to sue for by the name of executor or administrator being recovered, shall be esteemed assets in his hands. 6. Albeit the thing be extinct and gone as Coo. 1. 87. Broo. Leases 63. to the executor and administrator himselfe, yet it may have his being and be accounted assets as to the Creditors and Legatees. And therefore if an executor or administrator have a Lease for yeares of land in the right of the deceased, and afterwards he doth purchase the Fee-simple of the land (whereby the Lease is drowned) yet in this case this Lease shall continue to be assets as to the Creditors and Legatees still. Trin. 7. Ia. B. R. Simmons case. Coo. 8. 130. And if the Debtee make the [Page 498] Debtor his Executor, or the Debtee dye intestate, and the administration is committed to the Debtor; in these cases this debt shall be said to continue and shall be esteemed assets for so much as to other Creditors. And if a woman Executrix have goods worth 20l. and she marry with one of the Creditors to whom 20l. is owing; in this case it seems the husband may not retain the goods to pay himselfe, but they shall be assets to other Creditors. And yet if the Debtor make the Debtee his executor, he may retaine so much as to satisfie his own debt, and that he doth so retain shall not be said to be assets in his hands as to any other Creditor. And if I S B [...]rnets case Hill 8. Iac. Plow. 184. have goods to the value of 20l. and he is bound to B and C in 20l. a piece, and he dyeth intestate, and after D doth administer, and then B dyeth and maketh D his executor; in this case D may retain this to satisfie his own debt, and it shall not be said to be assets in his hands as to any other. 7. The goods and chattels of other men in the hands of the executor or administrator Kelw. 63. Coo. 6. 5 [...], Dyer 362. that were in the possession of the deceased, if he had no right to them, or if he had and they do not belong to the executor, will not make the execu [...]r or adminis [...]ator chargable; for these shall not bee esteemed assets in his hands. And therefore if the goods of another man be amongst the goods of the deceased, and these come all together into the hands of the executor or administrator; these goods that are the goods of another shall not be said to bee assets in the hands of the executor or administrator. And if the executor doth receive a rent that doth belong to the heir; this rent shall not be said to be assets in his hands: and hence it is that if Doct. & St. lib. 2. cap. 3. the deceased were outlawed at the time of his death, that his goods and chattels are not no be accounted assets, for they are none of his. 8. Coo. [...]. 30. Dyer [...]. If an executor of his own wrong to whom 20l. is owing, doth enter upon so much of the goods of the deceased as is worth 20l. intending to pay himself; this shall be esteemed assets in his hands to make him chargable for so much to any Creditor or Legatee. 9. 27 H. 3. 6. It the deceased have goods worth 20l. and owe 20l. to A, and 10l. to B, and he compound with A for 10l. in this case he shall be said to have assets, and be charged to pay the debt of B also. 10. If a man have a Lease for years worth 20l. per annum at the rent of 5l. and he die; in this case not the Coo [...]5. 31, 10 H. 7. 5. whole value of the land, but so much as is above the rent shall bee said to bee assets in the hands of the executor or administrator.

The Probate of a Testament is the producting and insinuating Swinb. 251, 264. 40. Probate Quid. Quotuplex. of it before the Ecclesiasticall Iudge, Ordinary of the place where the party dyeth, or other that hath power to take the same. And this is done in two sorts, either in common Form, i. e. upon the oath of the executor or party exhibiting it upon his credulity [Page 499] that the Will exhibited is the last Will and Testament of the party deceased, which is the ordinary course; and this the Ordinary may accept if he will. Or per testes, i. e. which is when over and besides his oath he doth also produce witnesses or maketh other proof to confirm the same, and that in the presence of such as may pretend any interest in the goods of the deceased, or at the least in their absence after they have been lawfully summoned to see such Will proved if they think good. And this course is used only where there is a suspition of the Will, and the Caveat is entred, or where there is a feare of contention and strife between the kinred and friends of the party deceased about his goods; for a Will proved in common form may be called into question at any time thirty yeares after; and when the Will is thus exhibited into the Bishops Court, the same is to be kept by his officers, and the Copy thereof in parchment under the Bishops Seale of his office to be certified and delivered, which parchment so sealed is called the Will proved.

The Probate of the Will (as having respect to the 41. Where the Probate of a Will is necessary, and where not; And by and before whom, And in what time it must be proved. goods and chattels) is in some respect necessary; for howsoever Coo. super Lit [...] 292 Perk. Sect. 481. as touching any Fr [...]e hold of lands devised it is not all materiall, and howsoever the Executor before Probate may receive and release debts, and do most other acts as Executor, yet he cannot sue, for any debt due to the Testator. And if the Executor delay the Probate, the Ordinary may be Processe compell him to come in and accept or re [...]use of the Executorship. And when it is proved it must be proved by the Executors or one Perk. Sect. 49. [...] 2. 486. Coo. 9. 36. [...]. Testament [...]. 5. Plow. 280. [...]tat. 23 H. P. cap. 9. 2 [...] H. 8. c. 5. See before at [...]an. 21. of them at least; and if all the goods of the deceased be within the same Diocesse wherein he lived and dyed the Executor must prove it before the Ordinary of the Diocesse, or before his lawfull Commissary or Deputy, or before the Archdeacon or his Deputy or Commissary (as their composition is) or if the goods be in a Peculiar, then before him that is Iudge of that Peculiar; or if the goods be within two Peculiars, then before the Ordinary of the Diocesse wherein these two Peculiars lye. But if there S [...]inb, part. 6. Sect. 11. be bona notabilia in the case, viz That the Testator have goods or chattels at the time of his death of the value of 5l. or more lying in two or more [...]ounties, or have good debts upon Especialties (as some say) for otherwise they follow the person; or have any (Especialties as other [...]ay) lying in other Counties for debt, so that there be of goods and chattels or good debts to the value of 5l. in any other Diocesse then that wherein the Testator led his life and dyed, then the Probate doth belong to the Archbishop of that Diocesse wherein it is, unlesse the Ordinary of the same Diocesse have the Probate by composition between him and the Metropolitan; for otherwise there must be severall [Page 500] Probates for the goods in every Diocesse (as anciently was used in these cases.) But if a man die in his journey in another Diocesse, and have more then 5 l. goods about him, this shall not be said to be bona notabila, but the Will may be proved before the Ordinary of the place where the deceased lived and his estate doth he. And except Stat. 23 H. 8. cap. 9. it be in cases where men have bona notabilia, the Officers of the Courts of the Metropolitans are not to cite men out of their own Diocesse; and to discover this matter, it is the duty of the Ordinary of the Diocesse, when any man comes to prove a Will, to give him an Oath, and examine him whether he know of, or doe believe, there are any goods to the value of 5 l. lying in any other Diocesse at the time of the Testators death, and if he hear of any to dismisse them to the Prerogative Court, and to give them notice of it: Also in some places, the Lords of Mannors have the Probate of all the Wills within their Mannor by custome of the place; Fitz. Testament. 4. 5. and in those places it must be proved there, and not elsewhere. And when an Executor is bound to prove the Will before the Ordinary as before, the Ordinary may give him what time to doe it hee doth think fit, and when he doth prove it, the Ordinary doth take an Oath of him to administer the goods faithfully, and to take bond of him also if he please; but this some doe omit.

And now because lands are oftentimes conveyed by the severall kinds of assurance aforesaid unto one man, but to the use of another, and to the intent that another shall take the profits of it, we must of necessity hear somewhat of the learning of Uses, and then wee shall have done.

[Page 501]

CHAP. XXIIII. Of a Vse.

A Use is the profit or benefit of Lands or Tenements, or as 1. Vse. Quid. Coo. 1. 125. 122. See the Addition to Iust. Dodr. Treatise. Coo. super Litt. 271. 272. others define it, The equity and honesty to hold the land in conscientia boni viri: Or, as others define it more fully; It is a trust or confidence reposed in some other which is not issuing out of the land, but as a thing colatterall annexed in privity to the estate of the land, and to the person touching the land, so that he for whom he is trusted shall take the profit of the land, and the Terre-Tenant shall dispose of it according to his direction: As for an example, If a Feoffment be made to I S and his heires, to the use, profit or behoofe of W S and his heires; in this case heretofore I S had the estate and property of the land, but W S had and was to have the profits in honesty and equity. So if one agree with W S for a piece of land for 20 l. and pay him the money, but hath no assurance of the land, yet the equity and honesty to have this land is in him, that hath contracted and paid his money for it: and this trust was called the use of the land; and hence came the course in conveyances to set down in the Habendum to whose use, as Habendum to A and his heires to the use of A and his heires: And he for whom this trust is, and that ought to have the profit of the land by conveyance as aforesaid is called cestuy que use. There is a use also of goods and chattels, which is properly called a Trust or confidence, Cestuy que use, Trust or confidence. Quid. for one may have such things to the use of another.

A Use is either expresse; i. e. when the use or intent is openly declared and expressed between the parties upon the making of the 2. Quotuple [...]. Doct. & St. 95 Perk. Sect. 533. Coo. 2. 58. 9. 11. Dyer [...]8. 146. estate of land, whereunto the use is annexed, as when a Feoffment is made of land to I S and his heires, to the use of W S, and the heirs of, or heires males of the body of the said W S, or to the end and intent that W S and his heires, or W S and the heires of his body shall take the profits of it, or the like; or when I covenant to stand seased of the land to the use of my wife for life, and after of my eldest sonne, and the heires of his body, or the like. Or, it is implyed; i. e. when the use is not declared upon the agreement between the parties, but is left to the construction and made by the operation of Law, as when a man seised of land makes a Feoffment in Fee, or doth levie a fine, or suffer a common Recovery of it to another without any consideration, and it is not agreed nor declared to what use or intent it shall be; this by construction of Law shall be to the use of the Feoffer, Conusor, or Recoveree: But if there be any consideration of money or other thing paid or given, or any rent [Page 502] or Tenure reserved, then by construction of Law, it shall be to the use of the Feoffee, Conusee, or Recoveror, for otherwise the Law presumeth that the intent of him that did part with the land was so (viz.) that the other should have the property of the land to his use, and that he himselfe should take the profits of it. So when one doth bargaine and sell his land for money to another, and no use is expressed; in this case the Law doth say, it shall be to the use of the Bargainee and his heires. A use also is either in esse and that in Coo. 1. 121. possession, reversion, or remainder, as when a Feoffment is made to I S, to the use of I W and his heirs, or to the use of I W, and after to the use of I D, and the heires males of his body, and after to the use of S T, and his heires for ever: Or, it is in posse, or in contingency, as when by possibillity, it may happen to be in possession, reversion or remainder, as where a use is limitted to me for life, and after to him that shall be my first sonne in Taile, this is only the possibility of a use, for it may or may not be.

A Use at the Common-Law, before the Statute hereafter spoken Coo. in Chudleighs care, in toto & Shelle [...] case. Kolw [...] 160. Dyer. 12. Broo. Feoff [...] al uses, in toto, conscience, 25. of was made, was, and where that Statute doth not take place, is 3. The nature, incidents, and originall of it. nothing but a meare confidence and trust colatterall to, and distinct from the land annexed in privity of estate, and to the person touching the land to this purpose, that cestuy que use should take the profit of the land, and the Feoffee or Terre-Tenant that was trusted should make estates, and otherwise dispose of the land as the cesty que use in his life, or at his death by his last Will and Testament should direct and appoint; and if he made no disposition, then that it should goe to his heir, so that the Feoffee had the Free hold or sole property of the thing in him, and cestuy que use, had neither jus in re nor jus ad rem (for if he against the Will of the Feoffee had entred into the land, he had been a Trespassor) but a bare confidence or trust for which the cestuy que use had no remedy, but in Chancery upon breach of the trust, and there to have the Feoffee imprisoned untill he perform the trust according to the order of the Court. And these uses to some purposes, were reputed in Law as chattels, and therefore were devisable by Will, and to some purpose as hereditaments, and a kind of Inheritance of which there was a possessio fratris &c. and to some purposes, neither chattels nor hereditaments, for they were not esteemed Assets in the heire or Executor, neither were they reputed as Commons, Rents, Conditions, and such like Inheritances which are discontinued or taken away by the Alienation of the Terre tenant, Escheat, Disseisin &c. but a use is not so.

And to every of these uses, there were two inseperable Incidents, Incidents of it. confidence in the person, and privity in the estate, expressed by the parties or implyed by the Law, and when either of these failed, the use was either gone for ever or suspended for a time at the [Page 503] least: And therefore if the Feoffee to use, upon good consideration had enfeoffed another of the land that had not notice of the use, the use had been gone for ever, because howsoever here was a privity of estate; yet here was no confidence in the person, but if the Feoffment had been without consideration to such a one, in this case, the use had remained [...]ill because the Law did imply a notice: So also it Trin. 17. Ia. Cancellaria. seemes the Law was when it was made in consideration of marriage only. And if a Disseisor, Abator, or Intrudor had come to the possion of the land whereof the use was, albeit he had notice of the use, yet the use was su [...]pend [...] during their possession, and they should not have been seised to use as the Feoffee was, for they come not to the land [...]n the per but in the post. And if a Lord by Escheat, Lord of a Villai [...]e, or one that had entred for Mortmaine, or that had recovered in [...] Cessavit &c. had come to such land and had notice of the use, the use had been [...]ue for ever, for these came to the land in th [...] post and above the us [...]: And Tenan [...] in Dower, and by the curtesy should not be seised to uses in being, for all these wanted privity of estate: And if there h [...]d been Tenant for life, the remainder in Fee to the use of another, and the Tenant for life had made a Feoffment in Fee to one that had notice of the uses, this second Feoffee should not have stood seised to the first uses: So if the husband had made a Feoffment in Fee of the land of his wife, upon consideration and without any use expressed, the wife should not have had a Subpoena because the Feoffee was not in privity of estate of the wi [...]: And if cestuy que use for life or in Taile, the remainder in Taile with divers remainders over in use, had made a Feoffment to one that had notice; he should not have been seised to the first uses causâ qua supra. But otherwise it is of Commons, Advowsons, and such like appendants or appurtenants, for if Tenant in Taile, or husband in right of his wife make a Feoffment of a Mannor, or of part of it with an Advowson appendant; the Advowson at least after Presentment shall passe as appendant to the Mannor o [...] to part of the Mannor, and not to the estate of the land which is discontinued by the Feoffment. So if a Disseisor, Abator, Intrudor, or the Lord by Escheat, or the like. shall have these things as annexed to the land or the possession of the land; so that there is a difference between a use, a warrantie and such like things that are annexed to the estate of the land in drivity, and Commons, Advowsons, and other hereditaments that are annexed to the possession of the land.

And these Uses began first when the custome of property began and was brought in, that one man knew his own from another The Originall of [...] and why so much lands w [...] [...]t in use. Doct. & Stud [...] 9 [...]. Coo. 1. 123. 12 [...]. Stat. 17. H. 8. c. 10. in the preamble. mans, and then was to enjoy his own, and not to be deprived of it without consent or order of Law; for then he that had land, had two things in him, a possession of the land, and power to take the profits of it, and those being to be distinguished, he might give the [Page 504] Free hold or Possession to another, and take the profits himselfe; and they were the rather allowed by the Law for a time as reasonable, because they gave a man power to dispose of his land by Will, which otherwise hee could not have done but in some speciall cases by custome of the place: But in time this use was turned into an abuse, and the greatest part of all the lands in the Kingdome, especially in the time of the broyl between the houses of York and Lancaster, were put in use, partly of fraud and partly of feare, which produced not a few inconveniences, for thereby many were deceived of their just and reasonable rights, as namely, a man that had The mischief of uses. cause to sue for his land, knew not against whom to bring his Action, or who was owner of it; the wife was defrauded of her thirds, the husband of being Tenant by the Curtesy, the Lord of his Wardship, Reliefe, Harriot, and Escheat, the Creditor of his Extent for debt, the poore Tenant of his Lease, and other Purchasors of their purchase, for these rights and duties were given by the Law from him that was owner of the land and none other, which at this time was the Feoffee of trust, and so the Feoffor the old owner of the land, should take the profits, and leave the power to dispose of the land at his discretion to the Feoffee, and yet the Feoffee was not such a Tenant of the land as his wife might have Dower, or the land bee extended for his debt, or that he might forfeit it for Felony or Treason, or that his heire should be in Ward for it, or any duty of Tenure fall to the Lord by his death, or that he could make any estates of it; also lands were many times conveyed by last Wills, by words only, and sometimes by tokens only in time of great extremity of weaknesse, and many perjuries for tryall of secret uses were daily committed. All which having been espied, have been laboured to be cured and holpen by divers particular Acts of Parliament in all succeeding ages: Stat. 1. R. 2. c. 9. 4. H. 4. c, 7. 11 H. 6. c. 3. 1. R. 3. c. 1. 4. H. 7. c. 17. 1 H. 7. c. 1. 19 H. 7. c. 15. 27 H. 8, c. 10. Vses and possessions united. but the makers of these Lawes finding the continuances of these uses so mischievous, that they did over-reach the policy of all Lawes, for a generall remedy, and a perfect cure of all the said mischiefes and abuses, have at last provided; That where any are, or shall be seised of any lands to the use or trust of any other, by reason of any bargain, sale, feoffment, fine, recovery, contract, agreement, or otherwise, by any meanes whatsoever cesty que use or trust, that hath any such use in Fee-simple for terme of life or yeares, or otherwise, or any use in reversion or remainder &c. shall have the possession of the land in such quallity, manner and condition as hee had the use or trust: And where any one is seised of lands to the use or intent that another shall have a yearly rent out of the same lands cestry que use of the rent, shall bee deemed in possession thereof of like estate as he had the use: By which Statute the use and possession of land is now at this day coupled, conjoyned and marryed with an indissoluble knot, so as they cannot now stand apart and devided, but he that hath [Page 505] the one must have the other, and the one doth ensue the other as the shaddow doth the body; and therefore now upon Fines, Recoveries, and Feoffments, the estate doth settle as the use and intent of the parties is declared by word or writing before the act done, as for example, If a writing bee made between two or more, that one of them shall levie a fine, make a Feoffment, or suffer a Recovery to the other to the use and intent that one of them, or another man shall have it for life, and after another in Taile, and after a third in Fee-simple, in this case, the Law setleth the estate a [...]cording to the use and intent declared, so that now what estate a man hath in the use the same he hath in the possession. But herein for the more full understanding of this Statute, and the Law at this day, it must bee To what uses the Statute of 27 H. 8. doth extend, and to what not. observed, That this Statute doth not extend to all manner of uses, neither are all uses executed and united to the possession hereby; for to every execution of a use within this Statute, foure things are requisite: 1. That there be a person seised: 2. That there be a cesty que use in esse. 3. That there be a use in esse in possession, reversion, or remainder. 4. That the estate out of which the uses doe arise be vested in cesty que use, so that when these foure, viz. Seisin in the Coo. 1. 126. 136. Plow. 3 [...]. Feoffees, cestuy que use in rerum natura, use in esse, and that the estate of the Feoffees doth vest in cestuy que use, then there is an execution of the use within this Statute; but if any of these faile, there is no execution of the use within this Statute: And therefore, it is agreed that this Statute doth not execute any use but only uses in esse, so that the right of a present and a future or contingent use are excluded untill they come in esse, and then the Statute doth execute them; also if no alteration be of the estate of the land before. And if cestuy que use in Taile with divers uses in remainder had made a Feoffment and dyed before the Statute, no execution Coo. 1. 126. Dyer 58. 88. 33 [...]. should have been of this right of a use untill entry by the Feoffees. So if cestuy que use in possession had made a Feoffment before the Statute; no right of the use in possession or remainder shall be executed by the Statute untill the regresse by the Feoffees: So if a Feoffment had been made before the Statute to the use of the Feoffee for life, and after to the uses of others in remainder, and the Feoffee had made a Feoffment in Fee to another; this use shall not be recontinued, or the repossession of the land executed unto it by this Statute; so that the right of uses in esse and uses in contingency untill they happen to be in esse remaine at the Common-Law, as they were before the Statute; and therefore if the estate of the Feoffees be in such cases devested by disseisin; or the King, or a Corporation, or an Alien, or a person attaint &c. be enfeoffed of the land before the use come in [...]sse, or if the land be aliened bonà fide upon consideration to one that hath not notice of the use; this use can never be executed untill these possessions be removed by lawfull entrie or [Page 506] action of the Feoffees; and if their entrie and action be barred, the use is gone for ever, and the party grieved thereby hath no remedy but in Chancery: And therefore if cesty que use in Taile the remainder in Taile restrained with a clause of perpetuity be disseised; no use in contingency can bee executed by this Statute: And if before the Statute, a feoffment had been made in Fee to the use of I S for life, and after to the use of the right heires of I N, and the Feoffees had been disseised, and then the Statute had been made, and after I N die, and after his death I S die; this use shall never be executed in the right heire of I N. And so also if a disseisin be after Coo. 1. 138. the Statute and before the death of I N, no possession shall bee executed in the right heir of I N: Also uses that need no Execution by the Statute, as when a man doth convey land to I S and his heires to the use of I S and his heires; this doth not need help of this Statute: Also uses that are against the rules of the Common-Law, shall not be executed by this Statute: And therefore if a Feoffment be made to the use of A for life, and after to the use of every person that shall be his heir one after another for term of his life: So if one make a Feoffment to the use of another in Taile with divers remainders over with a previso, that neither of them shall discontinue or alien &c. these uses shall not be executed because these limitations are wholy void; and in these cases it seemes there is no remedy to be had in Chancery against the Feoffees: So that out of all this appeareth that some uses are executed presently, as uses in esse, and some are executed by matter ex post facto, if they be according to Law, and come in esse in due time; but if they be uses invented and limitted in a new manner, and not according to the ancient Common-Law, they are altogether void, and extinguished and abolished by this Statute: And where lands are conveyed to others in trust after this or the like manner, viz. that the Feoffees shall take the profits, and deliver them to the Feoffor and his heirs &c. or that the Feoffees shall convey it to the heire of the Feoffor at his age of twenty one years: And where lands are conveyed to certaine uses expressed and declared, and there be other secret uses and intents agreed upon between the parties; these uses or trusts are not within this Statute, neither will the Statute execute them, but they remaine as they were before the Statute, determinable in Chancery: Also Leases for years of lands in use that have their being before, and are granted over in use are not executed by this Statute: And therefore if a Leassee for yeares of land, grant or Dyer 369. 356. Crompt. [...]ur. 65. assign over his estate to A and B and their assignes to the use of the Grantor and his wife for the term of their lives; this use or trust is out of this Statute, and not executed thereby; and therefore in this case all the estate is in A and B, and the Grantor hath nothing but a use, for which he hath his remedy in Chancery: So if [Page 507] one be seised of land in Fee, and he bargaine and sell it, or make a Lease of it to another in trust, and for the benefit of a third person; this is but a Chancery trust &c. in this third person, as was held clearly, M. 8. Car. B. R. And yet if a Feoffment bee made to the use of I S, and his assignes for the terme of twenty years; this term of yeares shall be executed by the Statute: And so in all such like cases and questions of Trusts and uses that are not within the Statute of uses, the Law is now as it was before the same Statute was made, and all those matters are determinable in Chancery; for as the questions of uses and trusts that are within the Statue are to bee decided and ruled by the Iudges of the Common-Law, so are all other questions of uses and trusts that are out of the Statute to be ruled and decided by the Iudges of the Chancery.

To make a good use, or to make a use to rise, especially such a 4. What shall be said a good use of land, or not; and when and where such a use shall be raised, altered or created, or not. use as may bee within the Statute, respect must be had to divers Coo. super Litt. 271. Plow. 301. things. 1. To the wayes or meanes of creating and raising of uses, wherein it is to be observed, that albeit the quallity of the uses be changed in most cases by the Statute of uses, yet uses, and uses within this Statute are, and may be raised as they might before the Statute, either by transmutation of the estate, as by fine, feoffment, common recovery &c. or out of the estate of the owner of the land, as by bargain and sale, by Deed indented and inrolled, or by Covenant to stand seised to uses upon good consideration: And therefore a First in respect of the manne [...] of raising it, and the severall wayes whereby uses may be raised. Fine, Feoffment, or Recovery may be had of land to the use and intent, that either of the parties thereunto or others shall have it for any time or estate; and by this meanes what uses and consequently what estates a man will may be raised and created: And in these cases the Conusor, Feoffor, or Recoveree may appoint the use of the same Fine, Feoffment, or Recovery to whom he will, without any respect of marriage, money, kindred, or the like; for in this case his will guideth the equity of the estate. Or if a man make Dyer 186. a Lease to A for life to the use of B for life; this is a good use and estate in B during the life of A. Or if a man by bargain Coo. 6. 68. and sale for good consideration sell his land to another; hereby the use will rise according the estate bargained and sold unto the Bargainee: but in this case if it be an estate of Free-hold, Dyer 155. Coo. 7. 36. 7. 40. 8. 9 [...]. 4. 70. See Bargaine and Sale. as of Fee-simple, Fee-taile, or for life, that is sold; the bargain and sale must be made by Deed indented and inrolled within six moneths after in some of the Courts at Westminster, or in the Cessions Rolls of the Shire where the land lyeth, (except it be in Cities and corporate Townes where they use to inroll Deeds) otherwise Coo. 2. 3 [...]8. [...]4. no use will rise by it: but if it be an estate or term for years only that is sold, there the use will rise well enough without any such matter. Or if a man seised of land in Fee, covenant to stand seised of [...] to the use of his wife, children, brethren, or other kinsfolke for [Page 508] life, in Fee-simple, Fee-taile; or if one seised of land in Fee-simple covenant to stand seised of it to the use of a woman he is to marry, or to the use of a woman his sonne or other kinsman is to marry, or the like; hereby the uses and consequently the estates will r [...]se accordingly. And in these cases there is no need it should be by Deed indented &c. or that the Deed be inrolled, for uses may be raised by Deed poll as well as by Deed indented. Also uses may be created (as some hold) by word or parol-agreement Crompt. Iur. 61. 60. Plow. 301. 308. and the better opini on of the Iudges in Cor [...]ins case 38 Eliz. as well as by Deed or writing: for it is said it hath been adjudged, That if a man say to his sonne and a wife that his sonne is to marry, that in consideration of the same marriage they shall have the land to them two in taile; that hereby a good estate tail will arise after the marriage; And that where one doth by word without Deed grant to his sonne and to his wife in tail land in consideration of their marriage, that it was agreed by all the Iudges that the use did rise upon this agreement. Howsoever it is most safe in these cases to do it by Deed and in writing, for Dyer 296. Plow. 22, seems to oppugne this. And if a man make a Feoffment, levy a Fine, or suffer a Recovery to the Litt. Sect. 462. 463. Coo. 6. 17. use of his last Will, or to the intent to perform his last Will, or to the use of such person and persons and of such estate and estates as he shall limit by his last Will, and then afterwards by his last Will declare the uses, these are good uses, and this is a good way of raising of uses. So if a man devise his land by Will to I S and his heirs to the use of I D and his heirs; it seems that the use will See the Stat. 27 H. 8. of Vses Fitz. Devise 22. rise to I D and his heirs by this means. And if a man by a verball agreement in consideration of money or the like sell his land to another, or agree and promise that the bargainee sha [...]l have it Dyer 229. for any time, howsoever that hereby no use nor estate will arise (if it be a Free-hold that is sold) within the Statute, because it is not by Deed indented &c. yet it seems a good use will arise at the Common Law, and that the Bargainee shall have relief in equity for his purchase. The second thing whereunto respect must Coo. 1. 122. 127. 115. Plow. 2 8. Dyer 8. 263. be had, is to the persons trusted, or to him to whom the conveyance Conscience. is made; for to every good use there must be a person [...]eised Secondly in respect of the persons trusted and what pers [...]ns may not be seised to the use of another, but to their own use. to use, and he must be a person capable of such a Seisin. And for this it must be known that any sole person that may make an estate to himself, may make an estate to other uses. Al [...]o a man may be seised of his own land to other uses, as in the case of a covenant to stand seised to uses. But the King, or any body corporate, Re [...]olved in Doctor At [...]s case 44. Q. Co. B. alien born, or p [...]r [...]on attaint, cannot be seised to other uses no more by an originall Feoffment to use, then when they come by the land in use at the second hand; in which case (as hath beene shewed) neither such Persons, nor disseisors, abators, or intrudors, or Lords of villains, or by Escheates, shall be seised to other [Page 509] uses; but in all these cases the uses are void, and the parties shal hold the land to their own uses, or to the uses of the feoffors &c. & not to the use of Cestuy que use. And a bargainee of land for valuab [...]e consideration Dyer 155. Litt. Broo. Sect. 10. cannot be seised of the land to any other use but his own. Coo. 1. 136 The third thing to be respected is the Cestuy que us; for to every good Thirdly in respect of the persons for whom the trust is, or the Cestuy, que use. use, as there must be a person seised to use, so there must be a person to whose use he is seised, and he must be capable also. And for Broo. Mortmai [...]e 37. this it must be observed that any man that is capable of an estate directly and immediately to himselfe, is capable of the same estate by way of use: but if the use be limited to a Corporation, there must be a licence had; otherwise it will be an alienation in Mortmaine. And if future uses upon Contingences be limited to such See before. persons as are not in being, these uses howsoever they are good at the Common-Law, yet they are not good within the Statute, neither doth the Statute execute them at all untill they come in 12 H. 7. 27. [...]0 Ed. [...]. possession. And if a Feoffment be made to I S and his heires to the use of the Parishioners of Dale; this use is voyd, for they are incapable by this name; and it shall be to the use of the Feoffor. The fourth thing to be regarded is the estate of him that doth Fourthly in respect [...]f the est [...]te and p [...]ssession of him that doth create the use. raise the use in the land whereof the use is raised; for howsoever the Tenant in Fee-simple of land may create what uses he will in Fee, for life, or yeares upon it, and such uses are good; and the Tenant in taile, or for life may perhaps grant their land for their own lives to the use of a third person; Hill. 38. Eliz. Co. B. Curia. Coo. 2. 52. Pasche 13. Ia Co. B. Seignior Sarversus Smith. Yet if a Tenant in taile for good considerations covenant to stand seised to the use of himself for life, and after of his eldest sonne in taile; no use will rise by this Covenant. So if Tenant in taile of an Advowson in grosse grant it by Deed to one and his heires to the use of himself for life, and after to the use of another in [...]ee; this grant is void by the death of the Tenant in taile. Coo. 10. 96 And if such a Tenant in tail bargain and sell his land by Deed indented and inrolled; hereby the bargainee hath an estate discendible to his heirs, but determinable upon the death of the Tenant in taile [...] Yelverton [...] case 37. Q. B. R. And if one covenant by Indenture to stand seised to the use of B of White Acre which he hath not then, but he doth afterwards purchase it; by this no use will rise. And if one that hath but a term of yeares grant it to I S to the use of himself for life &c this is no good use within the Statute, but a Chancery trust only. The fifth thing to be respected, is the estate of him that doth take Dyer 369. by the conveyance out of which the uses are derived: for howsoever Fi [...]ly, in respect of the est te and possession of him that doth [...]ke by the conveyance. where a man doth grant in Fee-simple to another and his Coo. 2. 78. heires, he may limit what uses he will upon this estate; and if a man make an estate for life to another, he may limit an use Coo. super Litt. 1 [...]. thereupon; yet if a man make a gift in tail to another, he can limit no use thereupon. And therefore if one grant his land to I S [Page 510] and the heirs of his body to the use of I S and his heirs in Fee, this limitatiom of use is void, and I S hath hereby an estate in Taile. Trin. 14. Ia. B. R. Adiudged Couper & Franklins case. And if a Feoffment be made to I S to have and to hold unto him and the heirs of his body to the use of him his heirs and assignes for ever; this use is voyd. Dyer 169. Cromp. Iur. 53. Litt. Broo. Sect. 284. And where one doth bargain and sell land for money (in which case the law doth make an expresse use) no other use can be appointed. And therefore if A for money bargain and sell land to B and his heirs to the use of A for life, and after of B in Tail, and after of A in Fee; all these uses are void, for a use cannot rise out of a use. So if A make a Lease to B for years rendring Rent, To have and to hold to the use of the Lessor; this use is void as being against reason also. And if a Feoffee to use before the Statute of uses, had bargained and sold the land to one who Dyer 155. Coo. 1. 136. 137. had notice of the former use: no use had been made hereby; for there might not be two uses in being of the same land at one time. And if A enfeoffe B to the use of C and his heirs, with proviso that if D pay to C 100l. that C and his heirs shall stand seised to the use of D and his heirs, this last use is void; for the use must arise out of the estate of the Feoffee, and not out of the estate of the Cestuy que use. The sixth thing whereunto respect must be had, is the cause or S [...]ixthly ī res [...]ect of the cause or con [...] [...]eration of it, and what shal be a [...]ufficient consideration to raise or alter a use, Or not. consideration: For howsoever in ca [...]es where uses passe by way of transmutation of possession, as by Fine, Feoffment, or Recovery there Coo. 1. 176 the consideration is not at all materiall; for he that doth make the estate, may appoint the use to whom he will without any respect to marriage, kindred, money, or other thing; for in this case his own will and consideration guideth the use and equity of the estate: yet in Bargains acd Sales, [...]nd Covenants to [...]and seised to uses, it is otherwise: for there considerat [...]on is so necessary that nothing will passe, neither will any use rise without a Consideration, i. e. some matter that may be a cause or occasion meritorious which amounteth Dyer 1 [...]9 [...] Comp. [...]ur. 62. to a mutuall recompence in Deed or in Law, which must be expressed or impli [...]d in the Deed whereby the use is created, ur else supplied Ave [...]ment. by averment and proof: [...]or howsoever in this case an averment shall not be allowed and taken against a Deed, that there was Dyer 146. Coo. 1. 176. 11 [...]5. Dyer [...]1 [...]. no consideration given when there is an expresse consideration upon the Deed; yet when the Deed expresseth no consideration, or saith I for divers good con [...]derations] or the like, there an av [...]rment of a good consideration given shall be received, for this is an ave [...]ment that may stand with the Deed; and without consideration Inrolment will not help. And therefore if one bargain and sell his land to another by Deed indented and inrolled without any consideration; it seems no use will rise by this to the Bargainee. 41 [...]. Ad iudged. So if one [for divers good causes and considerations or for divers great and valuable considerations] bargain and sell his land to another, or covenant to stand [...]eised of his land to the use of another that is not of [Page 511] his kindred; no use will rise by this, unlesse it be proved that mony or something else was given for it. But if a man by Deed in consideration of money, as [in consideration of the summe of 100l. to Plow. 301. Brao. Fait. Inroll. 9. Doct. & St. 99 Cromp. Iur 60. 61. Dyer [...]0. him paid, or in consideration of a competent sum of money to him paid or otherwise promised to be paid, or in consideration of other land, or of giving of counsell, or the like] bargain and sell or by such like words grant his land to another in Fee-simple, Fee-tail, for life, or years; in these cases the use will arise to the bargain well enough. And therefore if I covenant with B that when he doth Cromp. Iur 61. infeoffe me of White Acre, I will stand seised of Black Acre to the use of him and his heirs and he doth infeoffe me accordingly; in this case the use of Black Acre will rise to B, and he and his heires shall have it according to the agreement. f So if I agree with my Lessee for years, that if he pay me 100l. within his term, that I will stand seised of the land to the use of him and his heirs, and he [...] Broo. Exposition of words 44. do pay me the 100l. accordingly; in this case the use will rise, and he and his heirs shall have it a [...]cording to the agreement. So if I covenant that my sonne shall marry the daughter of A, and A promise to give me a 100l. for the marriage portion, and I covenant that i [...] the same marriage do not take effect, I and my heirs will stand seised of the land to the use of A and his heirs untill the 100l. b [...] paid; in this case a good use will rise of the land accordingly if the marriage do not take effect; But in all these and such like cases, the covenant must be by Deed indented, and it must be inrolled; otherwise no uses will arise. And when the Deed is inrolled it shall take effect as from the beginning by relation to avoid all intervenient estates and charges whatsoever; And in like manner Relation. Plow. 302. [...]H. 7. 20. it is if one for no cause, or for no consideration, as [because he is of his anc [...]ent acquaintance, or because there hath been entire love or great familiarity between them, or because he hath been his chamber-fellow, school- [...]ellow, or fellow-servant, or because he hath done him good service, or because he was his Master and taught him, or to the end that he may pay his Debts and Legacies and discharge his Funerals, or for divers good causes and considerations] if one for any of these or any such like cause and consideration covenant with another that he will stand seised of his land to the use of that other and his heirs, or that he and his heirs shall have the land &c. by this covenant whether it be inrolled or not, no use at all will rise. So if one covenant to stand seised to the use of I S (who is his Dyer 374. Bastard sonne) and his heirs; no use will arise hereby: And yet perhaps upon such a Covenant as this, whereupon no use Covenant. nor estate doth arise, an Action of Covenant may lie [...] Bu [...] Coo. 7. 11. 10. 143. 1. 83. Plow. 301. Litt. Broo. Sect. 284. Coo. 1. 254. if one [in consideration [...]f [...]ure, kindred, blood, [...] with ones selfe, or any of [...]is [...] paiment of debts or the like cause] or without any such exprese consideration at all, Covenant [Page 512] to stand seised to the use of himselfe, his wife, children, brothers, sisters, or cousins, or their wives; these are good considerations, and the uses and estates thereupon thus raised and made, are good: And therefore if one covenant by his Deed without expression of any consideration to stand seised of his land to the use of himselfe for life, and after of his wife for life, and after of his child in Taile, or for life, and after of his brother in Taile, or for life, or in Fee, or in any such like manner; these uses will rise and the estates will bee well made hereby accordingly. So if I agree with Plow. 301. [...]r [...]o. Feoffment al. use [...], 54. another, that if he marry my daughter, that from the time of the marriage, they shall have my land to them and their heires; in this case, and by this agreement, if he doe marry my daughter, they will have my land according to the agreement: So if I being about to marry with a woman, covenant with I S, to stand seised of my land to the use of my selfe for life, and after to the use of the woman I am to marry for her life, and after to the use of the heires of my body begotten on her; these are good uses and estates that are made by this covenant: But here by the way, this difference Curia Trin. 10. Car. B. R. Hoskins case. must bee observed where a man doth Covenant in consideration of a marriage to be had, to stand seised to use, and the marriage doth not take effect, there no use shall arise: So also if the parties disagree at their age of consent: and so was it held in the Lord Harberts case: But where one doth covenant to make a Feoffment, or levie a fine to such uses, and the Feoffment is made, or fine levied accordingly, there notwithstanding the marriage doth not take effect, yet the use shall arise; for there hee is in by the fine or Feoffment, in which case there needs no consideration. And therefore if A covenant with B, that in consideration C is his kinsman, and in consideration of a marriage to bee had between C and E hee will make a Feoffment and other assurances to the use of himselfe for life, the remainder to C and E, and the heires of their two bodies, and after assurances are made accordingly by F [...]ne or Feoffment, but they do not intermarry, but marry others; in this case notwithstanding E shall have a Moity of the land. So if I covenant (in consideration of the love I beare to my wife) to stand seised to the use of Coo. 7. 40. 11. 24. Dyer. 374. her and her heirs of my body upon her begotten, and after to the use of my brother: hereby the use will rise to my brother also, albeit he be not within the expresse consideration. So if one covenant with his two sonnes for the love he doth beare to them, to stand seised of his land to the use of himselfe for life, and after of his wife for life, and after of his two sonnes in taile one after another; in this case the consideration is sufficient to raise the use to the husband and wife also. So if one (in consideration Plow. 307. of the love he doth beare to his brother) doth covenant to stand [Page 513] seised to the use of his brother, and the wife of his brother for life, or in taile; in this case the consideration is sufficient to raise the us [...]s to them both. So if I covenant (in consideration of the marriage of my sonne with the daughter of another) to stand seised to the use of my selfe for life, and after of my sonne and his wife in Taile; these are good uses and will rise accordingly. If I covenant with I S to stand seised to the use of him, his Executor Plow. 307. Dyer 1 [...]4. &c. (he being none of my kindred) for twenty years, and after to the use of my sonne in Taile; in this case, the use will not rise to I S, but it will rise to my sonne well enough. For albeit the consideration of money given by one, may be a consideration to all the estates; yet the consideration of blood &c. is singular and will raise the use of that only to which it goeth: But if I covenant with B in consideration of the marriage of my sonne with the daughter of B to stand seised to the use of R (a stranger) for life, and after to the use of my sonne and his wife in Taile; in Inrolment. this case, the use shall rise to R, albeit he be a stranger, and that for the supportance of the remainder, which cannot be without a particular estate: and in all these and such like cases, no inrolement of the Deed is necessary. If I (in consideration of 10 l. given to me by my sonne,) covenant with him to stand seised of land to Coo. 11. 24. 25. 7. 40. the use of him and his heires; in this case, no use will rise without inrolment by the implyed consideration, because there is an expresse consideration, Et expressum facit cessare tacitum. And yet if I covenant, that in consideration that I S is my sonne, and hath paid mee 10 l. that I will stand seised Ma [...]els case Trin. 3 [...]ac. B. R. Broo. Feoffment al use 15. Plow. Manrels case 4. of land to the use of him and his heires; in this case, the use will arise without inrolment. And if I covenant in consideration of 100 l. and of a marriage, [...]o stand seised to the use of my selfe for life, and after of my sonne in Taile; hereby the use is raised, and the possession charged without inrolment. So also where a Feoffment is made, fine levied, or recovery suffered, and no use declared Coo. 1. 24. D [...]t. & St. 97. 99. 101. thereupon; and the same is without any consideration of fine or rent; by this the use is no [...] changed, for it doth result to the Feoffor, Conusor, and Recoveree, and he hath the [...] as he had it before; but if in these and such like cases, there be but a p [...]y o [...] a penny worth of consideration given, or any rent reserved upon the Feoffment; the use will rise well enough to the [...]off [...]e &c. And if any Tenure be created, as where a gift in Taile, Lease for life or years in made; in these cases, albeit there be no consideration given, yet the use will rise well enough to the Donee or Leassee, and especially, if any rent be reserved, for that is a kinde of consideration: But if a Leassee for years grant over his term to another without any consideration at all, it seemes by this no use at will [...]ise to the Grantee, and therefore that the Grantee shall hold all it to [Page 514] the use of the Grantor; sed Quaere. The seventh thing whereunto respect is to bee had, is the manner and forme of words used in the Seventhly, in respect of the manner and [...]rame of the words used in the raising of uses, and what manner of uses may be made, or not. making and raising of uses, wherein there is much regard to the minde and intention of parties: For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S, to stand seised of land to the use of I S and his heires: or if one covenant that I S and his heires shall have his land; if this Deed be inrolled, this is a good bargain and sale to raise the use, and will doe it as well as when it is made by the words [bargaine and sell.] So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case. Wards versus Lambert. Co. B. Pasche 37 Eliz. of Demise and Grant, make a Lease of his land for a term of years; hereby the use will rise to the Leassee as well as if the Lease were made by the words, bargaine and sell, Et sio de similibus. And yet if one by words of bargaine and sell, convey his land to his son, Inrolment. no use will arise by this, except there be money paid, and the Deed be inrolled. And if one in consideration of money grant his land to his sonne, or any other by the word [enfeoffe;] no use will rise by this, unlesse Livery of Seisin be made thereupon, because the intent of the parties in these cases doth appeare to be to passe it in another manner: And if in the last case Livery of Seisin bee made, Resolved in Stiles case 3 [...] Eliz. then the use shall be guyded by Law, that is, if nothing be given, it shall be to the use of the Feoffor, and not amount to a limitation of use to the sonne. 21 H. [...]. 18. Plow. 308, 301. Broo. Feost mental use, 16. If one covenant with his sonne, that his land shall remaine, or that his land shall discend to him; this is a good covenant to raise the use according to the limitation. And yet if one covenant with his sonne upon his marriage, that his land shall remaine, revert, or discend to his sonne in Fee, or in Fee-Taile; by this no use will be raised, because it is so incertaine; but perhaps this may amount to a covenant, whereupon the sonne may have an Action of Covenant. If I covenant for me and my heires, that Covenant. I and my heires and all others that are seised, shall bee thereof seised to the use of &c. this is a good covenant to raise the use, albeit it be in words of the future tense. If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life, and after of my sonne in Taile &c. and I grant by the Deed, that the said persons seised of the said land, shall be from thence seised to the said uses, and none other use, and no other conveyance is made; it seemes this is sufficient to raise the use: And yet if I be seised of land in Fee, and Covenant with I S, that A B and C D and their heires, shall stand and be seised of this land to the use of &c. it seemes, this is not a good covenant to raise the uses. If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body, on the body of M the wife of S T, and for default of such issue, to the use of him and the heirs of his body of S the now wife of W K, and for default of such issue, then to the use and performance of [Page 515] his last Will for 10 yeares immediatly after his death, and after the term ended, to the use of the Feoffees and their heirs during the life of W (eldest sonne of the Feoffor) and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten, and the heires of the body of such first issue male, and for default of such first issue male to the second issue male &c. [in the same manner;] these are good limitations of uses. So if a use be limited to I S for life without impeachment of waste, and after to the use of Coo. 1. 90. B and C, their Executors and Administrators for the term of twenty years, and after to the use of C and the heires males of his body &c. these are good uses. So if a use be limited after this manner, Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament, or to the use of such person and persons, and of such estate and estates as he shall limit, and appoint by his last Will and Testament; or to the use of such person and persons, or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint; these are good limitations. If I covenant with another in consideration of Coo. 1. 176. blood &c. that I will stand seised of my land to the use of such of my sonnes, or such of my cousins as the Covenantee shall name; in this case, after a nomination made, the use will rise well enough. But if I (for and in consideration of 10l. or the like good consideration) Incertain [...]y. covenant to stand seised of land to the use of such persons as the Covenantee shall name; in this case, albeit the Covenantee doe nominate some of my cousins, or blood, yet no use will rise by this for the incertainty of it. If a Feoffment or other conveyance be to the use of I S and his heires, provided that if the Foeffer pay 10l. at such a day, that then it shall be to the use of the Feoffer and his heirs; this is a good limitation, and the use will rise accordingly. A use may be limitted to a woman durante viduitate sua, and this Coo. 4. 3. is good.

If a man bee seised of two Manners, and covenant to stand Coo. 11. 23. seised of the same to the uses following, viz. of the one to the use of the Covenantor for his life, and after to the use of his wife for life, and after to the use of his eldest sonne in Taile &c. And for the other Mannor, to the use of his second son in Taile &c. these are good limitations, and the uses will rise accordingly.

If a man seised of land in Fee agree with another, that a Fine Coo. 2. 69. 70. shall be levied of it, and that the same shall be to the uses following, viz. that I S (the Conusor) shall have one yearly [...]ent of 50 l. during his life to be issuing out of the same land, and as touching the land charged with the rent &c. to the use of I D (the Conusee) untill default of payment of the said yearly rent, and then to the use of I S and his heirs for ever; this is a good limitation and the use will rise accordingly, Et sic de similibus.

If a Feoffment be made by I S to the uses in certaine Indentures Coo. 10. 78. [Page 516] Tripartite of the same date, and therein is declared that it shall bee to the use of A for life without impeachment of Waste, and after to the use of such Farmo [...], or Tenants to whom he shall demise any part of the premises for life, or lives, or for any terme of yeares, as in any such demise shall be limited and appointed, and after to the use of the performance of the last Will of the said L, and to the use of such person or persons severally to whom the said L by his last Will and Testament shall appoint any estate, and after to the use of &c. these are good uses, and the estates shall rise accordingly.

A use may be limited upon condition, and the condition may Coo. 4. 14. be annexed to one of the uses, and not unto another.

If lands be conveyed to I S and the heires of his body, to the Coo. sup [...] L [...]. 19. use of I S and his heirs, or to the use of a stranger and his heires; this use will not rise in this manner. And yet if lands be conveyed to I S, and his heirs, to the use of him and the heirs males of his body, and after to the use of a stranger and his heires; it seemes this is a good limitation.

If one grant lands by Deed to husband and wife, To have and to Hill. 6. Car. B R. A [...] iudge. hold to the use of the husband and wife and of the heires of their two bodies; this is a good estate Taile by this limitation, albeit he doe not say Habendum to them and their heirs &c. but Habendum to their uses; but otherwise it were if the use were limited to a stranger in this manner.

If lands be conveyed by I S to I D, to the use of I S, or to the Dye [...] [...] use of his wife for life, or to the use of any other for life, the remainder to another in Taile or for life, the remainder to a third, his Executors &c. for six months, and after the six months ended, to the use of a fourth and his heires; these are good limitations, and the estates will rise accordingly.

If a use be limited to the Conusee of a Fine, or a Recoveror in a Dyer 2 [...]. Recoverie untill he make a Lease for fourty yeares, and after to the use of the Recoverees or Conusors and their heirs; this is a good limitation and the use will rise accordingly.

Contingent uses, or use, in posse may be created as well as uses in esse; and therefore if lands be conveyed to the use of a man and the Coo. 1. [...] C [...] case. 13 [...]. wife he shall afterwards marry, or to the use of his first, second, or third wife; or to the use of I S for life, and after to the use of the right heires of I D, and I D is then living; or to the use of I S for life, and after to the use of him that shall bee his first heire male, and the heires of the body of such heire male &c. all these and such like, are good uses; but they are uses at the Common-Law Righthly, in respect of the nature and quality of the [...]e. still, and are not executed by the Statute untill they come in esse. The last thing whereunto respect is to be had, is the nature and quali [...]y of the use: And herein it is to be known, that a man may [Page 517] at this day by act executed in his life time, or by his last Will and Testament at his death, give his Lands, Tenements or Hereditaments Coo. 1. 26. 3. 131. 4. 113. Charitable uses. to any person or persons not corporate, and their heires, for any religious, charitable, or civill use as well as for any private use: And therefore a man may so dispose of his lands for the finding of a Preacher, erecting or maintenance of a Schoole, reliefe and comfort of maimed souldiers, sustenance of poore people, reparations of Churches, High-wayes, Bridges, discharging of the poore Inhabitants of a Village of the common charges, to make a stock for poore Labourers i [...] Husbandry, and poore Apprentices, and for the marriage of poore Virgins, or other such like uses, and these uses are not prohibited by any Statute: And it is good policy upon every such Feoffment or estate to reserve to the Feoffor and his heires some small rent, or to set down some small consideration: But these uses are not such uses as are executed by the Statute of uses, neither are they to bee resembled to the us [...]s aforesaid; for in this case, if there be any mis-imployment of the lands, or breach of the trust by the parties trusted, redresse is to be had by the Lord Chancellor or Lord Keeper by a speciall course of proceeding. For which, see the Statutes of 39 Eliz. chap. 6. 43. Eliz. chap. 9. 7 Iac. chap. 3. But if any man have heretofore given, Superstitious V [...]s. or heretofore shall give any Lands, Tenements of Hereditaments Stat. 15. R. 2. ch. 5. 37. H. 8 ch. 4. 1. Ed. 6. ch. 14. by act executed in his life, or by his last Will at his death to any person singular, or corporate, in Fee-simple, Fee-Taile for life, or yeares, to the intent or upon condition to maintaine any superstitious use, as to finde a Chaplaine, and have the service of a Priest to say Masse, or to have a Priest or other man to pray for the Soule of any dead man in such a Church or other place, or to have or maintaine perpetuall obites, lamps, or torches &c. to bee used at certaine times to help to save the souls or men out of the supposed Purgatory; all these and such like uses are void; and the lands that are so given to such superstitious uses, are to be forfeited, and given to the King, and he shall have them, and yet so that if there bee any charitable use intermixed with the superstitious use, and they may bee distinguished, the King shall have only so much as is given to the superstitious use, and not that which is given to the charitable use also: For which, See Adams and Lamberts case at large, Coo. 4. 104. Coo. 1. 175. 176. Dyer 109. 5. Declaration of Vses: And where a use of land may hee declared upon any Assurance, and [...] a shall be said a suffien [...] d [...]laration of such a u [...]e, or not.

As touching the Declaration of Uses, i e. the manifestation or agreement of the parties, to what uses and intents the Assurance made shall be, these things are to be known: 1. That uses may be declared or averred on a Fine, Feoffment, or recovery of land; but on a bargaine and sale of land, no use may be declared or averred, but what the Law doth make. And upon a covenant of uses, no other use may be declared or averred, but what is con [...]ained [Page 518] within the Deed. 2. Every one may declare and dispose the use of land according to the estate that he hath in the land; for the Coo. 2. 57. Dyer 290. declaration and disposition of the use doth ensue the ownership of the land sicut umbra sequitur corpus. And at this day the use doth draw the land to it, as the body or principall the shaddow or accessary: And therefore the owner of the land, or he from whom the land doth move, ought to limit and declare the use of the land; as if the husband and wife levie a fine of the land, whereof he is seised in the right of his wife; the husband alone may declare the use of this fine, and this declaration shall bind the wife, albeit her assent to the limitation of the uses doe not appeare, if her disassent doth not appeare; but in this case, it is most proper to have a declaration of the uses by the husband and wife both; for shee alone, because she is sub potestate viri, cannot alone declare or limit any use; neither can the husband alone limit any use against her good will, because he hath not the estate of the land: And therefore, if A and B his wife be seised of land in the right of his wife, and shee without the consent of her husband, covenant by Indenture with C and D, 14 Martii 14 Eliz that a fine shall be Husband and wife. levied of this land, and that it shall be to the use of her self for life without impeachment of waste, and after to the Conusees for their lives, to the intent that they shall suffer I S to take the profits for his life with divers remainders over; and afterwards, and before the fine levied, the husband alone by another Indenture 31 Febr. 22 Eliz. (wherein the wife is named a party) without the consent o [...] his wife, doth agree that a fine shall be levied to the use of him and his wife, and after to the uses limited by the wives Indenture, and after the fine is levied accordingly; in this case, albeit the variance be in one particular only, and the limitations in all the [...]est of the uses and estates doe agree, yet all the same limitations by both Indentures are void, and the use upon the conveyance is left to construction of Law, and therefore shall be to the wife and her heirs for ever: And yet if the husband and wife agree in the limitation of the uses for part of the land, and differ in the rest, the limitations for so much as they agree in are good, and void for the residue [...] And in these cases where the declaration is good, the wife and her heires shall be bound by it. So if two Joynt-tenants are, Joint tenants. and they, or two others having severall estates joyne in a Fine, and one of them declare the use in one manner, and the other doth declare the use in another manner; this declaration is good for either of their parts; for the declaration shall be governed according Infant. to their estates. And if an Infant, or a man de non sane memorie doth declare the use of a fine levied by him, this declaration De no [...] sane memo [...]e. is good and shall bind him so long as the fine shall continue in his force. 3. This declaration of Uses may bee made [Page 519] either by Deed indented (which is the most usuall and safe way,) or by Deed Poll; As where the parties doe by such a writing agree Coo. 2. 73. 5. 2 [...] that an Assurance passed, or to be passed, shall be to such and such uses; As that a fine shall be levied by such a time, and that it shall be to the use of one for life, another in Taile, and another in Fee. Or it may be made by a verball agreement without any writing at all; as where an agreement is so had, and made between two or more, that a fine, or Recovery shall be had, and it shall be to such and such uses, and the same is had accordingly; in this case, this is a sufficient declaration being proved; but it is not safe in these cases to depend upon slipper memory. 4. This declaration by Coo. 2. 69. 70. 6. [...]7, 63. Dyer 290. Coo. 7. [...]0. Coo. 9. 8. Dyer 136. word or writing, may bee made before, at, or after the time of making the Assurance: and therefore one may covenant or agree that I S shall recover against him, or that he will levie a fine, or make a Feoffment to I S of such land, and that the same shall bee to the use of &c. And if one make a Feoffment, he may declare the uses of it at the same time, and that within the same, or in another D [...]ed at his pleasure: And if the Assurance be past, and no declaration of uses had before, or at the time of passing it, a declaration may be subsequent. viz. That the same Assurance was and shall be, and the Recoverors &c. shall stand and be seised to such and such uses; for an Indenture subsequent may direct and declare the uses of a Fine or Recovery precedent. But herein these diversities are to be observed; when precedent Indentures are made to direct the uses of a subsequent Assurance, and after the Assurance is made accordingly; there Averment. no Averment shall bee taken by word, that the same Assurance was to other uses then are declared by the Indenture: But against an Indenture subsequent, declaring the uses of an Assurance precedent, an Averment may be taken, that there were other uses expressed and limited, before or at the time of the Assurance, then are contained in the Indenture. If a precedent Indenture bee made to direct the uses of a subesequent Assurance, when the Assurance comes, the land is bound, and the Conus [...]r or Recoveree cannot by any act of his, after the Recoverie had, charge or avoid it; but if the declaration bee subsequent, if in the interim, between the Assurance had, and the declaration of the uses, the Conusor or Recoveree sell, give, or charge the land to others; this subsequent declaration will not subvert the meane estates, charges or interests, unlesse it can bee otherwise proved, that by a certaine and compleat agreement of the parties, the Assurance was had and made to these uses. 5. When the agreement for the limitation of uses is precedent, whether it bee by writing or word, it is but directory and doth not bind the estate untill the same. Assurance be afterwards had, and therefore by a new agreement or declaration made in the same manner as the [Page 520] former, viz. in writing, if the former be so, and between the same parties either before, or at the time of the same Assurance passed, new uses may be made & the former uses changed; but when the same Assurance is pursued accordingly, & no intervenient alteration is made, it shall be expounded to be to the same uses, and shal binde the parties, & no naked Averment shal be received of any latter or other agreement contrary to the Indentures. 6. The declaration of the uses must be certaine, and that especially in three things; in the persons to whom, in the lands &c of which, and in the estates by which the uses are declared; and if there want certainty in either of these, the declaration is not good; and it must be compleat of it self without any reference to Indentures, or other writings to be made afterward; for then it is but an imperfect communication, and no compleat declaration. 7. Where an Indenture precedent is to limit the uses of a subsequent Fine or Recovery, and it is not pursued in some circumstance of time, person, quantity, or the like; yet if no other new mean [...] agreement may be proved, the Assurance shall be in judgement of Law to the uses contained in the same Indenture; but if the variance be in these particulars, & the form of the Indenture be not pursued, there an Averment without writing may be taken, that the fine or other Assurance was to other uses then are contained in the Indenture; & if none such can be made, then it is left to construction of Law. And therefore if A be seised of divers Mannors in Fee, and by his Indenture dated 10 Martii. 21 Eliz. doth covenant with B & C, that he before the end of Trinity Term next Will by Fine or other Conveyance assure one of these Mannors to them, & that the same Assurance shall be to the use of A and E his wife, & of the heirs of A, and the 28^th day the Deed is inrolled; and the 29^th day of the same moneth, he doth by another Indenture Covenant with the same C and D to convey all the same Mannors to the same C and D before the Annuntiation next, & that the same Assurance shall be to the use of A, and the heirs males of his body, & for default of such issue, to the use of divers others in remainder & by this Indenture doth covenant, that if he shall not sufficiently convey this land by the day, that he wil stand seised to the same uses &c, and no Fine is levied by the end of Trinity Terme, but the 17^th of September following, a note o [...] a Fine is acknowledged to B and C, and the heirs of B, of the land within the first Indenture; and the 18^th of the same moneth, another note of a Fine is acknowledged to C and D of the same, and other land in the last Indenture, and both these Fines are entred in Octabis Mi [...]h. following; in this case, these Fines cannot bee directed and declared by both Indentures, and therefore it seemes the declarations are void.

As touching Averment of Uses; i. e. the proofe of uses by witnesses, 6. Averment o [...] V [...]es; and [...]ere a use [...] and may be Coo. [...]. [...]. 5. 2 [...], 25. Doct. & St. 95. Coo. 2. 57. these things are to be known, that where any use is expressed upon a Charter of Feoffment, no other use contra or preter the use [Page 521] which is expressed shall be admitted. But in cases of Fines and Recoveries averred upon any assurance; And what shal be said a sufficient averment, or not. wherein no uses are expressed, other uses then what Law construction will make may be shewed and proved to be agreed upon, and the same assurances shall be to such uses as by proof shall be made to appear to be the intent of the parties: As if a man and his wife sell her land for money, and after levy a Fine to the vendee and his heirs; in this case it may be averred it was for money, and this shall carry the use to the Vendee without any declaration of use, which otherwise would result to the woman and her heirs: and yet if a Fine be with a Grant and Render, no averment to prove it to be to other uses then what are contained in the Fine shall be received. And where the uses of a Conveyance be declared by Coo. 9. 8. Indenture before, or at the time of the same Conveyance, no averment shall be received of any other uses then what are contained in the Indenture: But if the Indenture of declaration be subsequent, there an averment lieth and shal be received that there were other uses agreed upon at, or before the time of the conveyance made. And where an agreement is made to levy a Fine, or suffer a Recovery, Coo. 5. 26. before, or at a time certain, and that it shall be of such and such lands and to such and such persons; and after it falleth out the Fine, or Recovery is not had by that time, or not of the same land, or not between the same persons; in these cases an averment may be had of other uses and of another agreement.

Where the uses of an assurance are certainly agreed upon and 7. To what use an assurance of land shall be by construction of law, And how the Limitation of the Vses of land by a Deed shall be construed. Doct. & St. 25. Perk. Sect. 533. Coo. 1. 24. Dyer 18. Cromp, Iur. 62. Coo. [...] super Litt. [...]7 [...]. declared between the parties thereunto, there regularly it shall be to such uses as are declared and agreed upon and to none others. But if a conveyance be made of land by Fine, Feoffment, or recovery, and no uses thereof declared and agreed upon, the Law will limit and appoint the use according to equity and conscience. And therefore if a man levy a Fine, make a Feoffment, or suffer a recovery of land without any consideration; the Law will adjudge the use to be in the Feoffor, Conusor, and Recoveree who doth part with the land: And so if a man make a Feoffment to the intent to perform his last Will, or to the use of his last Will, or to such persons as he shall limit by his last Will; in all these cases the use shall be in the Feoffor and his heires whiles he doth live to dispose at his pleasure. And so if one make a Feoffment of land to Bakers case Co. B. Hill 37 Bliz. I S and his heirs, to the use of W S for 20 years, and limit the use no further; in this case the residue of the use after the 20 years, shall be to the Feoffor and his heirs: But if in these cases there be any consideration of money or the like, though never so little given, or any rent reserved upon the Feoffment, the Law will adjudge the use in the Feoffee, Conusee, or Recoveror: And yet in that case also if other uses be expressed upon the Deed, it seems it shall go to the uses expressed; as if A for 20l. paid by [Page 522] B, enfeoffe B and his heirs to the use of C and his heirs. If the husband and wife levy a Fine of the wives land without consideration, Coo. 2. 57. 58. and without any declaration of use, the Law will adjudge this to be to the use of the wife and her heirs; but if they sell her land for money, and after levy a Fine thereof to the Vendee; this shall be to the use of the Vendee and his heirs. And if a man be seised of land of the part of his Mother, and without any consideration make a Feoffment in Fee of it; this shall be said to be to his use in the same nature he had it before. So if two Jointenants be of land, the one in Fee-simple, and the other but for life, and they without any consideration levy a Fine of it, and make no declaration of use; the use shall be to them of the same estate as they had before in the land. So if [...] tenant for life of land; and B in reversion or remainder, levy a Fine of this land, generally, this shall be to the use of A for life, and to the use of B in Fee afterwards as it was before. So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration; this shall be to the use of A and his heirs only.

If one make a gi [...]t in taile or Lease for life, or yeares, albeit Perk. Sect. 533. it be without any consideration of Fine, or Rent, yet the Law will adjudge the use in the Donee, or Lessee and not in the Donor or Lessor.

If one at this day by Deed indented bargain and sell his land Plow. 539. Coo. 1 87. [...]et see Litt. Broo. 536. C [...]ompt. [...]r. [...]7 2 [...] H. [...]. 6. Co. [...]. 110. to another for money, and doth limit no estate, but the Deed is Habendum to him only, and not Habendum to him and his heirs, or to him and the heires of his body, or to him for life; howsoever in this case before the Statute of uses was made, it was other wise, yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple.

If a Feoffment be made to I S and his heires to the use of I D without any more words; by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life: So if a Feoffment be made to I S and his heires to the use of I D for ever, without saying [and his heires;] hereby I D hath only as estate for life: And so of other uses the construction shall be according to the rules of Law.

If a use be limited to I S and his heires untill A shall come from beyond the Sea, and attaine his full age or dye, in this case Pasche 3 [...] [...] B. R. the Lord Morda [...] case. if he come from beyond Sea, attaine his full age, or dye, the use shall cease.

If one covenant to stand seised to the use of A his eldest sonne Hill. 17. [...]ac. B. R. [...] waye [...] ca [...]e. and the heires males of his body, and after to the use of B his second sonne in tail in the same manner, or according to the limitation to A; by this B hath an estate tail to him and the heires males of his body.

[Page 523]

If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives, and after to the use of their next issue male to bee begotten, in Tail, and after to the use of the husband and wife and of the heires of their two bodies begotten (they having no issue male then;) by this the husband and wife are tenants in speciall Tail executed; and after they have issue male, they are tenants for life, the remainder to the sonne in Tail, the remainder to them in speciall Tail.

If one make a Feoffment to the use of himself for life, and after his decease to the use of Alice whom he doth intend to marry, Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years, and after the issue cometh to that age, then to the use of the wife during her widdowhood, and the husband dye without issue; by this the wife shall have an estate at least during her widdowhood.

If I covenant with B that in consideration he will marry my daughter, that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life, and after to the use of C a stranger and the heirs males of his body, and after to the use of B and my daughter and the heirs of their two bodies; in this case albeit the use limited to C the stranger be void, yet it seems B and my daughter shall not have the land till the death of C without issue, but that my heirs shall have it till that time.

If I covenant with B to stand seised to the use of my selfe for life, and after my death to the use of C a stranger for the term of 20 years, Coo. 1. 155. and after the end of the term to the use of my sonne in tail; in this case the use limited to C is voyd, and my sonne after my death shall have the land: But if the words of the covenant be [and after the end of 20 yeares] insteed of [and after the end of the term] my sonne shall not have the land untill the 20 yeares be expired. See more in exposition of Deeds. Chap. 5.

All such uses as are not within, nor executed by the Statute of 8. Where and how V [...]es of Land [...]ay be extinguished and destroyed or suspended, or no [...]; And where the ancient Vses shal be revived by the entry of the Feoffees, or not. 27 H. 8. but remain at the Common-Law, may be destroyed, discontinued, Co. 1. Chudleighs ca [...]e. or suspended as uses before the Statute might have been. And therefore contingent uses may be extinguished or suspended at this day. As it a man seised of land in Fee have three sonnes A B and C, and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A, and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne; or if a Feoffment be made to the use of a man and the wife that he shall marry, or the like; if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse, as before A have any sonne, or the man take a wife &c. albeit it be to one that have notice of these uses, yet the uses are destroyed for ever, and the Feoffees cannot enter and revive [Page 524] them contrary to their own Feoffment: And if in these cases the Feoffees before the contingent remainder vest be disseised, hereby the uses are suspended; but then by the Reentry of the Feoffees the ancient uses will be revived again: And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry, the uses are extinguished and shall not be revived, and the party grieved hath no remedy but in Chancery against the Feoffees for breach of trust. And if the Feoffees in the first case before dye, before A have any sonne born, the contingent remainder is gone: As where a Feoffment is made to the use of the Feoffor for life, and after to the use of the right heirs of I S in Fee, and the Feoffor dye before I S; in this case the remainder is gone, for a remainder cannot be without a particular estate no more of a use then of an estate made in possession: and such a remainder must vest during the particular estate, or at least eo instanti when the particular estate doth end.

If a Feoffment be made to the use of I S and the wife he shall Coo. 1. 136 afterwards marry, and of the heirs males of their bodies; and I S make a Feoffment of this land to another before he take a wife; hereby the contingent remainder is destroyed.

If A enfeoffe B and his heirs to the use of C and D his wife and Hill 2. Ca [...]. Scaccar Adiudged. the heirs of the survivor of them, and C makes a Feoffment to E and dyeth; this Feoffment doth destroy the contingent remainder.

When the estate out of which the uses do arise is gone, the uses Dyer 186. are gone also; As if a Lease be made to A for his life to the use of B for his life, and A dye; hereby the estate of B is gone.

Also uses of lands may be gone by Revocation, whereof See in the next part.

Provisoes and Powers of revocation of uses of lands are very Coo. super Litt. 237. 7. 11. 12. 10. 143. 1. 110. 173. 107. Dyer 372. 9. Where a power to revoke Vses of Land shall be good, And how they shal be taken; And what Revocation by real [...]n of such power shall be [...]o [...]d, And what not. frequent in voluntary conveyances (whether by Feoffment or otherwise) that passe land by way of raising of uses, and are executed by the Statute of 27 H. 8. and the Jnheritances of many depend thereupon. As if a man seised of land in Fee have divers sonnes, and he covenant to stand seised of that land to the use of himselfe for li [...]e, and after of his eldest sonne in Tail, and for want of such issue, to the use of his second sonne in Tail &c. with a Proviso that it shall be lawfull for him at any time during his life to revoke any of the said uses, and to limit and appoint other uses &c. Or if A by [...]ndenture between him and B his heire apparant an Infant, covenant with B for the advancement of his blood &c to stand seised to the use of himselfe for life, and after to the use of his said heir apparant and the heirs males of his body, and after to the use of his right heires, provided that if A by himselfe or any other during his life shall deliver or offer to B a Ring of gold to the intent to [Page 525] make void all the said uses, that then the same uses shall be voyd, and he may limit new uses: Or if A by Indenture covenant with B to stand seised to the use of himself and his wife and his daughter for their lives, and after &c. provided that if the said A during his life and after the debts mentioned in the Schedule annexed to the Indenture shall be paid, shall be disposed to determine, disannull, change, alter, enlarge, dimin [...]sh or make void the uses or estates, or any of them, of the Premisse, or any part thereof, and by writing indented under his Hand and Seale subscribed in the presence of three Witnesses shall declare his mind to be so, that then the same uses shall be void; all these and such like Provisoes being coupled with a use are allowed to be good and not repugnant to the former estates. But in case of such a Feoffment or other Conveyance whereby the Feoffee or Grantee is in by the Common-Law, as where A doth enfeoffe B and his heirs to the use of B and his heirs, it is said such a Proviso is meerly repugnant and voyd. And as touching these Provisoes or Revocations, these things are to be known; 1. These Revocations are favourably interpreted, because many mens Inheritances depend upon it: And therefore he that hath this power, may revoke part of the uses at one time, and part at another time; and the revocation of the old, may be made by the making of new uses without any expresse revocation; And by the same conveyance whereby the old uses be revoked, the new u [...]es may be created and limited, and then the [...]onner uses do cea [...]e i [...]so facio by this revocation without any entry or claim: As if one covenant to stand seised to the use of himself and his wi [...] for their [...]ives, and after to the use of A his daughter for the and after to the use of B his daughter in Tail &c. p [...]ovided that if he shall be minded &c. he may by writing &c. make voyd the same u [...]es, and declare the uses to others, and he doth make voyd the use to [...]s wise at one time and no more, and after by a D [...]ea doth limit and appoint new uses of the whole by a new cov [...]nant to stand eis [...]d to other u [...]es; these are good rev [...]c [...]tions; for there needs no reall and expres [...]e revocation of former uses, but the creating of new uses as in Law an actuall revocation of the old uses, as the making of a latter [...]s t [...]so [...]ucto a revocation of a former Will. 2. The Provi [...]o must for the substance of it be pursued in the revocation, and all incident circumstances thereof must be observed, as sealing, subscription o [...] names, witnesses, and the like, otherwise the revocation will not be good. And therefore if the Proviso be, that if the Covenantor shall be minded to revoke, and shall [...]d clare his mind by writing indented under his Hand and Seale, delivered before three Witnesses, the uses shall be void; in this case a revocation by word without writing, or by a writing and not indented, or by writing indented [Page 526] and not under Hand and Seale, or under Hand and Seale, and before two Witnesses only, is not good. And yet if a Proviso be that Trin. 18. Ia. Co. B. Tib. [...] be [...] & Leas case. if the Covenantor shall at any time during his life by writing under his Hand and Seale delivered before two witnesses revoke the same &c. the old uses shall be void, and the Covenantor by his last Will and Testament in writing under his hand and Seale before two Witnesses doth give the land to another, and make no expresse revocation of the former uses: this is a good revocation in Law. If the Proviso be that if the Covenantor be minded at Coo. 8. 92 [...] any time during his life to revoke the same uses &c. and shall pay or tender to A B 20 [...]. in such a place; in this case tender of this 20s. in that place at any time is not good, unlesse he happen to meet with A B at the place, for then tender at any time is good; but otherwise the Covenantor must give notice to A B what time he will tender the 20s. in that place, otherwise the revocation is not good. If one be to marry his daughter to the sonne of another, man, and they do mutually covenant to stand Trin. 18. Ia. B. R. Savill & sterlings case. seised of their lands to the use of their sonne and daughter with Proviso to revoke the uses with the con [...]ent of the mothers, if they or either of them be then living, and one of them dye; in this case a revocation by the consent of the surviving mother is sufficient. 3. When the covenantor doth make void such uses by vertue of such a revocation, he is seised again of the land in Fee-simple, Coo. i. 111. 112. 113. super Litt. 237. as he was at first without any entry or claim. 4. This power of revocation, whether it be present, as those before and most are, or future, as when they are upon contingent, as if the Covenantor over-live I S or the like, when it is reserved to the party himself that made the uses, may by his [...]ine, or Feoffment be utterly extinguished; As if he make a Feoffment, or levy a Fine of the land whereunto the uses and proviso are annexed; by this the Proviso is extinct; And yet so as if he make a Feoffment, or levy a Fine of part of the land only: this shall extinguish his power but to that part only: But if the power be reserved to a stranger, it seems the Fine or Feoffment of him that made it, will not extinguish it. This power also when it is present may be extinguished by a Release made by him that hath the Release. power, to any one that hath any estate of Franktenement in the De [...]ea [...]ance. land in possession, reversion, or remainder; or it may be avoided by Defeasance whether it be present o [...] future.

If one convey his lands to certain friends in trust, to the intent 10. Other Trusts and Confidences or lands and of chattels [...] all and personall, The na [...] ture of such Trusts, the duty of them that are trusted, and the remedy to be [...] had against them for breach of their tru [...] that they shall convey it to such persons as he shall set down in Cromp. Iur. 48. 59. 58. 54. Dyer 160. Fitz. Accompt. 122 his last Will and Testament; or if a man deliver money to a friend in trust to purchase land for him and his heirs, to the end that he may have the profits thereof for his life, and to the end [Page 527] it may be conveyed to them afterwards: or if a man deliver money to his friend to buy land for him that doth deliver the money in his own name; or if a man enfeoffe his friend and his heirs of land, to the intent that he shall alien the land to whom I S shall appoint; or if land be conveyed to me in Mortgage and I pay all the money, but I to prevent the joynture of my wife, or for some such like cause name a friend joynt purchasor with me, and so the conveyance is made to us both; if in any of these cases, or in any other such like case the friend trusted prove false, and do not perform the trust, but turn the profits of the land to their own use, or refuse to settle it according to the trust, or the like, the party grieved must have his remedy in Chancery, for these are not Trusts or Uses within the Statute, nor such for which there is any remedy at the Common-Law; And in that case where the land is setled to the intent that the friends trusted shall settle it where I S shall appoint, if I S do not appoint how it shall be setled, it seems the Feoffees shall have it to their own use.

And if a man give or grant his goods or chattels, as Leases for yeares or the like to friends in trust to the use of himself for life, Cromp. Iur. 65. Dyer 369. Broo. Feofment al use 60. C [...]omp. [...]ur. 62. 45, 11 Ed 4. 2. 7 Ed [...] [...]. 29. and after to perform his Will, or the like; these are such uses and trusts as are not within the Statute of uses, and for the breach of which there is no remedy at the Common-Law but in Chancery only. So if an Obligation or Statute be made to A B to the use of C D; this is a trust of the same nature; and if A B release the Obligation without the consent of C D, or get the money into his own hands, C D shall have reliefe in Chancery; And in all these cases and such like cases, the generall rules by which uses were governed at the Common-Law are still in force and to take place as those by which uses and trusts are now for the most part governed. As 1. If there be any cause to sue for or about the lands or goods wherewith the parties are trusted, as if they deny 7 Ed. 4. 29. or delay to perform the trust, they must be compelled thereunto by suite in Chancery. 2. The Cestui que use, or party for Cromp. Iur. 62. 63. 65. 11 Ed. 4. 24. Ed. 4. 37. whom the trust is, cannot of himselfe dispose of the lands or goods, for the property and interest in Law is in the Trustees; and if it be an Obligation or Statute that is made to the use of another, Cestuy que use cannot release it, but the Trustee must release it. 3. If the parry trusted so with lands, goods, or chattels give, grant, or sell the same lands, goods, or chattels to one that hath knowledge of the same uses or trusts (as it is alwayes pre [...]umed he hath where the trusts are expressed upon the same Deed, by which the lands, goods, or chattels are given or granted) or if the things so given or granted, be granted upon the same trusts, or to the same uses, or without any consideration at all; in these [Page 528] cases he to whom the thing whereabout the trust is, shall have the same thing upon the same trust and to the same use as he that did give or grant the same had it. But in case where no trust or use is expressed upon the Deed, the purchasor or buyer hath no notice or knowledge of the use or trust, and hee gives a valuable consideration for the thing, there for the most part the sale is good, and the party grieved thereby hath no remedy but against the party first trusted in Chancery; and the purchasor shall have and enjoy the thing so bought to his owne use for ever; but he that is the party trusted, will bee forced in Chancery to make the party grieved an amends in damages for this breach of trust; And if there be any practise, packing, or combination betweene the buyer and the seller in the matter, there perhaps the Suit may hold against them both, and the buyer may be forced to restore the thing it selfe. 11 Ed. 4. 8. And yet if A enter into a Statute to B and C to the use of B, and A having notice of this use doth get a release from C: in this case it seemes B must have his whole remedy against C, and shall have no remedy against A. 4. If the Trustor or Cestuy que use in these cases commit Felony &c. so that the things if he had Broo. Feofment al use 3 [...]. the property of them were forfeit; in this case it seemes that neither they nor their Heires, Executors &c. nor yet the Lord &c shall have them, but the Trustees shall keep them for ever. 5. If the Cestuy que use or Trustors dye and appoint how the 15 H. 7. 12. Cromp. Iur. 54. same things shall be disposed of, the Trustees are bound to see it done; as if the Trustor appoint it shall pay his debts, or provide Legacyes, the parties trusted must take care it be so imployed; and in this case the Debtees and Legatees also may compell the Trustees in Chancery. 6. In all these cases regularly Dyer 49. the thing whereof the trust is, is in equity at the disposing of him that is the Cestuy que use, unlesse he do otherwise appoint it, and if at his death he make no disposition thereof it shall goe to his Heire, Executor &c. 7. In all these [...]H 7. 11. cases the Trustees shall have their reasonable allowance in Chancery for whatsoever they have laid out about the land &c. in Suites or otherwise for the profit of the Trustor. Out of all which may appeare how dangerous it is for a man to meddle with any lands, goods, or chattels so conveyed or setled in trust, for the Cestuy que use or Trustors have no property in the thing, and therefore they cannot sell or give it, and the Trustee hath it but to anothers use; And it is not safe therefore to deale with either of them alone, nor yet indeed safe to deale at all in these cases, unlesse the buyer may have the consent, sale, and assurance, or the Release &c. of the Trustors and Trustees [Page] altogether: And if there bee any woman Covert, or Infant within the Trust, it is most of all dangerous. And if goods or chattels be given to, or to the use of a Feme Covert, or Infant, 7 Ed. 4. 14. Fitz. Subpena. 5. and certaine friends are trusted therewith, if they doe sell or give away these goods or chattels contrary to the Trust, they must be sure to answer it, if therefore they sell them, let them see that the money made thereof be as beneficiall, and be bestowed for the wife or children; for it seemes it is not sufficient in this case, that the money made thereof bee paid to them.

FINIS.

[Page]

The Table.

Acceptance. WHere it will bind, or not, chap. 14. numb. 5. 9. chap. 21. numb. 8.

Acquittance. What it is, and when it must be made, chap. 19. numb. 10. 11.

Administrator, See tit. Executor.

Administration. Where it is grantable, and by whom, & to whom it must be granted, chap. 23. numb. 22. 23. 34. When it is revocable, numb. 35.

Agreement and Disagreement See Deed, chap. 17. numb. 5.

Alien. What Assurances he may make, and what Acts he may doe, chap. 12. numb. 4. chap. 23. numb. 4.

Apportionment. Where it shall be, chap. 6. numb. 12.

Assent. Where it is needfull to make a Legacy perfect, and when it is good, chap. 23. numb. 15. 16.

Assets. What shall bee Assets in the hands of an Executor, chap. 23. numb. 14. 39.

Assignes. How they may charge others or bee charged themselves, chap. 7. numb. 6. 8. chap. 8. numb. 12. chap. 16. numb. 2.

Attainted persons. What Assurances they may make, and what Acts they may doe, chap. 2. numb. 6. chap. 23. numb. 4. chap. 12. numb. 4. chap. 9. numb. 4.

Atturnment. What it is, and how many kinds there are, chap. 13. numb. 1. The effect of it, numb. 3. When it is requisite, numb. 4. By whom and to whom it must be made, numb. 5. 6. when, and how it must be done, num. 5. 6. chap. 9. numb. 4. How it shall be taken, chap. 13. numb. 10. 11.

Averment. Where it shall be allowed, chap. 3. numb. 4. chap. 10. numb. 5. chap. 14. numb. 4. chap. 23. numb. 5. 6. chap. 24. numb. 6. 5. 4.

Bargaine and Sale. What it is, and how many kinds there are, chap. 10. numb. 1. 2. the effect of it, numb. 3. When it is good, numb. 4. 5. How it shall be taken, numb. 6. 7.

Bastard. What Assurance he may make, chap. 2. numb. 6. chap. 12. numb. 4.

Bona Notabilia. What this is, See chap. 23. numb. 21.

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Claym or Entrie. Where it is necessary, chap. 6. Numb. 13. By whom it must be made, chap. 2. numb. 12.

Codicill. What it is, chap. 23. numb. 1.

Common Recoverie. What it is, and how many kinds there be, chap. 3. numb. 1. 2. The manner of suffering it, numb. 3. The use of it, numb. 4. When it is good, and who shall bee barred by it, numb. 5. how it may bee avoided, numb. 7.

Tenants in common. See Joint-tenants.

Condition. What it is, and how many kinds there are, chap. 6. numb. 1. 2. chap. 16. 2. what things may be done on condition, chap. 6. numb. 3. chap. 23. numb. 7. what words doe make a condition, chap. 6. numb. 5. what is a good condition, chap. 6. numb. 5. 7. Expounded, and how it must bee performed, chap. 6. numb. 8. 9, 10. Who shall have advantage of it, chap. 6. numb. 12. Discharged, chap. 6. numb. 15. Condition of Obligation. See Obligation.

Confirmation. What it is, and how many kinds there are, chap. 18. numb. 1. 2. The effect of it, numb. 3. 7. where it is needfull, numb. 4. when it is good, numb. 5. 6. How it shall enure, numb. 7.

Corporation. What assurances they may make, and what Acts they may doe, chap. 2. numb. 6. chap. 12. numb. 4. chap. 9. numb. 4.

Covenant. What it is, and how many kinds there are, chap. 7. numb. 1. 2. what shall be said a good Covenant, numb. 4. chap. 5. numb. 10. chap. 6. numb. 5. 7. chap. 14. numb. 4. chap. 23. numb. 4. Expounded, chap. 7. numb. 6. when it shall bee said to bee broken, chap. 7. numb. 7. who may take advantage of it, chap. 7. numb. 8. discharged, chap. 7. numb. 10. chap. 17. numb. 3.

Covin. Where it doth hurt an Assurance or marre an Act done, chap. 2. numb. 6. chap. 3. numb. 4. 7. chap. 4. numb. 5. chap. 23. numb. 27.

Deed. What it is, and how many kinds there are, chap. 4. numb. 1. 2, 3. when it is good, numb. 5. when it is good in part and void in part, numb. 7. chap. 15. numb. 4. how a good Deed may become void, ch, 4. numb. 6. Expounded, ch. 5. ch. 2. numb. 7. ch. 16. num. 5. ch. 17. num. 6. 7. In the Premisses, chap. 5. numb. 15. In the Habendum, chap. 5. numb. 2. 15. In the reservation, chap. 5. numb. 9. 10.

Defeasance. What it is, and how many kinds there are, ch. 22. num. 1. 2. what may be done by it, and when it is good, cha. 20. numb. 7. chap. 22. numb. 2. 3. cha. 18. num. 5. cha. 23. num. 9. cha. 24. num. 9. ch. 8. num. 3.

Delivery. What is a good delivery of a deed, ch. 4. numb. 5.

Debt. Where an action of debt lieth, chap. 5. numb. 10.

Devastavit, See Executor.

Devise or Legacy. What it is, and how many kinds there are, chap. 23. numb. 2. when it is good, numb. 7. Devise of lands to sell, [Page] numb. 9. where being once void it doth afterwards become good, numb. 11. 12. meanes to recover the thing devised, numb. 17.

Duresse or Manasse. When an assurance shall be said to bee made by Duresse or M [...]nasse, and therefore void, ch. 4. num. 5. cha. 12. numb. 4.

Ecclesiasticall Persons. What assurances they may make, and what Acts they may do, ch. 9. num. 4. ch. 12. num. 4. ch. 14. num. 7 ch. 16. num. 3.

Election. Who shall have it, cha. 22. numb. 14. Entry, See Claim.

Equity. Where one may have reliefe in equity, for wrong done, ch. 24. num. 10. 8. ch. 6. num. 14 ch. 9. num. 4.

Escrow. How a Deed may be delivered as an [...]scrow, ch. 4. num. 5.

Estoppell. Where it shall be, ch. 2. num. 6. 11. chap. 4. num. 4. 5. ch. 5. num. 13. ch. 14. num. 4. 8.

Exception, See Deed.

Exchange. What it is, and the effect of it, ch. 16. numb. 1. 2. How it must be made, and when it is good, num. 3. 8. Determined, numb. 6.

Executors and Administrators. What they are, and how many kinds of them there are, ch. 23. num. 2. who may make or be made an Executor or Administrator, num. 18, 19, 20. where he may accept the Administration, and what shall be said an acceptance, numb. 24. what hee shall have, numb. 7. 13, 25. chap. 14. numb. 4. chap. 10. numb. 4. His duty and office, chap. 23. numb. 27. How he shall be charged, chap, 23. numb. 29. 37, 38. chap 7. numb. 6, 8, 9. chap. 21 numb. 6. what Executors or Administrators may doe together, or apart, to others, or one to another, chap. 23. numb. 26. 30. 31, 35. chap. 12. numb. 4. chap. 17. numb. 5. chap. 17. numb. 9. what [...]all bee said a [...]evastavit in them, chap. 23. numb. 32. who shall be said to be an Executor of his own wrong, and how he shall be charged, chap. 23. numb. 33.

Extinguishment. Where an estate, rent &c. shall be exting [...]shed, chap. 2. numb. 11. chap. 17. numb. 3. chap. 19. numb. 6. chap. 24. numb. 8. chap. 6. numb. 15.

Feoffment. What it is, and how many kinds there are, chap. 9. numb. 1. 2. The nature of it, numb. 3. who may make it, and when it is good, numb. 4.

Fine. What it is, and how many kinds there are, chap. 2. numb. 1. 2. The parts of it, numb. 3. The order of levying it, num. 4. The operation of it, numb. 5. when it is good, numb. 6. How it shall bee taken, numb. 7. who shall be b [...]rred by it, and in what time, numb. 8. 10. chap. 8. numb. 7. where it may be avoided, and how, chap. 2. numb. 12.

Forseiture. How many wayes a Tenant for life or yeares may forfeit his estate, chap. 2. numb. 6. chap. 3. numb. 4. chap. 5. numb. 13. 14, 15. chap. 14. numb. 4. chap. 17, numb. 7. chap. 6. numb. 11, chap. 9. numb. 4. chap. 12. num. 4.

Gift What it is, chap. 11,

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Grant What it is, and how many kinds there are, chap. 12. numb. 1. 2. Things requisite to a good Grant, numb. 3. when it is good, numb. 4. chap. 2. numb. 6. chap. 23. num. 7. what things are grantable, chap. 12. num. 4. Expounded, chap. 5. chap. 23. 7, 8. when once good and doth afterwards become void, chap. 15. num. 1. when once void or voidable, and it doth afterwards become good, chap. 15. numb. 3. when it is good in part, and void in part, chap. 15. numb. 4. who may avoid it, chap. 15. numb. 2. 5.

Habendum, See Deed.

Heire. What he shall have, and where and how hee shall bee charged, chap. 21. numb. 6. [...]hap. 23. num. 7.

Husband and Wife. What assurance the husband and wife together or apart may make, and what Acts they may doe, chap. 2. num. 6. 8. 10. chap. 3. numb. 5. chap. 9. [...] 4. 9. chap. 12. num. 4 chap. 1 [...]. numb. 5. chap. 14. num. 6. chap. 16 num. 2. chap. 17, num. 5. chap. 19. num. 7. chap. 2. [...]m. 4. 7, 19, 26. chap. 16. num 7. 8. chap. 24. num. 5.

Incertainty. Where it will hurt, chap. 14. num 4. chap. 23. num. 7. chap. 24. num. 4. Indenture, See Deed.

Infant. What assurance hee may make, and what Acts he may doe to bind him, chap. 2. num. 6. 10. chap. 3. num. 5. chap. 6. num. 11. chap. 8. num. 7. cha. 9. num. 4. 9. chap. 12. numb. 4 chap. 13. num. 5. chap. 14. num. 4. chap. 15. numb. 5. chap. 16. num. 3. chap. 18. num. 5. chap. 19. num. 7. chap. 23. num. 4. chap. 24. num. 5.

Inrolment. Where it is necessary, chap. 10 num. 4. chap. 24. num. 4.

Joint-tenants or Tenants in Common. What assurances they may make together or apart, chap. 9. num. 4 chap 10. num. 3. cha. 14. num. 4. chap. 17. num. 5. chap. 18. num. 5. chap. 16. num. 3. chap [...] 24. num. 5. chap. 12. num. 4.

Jointure. How a Jointure for a woman may be made by Fine, chap. 2. num. 6. Legacy, See Devise.

Lease. What it is, and how many kinds there are, chap. 14. num. 1. 2. when it is good, num. 3. 4, 8, 9. chap. 7. num. 4. How it may be made by Fine, chap. 2. numb. 6.

Limitation of Estates. See for this in Condition, in toto, and chap. 23. numb. 7.

Livery of Seisin. What it is, and how many kinds there are, chap. 9. numb. 5. 6. the nature of it, num. 7. where it is requisite, num. 8. chap. 14. num. 4. chap. 16, num. 3. chap. 17. num. 5. chap. 18. num. 5. How it must be made, and when it is good, chap. 9. numb. 9. 10. How in shall enter, chap. 9. numb. 11.

Manasse, See Du [...]esse.

Misnaming, Mistake or Misrecitall.

Where it will hurt, chap. 5. num. 4. 5, chap. 12. num. 4. chap. 23. numb, 7.

Non est factum. Where this may be pleaded, chap. 4, num. 11.

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Non sane memory. What assurances such persons may make, and what Acts they may doe to bind them, chap. 2. num. 6. 10. chap. 12. num. 4. chap. 13. num. 5. chap. 15. num. 5. chap. 16. num. 3. chap. 23. num. 4. chap. 24. num. 5. chap. 9. num. 4.

Obligation. What it is, and how many kinds there are, chap. 21. num. 1. 2. when it is good, chap. 21. num. 3. chap. 4. num. 5. chap. 20. num. 3. Expounded, chap. 21. num. 6. when it is forfeit, chap. 21. num. 9. Discharged, chap. 21. num. 11. what conditions of obligations are good, and how they shall be taken, and must bee performed, chap. 21. numb. 4. 5, 7, 8, 9. 10.

Occupant. What it is, and where it shall be, chap. 5. numb. 15. chap. 23. num. 7.

Out-lawed person. What Acts he may doe, chap. 23. num. 4. chap. 12. num. 4. chap. 9. num. 4.

Premisses, See Deed.

Prerogative of the King. Against a common Recovery, chap. 3. num. 5. in taking and making grants, chap. 9. num. 4. chap. 12. num. 4. To save a condition, chap. 6. num. 12. In a condition, chap. 6. num. 7. In his possession, chap. 9. numb. 4.

Probate of a Will. What it is, and how and before whom it must be made, chap. 23. num. 40. 41.

Rasure, See Deed.

Recitall. Where it is necessary ch. 5. num. 4. 5.

Recovery. What it is, and how many kinds there are chap. 3. numb. 1. 2. The manner of suffering it, numb. 3. The use and nature of it, numb. 4. when it is good, and who shall bee barred by it, numb. 5. avoided, num. 7.

Relation. Where and how it shall be, chap. 4. num. 5. 8. chap. 24. numb. 4.

Release. What it is, and how many kinds there are, chap. 19. numb. 1. 2. The nature of it, numb. 3. what may bee released, and where a release is good, numb. 4. 5, 6, 7. chap. 18. numb. 6. chap. 20. numb. 7. chap. 23. numb. 9. chap. 24. numb. 9. chap. 8. numb. 13. chap. 6. numb. 15.

Revocation, See Testament and Use.

Sealing of a Deed. When it is good, chap. 4. numb. 5.

Statute. What it is, and how many kinds of it there are, chap. 20. numb. 1. 2. The effect of it, numb. 3. The proceedings thereupon, numb. 4. when it is good, numb. 3. what things are subject to execution thereupon, numb. 5. where one may have a new execution, numb. 6. Discharged, numb. 7. where one shall have contribution against another, being charged upon a Statute, num. 8.

Surrender. What it is, and how many kinds of it there are, chap. 17. num. 1. 2. The effect of it, num. 3. when it is good, numb. 4. 5. How it shall be taken, numb. 6. 7. what may be surrendred, numb 8.

Tenant in Taile. What assurances hee may make, and [Page] how he may barre his issues and others chap. 2. numb. 8. 10. chap. 3. num. 5. chap. 14. numb. 5. chap. 15. numb. 5. chap. 16. numb. 3. 7, 8.

Testament. What it is, and how many kinds there are, chap. 23. numb. 1. The parts of it, numb. 2. The nature of it, num. 3. when it is good, numb. 4. when it is good at first, and voyd afterwards; or voyd at first, and good afterwards, numb. 5. 6. expounded, chap. 23. numb. 8.

Trust and Confidence. For this, see chap. 24. numb. 10.

Vacat of a Deed. See chap. 4. numb. 5. 6.

Villaine. What hee may doe, see chap. 23. numb. 4.

Use. What it is, and how many kinds there are, chap. 24. numb. 1. 2. The nature and originall of it, numb. 3. when it is good, numb. 4. Expounded, numb. 7. Extinguished, numb. 8. Declaration of Ʋses, numb. 5. Power to revoke Ʋses, numb. 9.

Usury. What contract shall bee said to bee usurious, and what assurances shall be thereby void, chap. 2. numb. 6. chap. 4. numb. 5.

Warranty. What it is, and how many kindes there are, chap. 8. numb. 1. 2. chap. 16. numb. 2. The effect of it, numb. 3. What words will make it, numb. 4. To what it may be united, numb. 5. When it is good and binding, numb. 6. 7, 8, 9, 10. chap. 19. 6. chap. 23. 7. Expounded, chap. 8. numb. 11. Who may take advantage of it, and against whom, chap. 8. numb. 12. Avoided and discharged, numb. 13.

FINIS.

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