Imágenes de páginas


6 E1 3. 4.

2. H. &. pl. 207.

7. in fine,
22 Ass
52 F.
Rec. in
salue 23


life, the remainder to the use of baron and feme, selves in property, and upon a plea of fully adand lessee for life die, now the feme is remitied, ministered it shall be allowed: and the reason is, ciusa qua supra.

because it may be maiter of necessity for the well Also, if the heir of the disseisor make a lease administering of the goods of the testator, and for life, the remainder to the disseisee, who executing their trust, that they disburse money chargeth the remainder, and lessee for life dies, of their own: for else perhaps the goods would the disseisee is not remitted; and the reason is, be forfeited, and he that had them in pledge his intermeddling with the wrongful remainder, would not accept other goods but money, and so whereby he hath affirmed the same to be in him, 'it is a liberty which the law gives them, and and so accepted it: but if the heir of the disseisor they cannot have any suit against themselves; had granted a rent charge to the disseisee, and and, therefore, the law gives them leave to retain afterwards made a lease for life, the remainder to so much goods by way of allowance; and if the disseisee, and the lessee for life had died, the there be two executors, and one of them pay the disseisee had been remitted; because there ap- money, he may likewise retain against his compeareth no assent or acceptance of any estate in panion, if he have notice thereof. the freehold, but only of a collateral charge.

But if there be an overplus of goods, s Eliz. 187. So if the feme be disseised, and intermarry above the value of that he shall dis- pl. 6. with the disseisor, who makes a lease for life, burse, then ought he by his claim to determine

rendering rent, and dieth, leaving a son what goods he doth elect to have in value; or Cound. 3. 67. by the same feme, and the son accepts else before such election, if his companion do sell the rent of the lessee for life, and then the feme all the goods, he hath no remedy but in spiritual

dies, and the lessee for life dies, the son court: for to say he should be tenant in common

is not remitted; yet the frank tenement with himself and his companion pro ruta of that was cast upon him by act in law, but because he doth lay out, the law doth reject that course he had agreed to be in the tortious reversion by for intricateness. acceptance of the rent, therefore no remitter. So if I. S. have a lease for years 29 H. 8. pl.

So is tenant in tail discontinue, and the discon- worth twenty pounds by the year, and tinuee make a lease for life, the remainder to the grant unto I. D. a rent of ten pounds a issue in tail being within age, and at full age the year, and after make him my executor; lessee for life surrendereth to the issue in tail, now I. D. shall be charged with assets ten pourds and tenant in tail die, and lessee for life dies, yet only, and the other ten pounds shall be allowed the issue is not remitted: and yet if the issue and considered to him: and the reason is, because had accepted a feoffment within age, and had con- the not refusing shall be accounted no laches to tinued the taking of the profits when he came of him, because an executorship is pium officium, full age, and then the tenant in tail had died, not- and matter of conscience and trust, and not like a withstanding his taking of the profits, he had purchase to a man's own use. been remitted; for that which guides the remit- Like law is, where the debtor makes ter, is, if he be once in of the freehold without the debtee his executor, the debt shall courts any laches: as if the heir of the disseisor enfeoil's be considered in the assets, notwith- 37 H. 6. 32. the heir of the disseisee, who dies, and it descends standing it be a thing in action. to a second heir, upon whom the frank tenement So if I have a rent charge, and grant 6 F. 6. Cond. is cast by descent, who enters and takes the pro- that upon condition, now though the 133. 6. fits, and then the disseisee dies, this is a remitter, condition be broken, the grantee's estate is not causa qua supra.

defeated till I have made my claim; Also, if tenant in tail discontinue for but if after any such grant my

father life, and take a surrender of the lessee, purchase the land, and it descend to me; now, if now he is remitted and seised again by force of the condition be broken, the rent ceaseth without the tail, and yet he cometh in by his own act: claim: but if I had purchased the land myself but this case differeth from all other cases; because then I had extincted my own condition, because the discontinuance was but particular at first, and I had disabled myself to make my claim: and the new gained reversion is but by intendment yet a condition collateral is not susand necessity of law; and, therefore, is but, as it pended by taking back an estate; as if s'i1.6 Fitz were, ab inilio, with a limitation to determine i make a feoffment in fee, upon condi. Barr. 162. whensoever the particular discontinuance endeth, tion that I. S. shall marry my daughter, and tako and the estate cometh back to the ancient right. a lease for life from my feöffee, if the fecffee

To proceed from cases of remitter, which is a break the condition I may claim to hold in by my great branch of this rule, to other cases: if exe fee-simple; but the case of the charge is othercutors do redeem goods pledged by their testator wise, for if I have a rent charge issuing out of with their own money, the law doth convert so twenty acres, and grant the rent over upon con6 H. E. pl. 3.

inuch goods as doth amount to the dition, and purchase but one acre, the whole con.

value of that they laid forth, to them- dition is extinct, and the possibility of the rent, VOL. III.-30

12 1. 4. 22.

2 11. 7. 5.

[ocr errors]

Lil. pl. 352,

Lit. pl 3. 6.



20 H. 7. per



30 H. 6. Fitz Grants 91.

15 Ed. 3. 10.

7 H. 6. 40.

fuil resoli

Trai's case,


9 Ed. 2. Fiz


and Pa. l.

Scire fac. 3

toy reason of the condition, is as fully destroyed cannot now be, he shall have the whole patronas if there had been no rent in esse.

age: for neither can there be an apportionment So if the king grant to me the ward- that he should present all the turns, and his in

sliip of I. S. the son and heir of I. S. cumbent but to have a inoiety of the profits, nor when it falleth; because an action of covenant yet the act of impropriation shall not be defeated. lieth not against the king, I shall have the thing But as if two tenants in common be of myself in interest.

a ward, and they join in a writ of right But if I let land to I. S. rendering a rent with of ward, and one release, the other shall recover condition of re-entry, and I. S. be attainted, where the entire ward, because it cannot be divided : so by the lease comes to the king, now the demand shall it be in the other case, though it be of in. upon this land is gone, which should give me heritance, and though he bring his action alone. benefit of re-entry, and yet I shall not have it re- As if a disseisor be disseised, and the first dis

duced without demand: and the reason seisee release to the second disseisor upon condi

of difference is because my condition tion, and a descent be cast, and the condition broin this case is not taken away in right, but only ken; now the mean disseisor, whose right is suspended by the privilege of the possession: for revived, shall enter notwithstanding this descent, if the king grant the lease over, the condition is because his right was taken away by the act of a revived as it was.

stranger. Also, if my tenant for life grant his estate to

But if I devise land by the statute 41 E1. 3. 10. the king, now if I will grant my reversion over, of 32 H. VIII. and the heir of the de lecture the king is not compellable to atturn, therefore, visor enters and makes a feoffment in i Marin it shall pass by grant, by deed without atturn- fee, and feoffee dieth seised, this de- pa 32 Eliz.

scent bindeth, and there shall not be a perpetual So if my tenant for life be, and I liberty of entry, upon the reason that he never Aluruments

, grant my reversion pur autre vie, and had seisin whereupon he might ground his action,

the grantee die, living cestui que vie, but he is at a mischief by his own laches: and now the privity between tenant for life and me is the like law of the king's patentee; for not restored, and I have no tenant in esse to at- I see no reasonable difference between in Com Banen, turn; therefore I may pass my reversion without them and him in the remainder, which evideR. 2 atturnment. Quod nota.

is Littleton's case. So if I have a nomination to a church, and But note, that the law by operation 4 E 8. 14. per another hath the presentation, and the presenta- and matter in fact will never countertion comes to the king, now because the king vail and supply a title grounded upon a matter of cannot be attendant, my nomination is turned to record; and therefore if I be entitled unto a writ an absolute patronage.

of error, and the land descend unto me, I shall So if a man be seised of an advow- never be remitted, no more shall I be unto an

son, and take a wife, and after title of attaint, except I may also have a writ of right. dower given, he join in impropriating the church, So if upon my avowry for services, 25 H. 8. and dieth ; now because the feme cannot have the my tenant disclaim where I may have Dç. 1. 7. turn, because of the perpetual incumbency, she a writ of right as upon disclaimer, if the land shall have all the turns during her life; for it after descend to me, I shall never be remitted. shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple.

REGULA X. But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, Verba generalia restringuntur ad habililatem rei now the grantee is without remedy, for he took

vel persone. his grant subject to that mischief at the first: and

It is a rule that the king's grants shall not be therefore, it was his laches, and theref're not like taken or construed to a special intent; it is not the case of the dower; and this grant of the third so with the grants of a common person, for they avoidance is not like tertia pars advocationis, or shall be extended as well to a foreign intent as to medietas advocationis upon a tenancy in common a common intent; yet, with this exception, that of the advowson; for if two tenants in common they shall never be taken to an impertinent or a be, and a usurpation be had against them, and repugnant intent: for all words, whether they be the usurper do impropriate, and one of the tenants in deeds or statutes, or otherwise, if they be in common do release, and the other bring his writ' general and not express and precise, shall be reof right de milielate advocationis, and recover; strained unto the fitness of the matter or person. now I take the law to be, that because tenants in

As if I grant common in omnibus common ought to join in presentments, which terris meis in D. and I have in D. both

open grounds and several, it shall not be stretched -Vide contra, 2 E 3. fol. 8. Que presentmét del feme l'ad: to my common in several, much less in my gare vowson est deveign disimpropriate a touts jours quel est agree in sur Cok. Rep. 7. fo. 8. a.

dens and orchards.


6 Ed. 6. Dy. 72.

[ocr errors]

Perk pl. 108.

14 1. 8. 2.

F. N. Br. fo.

41 Ed. 3. 6. et 19.

26 E. 337. Dy.

26 E. 337. Dy.

16 Eliz. 337. Dyer.

5 Ed. 6. Adm.

33 H. 65.

So if I grant to a man omnes arbores add, because some have sought to weaken the

meas crescentes supra terras meas in D. law in that point. he shall not have apple trees, nor other fruit trees So if land descend to the eldest son of a person growing in my gardens or orchards, if there be attainted from his ancestor of the mother held in any other trees upon my grounds.

knight's service, the guardian shall So if I grant to I. S. an annuity of enter, and oust the father, because the 143. De Droit.

ten pounds a year pro consilio impenso law giveth the father that prerogative in respect et impendendo, if I S. be a physician, it shall be he is his son and heir; for of a daughter or a spe. understood of his counsel in physic; and if he be cial heir in tail he shall not have it: but if the a lawyer, of his counsel in law.

son be attainted, and the father covenant in con. So if I do let a tenement to I. S. near by my sideration of natural love to stand seised of land dwelling-house in a borough, provided that he to his use, this is good enough to raise a use, shall not erect or use any shop in the same with because the privity of a natural affection remaineth. out my license, and afterwards I license him to So if a man be attainted and have erect a shop, and I. S. is then a miller, he shall charter of pardon, and be returned of a not, by virtue of these general words, erect a jury between his son and I. S. the challenge joiner's shop.

remaineth; so may he maintain any suit of his So the statute of chantries, that son, notwithstanding the blood be corrupted.

willeth all lands to be forfeited, given So by the statute of 21 H. VIII, the ordinary or employed to a superstitious use, shall not be ought to commit the administration of his goods

construed of the glebe lands of parson- that was attainted and purchase his charter of

ages: nay farther, if the lands be given pardon, to his children, though born before the to the parson of D. to say a mass in his church pardon, for it is no question of inheritance : for of D. this is out of the statute, because it shall be if one brother of the half blood die, the intended but as augmentation of his glebe; but administration ought to be committed 47. otherwise it had been, if it had been to say a mass to bis other brother of the half blood, if there be in any other church than his own.

no nearer by the father. So in the statute of wrecks, that willeth that So if the uncle by the mother be atgoods wrecked where any live domestical crea- tainted, and pardoned, and land descend ture remains in the vessel, shall be preserved and from the father to the son within age held in socage, kept to the use of the owner that shall make his the uncle shall be guardian in socage; for that claim by the space of one year, doth not extend savoureth so little of the privity of heir, as the to fresh victuals or the like, which is impossible possibility to inherit shutteth not. to keep without perishing or destroying it; for in But if a feme tenant in tail assent to the ravisher, these and the like cases general words may be and have no issue, and her cousin is attainted, taken, as was said, to a rare foreign intent, but and pardoned, and purchaseth the reversion, he never to an unreasonable intent.

shall not enter for a forfeiture. For

though the law giveth it not in point REGULA XI. of inheritance, but only as a perquisite to any


the blood, so he be next in estate; yet the recomJura sanguinis nullo jure civili dirimi possunt.

pense is understood for the stain of his blood, They be the very words of the civil law, which cannot be considered when it is once which cannot be amended, to explain this rule, wholly corrupted before. hæres est nomen juris, Filius est nomen naturæ : So if a villain be attainted, yet the lord shall therefore corruption of blood taketh away the have the issues of his villain born before or after privity of the one, that is, of the heir, but not of the attainder; for the lord hath them jure naturæ

other, that is, of the son; therefore if a but as the increase of a flock.

man be attainted and be murdered by Query, Whether if the eldest son be a stranger, the eldest son shall not have appeal, attainted and pardoned, the lord shall Rezister, fol.57. because the appeal is given to the heir, for the have aid of his tenants to make him a knight, youngest sons who are equal in blood shall not and it seemeth he shall; for the words of the have it; but if an attainted person be killed writ hath filium primogenitum, and not filium et by his son, this is petty treason, for that the pri- hæredem, and the like writ hath pur file marrier vity of a son remaineth : for I admit the law to who is no heir.

be, that if the son kill his father or
mother it is petty treason, and that

REGULA XII. there remaineth so much in our laws of the ancient footsteps of potestas patriæ and Recedilur à placitis juris, potius quàm injuriæ er natural obedience, which by the law of God is the

delicta maneant impunila. very instance itself; and all other government The law hath many grounds and positivo and obedience is taken but by equity, which I learnings, which are not of the maxims and come

6 Ed. 4. 50.

36 H. 6. 5,58. 21 Ed. 3. 17.

F. N. Br. 82. G.

Lamb. Jus p. 293. Fitz. Crowa. 1.17.


Fitz. Corone,

Ed 4. M. 2. 6. Staart


Fitz, N. B. 30.

Cap. 12. Sial

Plow. 467.

46 Ed. 3. 21.

Ed. 3. 31.

27 H. 8. 13.


clusions of reason; but yet are learnings received So it is a ground of the law, that the with the law, set down, and will not have called appeal of murder goeth not to the heir 159 in question; these may be rather called placila where the party inurdered hath a wife, lib. 2. W. H. juris than regulæ juris ; with such maxims the nor to the younger brother where there is an law will dispense, rather than crimes and wrongs elder; yet if the wife murder her husband, beshould be unpunished, quia salus populi suprema cause she is the party offendor, the appeal leaps

and salus populi is contained in the repress- over to the heir ; and so if the son and heir muring offences by punishment.

der his father, it goeth to the second brother. Therefore if an advowson be granted But if the rule be one of the higher sort of

to two, and the heirs of one of them, maxims that are regulæ rationales, and not počia and a usurpation be had, they both shall join in a tivæ, then the law will rather endure a particular writ of right of advowson; and yet it is a ground offence to escape without punishment, than vioin law, that a writ of right lieth of no less estate late such a rule. than of a fee-simple: but because the tenant for As it is a rule that penal statutes life hath no other several action in the law given shall not be taken by equity, and the 2. fol. 125. him, and also that the jointure is not broken, and statute of 1 Ed. VI. enacts that those that are so the tenant in fee-simple cannot bring his writ attainted for stealing of horses shall not have of right alone; therefore rather than he shall be their clergy, the judges conceived, that this did deprived wholly of remedy, and this wrong un- not extend to him that stole but one horse, and punished, he shall join his companion with him, therefore procured a new act for it, 2 Ed. VI. notwithstanding the feebleness of his estate. cap. 33. And they had reason for it,

But if lands be given to two, and to as I take the law ; for it is not like the Lit. cap. 16.

the heirs of one of them, and they lease case upon the statute of Glocest. that in a præcipe by default, now they shall not join gives an action of waste agaiast him that holds in a writ of right, because the tenant for life hath pro termino vitæ vel annorum. It is true, if a man a several action, namely, a Quod ei deforciat, in hold but for a year he is within the statute; for it which respect the jointure is broken.

is to be noted, that penal statutes are taken strictly So if tenant for life and his lessor and literally only in the point of defining and

join in a lease for years, and the lessee setting down the fact and the punishment, and in commit waste, they shall join in punishing this those clauses that do concern them; and not waste, and locus vastalus shall go to the tenant for generally in words that are but circumstances and life, and the damages to him in reversion; and conveyance in the putting of the case : and so see yet an action of waste lieth not for tenant for life; the diversity; for if the law be, that for such an but because he in the reversion cannot have it offence a man shall lose his right hand, and the alone, because of the mean estate for life, there- offender hath had his right hand before cut off in fore rather than the waste shall be unpunished, the wars, he shall not lose his left hand, but the they shall join.

crime shall rather pass without the punishment So if two coparceners be, and they which the law assigned, than the letter of the law 22 H. 6. 24, lease the land, and one of them die, and shall be extended; but if the statute of 1 Ed. VI. hath issue, and the lessee commit waste, the aunt had been, that he that should steal a horse should and the issue shall join in punishing this waste, be ousted of his clergy, then there had been no and the issue shall recover the moiety of the place question at all, but if a man had stolen more wasted, and the aunt the other moiety and the horses than one, but that he had been within the entire damages; and yet actio injuriarum moritur statute, quia omne majus continet in se minus. cum persona, but in favorabilibus magis attenditur quod prodest, quàm quod nocel.

REGULA XIII. So if a man recovers by erroneous Faz Fido judgment, and hath issue two daugh- Non accipi debent verba in demonstrationem falsam and one of them is attainted, the

quæ compelunt in limitationem veram. writ of error shall be brought against the par- Though falsity of addition or demonstration ceners notwithstanding the privity fail in the doth not hurt where you give the thing the proper

name, yet nevertheless if it stand doubtful upon Also it is a positive ground, that the the words, whether they import a false reference

accessory in felony cannot be proceeded and demonstration, or whether they be words of against, until the principal be tried ; yet if a man restraint that limit the generality of the former upon subtlety and malice set a madman by some name, the law will never intend error or falsehood. cievice to kill him, and he doth so; now forasmuch And, therefore, if the parish of Hurst as the madman is excused because he can have do extend into the counties of Wiltno will nor malice, the law accounteth the inciter shire and Berkshire, and I grant my ES as principal, though he be absent. rather than the close called Callis, situate and lying Dy. 56. crime shall go unpunished,

in the parish of Hurst in the county of Wiltshire

45 Ed. 3. 3.

20 Ed. 2.

scent. 16



33 Eliz.

12 Elix. 21.

gi Filiz Dr. 375.

27 El. 3.

. 7.

29 Ed. 3.6

13 Eliz

29 Reg.

13, 14 Eliz.

25 Eliz.


M. 38. et

and the truth is, that the whole close lieth in the me such a lease, that then the same obligation county of Berkshire; yet the law is, that it shall be void, and you enter into such an obligapasseth well enough, because there is a certainty tion unto me, and afterwards do procure such a sufficient in that I have given it a proper name lease, yet the obligation is simple, because this which the false reference doth not destroy, and defeisance was made of that which was not not upon the reason that these words, in the So if I grant unto you a rent charge county of Wiltshire,” shall be taken to go to the out of white acre, and that it shall be parish only, and so to be true in some sort, and lawful for you to distrain in all my other lands not to the close, and so to be false: for if I had whereof I am now seised, and which I shall heregranted omnes terras meas in parochia de Hurst in after purchase; although this be but a liberty of com. Wiltshire, and I had no lands in Wiltshire distress, and no rent, save only out of white acre, but in Berkshire, nothing had past.

yet as to the lands afterwards to be purchased the But in the principal case, if the close clause is void. 21 E1. 3 is called Callis had extended part into So if a reversion be granted to I. S.

Wiltshire and part in Berkshire, then and I. D. a stranger by his deed do 24 Eliz. only that part had passed which lay in Wiltshire. grant to I. S. that if he purchase the particular

So if I grant omnes et singulas terras estate, he will atturne to the grant, this is a void

meas in tenura I. D. quas perquisivi de atturnment, notwithstanding he doth afterwards 1. N. in indentura dimissionis facť 1. B. specificat. purchase the particular estate. If I have land wherein some of these references But of declarations the law is conare true, and the rest false, and no land wherein trary; as if the disseisee make a char- 20, 21 Eliz. they are all true, nothing passeth: as if I have ter of feoffment to I. S. and a letter of land in the tenure of I. D. and purchased of I. N. attorney to enter and make livery and seisin, and but not specified in the indenture to I. B. or if I deliver the deed of feoffment, and afterwards have land which I have purchased of I, N. and livery and seisin is made accordingly, this is a specified in the indenture of demise to I. B. and good feofiment; and yet he had no other thing not in the tenure of I. D.

than a right at the time of the delivery of the But if I have some land wherein all these de- charter; but because a deed of feoffment is but monstrations are true, and some wherein part of matter of declaration and evidence, and them are true and part false, then shall they be there is a new act which is the livery 39 Eliz intended words of true limitation to pass only subsequent, therefore it is good in law. those lands wherein all those circumstances are So if a man make a feoffment to I. S. upon con. true.

dition to enfeoff 1. N. within certain

days, and there are deeds made both of REGULA XIV.

the first feoffment and the second, and letters of

attorney accordingly, and both those deeds of Licel dispositio de interesse futuro sit inutilis, tamen feoffment and letters of attorney are delivered at potest fieri declaratio præcedens quæ sortiatur ef- a tine, so that the second deed of feoffment and fectum interveniente novo actu.

letters of attorney are delivered when the first The law doth not allow of grants except there feoffee had nothing in the land; and yet if both be a foundation of an interest in the grantor; for liveries be made accordingly, all is good. the law that will not accept of grants of titles, or So if I covenant with I. S. by indenture, that of things in action which are imperfect interests, before such a day I will purchase the manor of much less will it allow a man to grant or encum- D. and before the same day I will levy a fine of ber that which is no interest at all, but merely the same land, and that the same fine shall be to futare.

certain uses which I express in the same indenBut of declarations precedent before any inte- ture; this indenture to lead uses being but matter rest vested the law doth allow, but with this dif- of declaration, and countermandable at or v plea. ference, so that there be some new act or convey- sure, will suffice, though the land be purchased ance to give life and vigour to the declaration after; because there is a new act to be done, viz. precedent.

the fine. Now the best rule of distinction between grants But if there were no new act, then and declarations is, that grants are never counter- otherwise it is ; as if I covenant with mandable, not in respect of the nature of the con- my son in consideration of natural love, to stand veyance or instrument, though sometime in re- seised unto his use of the lands which I shall spect of the interest granted they are, whereas afterwards purchase, yet the use is void : and the declarations evermore are countermandable in reason is, because there is no new act, nor trans. their natures.

mutation of possession following to perfect this And therefore if I grant unto you, 21 Eliz

inception; for the use must be imited by the that if you enter into an obligation to 19 11. 6. 62. feoffor, and not the feoffee, and he had nothing it me of one hundred pounds, and after do procure' the time of the covenant.

36 Eliz.

25 Eli: 27 Eliz.

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