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quousque. So that upon the matter all persons uncertain in use are like conditions or limitations precedent.
Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D. this is not executed in abeyance, and therefore not void.
Like law, if I make a feoffment to the use of my wife that shall be, or to such persons as I shall maintain, though I limit no particular estate at all; yet the use is good, and shall in the interim return to the feoffor.
Purefoy v. Ro
2 Sund. 385.
Chudleigh's 1 Rep 129, 138.
2 Sul. 64, 124.
17 Heyne's v.
B. Iford's case. Ro. Abr. 791. 31.721. Beiger v. Lloyd.
k. 221, ib.
T. Edge. ih. 229, Goodright v. Hornish, ib. 226.
Contrary law, if I once limit the whole fee-simple of the use out of me, and part thereof to a person uncertain, it shall never return to the feoffor by Way of fraction of the use; but look how it should have gone unto the feoffor; if I begin with a contingent use, so it shall go to the remainder; if I en232, Scattergood tail a contingent use, both estates are alike subject to the contingent use when it falleth; as when I make a feoffment in fee to the use of my wife for life, the remainder to my first begotten son; I having no son at that time, the recase. Yelv. 37. mainder to my brother and his heirs : if my wife die before I have any son, the use shall not be in me, but in my brother. And yet if I marry again, and have a son, it shall divest from my brother, and be in my son, which is the skipping they talk so much of.
Divis v. Spe.d,
Sir Ed. Lloyd r. Carew. Free. in Chan. 74. Mo. 506. Ld. Buckhurst's
Clerk. Salk. 619. 7 Rep. 14.
So if I limit a use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former; as if I make a feoffment to the use of my wife that shall be, and my first begotten son for their lives, and I marry; my wife taketh the whole use, and if I afterwards have a son, he taketh jointly with my wife.
But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses; as if I infeoff A. to the use of B. for life, the remainder to C. for life, the remainder to the right heirs of B. this is a good remainder executed.
So if I infeoff A. to the use of his right heirs, A. is in the fee-simple, not by the statute, but by the common law.
Now are we to examine a special point of the disability of persons as take by the statute: and that upon the words of the statute, where divers persons are seised to the use of other persons; so that by the letter of the statute, no use is contained: but where the feoffor is one, and c stuy que use is another.
Therefore it is to be seen in what cases the same persons shall be both seised to the use and cestuy que use, and yet in by the statute; and in what cases they shall be diverse persons, VOL. III.-40
in by the common law wherein I observe unto you three things: First, that the letter is full in the point. Secondly, that it is strongly urged by the clause of joint estates following. Thirdly, that the whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate; therefore the statute ought to be expounded, that where the party seised to the use, and the cestuy que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use, to take effect by the common law.
As if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, then to the use of I. D. and his heirs, I. S. is in by the common law, and not by the statutes.
Like law is, if I give lands to I. S. and his heirs, to the use of himself for life or for years, and then to the use of I. D. and his heirs, I. S. is in of an estate for life, or for years, by way of abridgment of estate in course of possession, and I. D. in of the fee-simple by the statute.
3. Contr, the
So if I bargain and sell my land after seven years, the inheritance of the use only passeth; and there remains an estate for years by a kind of subtraction of the inheritance or reoccupier of my estate, but merely at the common law.
fee simple re
mains, per Id.
C.J Hae, in
Weale v. Low: er, Poll. 65, 66. and Gilb.
of infra. 2 Raym.
But if I infeoff I. S. to the use himself in tail, and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and then to the use of my wife in fee; in both these cases the estate tail is executed by this statute: because an estate tail cannot be reoccupied out of a fee-simple, being a new estate, and not like a particular estate for life or years, which are but portions of the absolute fee; and, therefore, if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail in me, nor vesteth any present fee in the bargain, but is a use expectant.
See Mr. Sun
den's remarks ed. Suzd. 162.
in Gib. V. & T.
So if I infeoff I. S. to the use of I. D. for life, and then to the use of himself and his heirs, he is in of the fee-simple merely in course of possession, and as of a reversion, and not of a remainder.
Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself for life, the remainder to the use of I. N. in fee: now the law will not admit fraction of estates; but I. S. is in with the rest by the statute.
So if I infeoff I. S. to the use of himself and a stranger, they shall be both in by the statute, because they could not take jointly, taking by several titles.
Like law, if I infeoff a bishop and Gilb. Us. 0 his heirs to the use of himself and his ed. Sugd. 19. successors, he is in by the statute in the right of his see.
And as I cannot raise a present use to one out 2 D
of his own seisin; so if I limit a contingent or future use to one being at the time of limitation no seised, but after become seised at the time of the execution of the contingent use, there is the same reason and the same law, and upon the same difference which I have put before.
son stands seised by force of any fine, recovery, feoffment, bargain and sale, agreement or otherwise; but yet the feme is to be restrained for the reason aforesaid.
deciare a use.
It remaineth to show what persons may limit and declare a use: wherein may lit and we must distinguish; for there are two kinds of declarations of uses, the one of a present use upon the first conveyance, the other upon a power of revocation or new declaration; the latter of which I refer to the division of revocation: now for the former.
The king upon his letters patent may declare a use, though the patent itself implieth a use, if none be declared.
As if I covenant with my son, that, after his marriage, I will stand seised of land to the use of himself and his heirs; and, before marriage, I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute; like law of a bargain and sale. But if I had let to him for life only, then he should have been in for life only by the common law, and of the fee-simple by the statute. Now let me advise you of this, that it is only a matter If the king gives lands by his letters patent to of subtilty or conceit to take the law right, when I. S. and his heirs, to the use of I. S. for life, the a man cometh in by the law in course of posses-king hath the inheritance of the use by implication sion, and where he cometh in by the of the patent, and no office needeth; for implicarial for de statute in course of possession; but it tion out of matter of record amounteth ever to matis natural for the deciding of many ter of record. causes and questions, as for warranties, actions, conditions, waivers, suspensions, and divers other provisos.
This learning ciding many questions.
For example; a man's farmer committed waste: after he in reversion covenanteth to stand seised to the use of his wife for life, and after to the use *of himself and his heirs; his wife dies; if he be in of his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it. So if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of myself for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; but if I be in by the common law, it is doubtful.
So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee, I. S. dieth. If I be in by the common law, I cannot waive my estate, having agreed to the feoffment; but if I am in by the statute, yet I am not remitted, because I come in by my own act: but I may waive my use, and bring an action presently; for my right is saved unto me by one of the savings in the statute.
Where there is a seisin to the use of another,
of the statute.
Now on the other side it is to be seen, where is a seisin to the use of and yet it is out another person; and yet it is out of the statute which is in special cases upon the ground, wheresoever cestuy que use had remedy for the possession by course of common law, there the statute never worketh; and therefore if a disseisin were committed to a use, it is in him by the common law upon agreement. So if one enter as occupant to the use of another, it is in him till disagreement.
So if a feme infeoff a man, causa matrimonii præioculi, she hath remedy for the land again by course of the law; and, therefore, in those special cases the statute worketh not; and yet the words of the statute are general, where any per
If the queen give land to I. S. and his heirs to the use of the churchwardens of the church of Dale, the patentee is seised to his own use, upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII., and the use had returned to the feoffor and his heirs. A corporation may take a use without deed, as hath been said before; but can limit no use without deed.
An infant may limit a use upon a feoffment, fine, or recovery, and he cannot countermand or avoid the use, except he avoid the conveyance: contrary, if an infant covenant in consideration of blood or marriage to stand seised to a use, the use is merely void.
If an infant bargain and sell his land for money, for commons or teaching, it is good with averment; if for money, otherwise; if it be proved it is avoidable; for money recited and not paid, it is void; and yet in the case of a man of full age the recital sufficeth.
If baron and feme be seised in the Vid. A. Beckright of the feme, or by joint purchase with's case, de during the coverture, and they join in fol. 57. a fine, the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone; but the use goeth, according to the limitation of law, unto the feme and her heirs: but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance as they concurred in; for the law accounteth all one, as if they joined; as if the baron and feme declare a use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs, ed. Sugd. 448, the use is good to I. S. in fee.
See Gilb. Us.
And if upon examination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law.
OFFICE OF CONSTABLES,
ORIGINAL AND USE OF
COURTS LEET, SHERIFF'S TURN, ETC.,
THE ANSWERS TO THE QUESTIONS PROPOUNDED
BY SIR ALEXANDER HAY, KNIGHT, TOUCHING THE Office of CONSTABLES.
A. D. 1608.
1. Question. WHAT is the original of constables? | and the petty constable is over the town or Answer. To the first question of the original of constables it may be said, caput inter nubila condit; for the authority was granted upon the ancient laws and customs of this kingdom practised long before the conquest, and intended and executed for conservation of peace, and repression of all manner of disturbance and hurt of the people, and that as well by way of prevention as punishment; but yet so, as they have no judicial power, to hear and determine any cause, but only a ministerial power, as in the answer to the seventh article is demonstrated.
As for the office of high or head constable, the original of that is yet more obscure; for though the high constable's authority hath the more ample circuit, he being over the hundred, and the petty constable over the village; yet I do not find that the petty constable is subordinate to the high Constable, or to be ordered or commanded by him; and therefore, I doubt, the high constable was not ab origine; but that when the business of the county increased, the authority of justices of peace was enlarged by divers statutes, and then, for conveniency sake, the office of high constable grew in use for the receiving of the commandments and prescripts from the justices of peace, and distributing them to the petty constables: and in token of this, the election of high constable in most parts of the kingdom is by the appointment of the justices of the peace, whereas, the election of the petty constable is by the people. But there are two things unto which the office of constables hath special reference, and which, of necessity, or at least a kind of congruity, must precede the jurisdiction of that office; either the things themselves, or something that hath a similitude or analogy towards them.
1. The division of the territory, or gross of the shires, into hundreds, villages, and towns; for the high constable is officer over the hundred,
2. The court-leet, unto which the constable is attendant and minister; for there the constables are chosen by the jury, there sworn, and there that part of their office which concerneth information is principally to be performed for the jury being to present offences and offenders, are chiefly to take light from the constable of all matters of disturbance and nuisance of the people: which they, in respect of their office, are presumed to have best and most particular knowledge of.
The jurisdiction of the court-leet is to three ends. 1. To take the ancient oath of allegiance of all males above twelve years.
2. To inquire of all offences against the peace; and for those that are against the crown and peace of both, to inquire of only, and certify to the justices of jail delivery; but those that are against the peace simply, they are to inquire of and punish.
3. To inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, ease of chaffer, and contract of all other things that may hurt or grieve the people in general, in their health, quiet, and welfare.
And to these three ends, as matters of policy subordinate, the court-leet hath power to call upon the pledges that are to be taken of the good behaviour of the resiants that are not tenants, and to inquire of all defaults of officers, as constables, ale-tasters, and the like: and likewise for the choice of constables, as was said.
The jurisdiction of these leets is either remain ing in the king, and in that case exercised by the sheriff in his turn, which is the grand leet, or granted over to subjects; but yet it is still the king's court.
2. Question. Concerning the election of constables?
Answer. The election of the petty constable, as was said, is at the court-leet by the inquest that make the presentments; and election of head constables is by the justices of the peace at their quarter sessions.
3. For matters of nuisance, disturbance, and disorder, although they be not accompanied with violence and breach of the peace.
First, for pacifying of quarrel begun, the constable may, upon hot words given, or likelihood of breach of the peace to ensue, command them in the king's name to keep peace, and depart, and forbear and so he may, where an affray is made
3. Question. How long is their office? Answer. The office of constable is annual, ex- part of the same, and keep the parties asunder, cept they be removed. and arrest and commit the breakers of the peace,
4. Question. Of what rank or order of men if they will not obey; and call power to assist are they? him for that purpose.
Answer. They be men, as it is now used, of inferior, yea, of base condition, which is a mere abuse or degenerating from the first institution; for the petty constables in towns ought to be of the better sort of resiants in the same; save that they be not aged or sickly, but of able bodies in respect of keeping watch and toil of their place; nor must they be in any man's livery. The high constables ought to be of the ablest freeholders, and substantialest sort of yeomen, next to the degree of gentlemen; but should not be incumbered with any other office, as mayor of a town, under-sheriff, bailiff, &c.
5. Question. What allowance have the constables?
Answer. They have no allowance, but are bound by duty to perform their office gratis ; which may the rather be endured because it is but annual, and they are not tied to keep or maintain any servants or under-ministers, for that every one of the king's people within their limits are bound to assist them.
6. Question. What if they refuse to do their office?
Answer. Upon complaint made of their refusal to any one justice of peace, the said justice may bind them over to the sessions, where, if they cannot excuse themselves by some allegation that is just, they may be fined and imprisoned for their contempt.
7. Question. What is their authority or power? Answer. The authority of the constable, as it is substantive, and of itself, or substituted, and astricted to the warrants and commands of the justices of the peace; so again it is original, or additional for either it was given them by the common law, or else annexed by divers statutes. And as for subordinate power, wherein the constable is only to execute the commands of the justices of peace, likewise the additional power which is given by divers statutes, it is hard to comprehend in any brevity; for that they do correspond to the office and authority of justices of peace, which is very large, and are created by the branches of several statutes: but for the original and substantive power of constables, it may be reduced to three heads; namely,
1. For matter of peace only. 2. For peace and the crown.
For punishment of breach of peace past, the law is very sparing in giving any authority to constables because they have not power judicial, and the use of his office is rather for preventing or staying of mischief, than for punishment of offences; for in that part he is rather to execute the warrants of the justices; or when sudden matter ariseth upon his view, or notorious circumstances, to apprehend offenders, and to carry them before the justices of peace, and generally to imprison in like cases of necessity, where the case will not endure the present carrying of the party before the justices. And so much for peace.
Secondly, for matters of the crown, the office of the constable consisteth chiefly in these four parts:
1. To arrest.
2. To make hue and cry. 3. To search.
4. To seize goods.
All which the constable may perform of his own authority, without any warrant from the justices of the peace.
1. For, first, if any man will lay murder or felony to another's charge, or do suspect him of murder or felony, he may declare it to the constable, and the constable ought, upon such declaration or complaint, to carry him before a justice of peace; and if by common voice or fame any man be suspected, the constable of duty ought to arrest him, and bring him before a justice of peace, though there be no other accusation or declaration.
2. If any house be suspected for receiving or harbouring of any felon, the constable, upon complaint or common fame, may search.
3. If any fly upon the felony, the constable ought to raise hue and cry.
4. And the constable ought to seize his goods. and keep them safe without impairing, and in ventary them in presence of honest neighbours.
Thirdly, for matters of common nuisance and grievances, they are of very variable nature, according to the several comforts which man's life and society requireth, and the contraries which infest the same.
In all which, be it a matter of corrupting air, water, or victuals, stopping, straightening, or endangering of passages, or general deceits in
appoint a deputy, or in default thereof, the steward of the court-leet may; which deputy ought to be sworn before the said steward.
The constable's office consists in three things: 1. Conservation of the peace.
weights, measures, size 3, or counterfeiting wares, and things vendible; the office of constable is to give as much as in him lies, information of them, and of the offenders, in leets, that they may be presented; but because leets are kept but twice in the year, and many of those things require present and speedy remedy, the constable, in things notorious and of vulgar nature, ought to forbid and repress them in the mean time: if not, of the Jurisdiction of Justices itinerant in the Prin
they are for their contempt to be fined and im-
2. Serving precepts and warrants
3. Attendance for the execution of statutes.
cipality of Wales.
1. They have power to hear and determine all criminal causes, which are called, in the laws of England, pleas of the crown; and herein they have the same jurisdiction that the justices have in the court of the King's Bench.
"You shall swear that you shall well and truly serve the king, and the lord of this law-day; and you shall cause the peace of our sovereign lord the king well and truly to be kept to your power: and you shall arrest all those that you see committing riots, debates, and affrays in breach of peace and you shall well and truly endeavour yourself to your best knowledge, that the statute of Winchester for watching, hue and cry, and the statutes made for the punishment of sturdy beggars, vagabonds, rogues, and other idle persons coming within your office be truly executed and the offenders be punished: and you shall endeavour, upon complaint made, to apprehend barreters and riotous persons making affrays, and likewise to apprehend felons; and if any of them make resistance with force, and multitude of misdemeanours, you shall make outcry, and pursue them till they be taken; and shall look unto such persons as use unlawful games; and you shall have regard unto the maintenance of artillery; and you shall well and truly execute all process and precepts sent unto you from the justices of the peace of the county; and you shall The marshal's office is to attend the make good and faithful presentments of all blood-persons of the judges at their coming, sheds, outcries, affrays, and rescues made within sitting, and going from their sessions sition. your office and you shall well and truly accord ing to your own power and knowledge, do that which belongeth to your office of constable to do, for this year to come. So help," &c.
2. They have power to hear and determine all civil causes, which in the laws of England are called common pleas, and to take knowledge of all fines levied of lands or hereditaments, without suing any dedimus potestatem; and herein they have the same jurisdiction that the justices of the Common Pleas do execute at Westminster.
3. They have power also to hear and determine all assizes upon disseisin of lands or hereditaments, wherein they equal the jurisdiction of the justices of assize.
4. Justices of oyer and terminer therein may hear all notable violences and outrages perpetrated within their several precincts in the said principality of Wales.
9. Question. What difference is there betwixt the high constables and petty constables?
Answer. Their authority is the same in substance, differing only in the extent; the petty constable serving only for one town, parish, or borough, the head constable for the whole hundred nor is the petty constable subordinate to the head constable for any commandment that proceeds from his own authority; but it is used, that the precepts of the justices be delivered unto the high constables, who, being few in number, may better attend the justices, and then the head constables, by virtue thereof, make their precepts over to the petty constables.
10. Question. Whether a constable may appoint a deputy?
Answer. In case of necessity a constable may
The prothonotary's office is to draw These offices are all pleadings, and entereth and engros- in the king's gift. seth all the records and judgments in all trivial causes.
The clerk of the crown, his office is to draw and engross all proceedings, arraignments, and judgments in criminal causes.
These offices are in the
The crier is, tanquam publicus præco, to call for such persons whose appearances are necessary, and to impose silence to the people.
The office of jus tice of peace.
The Office of Justice of Peace. There is a commission under the great seal of England to certain gentlemen, giving them power to preserve the peace, and to resist and punish all turbulent persons, whose misdemeanors may tend to the disquiet of the people; and these be called justices of the peace, and every of them may well and truly be called eirenarcha.
The chief of them is called custos rotulorum, in whose custody all the records of their proceedings are resident.
Others there are of that number called justices of peace and quorum, because in their commission they have power to sit and determine causes concerning breach of peace and misbeha