Imágenes de páginas

life, the remainder to the use of baron and feme, and lessee for life die, now the feme is remitted, causa qua supra.

Also, if the heir of the disseisor make a lease for life, the remainder to the disseisee, who chargeth the remainder, and lessee for life dies, the disseisee is not remitted; and the reason is, his intermeddling with the wrongful remainder, whereby he hath affirmed the same to be in him, and so accepted it: but if the heir of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and the lessee for life had died, the disseisee had been remitted; because there appeareth no assent or acceptance of any estate in the freehold, but only of a collateral charge.

6 Ed. 3. 4.

So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendering rent, and dieth, leaving a son Cod. 3. 67. by the same feme, and the son accepts the rent of the lessee for life, and then the feme dies, and the lessee for life dies, the son is not remitted; yet the frank tenement was cast upon him by act in law, but because he had agreed to be in the tortious reversion by acceptance of the rent, therefore no remitter.

24 H. 8. pl. 207.

So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life dies, yet the issue is not remitted: and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died, notwithstanding his taking of the profits, he had been remitted; for that which guides the remitter, is, if he be once in of the freehold without any laches: as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies, this is a remitter, causa qua supra.

Lit. pl 3. 6.

Also, if tenant in tail discontinue for life, and take a surrender of the lessee, now he is remitted and seised again by force of the tail, and yet he cometh in by his own act: but this case differeth from all other cases; because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law; and, therefore, is but, as it were, ab initio, with a limitation to determine whensoever the particular discontinuance endeth, and the estate cometh back to the ancient right.

selves in property, and upon a plea of fully administered it shall be allowed: and the reason is, because it may be matter of necessity for the well administering of the goods of the testator, and executing their trust, that they disburse money of their own: for else perhaps the goods would be forfeited, and he that had them in pledge would not accept other goods but money, and so it is a liberty which the law gives them, and they cannot have any suit against themselves; and, therefore, the law gives them leave to retain so much goods by way of allowance; and if there be two executors, and one of them pay the money, he may likewise retain against his companion, if he have notice thereof.

But if there be an overplus of goods, 3 Eliz. 187. above the value of that he shall dis- pl. 6. burse, then ought he by his claim to determine what goods he doth elect to have in value; or else before such election, if his companion do sell all the goods, he hath no remedy but in spiritual court: for to say he should be tenant in common with himself and his companion pro rata of that he doth lay out, the law doth reject that course for intricateness.

7. in fine. 22 Ass

52 F.

Rec. in value 23.

So if I. S. have a lease for years 29 H. 8. pl. worth twenty pounds by the year, and grant unto I. D. a rent of ten pounds a year, and after make him my executor; now I. D. shall be charged with assets ten pourds only, and the other ten pounds shall be allowed and considered to him: and the reason is, because the not refusing shall be accounted no laches to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use.

Like law is, where the debtor makes the debtee his executor, the debt shall be considered in the assets, notwithstanding it be a thing in action.

12 H. 4. 22.

d 37 H. 6. 32.

2 H. 7. 5.

Lit. pl. 352.

So if I have a rent charge, and grant 6 E. 6. Cond. that upon condition, now though the 133.6. condition be broken, the grantee's estate is not defeated till I have made my claim; but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim: but if I had purchased the land myself then I had extincted my own condition, because I had disabled myself to make my claim: and yet a condition collateral is not sus- 20 H. 7. per pended by taking back an estate; as if H I make a feoffment in fee, upon condi- Barr. 162. tion that I. S. shall marry my daughter, and take a lease for life from my feoffee, 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 other cutors do redeem goods pledged by their testator with their own money, the law doth convert so much goods as doth amount to the 6 H. 8. pl. 3. value of that they laid forth, to themVOL. III.-30

35 H. 6. Fitz.

wise, for if I have a rent charge issuing out of twenty acres, and grant the rent over upon condition, and purchase but one acre, the whole con ditior is extinct, and the possibility of the rent,

U 2

30 H. 6. Fitz. Grants 91.

So if the king grant to me the wardship of I. S. the son and heir of I. S. when it falleth; because an action of covenant lieth not against the king, I shall have the thing myself in interest.

45 Ed. 3. 10.

by 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 that he should present all the turns, and his incumbent but to have a moiety of the profits, nor yet the act of impropriation shall not be defeated. But as if two tenants in common be of 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 inupon 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 disduced without demand: and the reason seisee release to the second disseisor upon condi7 H. 6. 40. of difference is because my condition|tion, and a descent be cast, and the condition bro

in this case is not taken away in right, but only suspended by the privilege of the possession: for if the king grant the lease over, the condition is revived as it was.

Also, if my tenant for life grant his estate to the king, now if I will grant my reversion over, the king is not compellable to atturn, therefore, it shall pass by grant, by deed without atturn


9 Ed. 2. Fi'z.


So if my tenant for life be, and I Auruments, grant my reversion pur autre vie, and the grantee die, living cestui que vie, now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment. Quod nota.

So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the king, now because the king cannot be attendant, my nomination is turned to an absolute patronage.

6 Ed. 6. Dy. 72.

So if a man be seised of an advowson, and take a wife, and after title of dower given, he join in impropriating the church, and dieth; now because the feme cannot have the turn, because of the perpetual incumbency, she shall have all the turns during her life; for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple.

ken; now the mean disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger.

fuit resoli

Trott's case,

But if I devise land by the statute 41 E. 3. 10. of 32 H. VIII. and the heir of the de- letrary visor enters and makes a feoffment in in fee, and feoffee dieth seised, this de- pa 32 Eliz scent bindeth, and there shall not be a perpetual liberty of entry, upon the reason that he never had seisin whereupon he might ground his action, but he is at a mischief by his own laches: and the like law of the king's patentee; for I see no reasonable difference between them and him in the remainder, which is Littleton's case.

in Com. Banen, and Pa. 1. Jac. ib. vide 7. R. 2.

But note, that the law by operation 41 E. 3. 14. per and matter in fact will never counter- Finchden. vail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall never be remitted, no more shall I be unto an attaint, except I may also have a writ of right.

So if upon my avowry for services, 25 H. 8. my tenant disclaim where I may have Dy. L. 7. a writ of right as upon disclaimer, if the land after descend to me, I shall never be remitted.


vel persona.

But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, Verba generalia restringuntur ad habilitatem rei now the grantee is without remedy, for he took his grant subject to that mischief at the first: and therefore, it was his laches, and therefore not like the case of the dower; and this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis upon a tenancy in common of the advowson; for if two tenants in common be, and a usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be, that because tenants in common ought to join in presentments, which

*Vide contra, 2 E 3. fol. 8. Que presentmét del feme l'ad

vowson est deveign disimpropriate a touts jours quel est agree in sur Cok. Rep. 7. fo. 8. a.

It is a rule that the king's grants shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; yet, with this exception, that they shall never be taken to an impertinent or a repugnant intent: for all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person. As if I grant common in omnibus terris meis in D. and I have in D. both open grounds and several, it shall not be stretched to my common in several, much less in my gar

dens and orchards.

Perk pl. 108.

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41 Ed. 3. 6. et 19.

So if I grant to I. S. an annuity of ten pounds a year pro consilio impenso et impendendo, if I S. be a physician, it shall be understood of his counsel in physic; and if he be a lawyer, of his counsel in law.

So if I do let a tenement to I. S. near by my dwelling-house in a borough, provided that he shall not erect or use any shop in the same without my license, and afterwards I license him to erect a shop, and I. S. is then a miller, he shall not, by virtue of these general words, erect a joiner's shop.

26 E. 337. Dy.

16 Eliz. 337. Dyer.

So the statute of chantries, that willeth all lands to be forfeited, given or employed to a superstitious use, shall not be construed of the glebe lands of parsonages: nay farther, if the lands be given to the parson of D. to say a mass in his church of D. this is out of the statute, because it shall be intended but as augmentation of his glebe; but otherwise it had been, if it had been to say a mass in any other church than his own.

So in the statute of wrecks, that willeth that goods wrecked where any live domestical creature remains in the vessel, shall be preserved and kept to the use of the owner that shall make his claim by the space of one year, doth not extend to fresh victuals or the like, which is impossible to keep without perishing or destroying it; for in these and the like cases general words may be taken, as was said, to a rare foreign intent, but never to an unreasonable intent.

36 H. 6. 57,58, 21 Ed. 3. 17.


Jura sanguinis nullo jure civili dirimi possunt. THEY be the very words of the civil law, which cannot be amended, to explain this rule, hæres est nomen juris, Filius est nomen naturæ: therefore corruption of blood taketh away the privity of the one, that is, of the heir, but not of other, that is, of the son; therefore if a man be attainted and be murdered by a stranger, the eldest son shall not have appeal, because the appeal is given to the heir, for the youngest sons who are equal in blood shall not have it; but if an attainted person be killed by his son, this is petty treason, for that the privity of a son remaineth: for I admit the law to be, that if the son kill his father or mother it is petty treason, and that there remaineth so much in our laws

Lamb. Jus p. 293. Fitz. crown. 447.

add, because some have sought to weaken the law in that point.

So if land descend to the eldest son of a person attainted from his ancestor of the mother held in knight's service, the guardian shall F. N. Br. fo. enter, and oust the father, because the 143. De Droit. law giveth the father that prerogative in respect he is his son and heir; for of a daughter or a special heir in tail he shall not have it but if the son be attainted, and the father covenant in consideration of natural love to stand seised of land to his use, this is good enough to raise a use, because the privity of a natural affection remaineth. So if a man be attainted and have charter of pardon, and be returned of a jury between his son and I. S. the challenge remaineth; so may he maintain any suit of his son, notwithstanding the blood be corrupted.

26 E. 337. Dy.

So by the statute of 21 H. VIII. the ordinary ought to commit the administration of his goods that was attainted and purchase his charter of pardon, to his children, though born before the pardon, for it is no question of inheritance: for if one brother of the half blood die, the 5 Ed. 6. Adm. administration ought to be committed 47. to his other brother of the half blood, if there be no nearer by the father.

33 H. 65.

So if the uncle by the mother be attainted, and pardoned, and land descend from the father to the son within age held in socage, the uncle shall be guardian in socage; for that savoureth so little of the privity of heir, as the possibility to inherit shutteth not.

5 Ed. 4. 50.

But if a feme tenant in tail assent to the ravisher, and have no issue, and her cousin is attainted, and pardoned, and purchaseth the reversion, he shall not enter for a forfeiture. For though the law giveth it not in point of inheritance, but only as a perquisite to any of the blood, so he be next in estate; yet the recompense is understood for the stain of his blood, which cannot be considered when it is once wholly corrupted before.

So if a villain be attainted, yet the lord shall have the issues of his villain born before or after the attainder; for the lord hath them jure naturæ but as the increase of a flock.

Query, Whether if the eldest son be F. N. Br. 82. G. attainted and pardoned, the lord shall Register, fol.87. have aid of his tenants to make him a knight, and it seemeth he shall; for the words of the writ hath filium primogenitum, and not filium et hæredem, and the like writ hath pur file marrier who is no heir.


of the ancient footsteps of potestas patriæ and Receditur à placitis juris, potius quàm injuriæ et

natural obedience, which by the law of God is the very instance itself; and all other government

delicta maneant impunita.

THE law hath many grounds and positive and obedience is taken but by equity, which I learnings, which are not of the maxims and com

Fitz Corone.

25. 6. Stamf

4. M. c.

So it is a ground of the law, that the appeal of murder goeth not to the heir 459 where the party murdered hath a wife, lib. 2. nor to the younger brother where there is an elder; yet if the wife murder her husband, because she is the party offendor, the appeal leaps

clusions of reason; but yet are learnings received with the law, set down, and will not have called in question; these may be rather called placita juris than regulæ juris; with such maxims the law will dispense, rather than crimes and wrongs should be unpunished, quia salus populi suprema lex; and salus populi is contained in the repress-over to the heir; and so if the son and heir muring offences by punishment.

Fitz, N. B. 30.

Therefore if an advowson be granted to two, and the heirs of one of them, and a usurpation be had, they both shall join in a writ of right of advowson; and yet it is a ground in law, that a writ of right lieth of no less estate than of a fee-simple: but because the tenant for life hath no other several action in the law given him, and also that the jointure is not broken, and so the tenant in fee-simple cannot bring his writ of right alone; therefore rather than he shall be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate.

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der his father, it goeth to the second brother.

But if the rule be one of the higher sort of maxims that are regulæ rationales, and not positive, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.

As it is a rule that penal statutes Cap. 12. Stamf shall not be taken by equity, and the 2. fol. 125, statute of 1 Ed. VI. enacts that those that are attainted for stealing of horses shall not have their clergy, the judges conceived, that this did not extend to him that stole but one horse, and therefore procured a new act for it, 2 Ed. VI. cap. 33. And they had reason for it, Plow. 467.

Ed. 3. 31.

as I take the law; for it is not like the Litt cap. 46,
case upon the statute of Glocest. that
gives an action of waste agaiast him that holds
pro termino vitæ vel annorum. It is true, if a man
hold but for a year he is within the statute; for it
is to be noted, that penal statutes are taken strictly
and literally only in the point of defining and
setting down the fact and the punishment, and in
those clauses that do concern them; and not
generally in words that are but circumstances and
conveyance in the putting of the case: and so see
the diversity; for if the law be, that for such an
offence a man shall lose his right hand, and the
offender hath had his right hand before cut off in
the wars, he shall not lose his left hand, but the
crime shall rather pass without the punishment
which the law assigned, than the letter of the law
shall be extended; but if the statute of 1 Ed. VI.
had been, that he that should steal a horse should
be ousted of his clergy, then there had been no
question at all, but if a man had stolen more
horses than one, but that he had been within the
statute, quia omne majus continet in se minus.


Non accipi debent verba in demonstrationem falsam
quæ competunt in limitationem veram.
THOUGH falsity of addition or demonstration
doth not hurt where you give the thing the proper
name, yet nevertheless if it stand doubtful upon
the words, whether they import a false reference
and demonstration, or whether they be words of
restraint that limit the generality of the former
name, the law will never intend error or falsehood.
And, therefore, if the parish of Hurst
do extend into the counties of Wilt
shire and Berkshire, and I grant my
close called Callis, situate and lying
in the parish of Hurst in the county of Wiltshire

12 Eliz. 21.

liver, 291. 378. Dy, 56.

2 Eliz Dv.

and the truth is, that the whole close lieth in the county of Berkshire; yet the law is, that it passeth well enough, because there is a certainty sufficient in that I have given it a proper name which the false reference doth not destroy, and not upon the reason that these words, "in the county of Wiltshire," shall be taken to go to the parish only, and so to be true in some sort, and not to the close, and so to be false: for if I had granted omnes terras meas in parochia de Hurst in com. Wiltshire, and I had no lands in Wiltshire but in Berkshire, nothing had past.

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29 Reg.

me such a lease, that then the same obligation shall be void, and you enter into such an obligation unto me, and afterwards do procure such a lease, yet the obligation is simple, because the defeisance was made of that which was not

27 EL. 3.

So if I grant unto you a rent charge out of white acre, and that it shall be lawful for you to distrain in all my other lands whereof I am now seised, and which I shall hereafter purchase; although this be but a liberty of distress, and no rent, save only out of white acre, yet as to the lands afterwards to be purchased the clause is void.

So if a reversion be granted to I. S. 29 Ed. 3. 6 and I. D. a stranger by his deed do 24 Eliz.

estate, he will atturne to the grant, this is a void atturnment, notwithstanding he doth afterwards purchase the particular estate.

But of declarations the law is con

13, 14 Eliz.

25 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 meas in tenura I. D. quas perquisivi de I. N. in indentura dimissionis fact' I. B. specificat. If I have land wherein some of these references are 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 feoffment; 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 charter; but because a deed of feoffment is but matter of declaration and evidence, and M. 38. et there is a new act which is the livery 39 Eliz subsequent, therefore it is good in law. So if a man make a feoffment to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney accordingly, and both those deeds of feoffment and letters of attorney are delivered at a tine, so that the second deed of feoffment and letters of attorney are delivered when the first feoffee had nothing in the land; and yet if both liveries be made accordingly, all is good.

But if I have some land wherein all these demonstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation to pass only those lands wherein all those circumstances are true.


Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedens quæ sortiatur effectum interveniente novo actu.

THE law doth not allow of grants except there be a foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or encumber that which is no interest at all, but merely future.

But of declarations precedent before any interest vested the law doth allow, but with this difference, so that there be some new act or conveyance to give life and vigour to the declaration precedent.

Now the best rule of distinction between grants and declarations is, that grants are never countermandable, not in respect of the nature of the conveyance or instrument, though sometime in respect of the interest granted they are, whereas declarations evermore are countermandable in their natures.

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36 Eliz.

So if I covenant with I. S. by indenture, that before such a day I will purchase the manor of D. and before the same day I will levy a fine of the same land, and that the same fine shall be to certain uses which I express in the same indenture; this indenture to lead uses being but matter of declaration, and countermandable at my pleasure, will suffice, though the land be purchased after; because there is a new act to be done, viz. the fine.

25 Eli: 27 Eliz.

But if there were no new act, then otherwise it is; as if I covenant with my son in consideration of natural love, to stand seised unto his use of the lands which I shall afterwards purchase, yet the use is void and the reason is, because there is no new act, nor transmutation of possession following to perfect this inception; for the use must be imited by the feoffor, and not the feoffee, and he had nothing t the time of the covenant.

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